Commentary on Massachusetts Civil Service Commission Decisions (Sept. – Dec., 2014)

[a]n appointing authority shall appoint a veteran in making a provisional appointment under section twelve,” and “[a] disabled veteran shall be retained in employment in preference to all other persons, including veterans.”  M.G.L. c. 31, § 26.  As such, in determining layoffs, EOLWD was required to first lay off employees having the same title in a particular departmental unit who were not disabled veterans, according to seniority, before laying off a disabled veteran, such as Mendonca.

Following Mendonca’s lay off, four other Administrator III positions remained, one held by a veteran and three by nonveterans.  After investigating the remaining Administrator III positions, EOLWD determined that Mendonca could not be retained because he was not qualified for any of the other Administrator III positions.  EOLWD noted that Mendonca’s skill, personnel file, resume, and background had always been in human resources or other job placement type work, but that the other Administrator III positions had different job classifications or dealt with the public instead of agency staff.

The hearing officer determined, and the superior court agreed, that the EOLWD had correctly determined that Mendonca was not qualified to perform the duties of any of the other Administrator III positions.  The Appeals Court, however, disagreed, holding that while the Administrator III positions may involve different tasks, the title “Administrator III” had been applied to that group of positions because they have similar duties and the same general level of responsibility. Although Mendonca had no prior experience performing the exact job duties of other Administrator III positions, he had many transferrable skills that he had gained performing similar duties, which made him otherwise qualified.

In order to preserve disabled veterans’ preference as a reality, rather than something that is “illusory or a mere gesture,” employers should evaluate the transferrable skills obtained by their disabled veteran-employees and not just the skills of qualifications listed within the four corners of their current job description in order to determine whether they are qualified for a position.

Court Again Recognizes Untruthfulness As Grounds For Discharge

A few years ago in our 2012 commentary, we reported on Gonsalves v. Town of Falmouth, 25 MCSR 231 (2012), a decision in which the Commission held that the Town of Falmouth had just cause to discharge a police officer for engaging in untruthfulness and otherwise exhibiting serious lapses of judgment.

Prior to the incidents underlying his discharge, Gonsalves had been an officer for twenty-two years and had a pristine record, including several letters of commendation for outstanding police work.  However, throughout several internal investigations and during his two days of testimony at the Commission hearing, Gonsalves “left a trail of evasive, incredible and inconsistent statements” indicating that he “was a person who could not be trusted to tell the truth, which is one of the most essential traits required of any municipal police officer.”  The Commission acknowledged that “[o]n these grounds, alone, Falmouth is fully justified to terminate a police officer who repeatedly demonstrates his inability to tell the truth.”  Gonsalves appealed the Commission’s decision.

In a decision dated September 29, 2014, the superior court affirmed the Commission’s decision finding that Gonsalves’ poor decision making and, more importantly, his untruthfulness were fatal flaws.  Gonsalves v. Civil Service Commission (Civil Action No. 12-2655G).  The court noted that the facts found by the Commission proved to be “substantial evidence” supporting the termination decision.  As decided by the Commission, the court rejected Gonsalves’ argument that his discharge was motivated by racial animus and in retaliation for a complaint he filed with the MCAD based on the Town’s failure to promote him because no evidence suggested that any of the disciplining authorities knew of the subsequent MCAD complaint until after the officer was placed on administrative leave. The court further rejected Gonsalves’ claim that by refusing to issue all of the witness subpoenas he requested from the Commission, his racial bias/retaliation claim had been effectively gutted.  Gonsalves failed to demonstrate how he was prejudiced by the Commission’s decision to deny his subpoena requests and failed to examine witnesses who did testify with regard to racially discriminatory motivation

Employers Must Prove Reasons For Bypass Or Risk Court Drawing An Adverse Inference

Our first commentary of 2014 discussed Seong v. Malden Fire Department, 27 MCSR 65 (2014), a decision in which the Commission chastised the City of Malden for destroying all records relating to the interview questions and scores of a candidate bypassed based on his interview performance.  The City claimed that the evidence—since destroyed—substantiated its claim that the candidate’s performance was “below average.”  In this case, the City not only failed to comply with the Commission’s order to produce documents relating to the candidates’ interviews and driving records, it failed to timely notify the Commission or the appellant of its inability to comply with the Commission’s order.

On appeal, City of Malden v. Civil Service Commission, the superior court affirmed the Commission’s decision allowing the bypass appeal, and confirmed that the Commission had the authority to draw an adverse inference against the City based on its poor hiring practices and its inability to substantiate the reasons stated in the candidate’s bypass letter.

Discipline Decisions

How Significantly Must The Commission’s Facts Differ To Justify Modification of Discipline?

Over the last year, the superior court has consistently reminded the Commission that the power to impose discipline belongs to the employer, reversing three Commission decisions where the Commission reduced employer-issued discipline but relied on the same findings of fact as the appointing authority.   These decisions affirm that the Commission is only entitled to modify discipline when its findings of fact differ significantly from those relied upon by the Town, or where there is evidence of bias or other political considerations. How significantly the Commission’s findings of fact must differ is the question raised by the Commission’s modification of discipline in Waples v. Department of State Police, 27 MCSR 526 (2014).

In Waples, a State Police Trooper appealed from a decision that he forfeit five vacation days for violating Department rules regarding reporting for duty and neglect of duty.  The Trooper left his assigned territory, refueled his cruiser at a station some 20 miles from his assigned territory (but fairly close to his home), and stopped at a local tavern to use the restroom.  While at the tavern, the bartender (a friend) offered the Trooper a diet soda, which he accepted.  While enjoying his beverage, the Trooper ran into the friend of a State Police Lieutenant, who struck up a conversation with him.  That evening, the Lieutenant’s friend called him to report that he had seen a trooper in uniform at the tavern. At the request of the Lieutenant, his friend filed a citizen complaint describing the interaction.  The complaint alleged that the trooper was in the bar area for about one hour and that the trooper’s cruiser was parked directly in front of the restaurant entrance, blocking it and compelling the complainant to ask the trooper to move the cruiser.  During his testimony the Lieutenant’s friend stated that he believed that he told the trooper that the cruiser should be moved, but did not directly tell him to move it.

When the Department returned to the Tavern to interview the employees regarding the incident, the bartender who had served the Trooper the diet soda was not working, so the Department interviewed other employees of the tavern instead.  There were conflicting reports about how long he may have been there.  Based on its investigation, the Department found that the Trooper violated department rules by leaving his patrol area without permission and by being 20 miles outside his patrol area in a restaurant bar for a minimum of 45 minutes. As discipline, the Department directed the Trooper to forfeit five vacation days.

The Commission adopted the decision of the DALA magistrate and found that the State Police Department had just cause to discipline the Trooper for violating Department rules regarding reporting for duty and neglect of duty, as the trooper traveled 20 miles outside his patrol area without requesting permission or reporting it to a superior.  However, the Magistrate determined, and the Commission agreed, that despite the information revealed in the citizen’s complaint, the evidence did not support that the Trooper spent 45 minutes or more in the tavern while he was on duty.  This conclusion was based in large part on the testimony of the bartender who served the Trooper a soda; the Magistrate credited his testimony over that of the witness who made the citizens complaint.  The Magistrate also noted that when the Department interviewed the Tavern employees during its investigation, the bartender was not working and therefore the Department had failed to obtain a statement from him regarding the length of the Trooper’s visit to the tavern.  Based on the Magistrate’s determination that it was “more likely that the Trooper spent 10 minutes or so rather than 50 minutes” in the tavern, the Commission reduced the forfeiture of vacation days from five to three.

Rather than focusing on the fact that the Trooper had violated two department rules, the Commission decided that the difference of 35 minutes warranted the reduction of the appointing authority’s discipline.  Does the finding that the Trooper spent 10 minutes drinking a soda on duty, 20 miles away from his assigned area as opposed to 45 minutes differ significantly enough to warrant the Commission’s modification of discipline from a five day forfeiture to a three day forfeiture of vacation time?  We will only know if the Department appeals (which we hope they do).  In light of the Commission’s tendency to overstep its authority in this area, employers should remain vigilant any time the Commission modifies discipline issued to an employee and consider carefully whether the Commission based its decision on the same or similar facts as those relied upon by the employer.

Commission Allows Appeal of Working Foreman Disciplined For Voting During His Break

It is unclear exactly why the City of Quincy decided to impose a three day suspension on a supervisor who chose to exercise his right to vote during his break, but what is clear is that the Commission was not persuaded by the City’s attempts to support its decision.   In Kozlowski v. City of Quincy, 27 MCSR 594 (2014), the Commission overturned the City of Quincy’s imposition of a three day suspension on a working foreman for what the City described as “leaving his assignment to conduct personal business without prior approval.”  Among the flaws identified in the City’s argument were: the fact that as working foreman, the appellant was responsible for determining when breaks are to be taken and as shift supervisor, his decision to take his own break did not require the approval of the shift supervisor’s supervisor; there was nothing of major significance that needed attention at the time the appellant took his break (as the earlier situation involving a sewer back-up had been resolved); and he had in fact told his supervisor that he had voted during his break and the supervisor had taken no action to counsel or reprimand him.  Rather the discipline was issued three days later on the orders of the DPW Commissioner who had been at the same polling place.

Although Kozlowski had three prior incidents of discipline, including two one-day suspensions, the Hearing Officer found that the City had failed to establish just cause for suspending him.  He found that the decision to stop and vote had not interfered in anyway with the business of the Sewer/Water/Drain Department or the DPW, and that his actions fail to satisfy the standard of “substantial misconduct which adversely affects the public interest by impairing the efficiency of public service.”

Sticks And Stones May Break My Bones But Words Will Get Me Suspended…

Adopting and affirming the tentative decision of DALA Magistrate James P. Rooney, in Simpson v. Boston Fire Department, 27 MCSR 597 (2014), the Commission upheld the three day suspension of a Boston firefighter accused of calling a fellow firefighter a “stupid c—t” during an argument over the house fund at the station.  Crediting the testimony of the female firefighter, the magistrate concluded that the Boston Fire Department had demonstrated by a preponderance of the evidence that the appellant had called a female firefighter a sexually derogatory term during a heated argument in violation of the department’s rule against using abusive or threatening language.

What was interesting about this decision was that despite the fact that the argument took place in the station and was overheard by a number of individuals, including a captain, a lieutenant and several other firefighters, no one seemed to have heard the alleged comment.  As a result, the Department had some difficulty determining the truth of what happened.  The incident was originally investigated by Deputy Chief Joseph Fleming who concluded that an argument had taken place, but that “the specific circumstances of the argument are not obvious.”  He suggested that the City’s Personnel Department take over the investigation.  The City investigated and in its report recommended a three day suspension for violation of city policies on harassment and workplace violence.  Simpson was notified of the charges and the three day suspension.  The City’s investigation results were not initially shared with Deputy Fire Chief Hasson, who conducted Simpson’s section 41 hearing.  This impacted his ability to rule on Simpson’s appeal, but once he conferred with the City, he upheld the three day suspension (“for the good of the Department, and for the good of the service”).

During his Civil Service appeal hearing, the appellant argued that the fact that the Department had only imposed a “modest” three-day suspension, was proof that its investigation had been inconclusive and that it lacked sufficient evidence to support any discipline.  The Hearing Officer rejected this argument.  Although he acknowledged that there seemed to have been some difficulty determining exactly what had happened during the argument, he pointed out that the investigation by the City’s Personnel Office had concluded that Simpson’s conduct had violated the City’s policies.  The City had been able to reach this conclusion by interviewing witnesses, as well as focusing on the behavior of the involved parties immediately following the argument to shed light on the she said – he said situation.  Following the argument, the female firefighter had been very upset and met with the station lieutenant and the Department’s Female Liaison to discuss the incident.  On the other hand, the appellant had several private conversations with colleagues where he used derogatory terms to refer to the female firefighter and interrupted the female firefighter’s meeting with the station lieutenant.

The Hearing Officer concluded that notwithstanding the difficulty involved in investigating the incident, “the evidence supports the Department’s ultimate conclusion that Firefighter Simpson called Firefighter [REDACTED] a sexually derogatory term during a heated argument.”  Further, he noted that “imposition of a modest suspension does not show that the discipline was illegitimate.”

The decision in this case is noteworthy because employers do not always have the benefit of eyewitnesses, and reluctant witnesses can prove a real complication when trying to determine exactly what may have happened in a situation.  This case demonstrates that absent evidence of corrupt or underhanded motives, an employer’s reasonable investigation and efforts to enforce its own policies, is entitled to deference and worth defending.

Refusal of Fitness for Duty Exam Is Just Cause for Discharge
In Bowman v. City of Brockton, 27 MCSR 605 (2014), a police officer with a troubled employment record, after completing a shift, declined to attend a routine firearms qualification exercise scheduled later that day.  His reason:  he had a medical condition that required him to take some unspecified medication that made him unavailable for the range.  In fact, the appellant took a variety of medications prescribed to regulate his mood, blood pressure and to treat his insomnia.  Although he had arranged a transfer to the midnight shift in order to best accommodate his regimen of medications, he had kept the precise details of his medications a secret, as he was worried about being labelled “damaged goods” if word got out.  On the day in question, he had forgotten that he was supposed to attend the firearms exercise after his regularly scheduled shift, and taken one of his medications.

Bowman’s message about the firearms training was relayed to a captain in the department who was concerned that whatever medication Bowman was taking that prevented him from attending the training exercise may also prohibit or present a problem with his ability to carry a gun while on duty.  The captain met with Bowman.  He informed him that he was not in trouble, but that the department needed to be confident that his medical condition and medications would not have an adverse effect on his ability to do his job.

What followed was a 3½ month saga of the officer and the officer’s doctor refusing to supply any information regarding the appellant’s medical conditions or the medications he was taking.  All the department received was the following opinion: “The patient should be able [sic] perform the duties of his job including the use of a firearm while on this medication.  Patient may return to work today.” [emphasis added].  The Appellant’s doctor refused to provide any additional information or fill out a standard Work Capacity Form.  The doctor claimed that his refusal was based on legal advice and that to do so would be “unethical.” As a result, the City scheduled an IME and ordered the appellant to submit to the fitness for duty examination.  The officer appeared at the doctor’s office but refused to undergo any portion of the evaluation.  As explanation for his insubordination, the appellant claimed to have been following the direction of his doctor, and exercising what he thought were his collective bargaining rights.

Commissioner Stein, citing appellate precedent requiring compliance with fitness for duty evaluations, upheld the discharge.  In doing so, he lamented the role Bowman’s physician played in the process leading up to his refusal to cooperate with the IME and to provide information, and noted that better communication could have resulted in a different result.  Notwithstanding that, having found no disparate treatment or ulterior motives, Stein opined:

It is not within the purview of the Commission, however, to turn back the clock and decide the validity of collective bargaining grievances, to interpret collective bargaining rights and strategy, or to rule whether Officer Bowman had provided sufficient proof that he was fit for duty….

…Had he handled the issues differently, he may have persuaded the BPD to give him [another] chance.  The commission, however, will not interfere with the judgment of the appointing authority in this case which has made a reasonable determination, consistent with merit principals, that it is not in the best interests of the BPD and the people of Brockton to do so.

Fourth Time’s The Charm—City Required To Reinstate Firefighter Who Failed Level I and Level II Certification Examinations Three Times

On September 30, 2012, the City of Lowell appointed Eric DeJesus, the appellant, as a firefighter.  Prior to beginning his employment, the appellant signed an agreement acknowledging that his continued employment with the Fire Department was contingent upon his successful graduation from the Massachusetts Firefighting Academy and upon successfully passing the Firefighter Level I and Level II Certification examination administered by the Massachusetts Firefighting Academy (which also serves as the Firefighter I and Firefighter II Certification Examination).

DeJesus worked at the Lowell Fire Department for approximately three months before reporting for duty to the twelve week recruit training program at the Massachusetts Fire Academy.  At the conclusion of the training program, on June 19, 2013, the appellant, along with the rest of the academy, took the Firefighter Level I and II certification examination.  The appellant did not pass.  He was given the opportunity to take reexaminations on June 20, 2013 and on September 27, 2013—neither of which he passed.

The Department did not receive notice that DeJesus did not pass the third reexamination until October 7, 2013—seven days after the end of his twelve month statutory probationary period.  Two days later, the Department issued him a notice of termination based on his inability to successfully pass the Firefighter Level I and Level II certification examinations, as required by the agreement he signed prior to beginning his employment.

The appellant appealed his termination to the Commission, arguing that where his probationary period had already ended, he was a tenured employee, and thus entitled to a hearing prior to his termination. DeJesus v. City of Lowell, 27 MCSR 562 (2014). The City argued that the Commission lacked jurisdiction to hear the appeal because the appellant’s time in the academy tolled his probationary period.  According to the City, because he was not actively performing the duties of a firefighter, he was still a probationary employee and not entitled to an appointing authority hearing before being terminated.

In a 4-1 decision, the Commission held that the appellant’s time in the academy did not toll his probationary period, and that he was therefore a tenured civil service employee.  The Commission distinguished police officer candidates, whose probationary period is tolled until they have completed training because, under M.G.L. c. 41, § 96B, they may not exercise any police powers prior to completing their training course.  Where there is no similar statutory provision for firefighters, firefighter appointees are not barred from performing firefighting duties prior to attending training.  Absent such a requirement, the appellant’s training period was not tolled, particularly where he performed the duties of a firefighter for approximately three months prior to attending training at the academy.  Where the City terminated his employment without giving him a prior hearing, the Commission ordered the appellant reinstated without loss of compensation.

As the lone dissent (and arguably the voice of reason in this case), Commissioner Stein opined that the Commission lacked jurisdiction to hear this appeal because the appellant had not yet completed his probationary period prior to his termination.  Stein interpreted the law as requiring appointees to actually perform firefighting duties for a period of twelve months before obtaining tenure status, and refused to read the law to require the City to count the time the firefighter spent in training as performing the duties of a firefighter.

Bypass Decisions

Employers Are Not Required To Prove That The Candidate Engaged In Misconduct To Justify Bypass

In Bertone v. Department of Correction, 27 MCSR 548 (2014), the Commission overturned a DALA Magistrate’s recommended decision and affirmed the Department of Correction’s bypass of a candidate whose background investigation revealed that he had assaulted a fellow student while in high school less than five years prior to his application and had acknowledged “freezing up” when he was called upon to place restraints on an offender as part of his job as a group care worker at a Department of Youth Services (DYS) facility. The Magistrate had recommended allowing the appeal based on his finding that the Department of Correction (DOC) had not shown reasonable justification to bypass the candidate because the DOC failed to prove that the candidate had twice failed to properly restrain an offender as part of his job at a DYS facility.

In deciding as such, the Magistrate ignored the governing case law—City of Beverly v. Civil Service Commission, 78 Mass. App. Ct. 182 (2010).  In City of Beverly, the City bypassed a candidate for police officer because he was terminated from his previous employer for serious misconduct, including accessing the voicemail accounts of other employees without authorization.  While the Commission refused to uphold the bypass, concluding that the City had failed to prove that the candidate illegally accessed the voicemails, the Superior Court and Appeals Court vacated the Commission’s decision and upheld the bypass, reminding the Commission that the City’s obligation is to prove “reasonable justification” for its bypass decisions, not that the candidate actually engaged in the misconduct considered as part of the employment decision.

Relying on City of Beverly, the Commission held that the Magistrate erred by effectively requiring the DOC to prove that the candidate had engaged in the conduct it relied upon to bypass him. While the Commission respected the Magistrate’s concern that the DOC may have incorrectly concluded that the candidate engaged in the misconduct alleged to have occurred while he was a youth, it determined that the Magistrate had correctly concluded that “[a] Correction Officer is also required to place inmates in restraints, so DOC is justified in its concern,” and that such concern constituted a valid reason to bypass the candidate.

No Bypass Where Employer Revokes Conditional Offer Of Employment

While it is generally best practice to deliver bypass letters and conditional offers of employment concurrently, if the appointing authority acts hastily or changes its mind, it is reassuring to know that the Commission’s authority to review the situation is limited where no bypass has occurred.

In Harrington v. City of Pittsfield, 27 MCSR 524 (2014), the Commission held that it did not have jurisdiction to hear an appeal by a candidate for permanent appointment as a Pittsfield firefighter where he had been given a conditional offer of employment that was later rescinded after the City Solicitor informed the Mayor that there were not sufficient reasons to bypass two of the candidates ranked higher than the appellant.

The candidate argued that the Commission had jurisdiction to hear his appeal because a bypass occurred when he was granted a conditional offer of employment—based on a bypass of the two other candidates ranked higher on the list—and that the City was not permitted to reconsider that bypass decision after the issuance of the conditional offer of employment.  The City argued, and the Commission agreed, that no bypass occurred because nobody ranked below the candidate was appointed.  While Chairman Bowman noted his concern regarding the sequence of events that occurred—including the rescission of the candidate’s conditional offer of employment for non-medical reasons—the matter did not warrant further investigation by the Commission as there was no evidence of any personal or political bias against the Appellant.

Bypass Reasons Must Be Accurate and Supported By Available Evidence

While a poor interview performance has been upheld as a valid reason for bypassing an otherwise qualified applicant, it is not enough to simply claim that someone had a poor interview.  Interview notes, testimony, scoring sheets and recordings are all valuable tools for demonstrating poor performance.  They can also work against you, however, if the claimed examples of poor interview performance are not supported by tools employed in the interview.  That is the moral of the decision in Morris v. Braintree Police Department, 27 MCSR 656 (2014), a case where the Commission held that the Police Department’s purported reasons for bypassing the appellant were not supported by the audio-video recordings of the Department’s interviews with the candidates.

While the Commission’s decision credited the Department for audio-video recording the interviews and having a reasonably structured and objective interview process, it noted that the “Chief’s recollections, the narratives of other panel members, as well as the summary provided to Braintree Mayor Sullivan (who was the actual ‘decision maker’) frequently did not comport with what the recorded interview record and other background investigation reports in the candidates clearly showed.”  A review of the audio recordings of the appellant and the selected candidates demonstrated that the appellant’s responses to the interview questions were not all that different than those of the selected candidates, whose weak responses were excused or given some leeway due to youth or “lack of life experience.”

Further the Hearing Officer, Commissioner Stein, saw no reason for penalizing the appellant or characterizing him as rigid or inflexible, for stating honestly that excusing the Union President from a ticket would be against his core values if the ticket were justified.  The Commissioner found much more troubling that by its actions the Department seemed to be endorsing the opposite view.  At least one of the selected candidates gave ethically questionable answers, including one who indicated that she would not only let the union president off without a ticket, but that she would excuse a fellow officer who stole jewelry while responding to a breaking and entering call.

“By singling out his interview performance and failing to fairly and thoroughly consider and explain its decision in light of the complete record available to the BPD that contained extensive information (much of it drawn from his many years of actual experience as a police officer) that was highly complementary to Mr. Morris in all of the areas of alleged concern, the BPD’s decision was not reasonably based on the required ‘thorough review’ needed to support a bypass decision under applicable civil service law.”