The Commission's decision

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Decision mated: 31210
COMMONWEALTH OF MASSACHSETTS Desison mailed: 228
CIVIL SERVICE COMMISSION CK
One Ashburton Place: Room 503
Boston, MA 02108
(617) 727-2293

RALPH COLLINS,
Appellant

v. Case No.: D-06-12

TOWN OF WINTHROP,
Respondent

DECISION

After careful review and consideration, the Civil Service Commission voted at an executive
session on May 1, 2008 to acknowledge receipt of the report of the Administrative Law
Magistrate dated March 18, 2008. Neither party filed written objections to the Magistrate’s
proposed decision as allowed under 801 CMR 1.01 (11) (c). The Commission voted to adopt
the findings of fact and the recommended decision of the Magistrate therein. A copy of the
Magistrate’s report is enclosed herewith. The Appellant’s appeal is hereby allowed, the 2-day
suspension is overturned; and the Appellant is to be restored to his position without loss of
pay or benefits.

By vote of the Civil Service Commission (Bowman, Chairman, Henderson, Marquis and
Taylor, Commissioners) on May 1, 2008.

A true recpr#l. Attest.

Ly wary)

Christoph¢r C. Bowman
Chairman

Either party may file a motion for reconsideration within ten days of the receipt of a Commission order or
decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)()), the motion
must identify a clerical or mechanical error in the decision or a significant factor the Agency or the Presiding
Officer may have overlooked in deciding the case. A motion for reconsideration shall be deemed a motion for
rehearing in accordance with G.L. c. 30A, § 14(1) for the purpose of tolling the time for appeal.

Under the provisions of G.L c. 31, § 44, any party aggrieved by a final decision or order of the Commission may
initiate proceedings for judicial review under G.L. c. 30A, § 14 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 to:

Jaime DiPaola-Kenny, Esq. (for Appellant)

Howard L. Greenspan, Esq. (for Appointing Authority)
Natalie S. Monroe, Esq. (DALA)

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals
98 North Washington Street, 4th Floor
Boston, MA 02114

www.mass.gov/dala

Tel: 617-727-7060
Fax: 617-727-7248

March 18, 2008

Christopher C. Bowman, Commissioner
Civil Service Commission

One Ashburton Place, Room 503
Boston, Massachusetts 02108

Jaime DiPaola-Kenny, Esq.
Associate General Counsel
AFSCME Council 93

8 Beacon Street

Boston, Massachusetts 02108

Howard L, Greenspan, Esq.
200 Broadway, Suite 304
Lynnfield, Massachusetts 01940

Re: Ralph Collins v. Town of Winthrop,
Docket Nos. D-06-12/CS-07-1104

Dear Mr. Bowman, Ms. DiPaola-Kenny and Mr. Greenspan:

Enclosed please find the Recommended Decision that is being issued today. The parties are
advised that, pursuant to 801 CMR 1.01(11)(c), they have thirty days to file written objections to the
decision with the Civil Service Commission. The written objections may be accompanied by supporting

briefs.

Very truly yours,

Ved S. tJ Meroe

Administrative Magistrate

Enclosure

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative
Law Appeals
Ralph Collins,
Appellant,
v. Docket No. D-06-12 m
DALANo. — CS-07-110 3
Town of Winthrop,
Appointing Authority.
Appearance for Appellant: Jaime DiPaola-Kenny, Esq. —
Associate General Counsel
AFSCME Council 93
8 Beacon Street
Boston, Massachusetts 02108
Appearance for Appointing Authority: Howard L. Greenspan, Esq.
200 Broadway, Suite 304
Lynnfield, Massachusetts 01940
Administrative Magistrate: ; Natalie S. Monroe, Esq.

RECOMMENDED DECISION

Ralph Collins is appealing the Town of Winthrop’s decision to suspend him for
two days without pay for allegedly leaving work without permission on July 26, 2005.
Mr. Collins appealed under the provisions of G.L. c. 31, § 43.

I held a hearing on December 3, 2007, at the offices of the Division of
Administrative Law Appeals (“DALA”), 98 North Washington Street, Boston. The
Town of Winthrop called two witnesses: David Hickey and Ralph Collins. Mr. Collins
called three witnesses: Linda Vatalaro, Roger McAvoy and Frank Daloia. Six exhibits

(Exhibits 1-6) were entered into evidence. During the hearing, moreover, the parties

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

stipulated that Mr. Collins timely appealed the decision to suspend him. There are two
cassette tapes of the hearing.

Mr. Collins submitted a post-hearing brief on January 10, 2008. The Town of
Winthrop submitted a post-hearing brief on January 17, 2008, after which the record
closed.

FINDINGS OF FACT

Based on the documents entered into evidence (Exhibits 1-6), and the testimony
of Ralph Collins, Frank Daloia, David Hickey, Roger McAvoy and Linda Vatalaro, I

make the following findings of fact:

1. Ralph Collins began working for the Town of Winthrop (the “Town”) in
1978. (Testimony of Ralph Collins).

2. In July 2005, Mr. Collins was a Working Foreman in the Town’s
Department of Public Works (the “DPW”). He had asthma, high blood pressure and a
tumor on his adrenal gland. He was taking Albuterol and Advair for his asthma. At the
time, Mr. Collins had accrued over sixty-nine sick days. (Testimony of Ralph Collins;
Exhibit 5).

3, In July 2005, David Hickey was the DPW Director and Paul Camilli was
the Operations Manager. The Operations Manager is second-in-command at the DPW.
(Testimony of David Hickey).

4. In July 2005, the DPW had the following policy that employees had to
follow when they needed to leave work due to an illness: the employee had to report to

the DPW office and tell Linda Vatalaro, a Senior Clerk at the DPW, that he (or she) was

' The deadline for submitting post-hearing briefs was January 10, 2008. Mr. Collins did not object to the
Town’s late brief, however.

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

leaving work sick. Ms. Vatalaro would then make a record that the employee went home
sick. (Testimony of Ralph Collins, Linda Vatalaro, Roger McAvoy and Frank Daloia).

5. Employees also were expected to tell Mr. Camilli or a supervisor before
leaving work due to illness. If neither Mr. Camilli nor a direct supervisor was in the
DPW Yard (where the DPW office and garage are located), the employee was expected
to talk to an indirect supervisor or the most-senior employee available, This requirement
was not strictly enforced; as long as the employee told Ms. Vatalaro he was leaving, the
employee would not be disciplined for failing to talk to Mr. Camilli or a supervisor
before going home sick. (Testimony of Ralph Collins, Linda Vatalaro, Roger McAvoy,
David Hickey and Frank Daloia).

6. In July 2005, employees were not required to call Mr. Camilli or Mr.
Hickey (the DPW Director) on their cell phones before going home sick. (Testimony of
David Hickey, Ralph Collins, Linda Vatalaro, Roger McAvoy and Frank Daloia).

7. On July 26, 2005, Mr. Collins reported to work at approximately 6:30 a.m.
Mr. Hickey assigned Mr. Collins to chip branches at the “compost site.” (Testimony of
David Hickey and Ralph Collins).

8. The compost site is located on Kennedy Road in Winthrop; it is not
located at the DPW Yard. (Testimony of Ralph Collins).

9, The compost site is a paved area that measures approximately fifty yards
by fifty yards. The site contains a wood chipper as well as piles of leaves, branches, yard
waste and trash. (Testimony of Ralph Collins).

10. The compost site is dusty. There are no trees, and thus no shade, at the

site. (Testimony of Ralph Collins).

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

11. Mr. Collins did not like working at the compost site and had complained
about the conditions at the site in the past. (Testimony of Ralph Collins, David Hickey
and Frank Daloia).

12. On July 26, 2005, Mr. Collins chipped branches at the compost site from
approximately 6:30 a.m. to 9:00 a.m. By 9:00 a.m., it was approximately ninety degrees
outside and very humid. The compost site was dusty. (Testimony of Ralph Collins and
Linda Vatalaro).

13. At around 9:00 a.m., Mr. Collins began to feel ill. He started coughing
and had dry heaves. He was sweating profusely, dizzy and slightly light-headed. He was
red in the face and drenched in sweat. He did not look well. (Testimony of Ralph
Collins, Linda Vatalaro and Frank Daloia).

14. Mr. Collins asked a co-worker to drive him to the DPW Yard. When he
got to the DPW Yard, he went into the garage to look for his supervisor, Edwin Wright.
(Testimony of Ralph Collins).

15. Mr. Wright was not in the garage. Mr. Collins therefore talked to Roger
McAvoy, the General Foreman of the DPW’s Water Department. Mr. McAvoy is an
indirect supervisor of Mr. Collins. (Testimony of David Hickey, Roger McAvoy and
Ralph Collins).

16. Mr. Collins told Mr. McAvoy that he did not feel well and that he was
going home. Mr. McAvoy told Mr. Collins that he would tell Mr. Camilli that he (Mr.
Collins) had gone home sick. Mr. Camilli was not at the DPW Yard at the time; he was

at Water Tower Hill in Winthrop. (Testimony of Roger McAvoy and Ralph Collins).

Ralph Collins v.. Town of Winthrop D-06-12/CS-07-1104

17. Mr. McAvoy did not consider his conversation with Mr. Collins to be
unusual because it was normal procedure for an employee to tell a supervisor, and then
Ms. Vatalaro, before going home sick. He therefore believed Mr. Collins was following
the normal procedure for going home sick. (Testimony of Roger McAvoy).

18. Mr. Collins also saw Frank Daloia, a Senior Mechanic at the DPW, in the
garage. Mr. Collins was sweating profusely and he looked “awful.” Mr. Collins told Mr.
Daloia that he did not feel well and that he was going home sick. He also told Mr. Daloia
that he was going to stop at the office first. (Testimony of Ralph Collins and Frank
Daloia).

19. After speaking to Messrs. McAvoy and Daloia, Mr. Collins went into the
DPW office. He was sweating and a little flushed. He told Ms. Vatalaro that he was
going home sick. Ms. Vatalaro said “Okay,” and logged the sick time in her records.
(Testimony of Ralph Collins and Linda Vatalaro).

20. Mr. Collins did not use profanity when he spoke to Ms. Vatalaro.
(Testimony of Linda Vatalaro and Ralph Collins).

21. Mr. Hickey was not at the DPW Yard when Mr. Collins spoke to Ms.
Vatalaro. (Testimony of David Hickey, Ralph Collins and Linda Vatalaro).

22. After speaking with Ms. Vatalaro, Mr. Collins left the DPW Yard. He
drove his motor scooter to Bolster’s Gas and Convenience Store, which.was on his way
home, to buy a cold drink. Susan Bolster, who owns the store and also is a Town
Selectwoman, was working in the store that day. (Testimony of Ralph Collins).

23. While he was in the store, he saw Selectwoman Bolster, who asked him

what he was doing. He told her that he had gotten sick while working at the compost site.

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

He told her the compost site was “terrible” and “brutal” that day because of the heat.
(Testimony of Ralph Collins).

24. After leaving Bolster’s, Mr. Collins drove to Water Tower Hill, which also
was on his way home, to tell Mr. Camilli that he was going home sick. Mr. Camilli had
just left Water Tower Hill, so Mr. Collins did not talk to him. (Testimony of Ralph
Collins).

25. After leaving Water Tower Hill, Mr. Collins drove home, took a shower
and rested for several hours. (Testimony of Ralph Collins).

26. Mr. Hickey returned to the DPW Yard between 9:00 a.m. and 9:30 a.m.,
after Mr. Collins had left. (Testimony of David Hickey).

27. | When Mr. Hickey returned to the DPW Yard, Ms. Vatalaro told him that
Mr, Collins had gone home sick. (Testimony of David Hickey and Linda Vatalaro).

28. Later that same day, Mr. Hickey suspended Mr. Collins for two days
without pay for “leaving the work site ... without justification or approval.” (Exhibit 1;
Testimony of David Hickey).

29. On July 28, 2005, Mr. Collins went to see his primary care physician, Dr.
Pransky, because he still did not feel well. Dr. Pransky advised him to take a week off
from work. (Exhibit 6; Testimony of Ralph Collins).

30. Mr. Collins timely appealed Mr. Hickey’s decision to suspend him for two
days without pay. (Testimony of Ralph Collins; Stipulation).

31. On August 10, 2005, the Town held a hearing concerning Mr. Collins’

suspension. (Exhibit 2).

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

32. On October 3, 2005, the Town issued a decision upholding Mr. Hickey’s
decision. (Exhibit 2).
33. Mr. Collins timely appealed the Town’s decision. (Stipulation).

CONCLUSION AND RECOMMENDATION

The Civil Service Commission’s responsibility is to determine whether the Town
of Winthrop has proven, by a preponderance of evidence, just cause for the disciplinary

action taken. See G.L. c. 31, § 43; School Comm. of Brockton v. Civil Serv. Comm’n,

43 Mass. App. Ct. 486, 488, 684 N.E.2d 620, 622 (1997).. Massachusetts courts have
interpreted “just cause” to mean that the disciplined employee must be “guilty of
substantial misconduct that adversely affected the public interest by impairing the

efficiency of public service.” Murray v. Second Dist. of E. Middlesex, 389 Mass. 508,

514, 451 N.E.2d 408, 412 (1983). After reviewing all of the evidence, I conclude that the
Town has not met its burden of establishing just cause for suspending Mr. Collins for two
days without pay. In particular, the Town failed to show that Mr. Collins left work on
July 26, 2005 without “justification or approval.”

On July 26, 2005, Mr. Collins reported to work on time. When he was assigned
to chip branches at the compost site, he went to the site and chipped branches for
approximately two and a half hours. At approximately 9:00 a.m., he began to feel sick.
He started coughing and had dry heaves, He was'sweating profusely, dizzy and slightly
light-headed. He was flushed and drenched in sweat.

Mr. Collins asked a co-worker to drive him to the DPW Yard. He then followed
the established procedure for going home sick by telling the Senior Clerk, Linda

Vatalaro, that he was going home sick. In July 2005, DPW employees were not always

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

required to inform a supervisor before going home sick. Even assuming this was a
requirement, however, Mr. Collins fulfilled that obligation as well. Before he left, he told
his indirect supervisor, Roger McAvoy, that he was leaving work sick. It was appropriate
for Mr. Collins to tell Mr. McAvoy because his direct supervisors — Messrs. Wright,
Camilli and Hickey — were not at the DPW Yard when Mr. Collins went home sick.
Furthermore, as of July 26, 2005, Mr. Collins had accrued approximately sixty-nine days
of sick time; he therefore had sufficient sick time to use on that date.

The Town contends that Mr. Collins failed to call either Mr. Hickey or Mr.
Camilli on their cell phones before leaving work. In July 2005, however, DPW
employees were not required to telephone Mr. Hickey or Mr. Camilli before going home
due to illness.

The Town also contends that Mr. Collins was not sick, but instead walked off the
job because he was angry about having to work at the compost site. The Town presented

evidence that Mr. Collins had complained about working at compost site in the past.
Additionally, Mr. Collins told Selectwoman Bolster that it was “brutal” and “terrible” at
the compost site because of the heat that day. Moreover, Mr. Collins was able to drive
his motor scooter out of the DPW Yard, he made two stops on his way home, and he did
not seek medical care the day he left work.

On the other hand, three percipient witnesses testified that Mr. Collins told them
that he did not feel well and that he was going home sick. Two of these witnesses
testified that Mr. Collins appeared to be ill; he was flushed, sweating profusely and
looked “awful.” None of the three witnesses testified that Mr. Collins appeared angry or

complained about having to work at the compost site. Moreover, Ms. Vatalaro

Ralph Collins v. Town of Winthrop D-06-12/CS-07-1104

specifically denied that Mr. Collins used profane language or said anything derogatory
about the DPW. Furthermore, Mr. Collins had asthma, which was exacerbated when he
worked at the compost site.

Balancing all of the evidence, I conclude that Mr. Collins did feel ill on July 26,
2005, and that he did not walk off the job because he was angry about having to work at
the compost site. In this regard, J do not credit Mr. Hickey’s testimony that Mr. Collins
told Ms. Vatalaro that he (Mr. Collins) was “sick of this shit” and that he was walking off
the job. Mr. Hickey was not in the DPW office when Mr. Collins reported in sick to Ms.
Vatalaro and Ms. Vatalaro explicitly denied Mr. Hickey’s version of events.

Moreover, telling Selectwoman Bolster that the heat made it “terrible” and
“brutal” at the compost site is not evidence that Mr. Collins walked off the job in anger or
that he was pretending to be sick. Mr. Collins testified credibly that Bolster’s
convenience store is on his way home and that he stopped there to buy a cold drink, not
to complain to the Selectwoman. While the Town submitted the Town Hearing Officer’s
account of the discussion, I do not consider it. DALA is required to hold ade novo
hearing and determine the facts independently. In any event, Selectwoman Bolster did
not testify at the Town’s hearing and Mr. Collins denied the Town Hearing Officer’s
account. Thus, even if] could consider the report, it is not reliable evidence and ] would
give it no weight.

Finally, Mr. Collins’ actions after he left the DPW Yard do not establish that he
was malingering on July 26, 2005. Instead, his conduct goes to the seriousness of his
illness; it shows that he was not gravely ill, or-so sick that he could not drive a motor

scooter.

Ralph Collins v. Town of Winthrop ~ D-06-12/CS-07-1104

In sum, the evidence shows both that Mr. Collins was ill on July 26, 2005, and
that he followed the proper DP W procedure for leaving work due to illness. As a result,
Mr. Collins did not leave work without “justification or approval” and therefore was not
guilty of “substantial misconduct.” Murray, 389 Mass. at 514, 451 N.E.2d at 412.
Thus, the Town failed to meet its burden of establishing just cause for disciplining Mr.

Collins. School Comm. of Brockton, 43 Mass. App. Ct. at 488, 684 N.E.2d at 622.

For the foregoing reasons, I recommend that the Town of Winthrop’s decision to
suspend Mr. Collins for two days without pay for leaving work without “justification or

approval” be reversed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

r
Dated: March i8 Role) og” ya S. Monroe :

Administrative Magistrate

10