Town of Dedham v. Civil Service Com'n

• Decision Date: 07 October 1985
• Citation: 483 N.E.2d 836,21 Mass.App.Ct. 904
• Parties: TOWN OF DEDHAM v. CIVIL SERVICE COMMISSION, et al. 1
• Court: Appeals Court of Massachusetts

Page 836

483 N.E.2d 836

21 Mass.App.Ct. 904

TOWN OF DEDHAM v. CIVIL SERVICE COMMISSION, et al. ¹

Appeals Court of Massachusetts Norfolk.

Argued Sept. 13, 1985.

Decided Oct. 7, 1985.

Robert J. Canavan, Boston, for town of Dedham.

Charles E. Walker, Jr., Asst. Atty. Gen., for Civil Service Com'n.

David I. Finnegan, Boston (William A. McDermott, Jr., Boston, with him), for the employee.

Before GREANEY, C.J., and CUTTER and DREBEN, JJ.

RESCRIPT.

In this action in the nature of certiorari (G.L. c. 249, § 4), the town sought a review of a decision of the Civil Service Commission (the commission). That decision (after a rehearing mentioned below) modified action of the town in discharging the employee. The following summary of the employee's employment by, and relations with, the town is based on the findings of the commission's hearing officer, who dealt with the employee's appeal to the commission, and on an affidavit of his attorney.

The employee in 1971 had been hired as a laborer in the cemetery division of the town's department of public works. His duties involved "heavy physical activities such as shoveling ... and carrying caskets." He performed this work acceptably and has not been subjected to discipline because of the quality of his work. He is unable to read, however, and suffers from psychiatric problems, mental retardation, and physical ailments and has received hospitalization for these matters. He has a history of violent outbursts and of difficulty in coping with various problems.

In May, 1972, the employee was suspended for five days for fighting. In June, 1972, he was suspended for one year because convicted of a crime. In October, 1977, he was suspended for two days for insubordination and oral abuse directed toward his supervisor. Over the years of his employment he had been warned on various occasions about his failure to report proposed absences from work and non-compliance with the department's sick leave policy. On several occasions, when the employee had been penalized for failure to report proposed absences, the penalties had been removed upon proof from the attending doctor that his absences had been caused by illness, hospitalization, or treatment.

In June, 1980, the employee sustained a groin injury and was hospitalized for a day. The next day, a friend (acting for the employee) called one Maloney (the employee's immediate superior in the town's cemetery division) to report that the employee would be absent from work that day. Similar reports were made of his proposed absences from work, not every day in accordance with departmental policy, but every other day. The employee reported to Maloney his doctor's advice to refrain from heavy physical work "until further notice." Permission to resume work was given by the employee's doctor on July 25, 1980.

On July 21, Paul Sullivan, the commissioner of the town's public works department since 1974, sent the employee a letter of warning that his frequent absences from work were "no longer tolerable" and that "if his attendance ... [did] not improve," he would be suspended or discharged. The employee took this letter to Sullivan on July 25 with a doctor's report. Sullivan directed the employee to return that afternoon with his union representative. In the course of that conference, the employee "began to speak loudly concerning the unfair manner in which he claimed ... Sullivan was treating him.... Sullivan decided to stop the meeting ... got up from his chair and started to walk out." The employee grabbed Sullivan by the "arm and started swearing in a loud voice at him." Sullivan walked out unhurt, after the employee let go of him.

Thereafter on September 5, 1980, the town's selectmen by unanimous vote discharged the employee after a hearing on September 4, citing as reasons (1) insubordination and physical assault on a superior; (2) failure to observe department policies on reporting sick leave, and (3) continued absenteeism after repeated warnings. The employee appealed to the commission on September 9, 1980, ² and the hearing officer after hearing recommended modifying the discharge to a thirty-day suspension.

The commission on January 7, 1982, adopted the hearing officer's findings of fact and affirmed the action of the appointing authority. The employee, by his attorney on March 11, 1982, sought a rehearing, supported by the attorney's affidavit. In the affidavit, the attorney described the employee as "a mentally retarded individual with an I.Q. of 62 ... hired by the [t]own ... in a capacity which he had an ability to perform." The commission obtained a further short report from the hearing officer, who renewed her earlier recommendation of a thirty-day suspension. Over the written objections of the town, the commission granted the motion to reconsider and "voted to affirm the action of the appointing authority but to modify the penalty to an 18-month suspension, since in certain instances the ... [employee] had justifiable medical excuses for his absences and ... in other instances ... made good faith attempts to meet the sick leave reporting requirements."

In the Superior Court, the trial judge...