In June, 1973, we decided that the plaintiff Eleanor G. Ryan had attained tenure and that her dismissal by the defendants without compliance with G.L.c. 71, § 42, was unlawful. The school committee was therefore ordered to reinstate her. Ryan v. Superintendent of Schools of Quincy, 363 Mass. 731 (1973). We specifically stated that the record was "not sufficient to permit a decision on the right of the petitioner to compensation for the period since the expiration of her last annual contract...." Ryan, supra
The case was referred to a master,
The plaintiff filed a motion to review the evidence, a claim of jury trial, and a motion to strike the master's report. The defendants filed objections to the master's report. The parties then agreed that the case should be decided by the judge jury waived on the basis of the master's report, the entire testimony taken before the master, the objections of the parties to the master's report, and the memoranda and argument of counsel. The trial judge concluded that it would have been virtually impossible for Ryan to obtain employment of a similar nature and awarded as damages all Ryan's lost wages for the school years 1968-1973. Thus the judge drew an ultimate conclusion different from the one drawn by the master. For the reasons stated in this opinion, we decide that the trial judge reached the correct result.
1. Applicability of mitigation doctrine. The plaintiff-appellee first argues in support of the result reached by the judge that the rule of mitigation of damages is not applicable to an action of a tenured teacher seeking compensation in the form of lost wages under G.L.c. 71, § 43A, when the teacher seeks not only reinstatement under G.L.c. 71, § 42,
The general rule is that "[w]here one is under contract for personal service, and is discharged, it becomes his duty to dispose of his time in a reasonable way, so as to obtain as large compensation as possible, and to use honest, earnest and intelligent efforts to this end." Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 6 (1908). McKenna v. Commissioner of Mental Health, 347 Mass. 674, 675-676 (1964). This general principle is applicable to public employees who are reinstated after having been unlawfully discharged. Police Comm'r of Boston v. Ciccolo, 356 Mass. 555 (1969). McKenna v. Commissioner of Mental Health, supra. Moreover, G.L.c. 71, § 43A,
The plaintiff's argument that the principle of mitigation of damages should not apply in this case thus reduces itself to the contention that the seeking of a determination of tenure status in connection with seeking reinstatement should preclude the application of the mitigation principle. However, we see no reason why the general rule of mitigation should not be applicable when this additional factor is present. A request for a determination of tenure status adds nothing of sufficient substance to distinguish a case in which both reinstatement and a tenure determination are sought from one in which only reinstatement is sought. In the present case, the determination of tenure status was a prerequisite to a finding that the plaintiff was unlawfully discharged and thus entitled to reinstatement. If tenure status is disputed in a case in which it is not a prerequisite to a
2. Application of mitigation doctrine. The burden of proof on the issue of mitigation of damages is on the employer. McKenna v. Commissioner of Mental Health, 347 Mass. 674, 677 (1964). "A former employer meets its burden of proof of `mitigation of damages' if the former employer proves that (a) one or more discoverable opportunities for comparable employment were available in a location as convenient as, or more convenient than, the place of former employment, (b) the improperly discharged employee unreasonably made no attempt to apply for any such job, and (c) it was reasonably likely that the former employee would obtain one of those comparable jobs." Black v. School Comm. of Malden, 369 Mass. 657, 661-662 (1976).
When a master sets forth the subsidiary facts on which he based his ultimate conclusion, the trial court and the reviewing court have the duty to draw their own inferences
The master found that Ryan had not applied for any teaching positions during the time she was not employed by the Quincy public school system. This fact alone, however, is not sufficient to establish that the employee could have mitigated damages. McKenna v. Commissioner of Mental Health, supra at 677.
The central dispute in this case concerns whether it was reasonably likely that Ryan could have obtained a comparable job.
The master's subsidiary findings indicate that on a nationwide basis the supply of art teachers on the secondary level was 5,744 in 1973; while the demand for such teachers was 2,478. In 1968 the supply of elementary art teachers exceeded demand by 2,017. In 1969 this excess was 2,268; in 1970, 2,706; in 1971, 3,678; in 1972, approximately 4,000. In the Quincy school system from September, 1969,
The master found that references were an important factor in hiring decisions in Quincy and its neighboring towns. Walter Lunsman, the director of the art department in Quincy, had written a letter to Ryan expressing his opinion that her work was below the minimal expectations of the Quincy school system. He also found that in 1968 Lunsman told Ryan that the position which she had filled was being changed to a full time position and that he was not recommending her for that position. After Ryan's reinstatement, the Quincy school committee considered holding a hearing to determine whether there was cause to dismiss her.
The master also found that age, although not by itself a factor in hiring decisions, would be considered by Quincy and its neighboring communities in making hiring determinations. In 1968 Ryan was fifty-nine years old.
These subsidiary findings by the master clearly show that there was a limited and competitive market for art teaching positions. Lunsman's opinion of Ryan's work, his failure to recommend her for the full time position, and the school committee's intention to discharge her for cause lead to the reasonable inference that she would not have received favorable
Since we so conclude and since there is no claim that the teaching positions and the communities considered did not constitute the total market of comparable jobs, we need not decide the exact factors which would make a particular job "comparable" to Ryan's previous employment. However, we specifically hold that nontenured positions are "comparable" to tenured positions for the purpose of mitigating damages. Any other conclusion would render the requirement of mitigation inapplicable to tenured employees, a result which we have declined to reach.
The subsidiary findings warrant a conclusion that the defendants did not sustain their burden of proving that it was "reasonably likely that the former employee would obtain one of those comparable jobs." Black v. School Comm. of Malden, 369 Mass. 657, 662 (1976). Ryan, therefore, is entitled to receive as compensation the amount of wages which she would have received had she been employed in the Quincy school system from September, 1968, to September, 1973.
The defendants also object to the nature of the judge's review of the master's report. We have considered this claim and find that there was no error. Since we have concluded that the judge was warranted in reaching his ultimate conclusion, no point would be served by an extended discussion of the defendants' contention.