winthrop.towndigital almanac

The Commission's decision

Town of Winthrop · from StateReference · 3 pages · 169 KB
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COMMONWEALTH OF MASSACHUSETTS 
SUFFOLK, ss. CIVIL SERVICE COMMISSION 
One Ashburton Place: Room 503 
Boston, MA 02108 
(617) 727-2293 
TIMOTHY CALLINAN, GIULIO BONAVITA & 
SHAWN McCARTHY, 
Appellants 
v. E-18-103 (Callinan) 
E-18-104 (Bonavita) 
E-18-105 (McCarthy) 
TOWN OF WINTHROP, 
Respondent 
Appearance for Appellants: Jennifer N. Smith, Esq. 
Sandulli Grace, PC 
44 School Street 
Suite 1100 
Boston, MA 02108 
Appearance for Respondent: Howard Greenspan, Esq. 
200 Broadway 
Lynnfield, MA 01940 
Commissioner: Christopher C. Bowman 
ORDER OF DISMISSAL 
1. On June 4, 2018, the Appellants (Timothy Callinan, Giulio Bonavita & Shawn McCarthy)
(Appellants), all police officers in the Town of Winthrop (Town)’s Police Department
(Department), filed appeals with the Civil Service Commission (Commission) stating that “
… a promotional list for the position of Sergeant has been certified for over thirty days with
more than three names of persons eligible / willing to accept the appointment. The Town of
Winthrop refuses to discontinue a Provisional Sergeant occupying a position for a Sergeant.” 
2. On July 10, 2018, I held a pre-hearing conference which was attended by the Appellants,
counsel for the Appellants and counsel for the Town. 
3. As part of the pre-hearing conference, counsel for the Town stated that the position in
question (provisional sergeant) is currently occupied by a Winthrop Police Officer who 
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recently was awarded just over $2.0 million after a jury trial in Suffolk Superior Court related
to a discrimination complaint. 
4. Also, according to counsel for the Town, the police officer, after receiving the above-
referenced judgment, filed a motion in Superior Court seeking, in part, to allow her time to
take a make-up promotional examination for sergeant, which she did not take in April
2018. According to counsel for the Town, the police officer argued to the Court that she was
unable to prepare for the examination due to her pending litigation. 
5. The Town and the police officer subsequently entered into an agreement, that was accepted
and ordered by the Court, in which the police officer was granted six (6) months exam
preparation time and then allowed to take a make-up examination. In the interim, the Town
is enjoined from removing the police officer from her position as provisional sergeant until
October 30, 2018. 
6. Counsel for the Appellants argued that the order is not consistent with the civil service law,
which requires the rescission of a provisional promotion within 30 days of the establishment
of an eligible list. 
7. I advised all parties that the Commission was unlikely to take any action that is contrary to a
Superior Court order and suggested that the proper venue, if any, for the Appellants to
contest the Superior Court order may be the Superior Court. 
8. Per agreement of the parties, the Town had thirty (30) days from the date of the pre-hearing
to file a Motion to Dismiss and the Appellants had thirty (30) days thereafter to file an
opposition, both of which have been received and reviewed by the Commission. 
Analysis 
In their reply to the Town’s Motion to Dismiss, the Appellants argued in part that: “The
Superior Court did not have jurisdiction to grant the injunction; if [the police officer]’s trial
prevented her from preparing for the examination and she desired a parallel examination and/or
the continuation of her provisional appointment, she needed to raise those issues with the Civil
Service Commission. She failed to do so and instead sought the intervention of the courts. This
was improper because the Civil Service Commission exclusively has primary jurisdiction over
this matter. Therefore the injunction ordered by the agreement and entered by the Superior Court
is unenforceable and invalid.” 
I disagree. The Superior Court, acting in the context of discrimination litigation, ordered
additional relief that it deemed reasonable and proper to a victim of discrimination. Importantly,
that relief is fairly limited and set to expire within weeks. In that context, relief by the
Commission is not warranted here. 
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Conclusion 
The Appellants’ appeals are hereby dismissed . 
Civil Service Commission 
/s/ Christopher Bowman 
Christopher C. Bowman 
Chairman 
By a vote of the Civil Service Commission (Bowman, Chairman; Ittleman, Stein and Tivnan,
Commissioners [Camuso – Absent]) on September 27, 2018. 
Either party may file a motion for reconsideration within ten days of the receipt of this Commission order or
decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 CMR 1.01(7)(l), the motion must
identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding
Officer may have overlooked in deciding the case. A motion for reconsideration does not toll the statutorily
prescribed thirty-day time limit for seeking judicial review of this Commission order or decision. 
Under the provisions of G.L c. 31, § 44, any party aggrieved by this Commission order or decision may initiate
proceedings for judicial review under G.L. c. 30A, § 14 in the superior court within thirty (30) days after receipt of
this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate
as a stay of this Commission order or decision. After initiating proceedings for judicial review in Superior Court,
the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office
of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the
manner prescribed by Mass. R. Civ. P. 4(d). 
Notice: 
Jennifer Smith, Esq. (for Appellants) 
Howard Greenspan, Esq. (for Respondent)