Hubacz v. Village of Waterbury, No. 496-8-15 Wncv (Tomasi, J., Jan. 19, 2016)
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                                    VERMONT SUPERIOR COURT

SUPERIOR COURT                                                          CIVIL DIVISION
Washington Unit                                                         Docket No. 496-8-15 Wncv
                                                          │
Adam Hubacz,                                              │
 Plaintiff,                                               │
                                                          │
 v.                                                       │
                                                          │
The Village of Waterbury, Vermont,                        │
 Defendant.                                               │
                                                          │

                                         Opinion And Order
                               The Village’s Partial Motion To Dismiss

         In 2012, the Village of Waterbury terminated Plaintiff Adam Hubacz’s

employment as a Village police officer, pursuant to 24 V.S.A. § 1932, because the

Washington County State’s Attorney then in office had decided to not prosecute any

cases involving him. But, it did not at that time purport to terminate him for the

reasons underlying the State’s Attorney’s decision. Hubacz v. Village of Waterbury,

No. 2:12–cv–39, 2014 WL 1493981, *1–2 (D. Vt. Apr. 15, 2014). Mr. Hubacz sought

Rule 75 review of the termination decision in the Federal District Court of Vermont.

That court ruled that the sole basis asserted for termination, the State’s Attorney’s

decision to not prosecute Mr. Hubacz’s cases, did not fit the “negligence” standard

for termination under § 1932. He observed that the Village might have chosen to

develop evidence that would have met the § 1932 standard or might have

terminated him for having a “legal disability” supporting a termination for “cause”

pursuant to § 1931. He remanded the Rule 75 matter to the Village for further
proceedings. Id. at *8. After such proceedings, the Village found that Mr. Hubacz’s

termination was proper under both § 1931 and § 1932.1

      In this case, Mr. Hubacz again seeks Rule 75 review (Count 1) of the Village’s

termination decision. He maintains that he now has been wrongfully discharged

twice and that, even if the second termination decision is valid, he is entitled to

damages that accrued between the first and second decisions. In other words, he

claims that the second discharge decision cannot relate back to the first. He also

seeks relief for the nonpayment of wages and benefits pursuant to 21 V.S.A. §§ 345,

347 (Counts 2 and 3 of the Complaint), which he believes started accruing at the

time of his first termination or had accrued at the time of the federal court’s remand

decision.

      In the instant motion, the Village seeks Rule 12(b)(6) dismissal of the

nonpayment claims. The Rule 75 matter is not currently at issue.

      1.     Standard

      The Vermont Supreme Court has described the familiar standard for motions

to dismiss for failure to state a claim as follows:

      “A motion to dismiss . . . is not favored and rarely granted.” This is
      especially true “when the asserted theory of liability is novel or
      extreme,” as such cases “should be explored in the light of facts as
      developed by the evidence, and, generally, not dismissed before trial
      because of the mere novelty of the allegations.” In reviewing a motion
      to dismiss, we consider whether, taking all of the nonmoving party’s
      factual allegations as true, “‘it appears beyond doubt’ that there exist


1 The full history of the extensive litigation between the Village and Mr. Hubacz
leading up to the Village’s second termination decision is detailed in Hubacz v.
Village of Waterbury, No. 2015–032, 2015 WL 3767123 (Vt. June 2015), and need
not be recited here.
                                            2
       no facts or circumstances that would entitle the plaintiff to relief.” We
       treat all reasonable inferences from the complaint as true, and we
       assume that the movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations

omitted).

       2.     Analysis

       The Village seeks dismissal for the following alternative reasons: (1) the

nonpayment claims are untimely because the Village has not yet ruled on what

relief may be available if a right to relief is established; (2) there is no private right

of action pursuant to 21 V.S.A. § 345; and (3) §§ 345 and 347 do not apply to periods

of time during which a former employee was not actually employed by the Village,

and Mr. Hubacz has not been employed by the Village since he was originally

terminated. The Court is persuaded by the Village’s third argument and does not

address the first two.

       Mr. Hubacz argues that the federal court’s remand decision amounts to a

determination that his original termination was “illegal” and “void” and that his

right to compensation from the time of the first termination decision until the

second then became fixed. Since that point, he contends that the Village has failed

to compensate him in a timely manner in violation of 21 V.S.A. §§ 345 and 347. He

expressly alleges, however, that his employment with the Village has never been

reinstated following his original termination in January 2012. Complaint ¶ 15. In

this case, that fact is determinative of the nonpayment claims.




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      The cited statutes simply do not apply under the circumstances presented

here. The statutes upon which Mr. Hubacz relies are part of a subchapter of

statutes that control the promptness and methods by which employers must

compensate employees as an ongoing matter for services provided. 21 V.S.A. §§

341–348; Stowell v. Action Moving & Storage, Inc., 2007 VT 46, ¶ 8, 182 Vt. 98, 102

(“[T]he overriding intent of” these statutes “is to ensure that workers are paid in a

timely manner.”). In context, it is clear that this subchapter applies to current

employment relationships. It is not intended to control the scope of or create any

rights regarding damages or other relief in wrongful discharge cases, and this is a

wrongful discharge case.

      That view of the statute finds textual support in other provisions of the law.

For instance, “wages” is defined as “all remuneration payable for services rendered

by an employee, including salary, commissions, and incentive pay.” 21 V.S.A. §

341(5). A terminated employee is no longer performing services for the employer

and thus is not earning wages for purposes of these statutes. While that employee

may become entitled to damages if the termination was wrongful, damages are

compensation for the wages or salary that would have been earned, not wages that

were earned. Similarly, section 342(a)(1) requires employers, subject to statutory

exceptions, to pay employees “doing and transacting business within the State”

weekly “the wages earned by each employee.” These and related provisions plainly

contemplate an ongoing employment relationship.




                                           4
      This subchapter also describes requirements when employment ends. An

employee who voluntarily ends employment is paid on the regularly scheduled final

payday. 21 V.S.A. § 342(b)(1). An employee who is discharged by the employer

must be paid within 72 hours. Id. § 342(b)(2). There is no distinction for purposes

of § 342 between a wrongfully discharged employee and lawfully discharged one,

and there is no continuing right to the prompt payment of “wages” in either event.

      Section 345 establishes a fine for violations of §§ 342 and 343. Section 347

provides that “[a]n employer who violates section 342 or 343 of this title shall forfeit

to the individual injured twice the value thereof, to be recovered in a civil action,

and all costs and reasonable attorney’s fees.” There is no allegation in this case,

however, that Mr. Hubacz was improperly paid during any period of time in which

he actually was employed by the Village or with regard to his final paycheck. There

is no allegation that he performed any service for the Village as an employee since

his original termination. The Village terminated his employment, never employed

him again, and he provided no services to the Village. Sections 342 and 343 are

inapplicable in this context.

      Indeed, policy argues against any contrary construction. Applying these

statutes in a wrongful discharge case such as this would create an automatic right

to double damages and attorney’s fees for every wrongful discharge. Yet, despite

the age of the statutes at issue, no case has so held, and there is nothing in the

statutes to suggest that the Legislature ever intended them to have that effect.




                                           5
       Mr. Hubacz next argues that sections 342 and 342 need not apply in every

discharge case but should apply in this case because he is (or was) a public “officer.”

He contends that he never lost his job because his “illegal” removal from office (the

first termination decision) did not affect his title to office or his right to receive

ongoing wages. He takes nothing from this alternative argument.

       There has never been any judicial determination that Mr. Hubacz’s

termination was illegal or void or that he is entitled to relief due to his original

termination. Additionally, while the parties spar over whether police officers in

Vermont are properly considered to be municipal officers, as opposed to mere

employees, the issue does not need to be decided because it does not have the

consequence that Mr. Hubacz claims with regard to the wage-payment statutes.

       Mr. Hubacz persuaded the federal court only that there was an error in the

original proceedings sufficient to require a remand to the Village. In sum, the court

remanded the Rule 75 matter to the Village for further proceedings under 24 V.S.A.

§ 1932 (the asserted statutory basis for the first termination) and for consideration

of whether § 1931 might provide the more apt statutory basis for termination in the

circumstances. Hubacz v. Village of Waterbury, No. 2:12–cv–39, 2014 WL 1493981,

*8 (D. Vt. Apr. 15, 2014). The court never purported to reinstate Mr. Hubacz’s

employment (or to reinstate him to paid administrative leave) and expressly took no

position with regard to possible relief. Id. at *9 n.4 (“Any questions with respect to

compensation may be presented to the Village Trustees for their consideration. The

Court offers no opinion with respect to Hubacz’s legal entitlement to back pay,



                                             6
damages, or attorney’s fees.”); Hubacz v. Village of Waterbury, No. 2:14–cv–134,

2014 WL 4060314, *1 (D. Vt. Aug. 14, 2014) (“The Court did not intend for its ruling

to be used as a basis for Hubacz to claim a right to immediate reinstatement as an

active duty police officer, or to otherwise alter the status quo that existed prior the

Village Trustees’ initial ruling.”). On remand, the Village held a new hearing and

issued a new termination decision responsive to the Court’s ruling. The issue of

relief was never reached.

      Mr. Hubacz relies, inter alia, on Finneran v. City of Burlington, 89 Vt. 1

(1915), for the proposition that he remains employed and entitled to wages until

cause for his termination is finally established. Mr. Hubacz reads far too much into

that decision. There, a municipal police officer was terminated due to his age and

he filed suit against the City. The Vermont Supreme Court found that his

termination was “illegal and void” and that he had been wrongfully fired. Id. at 4.

      The City argued that the right to damages was premature until Mr. Finneran

first established a right to reinstatement. Id. at 5. The City’s contention appears to

have been based on the idea that payment of the salary of an office to the de facto

officeholder (the one actually in office) may preclude any right to that salary by the

de jure officer (the one with the legal right to office, i.e., Finneran). The legal issue

is described in McQuillen as follows:

             Judicial precedent regarding whether payment of the salary or
      compensation of the office to a de facto officer will preclude recovery of
      it from the municipality by a de jure officer has been inconsistent.
      Particularly absent notice of claim by the de jure officer, payment to
      the de facto officer of the salary accorded the office, prior to the adverse
      settlement of title to the office, may often deprive the de jure officer of

                                            7
      the right to recover such salary from the public. Although one may be
      legally entitled to an office, where no affirmative action is taken during
      the term to establish title, he or she cannot ordinarily recover the
      salary appertaining to the office where the duties were performed by
      another who was paid by the municipal corporation. Good faith
      payment to a de facto officer or employee may not be an essential
      defense to suit by the de jure officer or employee. The theory is that
      the law protects the municipal corporation from a second payment of
      compensation once paid to one who actually discharged the duties of an
      office with color of title. This rule applies whether payment is in the
      form of salary or fees and whether the office is held by appointment or
      election.

4 McQuillin Mun. Corp. § 12:199 (3d ed.).

      The Supreme Court concluded that such considerations did not apply in that

case because no officer had been appointed to take Finneran’s place. In the absence

of a de facto officer, it concluded that Finneran need not establish, in the first

instance, his right to the office and may proceed to recover damages for the illegal

termination.2

      While the Court noted that Finneran could proceed to “recover his salary,”

id., in this court’s view, that phraseology was intended only to mean that he could

recover damages equal to the pay he would have received had he not been

wrongfully terminated. In other words, Finneran stands for the unremarkable

proposition that a municipal police officer who is wrongfully discharged is entitled

to damages commensurate with backpay. The case has no bearing on actions under

21 V.S.A. §§ 345 and 347.3


2There is no indication that the Village has kept Mr. Hubacz’s position vacant since
his termination.
3Similarly, if this Court ultimately concludes that Mr. Hubacz never should have
been terminated and should be reinstated (assuming that reinstatement would be
                                            8
      Neither Finneran nor the other authorities cited by Mr. Hubacz stand for the

proposition that a municipal officer has the ongoing right to collect the salary of the

office after removal while the propriety of the removal is being litigated but before it

has been resolved. They also do not hold that a terminated officer, who later

establishes that the termination was wrongful, somehow assumes the status of one

who was never terminated in the first place for purposes of wage-payment statutes

such as the ones at issue here. Rather, those decisions provide only that damages

concerning a wrongfully terminated municipal officer will not be reduced by

intervening employment elsewhere because such officers have no duty to mitigate

damages. Kaminsky v. City of New York, 202 N.E.2d 557, 557 (N.Y. 1964);

Fitzsimmons v. City of Brooklyn, 7 N.E. 787, 788 (N.Y. 1886); Capobianco v.

Incorporated Village of Massapequa Park, 301 A.D.2d 553, 553 (N.Y. App. Div.

2003). Such precedents have no bearing on actions under 21 V.S.A. §§ 345 and 347.

      Whether Mr. Hubacz may be entitled to relief for any period following his

original termination has never been established in this or the related cases. The



an available remedy), characterizing his reinstatement as retroactive to the date of
his initial termination would not render the Village liable under 21 V.S.A. §§ 345
and 347 for having not been giving him paychecks all along. Reinstatement is
prospective relief, which is why, even when it is an available remedy, future
damages or “front pay” may more appropriately be substituted for it. See, e.g.,
E.E.O.C. v. E.I. Du Pont De Nemours & Co., 480. F.3d. 724, 732 (5th Cir. 2007)
(“Although reinstatement is preferred [in ADA cases], frontpay may be awarded if
reinstatement is not feasible.”); Brooks v. Woodline Motor Freight, Inc., 852 F.2d
1061, 1065 (1988) (“The remedy [in ADEA cases] may include frontpay, that is,
monetary relief, in lieu of reinstatement.”). The fiction of retroactive reinstatement
might have utility in calculating back pay and related damages, but it would not
resurrect rights and duties under §§ 345 and 347 that did not exist when there was
no employment relationship.
                                           9
right to and extent of any such damages are part of his Rule 75 case. No matter

how those issues unfold in the Rule 75 context, they cannot lead to a meritorious

claim pursuant to 21 V.S.A. §§ 345 and 347 because Mr. Hubacz has never had an

ongoing employment relationship with the Village since his original termination.

As noted above, the language of the statutes supports that conclusion, and there is

simply no indication that the Legislature intended the wage-payment statutes to

apply under the circumstances of this case.

                                       Order

      For the foregoing reasons, the Village’s Motion to Dismiss is granted.

      Dated this 15th day of January, 2016, at Montpelier, Vermont.



                                               _____________________________
                                               Timothy B. Tomasi,
                                               Superior Court Judge




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