
    Eleanor G. Ryan vs. Superintendent of Schools of Quincy & others.
    Norfolk.
    January 5, 1978.
    March 16, 1978.
    Present: Hennessey, C.J., Quirico, Braucher, Kaplan, & Abrams, JJ.
    
      School and School Committee. Damages, Mitigation of damages.
    The general principle of mitigation of damages was applicable to an action of a teacher seeking both reinstatement under G. L. c. 71, § 42, and a determination of tenure status under § 41. [671-673]
    In an action by a school teacher to recover compensation for her unlawful dismissal by a school committee, subsidiary findings by a master warranted the j'udge’s conclusion that the defendants did not sustain their burden of proving that the teacher would have been reasonably likely to obtain a comparable position if she had applied for any and that the teacher was therefore entitled to receive as compensation the amount of wages she would have received if she had not been unlawfully dismissed. [673-676]
    Contract. Writ in the Superior Court dated August 3, 1973.
    The case was heard by J. P. Sullivan, J., on a master’s report.
    The Supreme Judicial Court granted a request for direct appellate review.
    
      James A. Toomey for the defendants.
    
      John A. Sullivan for the plaintiff.
   Abrams, J.

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 at 740. In this action, Ryan seeks to recover compensation from the defendants, the members of the school committee of Quincy and the superintendent of schools, for damages sustained during the period from September, 1968, to September, 1973.

The case was referred to a master, facts not to be final. The master concluded that the mitigation doctrine was applicable to Ryan and that had she made reasonable and diligent efforts to seek a teaching position for the school years 1969-1973 it was likely that she would have obtained such a position. He thus reduced her damages by the amount which she would have received from such employment.

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 plaintiffappellee 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, but also a determination of his or her tenure status under G. L. c. 71, § 41. We disagree.

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 statute under which the plaintiff claims damages, has been interpreted as requiring mitigation. Black v. School Comm, of Malden, 365 Mass. 197, 212 (1974). See Police Comm’r of Boston v. Ciccolo, supra at 559.

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 finding of unlawful discharge, the determination whether a plaintiff had attained tenure would affect only the nature of his position on reinstatement. Cf. Police Comm’r of Boston v. Ciccolo, supra. We conclude that the general principle of mitigation of damages is applicable when a plaintiff seeks both reinstatement under G. L. c. 71, § 42, and a determination of tenure status under G. L. c. 71, § 41. See Woodward v. School Comm, of Sharon, 5 Mass. App. Ct. 84 (1977).

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 from those findings. Blanchette v. Blanchette, 362 Mass. 518, 522 (1972). International Tel. & Tel. Corp. v. Hartford Accident b Indem. Co., 357 Mass. 282, 287 (1970). LiDonni, Inc. v. Hart, 355 Mass. 580, 583 (1969). See Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 567 (1938).

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, to September, 1974, there were nineteen positions for art teachers, and eighteen to thirty applicants for those positions. From 1968 through 1973, Rockland had two positions open for an art teacher at the junior high school level. No evidence was presented to the master concerning the number of applicants for these positions. Brockton had the following number of art teaching positions available: 1968: 1; 1969: 2; 1970: 11; 1971: 5; 1972: 8. The number of applicants for each year was not specified in the master’s report, but he did find that in each year the number of applicants exceeded the number of positions. In Weymouth in 1968 there was one available position for an art teacher; in 1969, 1; in 1970, 2; in 1971, 2; in 1972, 1. No figures concerning the number of applicants are specified. In Newton the following art teaching positions were available: 1968: 8.9,1969: 8.75; 1970: 6.85; 1971: 5.6; 1972: 5.2. Again the number of applicants is not specified.

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 recommendations had she sought other employment. It is also reasonable to conclude that Ryan’s age, though not determinative in any hiring decision, would probably not have been viewed favorably by prospective employers. We conclude that on the basis of these inferences the trial judge was correct in deciding that it would have been virtually impossible for Ryan to obtain another teaching position.

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.

Judgment affirmed. 
      
       Under the procedural rules applicable at the time of the appointment the case was referred to an “auditor.” Former Rule 88 of the Superior Court (1954). Under Mass. R. Civ. P. 53 (a), 365 Mass. 817 (1974), those who were previously called auditors are now included within the term “masters.”
     
      
       General Laws c. 71, § 43A, as appearing in St. 1975, c. 337, provides in part: “If the court finds such action [dismissal of a teacher serving at discretion] was justifiable, the action of the school committee shall be affirmed; otherwise, it shall be reversed and the appellant shall be reinstated to the position without loss of compensation.”
     
      
       The plaintiff argues that, if unlawfully discharged plaintiffs are required to seek other employment, their right to a judicial determination of their tenure status would be jeopardized. However, since we have concluded that mitigation is necessary, no prejudice to tenure claims can result from plaintiffs’ seeking or obtaining alternative employment. The plaintiff also argues that if she were required to seek other employment she would be placed in a materially worsened position since, having jeopardized her right to reinstatement, she would be required to remain in the alternative position which would have been nontenured and lower paying. However, as noted, her attempts to mitigate damages would not preclude her reinstatement. The salary and incidents of the alternative employment are irrelevant to whether mitigation is necessary; rather they can be considered in the final calculation of damages in which the amount a plaintiff could or did earn is subtracted from the amount which he would have earned.
     
      
       This case, which was pending during the transition to the new rules of civil procedure, comes before us in an unusual procedural posture. Under the parties’ agreement the case was to be submitted to the trial court for review of the master’s report pursuant to Mass. R. Civ. P. 53 (e) (2), 365 Mass. 817 (1974). The trial judge, however, determined that “the matter is not coming before me pursuant to provisions of Rule 53 (e) (2) but more in the nature of an action brought before the Court when the jury has been waived and the Court giving the same weight to the so-called Auditor’s Report that the jury would give to it [under Rule 53 (e) (3), 365 Mass. 817 (1974)].” Both briefs consider at length whether the standard of review accorded the master’s report is the “clearly erroneous” standard of Rule 53 (e) (2) or the “prima facie evidence” standard of Rule 53 (e) (3). However, the principle on which we base our decision in this case — that when subsidiary findings are reported, a trial court and this court may reach different conclusions based on these findings — is applicable in actions tried by a court both when a jury is waived and when a jury could not have been demanded. International Tel. & Tel. Corp. v. Hartford Accident & Indem. Co., 357 Mass. 282, 287 (1970). LiDonni, Inc. v. Hart, 355 Mass. 580, 583 (1969). Therefore, we need not decide whether this case should have been governed by Rule 53 (e) (2) or by Rule 53 (e) (3).
     
      
       The defendants argue that the trial judge’s conclusion that the plaintiff would have been unable to obtain comparable employment was tainted by his erroneous determination that the mitigation doctrine was not applicable in the present case. However, the trial judge specifically found that the plaintiff would not have been able to obtain another teaching position before he considered whether the mitigation doctrine was applicable. Moreover, his opinion relied on many of the facts found by the master and his conclusion was correct on the basis of these facts.
      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 j udge was warranted in reaching his ultimate conclusion, no point would be served by an extended discussion of the defendants’ contention.
     