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The Commission's decision

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COMMONWEALTH OF MASSACHUSETTS 
SUFFOLK, SS. CIVIL SERVICE COMMISSION 
One Ashburton Place: Room 503
Boston, MA 02108
(617) 727-2293 
NANCY J. DALRYMPLE,
Appellant
v. G2-05-338
TOWN OF WINTHROP,
Respondent
Appellant’s Attorney: Pro Se 
Nancy J. Dalrymple
P.O. Box 543
Winthrop, MA 02152
Respondent’s Attorney: Howard L. Greenspan, Esq.
200 Broadway, Suite 304
Lynnfield, MA 01940
(781) 598-4545
Commissioner: Donald R. Marquis
DECISION ON RESPONDENT’S MOTION TO DISMISS 
Background 
Pursuant to the provisions of G.L. c. 31, § 2(b), the Appellant, Nancy Dalrymple,
(hereafter “Dalrymple” or Appellant”) appealed the decision of the Respondent, the
Town of Winthrop (hereafter “Appointing Authority”, or “Town”), bypassing her for
promotional appointment to the position of full time police sergeant. A pre-hearing was
held on August 28, 2006 at the offices of the Civil Service Commission. The
Commission subsequently received a Motion to Dismiss from the Town on September
14, 2006 and the pro se Appellant submitted a response to the Commission on September
28, 2006. 
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The Town sought from HRD a certification list for candidates passing the promotional
examination to fill 2 full-time police sergeant positions with the Winthrop Police
Department. HRD issued to Winthrop certification list number 230360. (See
Certification No. 230360) The names of the individuals on the certification list appear in
order of their respective scores, from highest to lowest. Where individuals received the
same score, their names are placed in alphabetical order within the score subset. The
Appellant’s name appeared second on the certification list number 230360 tied with one
other applicant, Stephen Rogers. The Town assembled a four-member panel and
interviewed both of the tied candidates in question. Based on the panel’s
recommendation, the Town selected Stephen Rogers. The Appointing Authority argues
that since the two candidates in question were tied, there is no bypass and, therefore, the
Appellant’s bypass appeal to the Commission must be dismissed. 
Choosing from among tied candidates 
G.L. c. 31, § 27 states that “if an appointing authority makes an original or
promotional appointment form a certification of any qualified person other than the
qualified person other than the qualified person who name appears highest, and the
person whose name is highest is willing to accept such appointment, the appointing
authority shall immediately file with [HRD] a written statement of his reasons for
appointing the person whose name was not highest.
HRD Personnel Administration Rules (“PAR”), which were issued pursuant to G.L. c.
31, §§ 3(d) and 5, define a bypass as “the selection of a person or persons whose name or
names…appear lower on a certification than a person or persons who are not appointed
and whose names appear higher on said certification.” PAR.02 
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Prior Commission decisions have well-established that selection from a group of tied
candidates is not a bypass, including Baptista v. Department of Public Welfare, 6 MCSR
21 (1993), where the Commission stated, “It is axiomatic that a selection from among a
group of tied candidates is not a “bypass” over which the Commission has jurisdiction”.
In McGonagle v. Massachusetts Parole Board, 14 MCSR 154 (2001), the Commission
found that where the Appellant received the same score as two of the appointed
individuals and a higher score than a third appointed individual, “[t]he Appointing
Authority need only provide its written statement to [HRD] as to its reasons for
appointing [the third individual] over the Appellant” since the Appellant’s score was the
same as the other two. Similar decisions by the Commission include Kallas v. Franklin
School Department, 11 MCSR 73 (1996), where the Commission held that “[i]t is well
settled civil service law that a tie score on a certification list is not a bypass for civil
service appeals…”; Roberts v. Lynn Fire Department, 10 MCSR 133 (1997), where the
Commission stated that an appellant will succeed in the typical bypass appeal if he can
“demonstrate that the reasons offered by the Appointing Authority for favoring lower
ranking candidates were untrue, apply equally to himself, are incapable of substantiation,
or are a pretext for other, impermissible reasons.”
In her response, the Appellant cites Cotter v. City of Boston, 73 F. Supp.2d 62, 66
(1999), in which the U.S. District Court held that “any selection among equally-scoring
candidates is…a ‘bypass’ because all of their names ‘appear highest’” However, the
Court also states in a footnote that “it must be remembered that the Court is here ruling
on a motion to dismiss… The litigants’ motion papers do not present, and the Court’s
independent research has not uncovered, any long-standing tie-breaking administrative 
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procedure of either the Division or the Boston Police Department that comports with the
civil service law. Should either defendant come forward with such an administrative
procedure, support the description with admissible evidence, and demonstrate that the
procedure was followed in this case, the Court necessarily will give such administrative
procedure appropriate deference”. As of the filing of the Appellant’s appeal in the instant
matter (2005), the Commission is also not aware of any such accepted tie-breaking
method and continues to believe that selection among a group of tied candidates is not a
bypass under civil service law.
In the instant case, the Appointing Authority sought to break the tie between the
Appellant and Mr. Rogers by assembling an interview panel that consisted of a sergeant
and lieutenant from the Winthrop Police Department as well as a sergeant from the
MBTA and a sergeant from the Revere Police Department. The panel required the
candidates to answer written questions and make an oral presentation to the panel. Based
on the written questions and oral presentation, the two candidates were scored by the
panel, with Mr. Rogers scoring significantly higher than the Appellant. Hence, Mr.
Rogers was recommended for the promotional appointment to sergeant over the
Appellant. According to Winthrop Police Chief David Goldstein, who has been Police
Chief since 2004, he assembled this panel “to insure fairness” after talking to an
employee that was apparently employed in the Civil Service Unit of the State’s Human
Resource Division (HRD) who told him that, in the case of a tie, “the Appointing
Authority had discretion to make the appointment”. (See Affidavit of Chief David
Goldstein) 
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The Appellant, in her written response, takes great exception to this tie-breaking
method, arguing that it is contrary to the Town’s past-practice of breaking ties by
choosing from tied candidates via alphabetical order or by seniority. (The Appellant
states that she has 24 years of experience and Rogers had been an officer for less than
half that time.) Further, the Appellant argues that Rogers was given a leg up in the
interview process as a result of the Town’s “grooming” of Rogers, who previously served
in an “acting” Sergeant position and was sent to supervisory training and given the
opportunity to become proficient in giving Power Point presentations.
More substantively, the Appellant alludes to her longstanding complaint of gender
discrimination, which she first filed against the Town in 1989 followed by another
complaint of the same nature in 1992. According to the Appellant, “both complaints
were adjudicated before the SJC in 2001 in my favor. The Town of Winthrop was found
to have discriminated and retaliated against me.” A review of this case indicates that
former Winthrop Police Chief Angelo LaMonica was sued by the Appellant both in his
official capacity and individually. (See Dalrymple v. Town of Winthrop & another, 50
Mass. App. Ct. 611 (2000)). The promotion which is the subject of this appeal was
overseen by current Winthrop Police Chief David Goldstein, who was appointed as Chief
in 2004, four years after the final disposition of the gender discrimination suit referenced
above.
Further, the Appellant alleges that she was first on a prior promotional list for the
position of sergeant and the Appointing Authority failed to appoint anyone off that list
before it expired, denying her the opportunity to be selected (assuming the Town would 
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have chosen not to bypass her and select a lower ranked candidate on the civil service
promotional list) 
Timeliness of Appeal 
The Civil Service Commission adopted a sixty-day statute of limitations for bypass
appeals in 2000, requiring Appellants to file their bypass appeal within sixty days of
receiving notification of the bypass.
In its Motion to Dismiss, the Appointing Authority argues that the Appeal is not
timely as Mr. Rogers was appointed as Sergeant on September 27, 2004 and the
Appellant’s bypass appeal form was not received by the Commission until October 5,
2005, over one year after the appointment in question. The Appellant argues that her
appeal can not be considered untimely as she never received a bypass notice from the
Town after the promotion of Mr. Rogers (since they did not consider choosing among
tied candidates a bypass). According to the Appellant, it was not until the summer of
2005 that she received information from the town regarding the oral exam as the basis for
promoting Mr. Rogers. Again according to the Appellant, she received this information
as a result of a MCAD complaint she filed on April 28, 2005 for which an investigative
conference was held at MCAD in July 2005. 
Conclusion 
Despite the eyebrow-raising allegations proffered by the Appellant, the Commission
does not have jurisdiction to hear this bypass appeal as there was no bypass. The
Appellant was not ranked higher on a civil service list than the individual who was
promoted to sergeant. Rather, the Appellant and the individual promoted were tied and
the Commission has well-established that choosing from among tied candidates does not 
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constitute a bypass that can be appealed to the Commission. Moreover, the Town, under
the leadership of a new Police Chief, developed a mechanism to address the tie, involving
law enforcement professionals from other jurisdictions.
It appears that the allegations raised by the Appellant can be more appropriately
adjudicated in another forum and that the Appellant is indeed availing herself of that
opportunity.
For this reason, the Appellant’s appeal under Civil Service Commission Docket No.
G2-05-338 is hereby dismissed. 
Civil Service Commission 
________________________________
Donald R. Marquis, Commissioner
By vote of the Civil Service Commission (Bowman, Chairman; Guerin, Marquis and Taylor,
Commissioners) on November 9, 2006.
A true record. Attest:
___________________
Commissioner
A motion for reconsideration may be filed by either Party within ten days of the receipt of a
Commission order or decision. A motion for reconsideration shall be deemed a motion for
rehearing in accordance with M.G.L. c. 30A § 14(1) for the purpose of tolling the time for appeal.
Any party aggrieved by a final decision or order of the Commission may initiate
proceedings for judicial review under section 14 of chapter 30A in the superior court within thirty
(30) days after receipt of such order or decision. Commencement of such proceeding shall not,
unless specifically ordered by the court, operate as a stay of the commission’s order or decision. 
Notice:
Nancy J. Dalrymple
Howard L. Greenspan, Esq.
Kerry Bonner, Esq.