Two Retired Boston Firefighters Won't Get Comp Time Afterall

Retired city firefighters who were awarded close to $300,000 and $200,000 for unused comp time have now lost their case against the city.

Gerard Fontana and John Walsh sued the City of Boston for breach of contract and violating the Wage Act after they retired from the Boston Fire Department in 2020 as BFD’s chief of field services (Fontana) and BFD’s chief of support services (Walsh).

When they retired, the city paid Fontana $239,162 and Walsh $170,486 — primarily for their unused personal, sick, and vacation time.

But they also sued the city in Suffolk Superior Court, and argued that they were owed for unused compensatory time.

Fontana claimed that the city owed him an additional $70,083, and Walsh calculated that the city owed him $55,328.

A judge agreed with the retired jakes, doubled damages, and awarded $298,102 (which included interest and attorney’s fees) to Fontana, and $196,367 (which included interest) to Walsh for their unpaid comp time.

However, a Massachusetts Appeals Court has now ruled in favor of the Hub, finding that the city did not owe the retired firefighters any money for unused comp time.

“The summary judgments that entered in favor of the plaintiffs on their claims for breach of contract and violation of the Wage Act are reversed,” the Appeals Court wrote in its Tuesday ruling. “The case is remanded for entry of summary judgment in favor of the city.”

The leave category for unused comp time “constituted a mere end product of a formula used to redeem unused vacation time,” the court wrote.

The retired firefighters received both cash payments and comp time for the unused vacation days, the court noted.

“That they amassed a bank of compensatory time that they never used does not entitle them to convert that unused time into cash,” the Appeals Court added.

The city did not violate the Wage Act, the court ruled.

The Wage Act statute is designed to combat “unscrupulous employers” who violate the statute “by withholding earned wages.”

The statute requires payment of “wages earned,” “holiday or vacation payments,” and in some circumstances, “commissions.” The statute doesn’t mention comp time.

“… The plaintiffs did not ‘complete’ any labor, service, or performance that was required of them and would entitle them to additional payment beyond the cash already received for the unused vacation time,” the court wrote.

Fontana and Walsh are still doing well in retirement. Their annual pensions are $190,764 and $157,836, respectively.

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