Myers v. Massachusetts Civil Service Comm'n.
| Decision Date | 26 December 2006 |
| Docket Number | 054663 |
| Citation | 2006 MBAR 547 |
| Parties | Scott Myers v. Massachusetts Civil Service Commission et al.[1] |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brassard, Raymond J., J.
The plaintiff, Scott Myers ("Myers"), brought this action against the defendants, the Civil Service Commission ("Commission) and the Town of Duxbury ("Town"), pursuant to G.L.c. 30A, §14. Myers and the Town have moved for judgment on the pleadings. After a hearing, and careful review of the papers, Myers' Motion for Judgment on the Pleadings is DENIED, and the Town's Cross Motion for Judgment on the Pleadings is ALLOWED.
This case concerns the suspension and subsequent discharge of Myers from the Duxbury Police Department. The Town, through its Town Manager Rocco Longo ("Longo"), affirmed the suspension and termination.[2] Myers appealed the Town's decision to the Commission, pursuant to G.L.c. 31 §43. After a de novo hearing, the Commission concluded that the Town "was justified in its decision that [Myers'] actions warranted disciplinary action," and that termination was appropriate. Myers appealed the Commission's decision to this court.
Myers was employed by the Town as a police officer from December 1983 to June 2003. Between 1985 and July 28, 2002, he took 236 days of sick leave. Myers never presented any medical documentation to explain the absences occurring before June 1, 2002.[3] Myers was counseled, reprimanded and suspended for his overuse of sick time on several occasions throughout his employment with the police department.
In January 1994, Myers was granted permission by the police chief to "manage and consult" at his wife's pizzeria restaurant and pub, called Capone's, when he was not on duty. In April 1998, Myers clarified his role at Capone's, indicating that he worked from zero to twenty hours per week, and that he "help[ed] out" by taking orders or making pizzas.[4] Myers asserted that he only worked at Capone's on his days off or on off-duty hours. In November 2000, Myers requested a one-year leave of absence to assist his wife in operating Capone's, and the request was allowed. In early 2002, after Myers returned from his leave of absence, Lieutenant Banfill, the police department's Operations Commander, testified that he observed Myers working behind the counter at Capone's. Later that same day, Myers called in sick for his night shift.
On June 1, 2002, while on duty, Myers responded to a 911 call from a house party in Duxbury. At the scene, Myers was required to wrestle a belligerent individual to the ground, injuring his back in the process. He reported his injury to Chief Deluca the police chief, following the incident, but he did not immediately seek injury leave under G.L.c. 41, §111F.[5] After the incident, Myers only worked eleven of his remaining nineteen shifts scheduled for June 2002. On June 21, Myers produced a note from his physician, Doctor George Hayao, which stated that Myers was under his care for back pain, and that he would be able to return to work on June 27, 2002. A second note, dated June 25, 2002, indicated that Myers was taking several medications for pain and muscle relaxation.
Between July 1 and July 15, 2002, Myers was scheduled to work ten shifts. He did not work any of these shifts, taking seven sick days and three vacation days. An MRI, taken on July 8, 2002, indicated a "disc protrusion" and "disc bulge" in Myers' back vertebrae. On July 16, 2002, unaware of the MRI, Chief Deluca suspended Myers for three days without pay, and ordered that Myers present a physician's note for any day that he called in sick in the future. On July 22, 2002, Myers produced an opinion from Dr. Hayao which concluded, based on the MRI results, that Myers should remain out of work until after evaluation by a neurosurgeon. The next day, Myers went on injury leave pursuant to G.L.c. 41, §111F. Although Myers' request for injury leave was granted, his three-day suspension was affirmed by the Town after a hearing on September 26, 2002. The Town based its affirmation solely on absences occurring before Myers' job-related injury on June 1, 2002.
After Myers went on injury leave, Chief Deluca asked the Town's physician, Doctor Naparstek, to evaluate Myers, and determine whether he could return to light duty.[6] On August 12, 2002, and again on October 9, 2002, Dr. Naparstek opined that Myers was not fit to return to work in his full capacity, or in the light duty capacity suggested by Chief Deluca.
In September 2002, Chief Deluca received information that Myers had been working at Capone's since he went on injury leave. That same month, Chief Deluca hired a private investigation firm to determine the extent of Myers' work at Capone's. The investigator observed and recorded Myers at Capone's, on multiple occasions, answering telephones, taking orders, making pizzas and loading dumpsters.
Rule 9.9 of the Collective Bargaining Agreement ("CBA") provides that "[a]pproval of the Chief is required to continue in private enterprise while the officer is on a paid line-of-duty illness or injury leave or absence where such participation may, in the judgment of the Chief (and with substantiating medical evidence), be harmful to the recovery of the officer." Myers did not seek re-approval of his outside work request after he went on injury leave. However, he testified that he believed his activities at Capone's were consistent with Dr. Naparstek's orders to engage in "moderate activity."
At the Commission hearing, Myers testified that he told Dr. Naparstek "that [his] wife had a business, that [he] was up there a lot, and [that he] felt that the town might have a problem with it." However, the Commission did "not find [Myers] to be a credible witness," because "in several instances," Myers "was unable to support [his assertions] with particulars." The Commission concluded that there was no evidence that Myers "ever informed Dr. Naparstek of his work at Capone's, or that the doctor approved said work as moderate physical activity." Neither of Dr. Naparstek's written reports to Chief Deluca makes any mention of Myers' activities at Capone's.
Although Myers testified that his pain was beginning to lessen in November 2002, Lt. Banfill testified that, around November 2002, Myers told him that he was still unable to return to light duty work. Myers did not communicate with the police department after November 2002, nor did the department request that Myers be further evaluated by the Town's doctor. In March 2003, Myers was notified that a hearing would be held to determine whether there was just cause for his dismissal. A hearing was held on April 11, 2003. The following month, the Town determined that "the evidence showed clearly that [Myers] was not incapacitated and could have performed the duties of a police officer," and thus, "dismissal from the police force [was] warranted." Myers collected his full police officer salary until his termination in June 2003.
The Commission made no findings with respect to Myers' capacity or incapacity. Instead, it found that Myers' "failure to reveal his work at Capone's to Dr. Naparstek when he knew that the doctor was determining his physical fitness to return to duty constituted a knowing misrepresentation of his physical status." Further, the Commission found that Myers' failure to keep the department updated on his physical condition after November 2002, in light of his improving condition, "constitute[d] a willful misrepresentation of his incapacity." Thus, the Commission concluded that the termination was justified.
The Commission, in City of Leominster v. Stratton, 58 Mass.App.Ct. 726, 727 (2003). The Commission must determine whether there was "reasonable justification for the action taken by the appointing authority in the circumstances found by the Commission to have existed when the appointing authority made its decision." Id. at 728, quoting Watertown v. Arria, 16 Mass.App.Ct. 331, 334 (1983).[7]
Parties aggrieved by a decision of the Commission may appeal to the Superior Court, under G.L.c. 31, §44. General Laws c. 30A, §14(7), permits a court to Thus, while conclusions of law are reviewed de novo, factual findings are not disturbed if supported by substantial evidence. Andrews v. Civil Service Commission, 446 Mass. 611, 615-16 (2006). The appellant bears the burden of demonstrating the invalidity of the Commission's decision. Merisme v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 27 Mass.App.Ct. 470, 474 (1989). Finally, "[t]he court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G.L.c. 30A, §14(7).
The court finds that substantial evidence supports the Commission's conclusion that the amount of sick time taken by Myers, prior to his on-the-job injury, was cause for discipline....
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