Massachusetts Civil Service Reporter
Management Commentary
by
Philip Collins, Esq. and Melissa R. Murray, Esq.
Collins, Loughran & Peloquin, P.C.
IN THE COURTS
Superior Court Overturns Commission Decision on Failed Drug Test Bypass
In Gannon v. Boston Police Department (Case No. 2015CV03462-B (March 13, 2017)), the superior court reversed the Civil Service Commission’s decision that allowed Gannon’s appeal and ordered the Boston Police Department to place his name at the top of the current or future certifications for permanent police officers.
Gannon initially took the civil service exam in April 2009. He received a passing score and in March 2010 submitted a hair sample for drug testing as part of the pre-hiring process. The sample, which was tested three times, tested positive for cocaine, a result that purportedly shocked Gannon. He submitted a second hair sample for testing on April 10. This second sample tested negative for drugs. Nevertheless, the Boston Police Department bypassed Gannon, a decision that he appealed, although that appeal was later withdrawn.
In April 2011, Gannon passed a second civil service exam. He submitted another hair sample for drug testing which tested negative for drugs. He was bypassed based on the initial positive drug test and filed a timely appeal. The Commission allowed the appeal and the Boston Police Department asked the superior court to review the decision.
In its decision, the superior court determined that in allowing Gannon’s appeal, the Commission had committed an error by relying on drug testing discipline cases for tenured Boston police officers. Tenured police officers and applicants are in categorically different circumstances. For tenured officers, a single failed drug test cannot form the “sole basis” for a decision to terminate. A failed drug test can be the sole basis for bypassing a candidate, however. Therefore the court determined that the Police Department acted within its authority when it bypassed Gannon after considering the drug test he had failed during his initial pre-hiring screening in 2010.
The court’s decision confirms that appointing authorities are granted substantial deference in hiring decisions, especially the hiring of police officers due to their “sensitive position” in society.
DISCIPLINE DECISIONS
Commission Modifies Suspension Due To Lack Of Notice Regarding Policy Changes
The Commission’s decision in Freitas v. New Bedford School Department, 30 MCSR 1, modifying the Appellant’s suspension from five days to two, is a good reminder of the importance of providing employees with clear and adequate notice of any changes in policy. In this case, the Appellant, a tenured Building Custodian since 1993, had a history of performance concerns and questionable sick leave use. However, when it came down to it, the Commission quite reasonably determined that he could not be held responsible for adhering to a change in policy that he was not aware of.
Over the years, the school custodians in New Bedford had a variety of policies and practices for calling in to report absences – some called their supervisor or building principal directly, or they called the School Dispatcher. The School Dispatchers were responsible for arranging for substitute teachers, nurses and para-professionals, etc. They were not responsible for arranging coverage for school custodians, however, when they received a call, they would inform the Supervisor of Custodians, and that person would make appropriate arrangements for custodial coverage.
In July 2015, a new “Summer Sick Call Procedure” was announced for school custodians. The policy was intended to be temporary, with a new automated call in system in place for the start of the school year. Under the new policy, all custodians were told to call the Supervisor of Custodians directly on his cell phone to report any absences. The memo announcing this new procedure was not posted at the middle school where Freitas was assigned. On September 8th and 9th, Freitas was sick. Following past practice for his building, he called a co-worker to let him know that he would be out, and that person agreed to notified their supervisor for him. On September 10, the Supervisor of Custodians called Freitas to discuss his absences. During the conversation, the Supervisor learned that Freitas was not aware of the new sick day call-in procedure. Following the call, he reissued the memorandum announcing the new policy, however he made no changes to it so it still referred to the procedure as the “Summer Sick Call Procedure.”
On September 21, the Facilities Director for the School District issued an updated memorandum to all custodians entitled “Sick Call Procedure” and clarified that the policy was not limited to the summer, and was to remain in effect “until further notice.” Freitas’ supervisor did not distribute a copy of this memorandum to the custodians in his building, but he did post a copy on the board in the custodians’ office.
On October 1, 2015, Freitas was sick and not able to report to work. Although he was aware of the new procedure, and the fact that his absence was supposed to be reported to the Supervisor of Custodians, he did not have the cell phone number he was supposed to call. He tried asking a few people for the number but was unsuccessful. Instead, he again contacted a co-worker, who also did not have the Supervisor’s cell phone number, but who agreed to relay Freitas’ absence to their supervisor.
On October 13, Freitas was called to a meeting to discuss his absences (9/8, 9/9 and 10/1) and failure to follow the new sick call in procedures. After the meeting, he was issued a letter of discipline which imposed a five day suspension for failing to appear for work without calling the sick call number or his supervisor directly. He appealed.
As stated above, the Commission found that there was no just cause to discipline Freitas for his absences on September 8 and 9, where he had no knowledge of the new policy. In terms of the absence on October 1, the Commission found that Freitas knew about the new policy, but that the school department could have done more to ensure compliance. However, it also found that Freitas could have tried harder to comply with the new policy, especially where he was on notice that his old practice of calling a co-worker and relying on him to notify their supervisor was not an acceptable practice. As a result of its findings, and after consideration of Freitas’ past evaluations and discipline, the Commission decided to exercise its discretion and modify the discipline from five days to two.
Discipline Cannot Be Viewed In A Vacuum
By a 3-2 vote, the Commission overturned the Appellant’s four day suspension in Jones v. Boston Fire Department, 30 MCSR 83, despite finding that he had made racially insensitive remarks contributing to a hostile working environment. In reaching its decision, the Commission majority was concerned that the Appellant had been singled out for his behavior and that others who had been involved or contributed had not been disciplined.
In this case, the details of what occurred are not as important as what did not occur. The Commission agreed with the Appointing Authority that the Appellant had engaged in unacceptable behavior, including using the racially charged analogy of “Master” and “Slave” to characterize the relationship between another firefighter he was having issues with and their commanding officer (who he was also having issues with). However, the Commission was concerned that the incident was never fully investigated and that the Appellant was the only person being held accountable despite the fact that others had contributed to the behavior and to the department’s hostile environment. According to the Commission, “
Commissioners Ittleman and Tivnan dissented. The dissenting Commissioners believed that some discipline was still warranted, and would have modified the discipline rather than annul it.
Earlier Errors Not Enough to Change Commission Decision on Remand
Moniz v. City of New Bedford, 30 MCSR 90, returned to the Civil Service Commission on remand from the Appeals Court, which vacated the Commission’s earlier decision to reduce the Appellant’s discharge to a suspension. The Appeals Court found two errors in the Commission’s initial decision. First, rather than previously receiving only warnings as stated by the Commission, Moniz had received a one-day suspension for failing to show up to work. Second, there was an unresolved question of whether the appellant’s supervisor knew about the failure to maintain the airport generators before the final warning was issued to Moniz.
By a 3-2 vote, the Commission found that neither of the errors changed their original conclusion that the lack of any significant effort at progressive discipline and the nature of the limited misconduct justified discipline but not termination. The Commission determined that the Decision should stand as originally determined by the Majority and modified the termination to a 21 month suspension.
Incarceration Not Considered Valid Reason for Leave of Absence
In Branco v. Methuen Public Schools, 30 MCSR 116, the Commission dismissed the appeal of a former school custodian whose conduct in the summer of 2015 it found “provided ample reasons for termination of his employment.” Branco was a maintenance worker for the Methuen Public Schools until, after a series of crimes in early June 2015, he found himself incarcerated in the Essex County House of Correction. Notice of his arrest for violating a restraining order and for possession and intent to distribute illegal drugs was reported in the local paper.
After being ordered held without bail for 90 days, Branco sent a letter to the Superintendent of Schools requesting unpaid leave to deal with his divorce and to undergo substance abuse treatment. Branco’s request was denied. The School District provided 3 reasons for denying his request. First, in his request, Branco did not provide a return to work date. Second, he had not previously requested or provided prior notice of the leave as required under his collective bargaining agreement. And finally, the district emphasized that his incarceration (which he confirmed in his letter requesting leave) is not a permitted reason to grant a leave of absence.
Ultimately, the school terminated Branco for his unexcused absence from work and for bringing discredit upon the Methuen Public Schools. As a public school district, the Commission found that Methuen was justified in its conclusion that Branco’s conduct had “brought discredit” to the school system and was below the standards of expected and acceptable behavior. “When a civil service employee’s off-duty misconduct is public and is of a nature that diminishes the respect for, and confidence in his or her employer, it establishes the requisite nexus to his employment.”
Think Twice Before Hitting Reply All
A sarcastic email led to a one-day suspension for insubordination in Schlichte v. City of Gloucester, 30 MCSR 124. There was no initial hearing and the parties sought direct review by the Civil Service Commission.
As Deputy Chief in charge of operations, Schlichte was responsible for Standard Operating Guidelines (SOGs) for the Gloucester Fire Department. In mid-2015, Chief Smith (a fairly new chief hired from outside the department) decided that he wanted to accelerate the process by which these SOGs were reviewed and revised. Concerned that the project was too much for one person to handle, he sent an email to a group of 18 officers at the Lieutenant level or higher, requesting volunteers for the new SOG review and revision project. Chief Smith did not discuss the new process or his email with Schlichte prior to the email being sent. If he had, he would have learned that Schlichte had previously proposed a group for the SOG review but it had been grieved by the Union.
When Schlichte received the Chief’s email seeking to change the SOG system he oversaw, he was offended. He clicked reply all and fired off an email that he would later admit was a mistake. The email criticized the Chief’s proposed changes, but the tone was “sarcastic,” “in your face,” and generally inappropriate. The Chief was especially concerned because the email had been sent to a group of officers and seemed designed to undermine him and his authority. After much consideration, the Chief decided to address the issue by handing down a one-day suspension to Schlichte for insubordination.
On appeal, Schlichte made two arguments. His disparate treatment argument, was quickly dismissed by the Commission after its review of the examples provided by Schlichte revealed that they were clearly distinguishable (none included a direct challenge of the Chief in front of others). His other argument was that the one-day suspension did not follow the department’s progressive discipline policy. While he did have a previous written warning, he argued (after the fact) that that warning should have been verbal and the email incident should have resulted in a written warning instead of a suspension. Department policy, however, specifically states that progressive discipline need not be followed if the incident involved is a “major offense.” Insubordination, which includes rude or discourteous conduct towards a supervisor, is considered a major infraction under the policy.
With the text of the policy in hand, the Commission upheld the one day suspension.
Communication Is Necessary When an Employee Goes On Leave
In Stewart v. Newton Housing Authority, 30 MCSR 134 (2017), an unusual case involving two co-workers who once had an amicable relationship akin to that of a mother and daughter, the Commission allowed Steward’s appeal after finding she was terminated from her position with the Newton Housing Authority (NHA) without just cause.
Ms. Stewart and Ms. Sutherland started at the NHA in 2007 and 2005, respectively. Stewart was hired as NHA’s Resident Services Coordinator and held that position until she was terminated in December 2015. Sutherland started as a Program Assistant. In March 2013, she was promoted to interim Executive Director, and on July 1, 2014 she was made permanent Executive Director.
In mid-2014, as part of a renovation project, Stewart was moved into a new work space in the NHA offices. Shortly after moving to this new space, she began to experience respiratory symptoms, specifically chronic coughing, that her doctor attributed to mold and construction activities in the building. Also in 2014, Stewart was offered the position of union steward, which she accepted. Sutherland was upset by this offer to Stewart notwithstanding the fact that as the Executive Director she was no longer in the union.
In March 2015, Stewart went out on sick leave and sought medical assistance for her ongoing respiratory symptoms. She exhausted her sick leave and subsequently hired an attorney to file a workers’ compensation claim on her behalf. While out on medical leave, Stewart maintained contact with NHA tenants and continued to help plan events and programs.
After Stewart went out, Sutherland hired a contractor to perform air quality inspection of the building. The contractor found mold in the basement, but no conclusive evidence that contamination permeated Stewart’s work area. Regardless, remediation for the moldy basement took place and a thorough cleaning and air purifier were provided for her work area.
In April 2015, Sutherland sought access to a separate Tenant Services Account used for donations to the Tenant Association that Stewart oversaw. Stewart had taken the checkbook with her because she was not sure how long she was going to be out and had wanted to make sure that she could submit payments for upcoming events. She had also left blank checks in her office, however, for use by personnel there. Given her symptoms, Stewart did not feel comfortable going into work to return the checkbook, but she offered to return it to the Finance Director if he could pick it up at her house which he did. While they were figuring out how the checkbook would be returned, however, the NHA’s attorney wrote to Stewart’s attorney and claimed that Stewart was “holding property of NHA,” and demanded that it be returned or legal action would be taken to compel the return of the property “she is holding hostage.”
Throughout the spring, the clinical director in charge of Stewart’s treatment sent updates to Sutherland. Despite these updates, in May 2015, Sutherland directed the NHA attorney to send a letter to Stewart informing her that there was no medical evidence that would prevent her from working and that NHA had determined that she had abandoned her job. During the hearing, Sutherland acknowledged that the letter was sent to “prompt a response” and that she did not actually believe Stewart had abandoned her job. Upon learning of the letter, Stewart emailed Sutherland the following response: “I have not and will not abandon my job as resident services coordinator at Newton Housing Authority.” The Union filed on her behalf. Sutherland responded the next day that NHA had sent its letter due to a lack of communication from Stewart, but that in light of her email from the night before, the determination that she abandoned her job had been reversed. The union grievance was subsequently withdrawn.
In December 2015, the NHA moved forward with Stewart’s termination and justified it on two grounds. First it was alleged that Stewart failed to perform her duties and second that NHA intended to reorganize by hiring a licensed social worker and eliminating Ms. Stewart’s position. The Commission, however, found that NHA failed to establish just cause for termination.
The first reason given to justify the claim of failure to perform duties was that Stewart had failed to apply for Newton’s Community Development Block Grant (CDGB). The Commission found however, that it was not Stewart’s job to initiate the grant application. It was not in her job description and in the past, she had only had a limited role in the application or preparing requisitions and keeping records under the direction and instruction of the executive director. The second claim was that she failed to apply for or secure funds from the Perpetual Benevolent Fund. The Commission determined that NHA had failed to prove any deficiencies in Stewart’s performance concerning the solicitation of a donation from this Fund. Although she had not applied to the Fund before going out on leave, there were two deadlines, only one of which had passed, and she usually applied before the second deadline, not the first. Sutherland submitted the application and received a $10,000 donation.
The second reason provided by NHA, the elimination of her position in the reorganization, was considered pretextual by the Commission. There were no firm plans for reorganization at the time Ms. Stewart was terminated and NHA offered no proof that hiring a social worker made Stewart’s position redundant. Something more concrete then hypothetical discussions is necessary to justify termination in cases like this.
What is unfortunate about this case is that at the Appointing Authority level hearing, Stewart made the point that she had a “strong belief that today’s hearing is not motivated by her job performance, rather it is personal in nature.” Notwithstanding this concern/warning and the limited evidence of performance issues, the Board went ahead and voted 4-1 to dismiss Stewart. In its decision, the Commission validated Stewart with its determination not only that there was no just cause for her termination, but with its finding that:
the two alleged (and substantially inconsistent) reasons proffered by the NSA Executive Director to the NSA Board for terminating Ms. Stewart were mere pretexts for the Executive Director’s actual motivation, which was based on the personal animus that she held against Ms. Stewart and self-interest to avoid having to answer questions about her own accountability, which impermissibly tainted the NSA Board’s decision.
Stewart was reinstated to her position without loss of compensation or other benefits.
Commission Upholds Voluntary Resignation – Despite Subsequent Second Thoughts
Officer McGoldrick appealed to the Commission alleging that she was unlawfully terminated from her position with the Boston Police Department. McGoldrick, who was facing a disciplinary hearing for charges including untruthfulness, unreasonable judgment and pointing firearms, submitted a letter of resignation effective October 1, 2016, which the Police Commissioner accepted. She subsequently attempted to rescind her letter of resignation but her request was denied.
Before the incident that led to McGoldrick v. Boston Police Department, 30 MCSR 161, Officer McGoldrick had never been subject to formal disciplinary action. That changed in November of 2015 when the BPD Internal Affairs Division opened an administrative investigation into an on-duty incident between McGoldrick and another officer. Few details are presented other than the incident involved a firearm somehow. McGoldrick was placed on administrative leave and had to surrender her firearm. She was eventually released from administrative leave and returned to full duty in December, however, at the Police Commissioner’s request, the investigation was reopened in March of 2016. McGoldrick was placed on administrative leave once again.
The investigation moved forward and a disciplinary hearing was scheduled. However, worried that her retirement could be affected by the outcome of the hearing, McGoldrick negotiated her resignation. On July 18, 2016, she delivered a letter to the Department that stated, “This correspondence is to notify you that effective October 1, 2016, I am resigning from my position as a Police Officer with the Boston Police Department.” Several months later, on September 23rd, she tried to rescind the letter of resignation, but the Police Commissioner would not accept her request. His denial was communicated to McGoldrick by her Boston Police Patrol Association (BPPA) attorney on September 28, 2016.
On September 30, 2016, her attorney informed her that the BPPA could no longer represent her interests but that she was free to challenge the Commissioner’s refusal to accept her withdrawal of her resignation individually. On October 7, 2016, McGoldrick demanded a written reply to her request that her letter of resignation be rescinded. That reply was received on October 12th. Her appeal was filed with the Civil Service Commission on October 17th.
The Commission dismissed the appeal on two grounds. First, the appeal was barred by the statute of limitations as it was filed more than ten days after the date that McGoldrick was on notice of the claims she was asserting on appeal. For the claim that her resignation was involuntary, the key date is September 23rd, the day she attempted to revoke her resignation. This is the date she was on notice of that claim and she had the statutory duty to file her appeal with the Commission within ten business days of that date. She did not. With respect to her other claim, that the Boston Police Department acted unlawfully by refusing to accept the rescission of her resignation, the Commission concluded that she knew of this decision on September 28th, the date her BPPA attorney informed her that her revocation of the letter of resignation had not been accepted. On both claims, her appeal, filed October 17, 2016, was well beyond the 10 day limit.
The Commission also dismissed the appeal because McGoldrick offered no credible evidence that her resignation was involuntary and failed to establish a reasonable expectation that she could prove the BPD had violated her civil service rights by accepting her resignation in the first place.
Employees Need To Be Able To Perform The Duties Of Their Position In Order To Keep It
In Alston v. Town of Brookline, 30 MCSR 179, the Commission upheld the termination of Alston from his position as a firefighter with the Brookline Fire Department due to the untimeliness of his appeal and the fact that as of the date of his discharge, the Town was justified in concluding that he was not capable of performing the duties of a firefighter then or in the foreseeable future, with or without accommodations.
The story began while Alston was recovering from an on-duty injury. Alston reported that his lieutenant had made racial slurs in a voicemail message directed at him. The lieutenant admitted to making the slurs but denied that they were directed at Alston. Alston’s relationship with his co-workers began to deteriorate after he filed the report. This led to Alston filing additional complaints with the Fire Department and the Town alleging harassment and retaliation. In December 2013, there was an incident that Alston felt was directed at him. Shortly after Alston expressed an interest in transferring to another station, the word “Leave” was written in dust on a piece of fire apparatus. Alston filed a report. In discussing the incident it was clear that Alston took this as a personal attack. He also indicated that he was under considerable stress and made a comment that included the phrase “going postal.” He was placed on administrative leave pending an investigation of the incident and a determination of his fitness for duty.
Alston remained out for several months. Eventually, he was transferred from administrative leave to sick leave. He used up his accrued sick time and was placed on unpaid leave. Alston appealed and was restored to administrative leave. After several more months this pattern repeated itself as his administrative leave was again terminated and he was placed on unpaid leave after his sick leave was exhausted.
In August 2016, Brookline initiated proceedings to terminate Alston. The Town began contemplating termination due to his apparent incapacity to report to work and to perform the essential functions of the position with or without reasonable accommodations. During his leave, Alston failed to provide Brookline with a medical release to speak with his providers, failed to meet with the Chief to discuss reasonable accommodations, failed to participate in a toxic screen and failed to attend a medical evaluation. The Town noticed Alston that it was considering separating him from employment, and a hearing was scheduled for August 30, 2016. Following the hearing, on October 5, 2016, he was terminated.
Alston took offense to what he viewed as insensitivity toward racial discrimination within the department. He also felt that he was being retaliated against for complaining about a racially hostile atmosphere within the department. His complaints were not entirely meritless. In December 2014, after he asked the Board of Selectmen to conduct an independent investigation of the fire department and his complaints, the Board announced the creation of the Commission for Diversity, Inclusion, and Community Relations (DICR). The DICR completed a review and in January 2016, reported to the Board of Selectmen that a culture of institutional racism has been allowed to exist in the fire and police departments. However, notwithstanding this finding, Alston was not able to show that he was available and capable of returning to work.
Prior to going on leave, Alston had been in treatment to deal with the feelings of workplace betrayal, anger, and harassment that he was experiencing, but his conduct showed, and he conceded, that he could not be restored to the Brookline Fire Department with or without any form of accommodations. An Independent Medical Examination confirmed this conclusion. It stated that not only does he have a heightened sensitivity and awareness of racism, but he also has a difficult time managing racism. He is no longer able to trust his co-workers. For these reasons, the evaluating doctor felt that he would be unable to return to his position with the Brookline Fire Department with any accommodation.
The Commission reached its decision to dismiss the appeal without addressing the merits of Alston’s claims of a harassing environment or unlawful discrimination. At the time of the hearing, Alston had a federal civil rights lawsuit pending against the City and the Commission simply observed that those claims were better adjudicated in federal court. For purposes of his appeal before the Commission, he was unable to show that the City was not justified in terminating his employment where he was unable to do the required work – even if through no fault of his own. “[T]he decision to remove and replace an employee for the efficiency of the public service is a judgment vested with the Appointing Authority and, the cause of the incapacity, alone, does not necessarily state a claim for violation of civil service law in which the Commission may intervene to remediate.” See e.g., Morgan v. Town of Billerica, 28 MCSR 503 (2015); Bistany v. City of Lawrence, 26 MCSR 136 (2013), aff’d, 2014 WL 6708807 (Super.Ct.2014), aff’d, 88 Mass.App.Ct. 1105 (2015) (Rule 1:28); Valente v. City of Newton, 23 MCSR 399 (2010).
BYPASS DECISIONS
The Commission Questions The Relevance Of An Eight Year Old Drug Test
Although the Commission upheld the applicant’s bypass in Dolbrus v. City of Everett, 30 MCSR 74, the Commission made a point of noting that the process was “not without its flaws,” and addressed the weight to be given an old drug test that the Appellant took and allegedly failed eight years ago when he had applied for the position of police officer with the Boston Police Department.
In 2015, Dolbrus applied for the position of firefighter with the Everett Fire Department. Two years earlier, he had unsuccessfully applied to become a member of the Everett Police Department. Through that earlier process, the City learned that he had been fired from a previous job at Home Depot. However, on his 2015 fire application, in response to the question “[h]ave you ever been dismissed or asked to resign from employment,” he responded “no”. The City bypassed the Appellant due to his “lack of candor with the application process.” It later added a failure to disclose an earlier non-selection by the Boston Police Department for failure to report drug testing.
The Commission found that the City was justified in relying on Dolbrus’ failure to disclose his termination from Home Depot as a reasonable justification for bypass. With respect to the drug test, however, it provided several reasons for concluding that the drug test did not provide reasonable justification for bypassing the Appellant. First, the Appellant admitted that he took the drug test but asserted that he had never been notified of the results of the test. Second, the test was taken eight years earlier, “suggesting that this information has limited relevance to the Appellant’s firefighter application in Everett.” And lastly, the Commission found that there was no indication that the City or the interviewers had asked the Appellant about the test or in any way discussed or considered it as part of their decision.
The Commission’s discussion regarding the weight to afford the drug test is interesting in light of the superior court’s decision in Gannon v. Boston Police Department (March 13, 2017) (see In The Courts section of this Commentary). In that decision, the court upheld the Appointing Authority’s reliance on an earlier failed drug test as a valid reason for bypassing an applicant for the Boston Police Department. Although the drug test in that case was not eight years old, and the applicant had been informed of the results of the test, it is useful for Appointing Authorities to remember that just because the Commission takes a certain position, the courts do not always agree. And in this case, the failure to address the 8 year old drug test with the applicant may have been just as fatal as its age.
OTHER
Joint Request For 310 Relief Is Not Guaranteed
Ingraham v. Town of Danvers, 30 MCSR 80, is an enlightening case for anyone operating under the mistaken assumption that joint requests for 310 relief will be rubberstamped by the Commission. In this case, the Commission denied the Parties’ Joint Motion for 310 Relief and dismissed the Appellant’s appeal for failure to state a claim upon which relief can be granted.
The Appellant in this case was applying for original appointment to the position of firefighter in the Town of Danvers. His father is a Fire Lieutenant in Danvers. In April 2015, the Appellant was bypassed after taking a pre-employment drug test. The Parties stipulated that the reasons for his bypass were negative reasons related to his application. He appealed.
A prehearing was held on June 2, 2015 and a full hearing was scheduled for August 12, 2015. On August 11, 2015, the Parties submitted a “Joint Motion for 310 Relief” and requested that the August 12 hearing be taken off the docket. In their Request for 310 Relief, the Parties sought to stipulate that “[p]rior to making a conditional offer of employment, the Town administered preemployment medical testing. Mr. Ingraham participated in such testing.” The Commission determined that the reference to the testing as “medical” in the stipulations was not accurate and that the Commission could not ignore that both Parties had referred to this testing as “drug testing” at the pre-hearing.
When seeking Chapter 310 relief, it is important to remember that beneath every request for relief must be a foundation indicating that the appellant has been aggrieved through no fault of his or her own. See Geary v. Salem Police Department, G-01-364 (2006). The Appellant in this case could not do that. Federal and state law both allow for pre-employment drug testing without a conditional offer of employment, therefore the Town had the right to administer such test and the Appellant’s claim – as determined by the Commission – was “untenable”.
Incarceration May Be a Valid Reason to Not Check Your Mail
While incarceration may not be a valid reason to take a leave of absence, it may be a good reason to miss a hearing if the Commission is unaware that the Appellant is incarcerated. In Adams v. Department of Correction, 30 MCSR 148 (2017), the Appellant, a Department of Correction employee, appealed his termination, which occurred for reasons related to domestic violence. He filed a timely appeal, but failed to appear for the pre-hearing and did not respond to an Order to Show Cause why the appeal should not be dismissed. The appeal was dismissed after there was no response to the Order to Show Cause. Unbeknownst to the Commission, Adams was incarcerated at the Norfolk County House of Correction at the time and, because both notices were sent to his residential address, never learned of the hearing or the Order.
After his release the Appellant was able to go through his mail and after seeing the notices filed for reconsideration. The Commission has the inherent power to reopen a closed proceeding in an appropriate case. In this case, Commissioner Bowman was unaware that Adams was incarcerated at the time of the scheduled pre-hearing and for that reason his motion for reconsideration was allowed.
