The Commission's decision

Town of Winthrop · from StateReference · 11 pages · 513 KB
open the file ↗ · original at the source ↗

1v+ï 'v " 
COMMONWEALTH OF MASSACHUSETTS 1 
SUFFOLK, ss. 
notice sent 6/30/10 
M.F.M. 
H.L.G. 
SUPERIOR COURT 
CIVIL ACTION 
NO.09-4334-B 
NANCY DALRYMPLE 
(mm) 
vs. 
MASSACHUSETTS CIVIL SERVICE COMMISSION and TOWN OF WINTHROP 
MEMORANDUM OF DECISION AND ORDER ON THE PARTIES' 
CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
INTRODUCTION 
Pursuant to G. L. c. 31, § 44 and G. L. c. 30A, § 14, plaintiff Nancy Dalrymple brought 
this action challenging the decision of the Massachusetts Civil Service Commission upholding 
the Town of Winthrop's actions in suspending her from her position as a police officer due to her 
refusal to comply with an order to undergo a fitness for duty evaluation. Claiming that it was 
based upon an error of law, unsupported by substantial evidence, and arbitrary and capricious, 
the plaintiff asks this cour to reverse the Commission's decision. The action is now before this 
court on the parties' cross Motions for Judgment on the Pleadings. For the following reasons, 
the plaintiffs motion is DENIED, the Town of Winthrop's motion is ALLO\YED, and the Civil 
Service Commission's decision is AFFIRMED. 
BACKGROUND 
The record reveals the following facts. Plaintiff is a police officer with the Town of 
Winthrop and was injured in the line of duty on or about September 25,2006, when she tripped 
and hit her chest, suffering a chest contusion that prevented her from working. She subsequently 
received benefits under G. L. c. 41, § 111F through Januar 2007. A day or two after being 
.', 
injured, the plaintiff claims that the Town ordered her to be examined and treated for her injuries 
at Concentra Medical Center. The town disputes this and claims that while they request that 
employees who are injured in the line of duty have an initial examination with Concentra, 
employees always have the option of being examined and treated by their own physician. 
In November 2006, the plaintiff was evaluated by Dr. Alan Rodgers of Con centra. 
According to the Town, the plaintiff was then ordered, pursuant to the provisions of the 
Collective Bargaining Agreement in place at the time and the provisions of G. L. c. 41, § 111F, 
to be examined by Dr. Smiley, an independent medical examiner. The plaintiff denies being 
informed that Dr. Smiley's examination by Dr. Smiley was to serve as an independent medical 
examination. In December 2006, plaintiff was denied permission to retur to light duty. 
Based on observations from Dr. Smiley and Dr. Rodgers, plaintiff was allowed to retur 
to light duty work on January 29,2007, and began performing dispatch duties. She was not 
issued a firear. 
In a hand-written note on the bottom of a "Physician Activity Status Report" from 
Concentra, is written: "Dr. Rodgers: Please call Mike Bertino". Mike Bertino, the Finance 
Director for the Town of Winthrop, testified before the Civil Service Commission that his 
responsibilities include review of medical documentation concerning employees out on leave and 
interacting with the Town's insurance companies regarding employee insurance claims. He also 
testified that he safeguards all such medical information in locked cabinets in his office and that 
security pass codes are required to enter his office. 
2 
On March 22,2007, the plaintiff was examined by Dr. Eric J. Ewald. Based on Dr. 
Ewald's subsequent recommendation, the Chief of Police ordered the plaintiff to retur to full 
duty on April 27, 2007. The plaintiffs union fied a grievance on her behalf regarding the 
Chiefs order for her to return to full duty. An arbitrator, after conducting a full hearing on this 
issue, determined on December 27,2008 that the Town did not violate the Collective Bargaining 
Agreement by ordering the plaintiff to return to full duty and accordingly denied the grievance. 
The plaintiff reported for full duty at the Winthrop Police Station at 4:00 P.M. on April 
27,2007. When she entered the control room at the station, she expected to be issued a firearm. 
However, she was not issued one and was assigned to "inside" duties by the command sergeant 
on duty at the time. On April 28, 2007, she once again reported for full duty and was this time 
handed one of the Chiefs personal weapons by a lieutenant. Sometime shortly after April 29, 
2007, plaintiff received e-mail correspondence from the Chief informing her that she needed to 
qualify, with the assistance of Lieutenant Terrance Delahanty, on a newly-issued weapon, a 
"Smith and Wesson 40 caliber", that was being issued to all offcers. Prior to her leave, plaintiff 
had been issued a 9mm Beretta Short Stack firearm that was purchased specifically for her 
because it was a smaller handgun and she has a small hand. 
During May 2007, plaintiff trained on the new weapon with Lt. Delahanty. On May 21, 
2007, the Chief approached plaintiff and ordered her to "go down and qualify" on the new 
firearm. The plaintiff told the Chief that she had been training with Lt. Delahanty and that the 
process of qualifying was going to take "some time." The Chief instructed plaintiff to corne into 
3 
r 
his office along with Lt. Delahanty, where he asked her if she was disobeying an order. She 
responded that she was not, and was working with Lt. Delahanty to qualify on the new firearm. 
During this meeting, plaintiff began to have trouble breathing and so informed the Chief 
and Lt. Delahanty. She declined an offer by the Chief and Delahanty to call an ambulance or a 
relative for her and informed them she would be going home sick. The plaintiff left the police
station and had her blood pressure checked at the fire station. The fire personnel informed her 
that her blood pressure was "very high." Plaintiff then drove home. 
Plaintiff did not report to work after May 21,2007, and began using accrued sick time. 
Sometime on or around June 7, 2007, she received a letter from the Police Chief asking her to 
provide medical documentation justifying her sick leave. Plaintiff hand-delivered to the Police 
Chief a note from Dr. Kumar, a cardiologist that she had begun seeing in April 2007, which 
stated that she was "under the care" of his office. Plaintiff continued to use her accrued sick time 
after June 2007. 
The Police Chief sent the plaintiff a letter on September 10, 2007, claiming that plaintiff 
had missed two scheduled medical exams on July 27 and August 15, which were required to help 
the Town manage her work related injur claim. He ordered the plaintiff to be examined by Dr. 
Pulde on September 17,2007. The plaintiff testified that she had not been informed of those 
appointments in a timely maner and also that she did not have a work-related injury claim 
pending but was rather using accrued sick time. During cross-examination, plaintiff 
4 
acknowledged that as par of the then-ongoing grievance procedure, she was seeking to be paid 
11 1 F benefits for sick days. 
On October 15, 2007, plaintiff received a letter from the Chief of Police stating in 
relevant part: "Pursuant to the sick leave provisions of the Collective Bargaining Agreement, I 
am ordering you to undergo a physical examination with Dr. Stefano Kale, Medical Director of
Cambridge Health Alliance on October 25, 2007 at 11 :00 A.M." Under the Collective 
Bargaining Agreement, absences that exceed three days will be paid for "only on submission of a 
doctor's certificate" satisfactory to the Chief. Aricle xiv, Section 4 of the Collective 
Bargaining Agreement states: "If the Chief or hislher designee determines it to be in the best 
interest of the Town, it shall have an independent doctor make an examination and report." 
Lt. Delahanty testified before the Civil Service Commission that other officers have been 
required to undergo fitness for duty examinations after being out on leave. According to 
Delahanty's review of personnel records, four officers have been required to undergo 
independent medical examinations before returing from lcave in which they were receiving 
I11F benefits. 
On December 6,2007, plaintiff was interviewed and examined by Dr. Kale. Plaintiff 
initially agreed to have her medical information released to the Police Chief, but withdrew her 
consent following the examination. Dr. Kale wrote a letter to the Police Chief noting this. To 
comply with the plaintiff's wishes, Dr. Kale never prepared a report. 
5 
l' 
On December 11, 2007, Town Manager Richard White sent a letter to the plaintiff stating 
that, "pursuant to G.L. Chapter 31 Section 41 please be advised that I intend to dismiss you from 
your position as a police officer for the Town of Winthrop. The reasons for contemplated action 
is your insubordination in failing to cooperate with a fitness for duty evaluation conducted by Dr. 
Stefano Kales..." A hearing regarding the matter was held on December 28,2007. 
On January 7,2008, the Town Manager sent a letter to the Appellant stating in relevant 
part: "As a result of your failure to allow Dr. Kales to release a medical report to the Town of 
Winthrop, I find that you are insubordinate in your refusal to cooperate and consent to the release 
of the appropriate information and report from Dr. Kales to the Town. Due to your 
insubordination I have decided to suspend you for 5 days effective Thursday, Januar 10, 2008 
and ending at the end of your 5th day of duty scheduled for Friday, Januar 18,2008. Please be 
advised that if you fail to provide an appropriate release to allow Dr. Kales to issue his report to 
the Town of Winthrop you wil be placed on administrative leave without pay when your 
suspension ends which wil continue until a release is provided to the Town." 
On Januar 18, 2008, the plaintiff filed an appeal of her suspension with the Civil Service 
Commission pursuant to G. L. c. 31, § 43. The plaintifftestified before the Commission that 
she believes she is fit for duty, that she is wiling to provide medical documentation from her 
own physician stating that she is fit for duty, and she is willng to cooperate with a Town- 
designated physician on the question for fitness for duty without providing the Town with any 
information regarding her personal medical history. When asked by the Commissioner if there 
was specific medical information she did not want released to the Town or whether this was an 
6 
r 
issue of principle, she responded, "both." The plaintiff stated that there was information in her 
medical records that related to a heart condition that could result in the Town trying to "retire her 
out". She also stated that any information included in a report by Dr. Kale could impact an 
application for life insurance. 
On September 1 1,2009, the Commission issued a decision denying the appeaL. Pursuant 
to G. L. c. 31, § 44 and G. L. c. 30A, § 14, plaintiff Nancy Dalrymple is now bringing this action 
challenging the decision. 
DISCUSSION 
Pursuant to G. L. c. 30A, a cour may reverse, remand, or modify an agency decision if 
the substantial rights of any part have been prejudiced because the agency's decision violated 
constitutional provisions or was not supported by substantial evidence. G. L. c. 30A, § 14(7) 
(2005). Under the substatial evidence test, the cour determines "whether, within the record 
developed before the administrative agency, there is such evidence as a reasonable mind might 
accept as adequate to support the agency's conclusion." Seagram Distilers Co. v. Alcoholic 
Beverages Control Comm'n, 401 Mass. 713, 721 (1988), citing Labor Relations Comm'n v. 
University Hosp., Inc., 359 Mass. 516, 521 (1971) (discussing substantial evidence test); see also 
G. L. c. 30A, §1(6) (defining substantial evidence). If there is substantial evidence, the court 
must affirm the agency's decision "even though (it) might have reached a different result if 
placed in the position of the agency." Seagram Distilers Co., 401 Mass. at 721, citing School 
Comm. of Wellesley v. Labor Relations Comm'n, 376 Mass. 112, 120 (1978). Judicial review is 
confined to the administrative record. G. L. c. 30A, § 14(5). 
7 
r 
In reviewing an agency decision, the court must give due weight to the experience, 
technical competence, and specialized knowledge ofthe agency, and may not substitute its own 
judgment for that ofthe agency. G. L. c. 30A, § 14(7); Flint v. Commissioner of Pub. Welfare, 
412 Mass. 416, 420 (1992); Southern Worcester County Reg'l Vocational Sch. Dist. v. Labor 
Relations Comm'n, 386 Mass. 414, 420-21 (1982). The court "must apply all rational 
presumptions in favor of the validity of the administrative action," Consolidated Cigar Corp. v. 
Deparment of Pub. Health, 372 Mass. 844,855 (1977), and may not engage in a de novo 
determination of the facts. Vaspourakan, Ltd. v. Alcoholic Beverages Control Comm'n, 401 
Mass. 347,351 (1987). The par appealing an administrative decision under G. L. c. 30A bears 
the burden of demonstrating its invalidity. Merisme v. Board of Appeals on Motor Vehicle Liab. 
Policies & Bonds, 27 Mass. App. Ct. 470,474 (1989). 
The plaintiff contends that the Commission's decision was based upon an error oflaw, 
unsupported by substantial evidence, and arbitrary and capricious. Specifically, the plaintiff 
argues that (1) the Town of Winthrop singled her out in ordering her to undergo a sick leave 
examination (an order she claims is without precedent) and (2) the Town ordered her to disclose 
to them her personal medical information beyond what is necessar for the anounced purpose of 
the exam (to determine fitness for duty). 
The administrative record shows that substantial evidence supported the Commission's 
conclusions that the Town was withi its lawfl power to order Dalryple to undergo an 
independent medical examination and that the plaintiff can not unilaterally determine which 
portions of a doctor's fitness for duty cvaluation should be conveyed to the Town. The 
8 
r 
administrative record contains within it "such evidence as a reasonable mind might accept as 
adequate to support the agency's conclusion." See Seagram Distilers Co., 401 Mass. at 721. 
Specifically, with regards to plaintiffs claim that the Town of Winthrop singled her out 
in ordering her to undergo a sick leave examination, the plain language of the Collective 
Bargaining Agreement ("CBA") in effect at the time allows for such an examination. The CBA 
states that "absences that exceed three days will be paid for.. . only on submission of a doctor's 
certificate" satisfactory to the Chief. Article xiv, Section 4 of the Collective Bargaining 
Agreement states: "If the Chief or hislher designee determines it to be in the best interest of the 
Town, it shall have an independcnt doctor make an examination and report." The Commission 
found that "after personally witnessing one of his police officers complain of breathing problcms 
while on duty and after several weeks of that employee takng extended sick leave, it was 
reasonable and appropriate for the Police Chief to require such an independent examination." 
Record at 290. The Commission found that the Town's actions were reasonable and that it 
should not be in the position of second-guessing such a decision. Id. Likewise, this court is not 
in a position to second-guess the findings of the Commission. This cour can only review 
whether its findings were based upon substantial evidencc, were arbitrary or capricious, or were 
made based on an error oflaw. Given the substantial evidence supporting the Town's position 
that was presented before the Commission, this court canot find that the Commission's findings 
were unreasonable, arbitrary or capricious. 
The Commission also found that the plaintiff can not unilaterally determine which 
portions of the doctor's fitness for duty evaluation should be conveyed to the Town and 
9 
I": 
dismissed any allegation on the plaintiffs part that her confidential medical information would 
not be properly safeguarded by the Town. These findings are also based on substantial evidence 
that a reasonable mind might accept as adequate. The Commission found that the plaintiff s 
position that she should be able to determine what portions of the fitness for duty evaluation 
should be conveyed to the Town is "unreasonable and would be in contravention of the statute." 
Record at 291. The Commission cites the case of Nolan v. Police Commissioner of Boston, 383 
Mass. 625 (1981), in which the Supreme Judicial Court interpreted the powers of the Boston 
Police Commissioner to include determination of apolice officer's "fitness to perform his duties 
or to return to full working status." The Commission reasonably concluded that that duty canot 
be carried out if it is left to the police officer being examined to determine what portions of the 
fitness for duty evaluation wil be transmitted to the Town. Record at 292. Furthermore, the 
Commission found that the plaintiff has failed to show that the Town violated its duty to keep 
her medical information confdentiaL. Id. at 291. It found that Michael Bertino, the Town's 
Finance Director who testified before the Commission, was the appropriate person to receive and 
safeguard such information. Id. 
This cour may not engage in a de novo determination of the facts and must give due 
weight to the specialized knowledge of the Commission. G. L. c. 30A, § 14(7); Flint, 412 Mass. 
at 416,420; Vaspourakan, 401 Mass. at 351; Southern Worcester County Reg'l Vocational Sch. 
Dist, 386 Mass. at 420-21. This cour must only determine whether the Commission's 
conclusions were based upon evidence that a reasonable mind might accept as adequate. 
Seagram Distillers Co., 401 Mass. at 721. In the present case, all of the Commission's findings 
challenged by the plaintiff were based upon credible evidence that a reasonable mind might 
10 
accept as adequate, and the plaintiff has failed to meet the burden of demonstrating their 
invalidity. See Merisme, 27 Mass. App. Ct. at 474. 
ORDER 
Based on the foregoing, Dalrymple's Motion for Judgment on the Pleadings is DENIED 
and the Town of Winthop's Cross-Motion for Judgment of Affirmance is ALLOWED. The 
decision of the Massachusetts Civil Scrvice Commission is AFFIRMED. 
(l~c4~ Elizabeth M. Fahey 
Associate Justice of the Superior Court 
DATED: June 29,2010 
11