NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
25-P-352 Appeals Court
GERARD FONTANA & another1 vs. CITY OF BOSTON.
No. 25-P-352.
Suffolk. November 17, 2025. – June 2, 2026.
Present: Hershfang, Hodgens, & Smyth, JJ.
Massachusetts Wage Act. Contract, Performance and breach. Municipal Corporations, Fire department. Fire Fighter, Retirement. Public Employment, Retirement benefits, Compensatory time, Vacation pay. Retirement. Statute, Construction. Practice, Civil, Summary judgment.
Civil action commenced in the Superior Court Department on October 5, 2020.
The case was heard by Mary K. Ames, J., on motions for summary judgment, and entry of judgment was ordered by Joshua I. Wall, J.
Neil R. Janulewicz, Jr., Assistant Corporation Counsel, for the defendant. Paul K. Flavin for the plaintiffs.
HODGENS, J. Following retirement from the Boston fire
department, the plaintiffs, Gerard Fontana and John F. Walsh,
1 John F. Walsh. 2
filed a complaint in the Superior Court against the city of
Boston (city) including claims for breach of contract and
violation of G. L. c. 149, § 148 (Wage Act). On cross motions
for summary judgment, a judge allowed the plaintiffs' motion on
these claims, and the city appeals. We reverse.
Before retiring in 2020, the plaintiffs worked in nonunion,
salaried positions as chief of field services (Fontana) and
chief of support services (Walsh). Upon separation of
employment through retirement, the city paid Walsh $170,486.26
and paid Fontana $239,162.99, primarily for their unused
personal, sick, and vacation time. Represented by the same
counsel, the plaintiffs filed a single complaint and alleged
that they were also owed for unused "compensatory time." Walsh
calculated that the city owed him an additional $55,328.70, and
Fontana claimed that the city owed him an additional $70,083.02.
A different judge agreed with the plaintiffs, doubled damages,
and awarded $298,102.29 (which included interest and attorney's
fees) to Fontana and $196,367.14 (which included interest) to
Walsh for their unpaid compensatory time.
Upon de novo review, see Hasseltine House, LLC v. Jewish
Family & Children's Servs., Inc., 106 Mass. App. Ct. 30, 33
(2025), we conclude that the city did not owe the plaintiffs any
money for unused compensatory time. This leave category
constituted a mere end product of a formula used to redeem 3
unused vacation time. The parties agree that a two-page
document entitled, "Essential Duties and Compensation Schedule,"
governed the plaintiffs' compensation. That document provided
for the potential conversion of unused vacation time through a
multistep, conditional formula entitled, "Annual Vacation
Redemption." The first step limited redemption eligibility to
chiefs with at least one year of service; the second step
converted up to ten days of unused vacation time into cash; the
third step converted that same unused vacation time into
compensatory time; and the fourth step permitted the newly
created compensatory time to be "carried over at the end of the
calendar year upon written approval of the Fire Commissioner."
The upshot of this municipal alchemy is that each year, eligible
chiefs had the option to convert ten unused vacation days into
both cash and ten days of a leave category called "compensatory
time." Availing themselves of this conversion option at the
time of retirement (and obtaining omnibus, retroactive approval
from the fire commissioner to carry over their annual unused
compensatory time), the plaintiffs received, as agreed, both
cash payments and compensatory time for the unused vacation
days. That they amassed a bank of compensatory time that they
never used does not entitle them to convert that unused time
into cash. Given our conclusion, we need not address the city's
additional arguments, including that the plaintiffs were not 4
permitted to obtain retroactive approval to carry over
compensatory time.
We see nothing in the "Essential Duties and Compensation
Schedule" that envisions, let alone requires, such a second
conversion of unused compensatory time into cash. As to the
possibility of such a second conversion, that document is not
ambiguous, as the plaintiffs contend, but "simply silent."
Marcelle, Inc. v. Sol & S. Marcus Co., 274 Mass. 469, 474
(1931). Silence alone is not ambiguity. "There is no room for
the construction of doubtful words, for there are no words
whatever." Id. at 474-475. Where the parties have not reached
an agreement on the subject of a second conversion of unused
time into cash, "[i]t is not the role of the court to alter the
parties' agreement." Rogaris v. Albert, 431 Mass. 833, 835
(2000). See 11 R.A. Lord, Williston on Contracts § 31:5 (4th
ed. 2012) ("it is not the function of the judiciary to change
the obligations" agreed on by parties).
We also discern no Wage Act violation. That statute is
designed to combat "unscrupulous employers" who violate the
statute "by withholding earned wages." Calixto v. Coughlin, 481
Mass. 157, 160 (2018), quoting Segal v. Genitrix, LLC, 478 Mass.
551, 560 (2017). See G. L. c. 149, § 148. The statute requires
payment of "wages earned," "holiday or vacation payments," and
in some circumstances, "commissions." G. L. c. 149, § 148. The 5
statute is silent as to compensatory time, and "ordinarily we
will not add language to a statute where the Legislature itself
has not done so." Tze-Kit Mui v. Massachusetts Port Auth., 478
Mass. 710, 712 (2018).
Beyond the absence of any express language in the statute,
the formula used here to conjure both cash and compensatory time
out of unused vacation time did not create "wages earned."
G. L. c. 149, § 148. The compensatory time arose from a
synthesis of unused vacation time, not from any required "labor,
service, or performance" (citation omitted). Awuah v. Coverall
N. Am., Inc., 460 Mass. 484, 492 (2011). Moreover, 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. Massachusetts State Police Commissioned
Officers Ass'n v. Commonwealth, 462 Mass. 219, 226 (2012),
quoting Awuah, supra. Finally, instead of constituting wages
earned, the banks of compensatory time amassed here constituted,
at best, something akin to "contingent bonus[es]," Tze-Kit Mui,
478 Mass. at 713, for chiefs who qualified for the opportunity
to redeem unused vacation time, elected to redeem and convert
that time, and obtained approval from the fire commissioner to
carry over the newly converted compensatory time. See id.
("only contingent compensation recognized expressly in the [Wage 6
Act] is commissions"); Weems v. Citigroup Inc., 453 Mass. 147,
153-154 (2009) (discretionary and contingent bonuses do not
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
25-P-352 Appeals Court
GERARD FONTANA & another1 vs. CITY OF BOSTON.
No. 25-P-352.
Suffolk. November 17, 2025. – June 2, 2026.
Present: Hershfang, Hodgens, & Smyth, JJ.
Massachusetts Wage Act. Contract, Performance and breach. Municipal Corporations, Fire department. Fire Fighter, Retirement. Public Employment, Retirement benefits, Compensatory time, Vacation pay. Retirement. Statute, Construction. Practice, Civil, Summary judgment.
Civil action commenced in the Superior Court Department on October 5, 2020.
The case was heard by Mary K. Ames, J., on motions for summary judgment, and entry of judgment was ordered by Joshua I. Wall, J.
Neil R. Janulewicz, Jr., Assistant Corporation Counsel, for the defendant. Paul K. Flavin for the plaintiffs.
HODGENS, J. Following retirement from the Boston fire
department, the plaintiffs, Gerard Fontana and John F. Walsh,
1 John F. Walsh. 2
filed a complaint in the Superior Court against the city of
Boston (city) including claims for breach of contract and
violation of G. L. c. 149, § 148 (Wage Act). On cross motions
for summary judgment, a judge allowed the plaintiffs' motion on
these claims, and the city appeals. We reverse.
Before retiring in 2020, the plaintiffs worked in nonunion,
salaried positions as chief of field services (Fontana) and
chief of support services (Walsh). Upon separation of
employment through retirement, the city paid Walsh $170,486.26
and paid Fontana $239,162.99, primarily for their unused
personal, sick, and vacation time. Represented by the same
counsel, the plaintiffs filed a single complaint and alleged
that they were also owed for unused "compensatory time." Walsh
calculated that the city owed him an additional $55,328.70, and
Fontana claimed that the city owed him an additional $70,083.02.
A different judge agreed with the plaintiffs, doubled damages,
and awarded $298,102.29 (which included interest and attorney's
fees) to Fontana and $196,367.14 (which included interest) to
Walsh for their unpaid compensatory time.
Upon de novo review, see Hasseltine House, LLC v. Jewish
Family & Children's Servs., Inc., 106 Mass. App. Ct. 30, 33
(2025), we conclude that the city did not owe the plaintiffs any
money for unused compensatory time. This leave category
constituted a mere end product of a formula used to redeem 3
unused vacation time. The parties agree that a two-page
document entitled, "Essential Duties and Compensation Schedule,"
governed the plaintiffs' compensation. That document provided
for the potential conversion of unused vacation time through a
multistep, conditional formula entitled, "Annual Vacation
Redemption." The first step limited redemption eligibility to
chiefs with at least one year of service; the second step
converted up to ten days of unused vacation time into cash; the
third step converted that same unused vacation time into
compensatory time; and the fourth step permitted the newly
created compensatory time to be "carried over at the end of the
calendar year upon written approval of the Fire Commissioner."
The upshot of this municipal alchemy is that each year, eligible
chiefs had the option to convert ten unused vacation days into
both cash and ten days of a leave category called "compensatory
time." Availing themselves of this conversion option at the
time of retirement (and obtaining omnibus, retroactive approval
from the fire commissioner to carry over their annual unused
compensatory time), the plaintiffs received, as agreed, both
cash payments and compensatory time for the unused vacation
days. That they amassed a bank of compensatory time that they
never used does not entitle them to convert that unused time
into cash. Given our conclusion, we need not address the city's
additional arguments, including that the plaintiffs were not 4
permitted to obtain retroactive approval to carry over
compensatory time.
We see nothing in the "Essential Duties and Compensation
Schedule" that envisions, let alone requires, such a second
conversion of unused compensatory time into cash. As to the
possibility of such a second conversion, that document is not
ambiguous, as the plaintiffs contend, but "simply silent."
Marcelle, Inc. v. Sol & S. Marcus Co., 274 Mass. 469, 474
(1931). Silence alone is not ambiguity. "There is no room for
the construction of doubtful words, for there are no words
whatever." Id. at 474-475. Where the parties have not reached
an agreement on the subject of a second conversion of unused
time into cash, "[i]t is not the role of the court to alter the
parties' agreement." Rogaris v. Albert, 431 Mass. 833, 835
(2000). See 11 R.A. Lord, Williston on Contracts § 31:5 (4th
ed. 2012) ("it is not the function of the judiciary to change
the obligations" agreed on by parties).
We also discern no Wage Act violation. That statute is
designed to combat "unscrupulous employers" who violate the
statute "by withholding earned wages." Calixto v. Coughlin, 481
Mass. 157, 160 (2018), quoting Segal v. Genitrix, LLC, 478 Mass.
551, 560 (2017). See G. L. c. 149, § 148. The statute requires
payment of "wages earned," "holiday or vacation payments," and
in some circumstances, "commissions." G. L. c. 149, § 148. The 5
statute is silent as to compensatory time, and "ordinarily we
will not add language to a statute where the Legislature itself
has not done so." Tze-Kit Mui v. Massachusetts Port Auth., 478
Mass. 710, 712 (2018).
Beyond the absence of any express language in the statute,
the formula used here to conjure both cash and compensatory time
out of unused vacation time did not create "wages earned."
G. L. c. 149, § 148. The compensatory time arose from a
synthesis of unused vacation time, not from any required "labor,
service, or performance" (citation omitted). Awuah v. Coverall
N. Am., Inc., 460 Mass. 484, 492 (2011). Moreover, 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. Massachusetts State Police Commissioned
Officers Ass'n v. Commonwealth, 462 Mass. 219, 226 (2012),
quoting Awuah, supra. Finally, instead of constituting wages
earned, the banks of compensatory time amassed here constituted,
at best, something akin to "contingent bonus[es]," Tze-Kit Mui,
478 Mass. at 713, for chiefs who qualified for the opportunity
to redeem unused vacation time, elected to redeem and convert
that time, and obtained approval from the fire commissioner to
carry over the newly converted compensatory time. See id.
("only contingent compensation recognized expressly in the [Wage 6
Act] is commissions"); Weems v. Citigroup Inc., 453 Mass. 147,
153-154 (2009) (discretionary and contingent bonuses do not
constitute wages earned); Prozinski, v. Northeast Real Estate
Servs., LLC, 59 Mass. App. Ct. 599, 603 (2003) (contingent
severance pay "not earned" wage).
We disagree with the plaintiffs' contention that the
compensatory time constitutes payment in lieu of overtime as in
Plourde v. Police Dep't of Lawrence, 85 Mass. App. Ct. 178, 179-
180 (2014). At a minimum, the formula for redeeming unused
vacation time here distinguishes this case from Plourde, id. at
179, where the employer, through a collective bargaining
agreement, agreed to pay "compensatory time in lieu of
[overtime] wages." We discern nothing in the "Essential Duties
and Compensation Schedule," the instrument that governed the
parties' relationship, which required compensatory time in lieu
of overtime. Contrast id. at 179-180. Indeed, that instrument
prohibited overtime and made no mention of compensatory time
outside of the formula for converting unused vacation 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 case is remanded for entry of
summary judgment in favor of the city.
So ordered.