Commentary on Massachusetts Civil Service Commission (May-Aug, 2016)

[t]here are manifestly legitimate public safety reasons to bypass an applicant for a position such as a firefighter or police officer if the applicant has recently used drugs.”  Henderson, 2016 WL 3677278.

In 2012, Joel Henderson was an applicant for a firefighter position with the Lynn Fire Department (“Department”).  As part of that process, the Department performed a background check and obtained reports from the Criminal Offender Record Information (“CORI”) and the Massachusetts Criminal Justice Information Services (“CJIS”).  During its interview with the Appellant, the Department asked about the information obtained in his criminal record.  In his responses, the Appellant was either evasive or blamed others for his past misconduct.  The City ultimately bypassed Henderson for the position of firefighter.

In its bypass notice to the Appellant the City listed three reasons for his bypass: (1) multiple charges for possession of marijuana and admitted marijuana use in 2011; (2) poor employment history, including dismissal from Boston EMS job; and (3) evasiveness when confronted with negative aspects of his background and failure to take responsibility for past drug use.  The Appellant appealed to the Civil Service Commission and argued that the bypass was improper because he had not received a copy of his CORI during the interview.  The Commission agreed that the Department should have provided Appellant a copy of his CORI report, however, it did not agree with the Appellant that this failing precluded the City from using the report where it had been lawfully obtained.  The Commission upheld the bypass based on Appellant’s poor employment history, admission of recent drug use, and criminal history.  Joel Henderson v. Lynn Fire Department, 27 MCSR 443 (2014).

Unsatisfied, Henderson appealed the Commission’s decision to the superior court, which affirmed the Commission’s decision.  He then appealed to the Massachusetts Appeals Court which was similarly unpersuaded by his arguments.  The Court affirmed that notwithstanding the interview, the “bypass letter noted two appropriate reasons for Henderson’s bypass: recent drug use and employment history,” and based on this, it upheld the bypass.  Henderson, 2016 WL 3677278 (2016).

Judicial Fact-Finding Of Commission Decision Warrants Remand

The Court of Appeals has vacated and remanded back to the Commission for further proceedings a case where it determined that both the Commission’s initial decision and the decision of the superior court were based on error. The case, New Bedford Airport Commission v. Civil Service Commission, 89 Mass.App.Ct. 1127 (2016), is one of the many cases where the Commission modified an Appointing Authority’s termination of an Appellant to a long term suspension – in this case to 21 months.

In September, 2011, the Appellant was discharged from his position as a diesel engine repair person at the New Bedford airport.  He subsequently appealed to the Commission which found that the City had successfully met its burden on some but not all of the charges against the Appellant, and modified the Appellant’s discipline from a termination to a twenty-one (21) month suspension.  The Airport Commission appealed, and the superior court vacated the Commission’s decision modifying the discipline.  The Appellant appealed to the Appeals Court, contending that the superior court judge improperly substituted his judgment for that of the Commission.

The Court found that the Commission erred in its initial decision by basing its findings on contentions unsupported by the record.  This resulted in the superior court conducting fact finding and using its own discretion on appeal, contrary to its obligation to remand the decision back to the Commission.  “Where, as here, facts material to the decision-making process are either unsupported or ‘[in]adequate to support meaningful judicial review,’ NSTAR Elec. Co. v. Department of Pub. Util., 462 Mass. 381, 392 (2012), remand is warranted…Because fact finding and discretion are vested first in the commission, and not the court, the commission must address these factual anomalies.”

We will continue to watch this case and track how courts treat this and other Commission decisions modifying an employee’s termination to a long-term suspension (in this case nearly two years).

DISCIPLINE DECISIONS

Appointing Authority Justified in Terminating Employee Medically Incapable of Performing Job

Despite an employee’s lengthy and positive work history, an Appointing Authority is justified in terminating an employee when medical evaluations prove them no longer able to perform the essential functions of their job. Jason Marcus v. City of Chelsea, 29 MCSR 279 (upholding the City’s decision to terminate employee based on numerous medical evaluations).  Jason Marcus had served as a full-time police officer for the City of Chelsea since 2008.  He had a strong camaraderie with the public, and a positive work history.  After being stuck with a hypodermic needle on duty in 2009, Appellant struggled with a period of depression and paranoia.  His mental health failed to improve over the years (and in fact worsened), giving rise to his supervisors’ concerns with his performance and an eventual order to undergo a fitness for duty evaluation.

When the initial evaluation did not favor Appellant’s ability to perform his job, the City put him on administrative leave.  Appellant underwent several follow-up evaluations but his health did not improve.  His treating psychiatrist opined that his illness was of a “chronic, cyclical, unpredictable nature” and that “its consequences are life-long.” Where there appeared no likelihood of an improvement and the Appellant refused to resign, the City commenced termination proceedings.  The Appellant was able to obtain his own psychiatric evaluation that concluded he was fit for duty, but the City was more persuaded by the reports of doctors that had followed and evaluated him over the years.  Notwithstanding this the parties agreed to seek an Independent Medical Evaluation (IME). The IME also concluded that the Appellant was not fit for duty, and the Appellant was terminated.

On appeal, the Commission was similarly persuaded by the evaluation reports of the doctors who had followed and evaluated the Appellant over several years, and who had conducted very thorough investigations into his health (as opposed to the evaluation of the one doctor Marcus had found to find him fit for duty).  Consequently, the Commission dismissed the appeal and upheld the City’s decision to terminate Appellant from employment.

Public Employees Expected to Demonstrate High Level of Professionalism

Public employees have an inherent duty to serve the public-at-large in a courteous, satisfactory manner, and failure to do so warrants discipline.  Denise Doherty v. Department of State Police, 29 MCSR 317.  Appellant, a State Police Trooper assigned to the Certification Unit, was responsible for conducting background investigations of civilian, uniformed, and private security employees.  When a local college informed the Appellant that it contracted with a private security company to supplement the State Special Police Officers (SSPO) it received through the State Police, Appellant commenced an investigation into the private company’s license and employees to make sure the company met all necessary standards. An initial background check showed that several of the company’s employees had felony convictions, which meant that their employment had to be terminated or the company’s license would be in jeopardy.  The Appellant reached out to the employees to inform them of the situation and to let them know they would no longer be able to work for the security company.

During her calls to these employees, Appellant was reportedly harsh, negative, sarcastic and mean-spirited.  And in at least one instance, the Appellant’s information regarding the employee having a criminal record was incorrect and she provided no support to the individual when asked about how she could correct the information.  Upon learning of this conduct, the City decided to take disciplinary action.  The Appellant was found guilty of five counts of not performing her duties in a professionally acceptable manner.  The Trial Board recommended that she forfeit two (2) days of accrued time for each count but allowed for the discipline to be served concurrently for a total of only two (2) days of accrued time loss. Appellant appealed.

After considering all the evidence, and hearing testimony from two of the employees affected by the Appellant’s behavior, the Commission was more than inclined to uphold the discipline issued.  The Commission found that Appellant exhibited a “disturbing level of unprofessionalism” and that even at the hearing, she remained disconnected from the “consequential nature of the information she was sharing with these individuals and the immediate impact it would have on their livelihoods.”   The appeal was denied.

Felonious Misconduct, Absent Charges or Convictions, Sufficient To Terminate Employee

An Appointing Authority is justified in terminating a police officer whose misconduct threatens public policy and rises to the level of felonious misconduct despite the absence of any criminal charges or convictions.  Eric Kraus v. Town of Falmouth, 29 MCSR 340.[1]  In this case, a long-tenured police officer with an unblemished twenty year record was justifiably terminated after he took a box of confiscated fireworks (brought to the station by another officer), and set them off while on duty.

In July, 2014, the Appellant and more than fifty (50) other officers were working the night of the annual Town fireworks display.  Around this time of year, there are a number of instances where citizens are found in possession of unlawful fireworks and those seized fireworks are placed in a secured, video surveyed “drive through” area outside the station that is used to bring evidence and prisoners inside.

On the night in question, a fellow officer placed a confiscated box of fireworks in the drive through area. Very shortly thereafter, Appellant and three (3) other officers proceeded to take the fireworks and head over to a local 7-Eleven store to set them off.  When Officer Mancini, the officer who had left the confiscated fireworks in the drive through area returned to the station to complete his paperwork, he was unable to locate the fireworks.  He did not immediately tell anyone about the missing fireworks, but when his incident report turned up without any evidence or pictures of the fireworks, he came clean about the missing evidence and an internal affairs investigation commenced.

A review of the video surveillance in the drive through area provided information about who was involved in the fireworks disappearance. The Town terminated Appellant from employment because he had engaged in criminal, felonious behavior and his conduct violated several rules and regulations of the Falmouth Police Department.  The Appellant appealed, citing his unblemished disciplinary record, the varied discipline imposed on the other officers involved,[2] and the fact that he had not been criminally prosecuted. The Town had sought, unsuccessfully, to initiate criminal proceedings against the officers involved, but the Falmouth District Court had decided not to issue any criminal complaints.

Unpersuaded by the Appellant’s contentions, the Commission upheld his termination. The lack of a criminal complaint, it found, was not dispositive of Appellant’s misconduct.  Furthermore, according to the Commission, Falmouth was justified in concluding, based on the felonious nature of the misconduct, that the Appellant was disqualified as a matter of public policy from continued service with the Falmouth Police Department. See G.L. c. 41, §96A; City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813, 818-823 (2005).  While the Town of Falmouth did not have to terminate the Appellant given the lack of a conviction, the Commission found that the Town was well within its rights and authority to do so.  Consequently, Appellant’s appeal was dismissed and the termination upheld.

Commission Clarifies Appellant Rights And Lack of Jurisdiction to Hear Non-Civil Service Claims

In Stacey Dottin v. Cambridge Public Schools, 29 MCSR 373, the Commission upheld the Appointing Authority’s decision to terminate an employee with a poor disciplinary history and for failing to comply with the standards and responsibilities of her position.  Appellant, the Head of Kitchen for a Cambridge Elementary School, was responsible for maintaining a sanitary kitchen, food production logs, ensuring food served complied with federal guidelines, supervising and evaluating part-time employees, and assisting with other tasks as needed.  When she returned to work in April 2014, following a two (2) year suspension,[3] she was provided with a refresher training and a review of school policy and food service standards.  She was also granted reasonable accommodations for a neck condition.

In February 2016, it became apparent to some of Appellant’s supervisors that the kitchen area in the Appellant’s school was unclean and not in compliance with health and safety standards – food was improperly labeled, and food production logs were missing for several days or were incorrectly completed.  Appellant was placed on administrative leave while the Appointing Authority conducted a further review of the situation. The School Department’s investigation revealed that Appellant was responsible for the misconduct and shortcomings, and her employment was terminated.

Appellant appealed to the Commission, citing the following: (1) Cambridge Schools did not follow procedural requirements when it failed to provide copies of relevant law to her at the time she was placed on administrative leave; (2) she was entitled to an impartial investigator; (3) Cambridge Schools harassed and retaliated against her due to her disabilities; and (4) her union representatives erred in failing to initiate a grievance on her behalf.

The Commission afforded no deference to any of the Appellant’s contentions, and upheld her termination.  In response to Appellant’s claims, they found that: (1) the Authority was not required to provide Appellant with copies of relevant law when she was placed on administrative leave; (2) Appellant had no statutory entitlement to an impartial investigator; (3) the Commission has no jurisdiction over Appellant’s discrimination claims; and (4) the Commission has no jurisdiction over Appellant’s labor relations claims.

Personal Use of City Property Warrants Discipline

An Appointing Authority had just cause to suspend an employee with a long history of discipline for misusing City property and leaving his job site. Thomas Sylvia v. City of New Bedford, 29 MCSR 393.  On December 2, 2015, the Appellant, a City Motor Equipment Operator, arrived to work and received his list of scheduled duties for the day.  He also had with him a copy of his water bill which he thought showed an unusual increase and which he planned to dispute during his lunch break that day.

Shortly after completing one of his first duties, Appellant entered the Department of Public Infrastructure (“DPI”) to inquire about his bill – he did this while on City time using a City vehicle, and not during his lunch break. Thereafter, a report was made to DPI Commissioner Labelle that a New Bedford employee had been inquiring about a bill on City time and that he had been seen getting into and out of a New Bedford City truck. The report was forwarded to the Appellant’s supervisor, Kenneth Blanchard.  After Blanchard met with Appellant and reviewed video footage, he issued Appellant a one (1) day suspension for “Misuse of City Property and Leaving Work Area Without Permission,” based on fact that the Appellant had used a “city truck while on city time to go to DPI to dispute personal water bill.”

Appellant appealed the suspension, unsuccessfully, to the Commission.  The blatant violation of the rules and policies of his employment, the Appellant’s testimony, and history of similar disciplinary actions, revealed he was well aware that his conduct was unjustified.  Accordingly, his appeal was dismissed and suspension upheld.

BYPASS DECISIONS

Police Departments Not Required To Appoint Candidates with History of Untruthfulness, Failure to Take Personal Responsibility

“The importance of truthfulness for police officers cannot be overstated.”  Ryan Porter v. City of Peabody, 29 MCSR 297.  During his first year as a Police Officer in the Reading Police Department, the Appellant was involved in four (4) motor vehicle accidents involving Department vehicles.  Appellant failed to notify the Department of the fourth incident, which resulted in the department having to conduct an investigation into the damage to the vehicle. While the investigation was in its early stages Appellant vehemently denied being responsible for causing damage to the vehicle.  However, he later met with the Chief and admitted he was responsible for the accident and accompanying damage to the vehicle.  He resigned before the investigation concluded.

Five (5) years later, Appellant applied for employment as a Permanent Reserve Police Officer with the City of Peabody’s Police Department.  City Police Detective Robert Church was assigned to conduct Appellant’s background investigation.  Church spoke to Appellant’s former coworkers and supervisors from the Reading Police Department who felt Appellant had sincerely matured since his resignation and was a qualified candidate for the position.  Church recommended that Appellant be considered for a position with the City’s Police Department.  The Police Chief and Mayor disagreed with this recommendation, citing Appellant’s accident record and history of untruthfulness.  The City bypassed Appellant and he appealed.

The Commission found that the City was reasonably justified in bypassing Appellant for employment, notwithstanding the fact that the Appellant appears to have matured and taken responsibility for his past actions.  Specifically, they found the City conducted Appellant’s background investigation impartially and thoroughly, and that there was no dispute that in his past employment, Appellant was untruthful, caused a significant amount of car accidents in a short period of time, and demonstrated poor judgment by failing to take responsibility for the last accident.  Such conduct provides reasonable justification for bypass.  Based on this, the Commission dismissed the appeal.

In a concurring opinion, Commissioner Stein noted that while he agrees with the decision based on current judicial precedent under Beverly v. Civil Service Commission, 78 Mass.App.Ct. 182 (2010), his concern is that the bar for justifying a bypass is set too low and that in his opinion the record in this case is ambiguous and there were several mitigating factors that could be considered or explored which weren’t – and did not have to be under the current standard.

Appointing Authorities Determine Whether Job Functions Should Be Considered Essential

The Commission’s decision in Jovany Salazar v. Dedham Fire Department, 29 MCSR 309,  confirms the deference afforded to employers in making the determination of what job functions are considered essential.  Appellant, a Marine Corps veteran, received a conditional offer of employment from the Dedham Fire Department (“Department”) pending medical and psychological evaluations.  The Appellant, who was number one on the list, had previously been diagnosed with Post Traumatic Stress Disorder (PTSD) and received treatment following an exacerbation of symptoms in 2014.

Appellant underwent two psychological evaluations by independent evaluators who opined that Salazar’s condition would interfere with his performance as a firefighter, especially given his symptoms including anxiety and claustrophobia.  Given the stressful and unpredictable nature of firefighting, both examiners recommended against employing Appellant.  Salazar’s own treating psychologist opined that his mental health would not interfere with his performance as a firefighter.

Ultimately the Department agreed with its own evaluators, especially where firefighters typically face hazardous, chaotic, precarious, and unpredictable environments, often in confined spaces, and unpredictable interactions with strangers.  The Department determined that the ability to function in this type of work environment is an essential duty of a firefighter position.  Accordingly, the Department notified Appellant he was not qualified and bypassed him for appointment.

On appeal, Appellant argued that his bypass violated the Americans with Disabilities Act (“ADA”) and Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  While the Commission acknowledged the importance of these federal laws, it pointed out its role was not to decide whether to make such a determination, and further stated that “[n]either the ADA nor USERRA, nor civil service basic merit principles, prohibit an employer from basing a decision that the employee cannot perform an essential function upon the person’s actual limitations, even when those limitations result from a physical or mental disability.”  The Commission dismissed the appeal.

OTHER: PRACTICE AND PROCEDURE DECISIONS

Appellant Waives Right to Appeal to Commission by Filing Federal Suit

In Mark Gilbert v. City of Chicopee, 29 MCSR 349, the Commission dismissed a disciplinary appeal from a Chicopee Police Captain in light of the federal whistleblower complaint he had filed arising out of the same conduct.

In February 2016, Appellant filed a multi-count action in Federal Court, alleging several whistleblower claims against the City, the City’s Mayor, and City’s Police Chief.  The lawsuit was based, in part, on a five (5) day suspension the Appellant received in January 2016.  Considering the nexus between the discipline and lawsuit, the Commission concluded that Appellant had effectively waived his right to appeal under M.G.L. c. 149, § 185(f), which states:

Nothing in this section shall be deemed to diminish the rights, privileges or remedies of any employee under any other federal or state law or regulation, or under any collective bargaining agreement or employment contract; except that the institution of a private action in accordance with subsection (d) shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation, or under the common law.

Accordingly, the Commission dismissed the instant appeal.

Promotional Candidates Not Entitled to Constructive Appointment Dates

Following the 2010 Boston Firefighters Exam, the Appellant in Gregory Nicholas v. Human Resources Division, 29 MCSR 358, received notice that his name was on the March 2011 Certification.  He notified the Fire Department that he was on active military duty at the time.  Where he would not complete his duty before the appointments were to be made, the Department deferred his candidacy, but did not provide him with further information.  In February 2012, Appellant was honorably discharged.  He reported this to the Fire Department so that he could be considered for appointment as a Firefighter.  He was appointed the following July, and given a civil service seniority date of November 2011, the same seniority date of the other candidates in his initial Certification’s tie group.

In September 2014, Appellant signed up to take the 2014 Boston Fire Lieutenant Exam.  HRD initially issued him a Notice to Appear, but then rescinded it, claiming that Appellant was ineligible to take the Exam where he had not yet completed three (3) years of service with the Department (a requirement in communities with populations exceeding 50,000 people).  The instant appeal ensued, and Appellant argued HRD should measure his employment from his civil service seniority date, and not the date he actually began employment.

The Commission disagreed.  The Commission held that Appellant’s employment began in July 2012, as opposed to his civil service seniority date of November 2011.  See Weinburgh v. Civil Service Comm’n, 72 Mass. App. Ct. 535, 538, rev. den., 452 Mass. 1110 (2008) (holding employee must “actually serve in the force” for requisite period of time).  See also Dickinson v. Human Resources Div., 24 MCSR 200, 206-07 (2011).  Alternatively, Appellant argued that HRD’s decision violated the provisions of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  He also requested receipt of a “constructive appointment” date that would give him an appointment date during the time of his military service.  The Commission refused to interpret USERRA or honor the Appellant’s request, and thereafter dismissed the appeal.

Provisional Employees Not Entitled to Civil Service Rights

In Jacqueline Phillips v. City of Cambridge, 29 MCSR 364,[4] the Commission dismissed the appeal of a provisional employee denied a promotion in favor of an external candidate despite her argument that she was unlawfully bypassed due to her race, age, and gender.  Appellant, a Caucasian female, was provisionally appointed as the Manager of Training and Staff Development in 2007.  In September 2014, the City posted a position for an Assistant Director of Human Resources/Development, and considered internal and external candidates.  Appellant applied to the posting, however the City did not select any of the applicants.  In April 2015, the City reposted the position with identical language to the previous posting – Appellant did not apply to this posting.  The City later hired an African-American female to the position.

After reviewing the Appellant’s allegations, the Commission found them more in line with employment discrimination complaints handled by the Massachusetts Commission Against Discrimination (“MCAD”).  The Commission has a practice of not investigating matters better suited for MCAD.  See Holden v. Department of Correction, 19 MCSR 245 (2016) (“The MCAD is clearly the agency primarily entrusted to investigate and enforce acts committed in violation of the anti-discrimination law….”)

The Commission further found no violation of civil service law where provisional promotions originate from permanent civil service positions; Appointing Authorities may consider external candidates for provisional appointments.  Appellant made a “head-scratching” argument that there was a dispute as to whether she was a provisional or permanent employee.  The Commission quickly dismissed the existence of any such dispute where Appellant acknowledged she never took a civil service examination – thus, showing “no reasonable expectation of showing that she is anything other than a provisional employee in her current position.” The appeal was dismissed.

[1] Tim Norris of Collins, Loughran & Peloquin represented the Town of Falmouth.

[2] The other officers involved reached agreements with the Town to retiree, or received suspensions and did not contest them.

[3] The Appellant in this case was returned to work after successfully challenging an earlier May, 2012 termination, for allegedly coming to work impaired.  The Commission modified her termination to a twenty-two month suspension.  Stacey Dottin v. Cambridge Public Schools, D1-12-183 (2014).  The Cambridge Public Schools did not appeal the Commission’s decision.

[4] Philip Collins of Collins, Loughran & Peloquin represented the City of Cambridge.