DLR Respondent's Response To Charging Party
Town of Winthrop · from StateReference · 42 pages · 996 KB
open the file ↗ · original at the source ↗
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS
COMMONWEALTH EMPLOYMENT RELATIONS BOARD
DLR Docket No. MUP-19-7789
FERRUCCIO ROMEO, )
Charging Party )
)
V. )
)
TOWN OF WINTHROP, )
Respondent )
RESPONDENT, TOWN OF WINTHROP’S, RESPONSE TO CHARGING PARTY
FERRUCCIO ROMEO’S REQUEST FOR REVIEW
OF DISMISSAL OF CHARGE OF PROHIBITED PRACTICE
The issue presented in this appeal is whether the Investigator was warranted in
dismissing the charge that the Town violated Section 10(a)(3) and (4) and, derivatively,
Section 10(a)(1) of G.L. c. 150E, by using in-rank seniority, rather than departmental
seniority, for shift bidding purposes, which deprived Romeo of his preferred work shift.
Romeo alleges that the Town's actions were taken in retaliation for his union activity and
the filing of complaints with the Department of Labor Relations.
The Town contends that the dismissal was proper in that there was no adverse
action taken against Romeo and no basis to conclude that the Town’s action was
motivated by unlawful considerations. The in-rank seniority shift bidding process used in
December 2019 was consistent with past practice for over a decade, and performed in
accordance with the rules and regulations of the Police Department.
STATEMENT OF FACTS
Although Officer Romeo seeks to portray a protracted history of animosity
between himself as a Union member and officer, and the Police Department of Winthrop
culminating in repeated acts of discrimination and retaliatory treatment involving his
discharge and reinstatement, the facts do not support such a narrative.
Before his termination on January 9, 2015, Mr. Romeo had been a police officer
for the Town of Winthrop for nineteen years. During the last eleven of those years, he
was president of Winthrop Police M.C.O.P Local 421, AFL-CIO (hereafter “the Union”)
and was the Union’s sole officer. (Romeo Memo, p. 2) During his tenure Mr. Romeo
zealously advocated for the Union and its members.
The Arbitration Decision and Award dated February 26, 2016 found that there
was no just cause for Romeo’s termination.' Nevertheless, the Arbitrator ordered that
Romeo “be given a Written Letter of Warning for not following the Pump Station
guidelines.” (Romeo Exhibit H, Arbitration Decision, p. 24) The Arbitration award noted
that Romeo “shall be made whole for all lost wages and benefits, less offsetting income.”
As Romeo notes, the Town appealed the Arbitration decision to the Superior Court. On
April 3, 2017, the court, Fahey, J., reversed the arbitration decision and vacated the award
finding that Romeo’s “termination is warranted because of his dishonesty, compounded
by his unwillingness to take responsibility for disobeying the Detail’s rules.” Town of
Winthrop v. Winthrop Police Brotherhood Local 421, 93 Mass. App. Ct. 1111
(2018)(Rule 1:28). “The judge determined that Romeo's actions violate "a well-defined,
dominant public policy that dishonesty by police officers will not be tolerated,” such that
"the decision to reinstate him would offend public policy."” Id. Romeo then further
appealed to the Appeals Court. Recognizing the limited scope of review courts have of
civil service arbitration decisions, the Appeals Court reversed the Superior Court
‘ The Investigator in MUP-19-7261 correctly noted that the termination arbitration did not include
retaliation. (Winthrop Exhibit A, MUP-19-7261 Investigator Decision, p. 9 n. 17)
judgment on May 28, 2018 and reinstated the Arbitration award. Id. Officer Romeo was
returned to the payroll on July 22, 2018 and, following training, returned to duty on
September 7, 2018. By mutual agreement of Romeo and the Town, Romeo sat for a
make-up promotional examination for sergeant on October 25, 2018, over the objection
of other Winthrop police officers, and passed.
On April 18, 2019, the Union filed MUP-19-7277, alleging that the Town was not
complying with the arbitrator’s remedy award. After the Town paid Romeo $530,000, the
Union withdrew MUP-19-7277 before the DLR investigated it. (Romeo Exhibit G, MUP-
19-7261 CERB Decision, p. 2) Concurrently, on April 11, 2019, Romeo filed a charge
with the DLR alleging that since his reinstatement, the Town had retaliated against him
for his protected activities in four different ways. (Romeo Exhibit G, MUP-19-7261
CERB Decision, p. 2) The DLR Investigator dismissed the charge in its entirety on
March 13, 2020. (Romeo Exhibit G, MUP-19-7261 CERB Decision, p. 2) Romeo
appealed on two aspects of the charge: that the Town failed to reassign him to duties
maintaining the Department of Justice Criminal Information Services (DCJIS) system
and detail maintenance that he had performed prior to his termination, and that the Town
had failed to permit him to take a lieutenant promotional examination. (Romeo Exhibit G,
MUP-19-7261 CERB Decision pp. 2-3) On review in 2020, CERB affirmed the
Investigator’s dismissal in all parts except specifically that “pertaining to the
reinstatement of Romeo’s DCJIS duties” which they remanded to the DLR for issuance
of a complaint. (Romeo Exhibit G, MUP-19-7261 CERB Decision p. 5) While these
cases were pending, Romeo was promoted to sergeant on December 8, 2019.” (MUP-20-
7789 Investigator Decision, p. 2 (hereinafter “Investigator Decision’”))
On December 18, 2019, Deputy Chief Goodwin issued General Order 19-09 to all
sergeants noting that sergeant shift bidding would start on December 18, 2019, and that
“(all Sergeants not assigned to a special assignment shall bid their shift according to rank
seniority.” (Investigator Decision, p. 5; Romeo Exhibit D, Shift Bid Notice)
Since at least 2006, the shift bidding process for officers to select their shifts has
taken place either once or twice a year. (Investigator Decision, p. 5) “In or around 2005,
former Police Chief David Goldstein put into place the presently used bid-shifting [sic]
arrangement, where assignments are chosen by seniority in rank. Lieutenants choose first
by seniority, then sergeants by seniority, and then patrol officers by seniority.” (Winthrop
Exhibit B, MCAD Dalrymple Investigative Disposition, p. 2; Investigator Decision, p. 4)
This procedure is consistent with “seniority” as defined in the “Manual of Rules and
Regulations for the Government of the Police Department of the Town of Winthrop”
(hereinafter “Rules and Regulations”) prepared by then Police Chief David Goldstein and
adopted by the Board of Selectmen on February 28, 2005. (Winthrop Exhibit C, Manual
of Rules and Regulations) Section 1.7.5 of the Manual of Rules and Regulations states
that “[s}]enority shall be determined first by rank, second by continuous service in the
rank.” (Winthrop Exhibit C, Manual of Rules and Regulations, p. 9)
This shift-bidding process is also consistent with shift bidding notices from 2007-
2009 which request that “every officer according to seniority picks their shift as soon as
? The Investigator Decision in this case states in error at p. 2 that “Jo]n December 18, 2018, the Town
promoted Romeo to a sergeant position.” The correct date of Romeo’s promotion to sergeant is December
8, 2019. (Romeo Memo. p. 12; Winthrop Exhibit A, MUP-19-7261 Investigator Decision, p. 3 n. 6)
4
possible.” (Romeo Exhibit C, Shift Bid Notices)’ The Investigator noted that from 2015
through 2018, “the Police Department continued to use in-rank seniority for the purpose
of shift-bidding.” (Investigator Decision, pp. 4, 8)
Since 2006 and prior to the current charge, the Union challenged the shift bidding
process one time on behalf of Nancy Dalrymple when the process disadvantaged her in
2014, as it does Romeo here, by preventing her from bidding for a shift by departmental
seniority rather than in-rank seniority. (Investigator Decision p. 4) At that time, the Union
filed for arbitration noting that Dalrymple was assigned to the night shift without
following seniority within the Police Department, in order to discriminate against her.
(Investigator Decision, p. 4) At that time, Dalrymple also charged that, “I as well as other
Sergeants within the Department, was not given the opportunity to bid in order of
seniority for the created Administrative Sergeant’s Position.” (Investigator Decision, p. 4)
In response to the charge, the Police Chief denied the grievance in a letter dated April 9,
2014, stating, “[ylour grievance is denied as it relates to seniority. 1.7.5 of the Manual of
Rules and Regulations enacted by my predecessor clearly states how seniority will be
calculated. The paragraph clearly states that seniority will be determined first by rank and
then by continuous service in that rank.” (Winthrop Exhibit D, Chief Delehanty letter,
April 9, 2014) The Union thereafter withdrew the grievance and the arbitration case was
closed on February 18, 2016. (Investigator Decision p. 4) In 2016 Dalrymple also filed a
complaint against the Town with MCAD alleging that the in-rank bidding process was
used to discriminate against her. During the MCAD proceeding the Town again
maintained that it had used the in-rank seniority bidding process that had been in place
3 The Investigator incorrectly states that “[i]n 2007 through 2009, officers picked their shifts in order of
seniority in the Police Department.” There was no evidence of the shift bidding process presented other
than the shift bid memos which refer only to seniority. There was no evidence that the process had changed
since the adoption of the 2005 Rules and Regulations defining seniority in terms of in rank seniority.
5
since 2005. The MCAD did not find probable cause that the Town discriminated against
Dalrymple, finding that the Town “provided a legitimate, nondiscriminatory reason for
the reassignment. .. . When determining placements, Respondents utilized a bid-shifting
[sic] arrangement that has been in place since 2005, whereby rank and seniority are
considered.” (Investigator Decision, p. 4 n. 6; Winthrop Exhibit B, MCAD Dalrymple
Investigative Disposition, p. 3)
As a result of the shift bidding process for sergeants conducted in December
2019, Romeo who had more seniority in the Police Department than other sergeants, but
less in rank seniority, did not receive his preferred shift which he would have received if
the bidding occurred using seniority within the entire police department. As a result,
Romeo was placed on the night shift. (Investigator Decision, p. 5) Romeo did not present
any evidence that this result made any difference of pay, overtime, or any other material
harm. (Investigator Decision, p. 5) Although Romeo claims that no other sergeants have
been similarly disadvantaged in the use of the shift bidding process through the years,
Romeo presented no evidence to support this assertion and Dalrymple’s claim in 2014
stating that that she “as well as other Sergeants within the Department, was not given the
opportunity to bid in order of seniority for the Administrative Sergeant’s Position”
suggests that there were other sergeants whose departmental seniority differed from their
in-rank seniority and were similarly disadvantaged.
APPLICABLE STANDARD
To establish a prima facie case of a Section 10(a)(3) or (4) violation, a charging
party must show that: (1) the employee engaged in concerted activity protected by
Section 2 of the Law; (2) the employer knew of the concerted, protected activity; (3) the
employer took adverse action against the employee; and (4) the employer's conduct was
6
motivated by a desire to penalize or discourage the protected activity. Town of Carver,
35 MLC 29, 47, MUP-03-3094 (June 30, 2008). G.L. c. 150E, §§ 10(a)(3) and 10(a)(4)
prohibit retaliation or discrimination against an employee for engaging in union activity
and for signing, filing a complaint or giving information or testimony to the DLR,
respectively.
In this case, the Investigator found that Romeo established the first two elements
of a prima facie case of retaliation, but failed to establish that the Town’s conduct
constituted an adverse action, or that it was unlawfully motivated. (Investigator’s
Decision, pp. 7-9)
ARGUMENT
I. No Adverse Employment Action
The Investigator concluded that the Town did not take an adverse action against
Romeo when it conducted the shift bid process using in-rank seniority. (Investigator
Decision, p. 7) “[A]n action taken by an employer is an "adverse employment action"
where it is "substantial enough to have materially disadvantaged an employee." Psy-Ed
Corp. v. Klein, 459 Mass. 697, 707-708, 947 N.E.2d 520 (2011). "Material disadvantage
for this purpose arises when objective aspects of the work environment are affected.” Yee
v. Mass. State Police, 481 Mass. 290, 296-297 (2019) quoting King v. Boston, 71 Mass.
App. Ct. 460, 469 (2008) "An adverse employment action ‘typically involves discrete
changes in the terms of employment, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
change in benefits.’ " Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 314 (1st Cir.
2016)
To determine whether an action is materially adverse, a reviewer must engage in
an objective, “case-by-case inquiry,” recognizing that "[w]ork places are rarely idyllic
retreats, and the mere fact that an employee is displeased by an employer's act or
omission does not elevate that act or omission to the level of a materially adverse
employment action." Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996). "A materially
adverse change in the terms and conditions of employment ‘must be more disruptive than
a mere inconvenience or an alteration of job responsibilities.” " Garmon, 844 F.3d at 314
The disadvantage must be objectively apparent to a reasonable person in the employee's
position; "subjective feelings of disappointment and disillusionment" will not suffice.
Yee, 481 Mass. at 297 citing MacCormack v. Boston Edison Co., 423 Mass. 652, 663
(1996); see Taylor v. Town of Freetown, 479 F.Supp.2d 227 (D. Mass. 2007)(no adverse
employment action where while police officer may have preferred working a day shift,
there is no objective evidence that demonstrates he was materially disadvantaged when
unilaterally transferred to night shift); Gu v. Bos. Police Dep't., 312 F.3d 6, 14 (Ist Cir.
2002)(no adverse employment action when there was no evidence that shift reductions
would lead to loss of benefits, such as health insurance, "in the context of a workplace
where schedules fluctuate and no employee is entitled to any given shift")
In this case, the Investigator noted that Romeo did not present evidence to
demonstrate that he earned a lower salary, or less overtime, or suffered any other material
harm due to the fact that he did not receive his preferred shift. (Investigator Decision, p.
7) The Investigator further found that Romeo did not provide evidence that his new shift
was less preferable. (Investigator Decision, p. 7)
Romeo argues that his assignment to night shift and switch to an undesirable
schedule is an adverse action. (Romeo Memo, pp. 17, 19, 20) The change in his work
schedule, however, was not the result of a unilateral decision or order to a specific shift,
but rather the result of the implementation of an unbiased shift bidding process in use at
the Winthrop Police Department for over a decade which depended on the choice and
preferences of other officers in order of in rank seniority. The Police Chief did not know
the outcome of the process prior to the shift bid, nor which shifts would be selected by
which officers. The Chief made shift assignments in accordance with the results of the
shift bid process. As such, the Investigator properly found that Romeo’s assignment to
the night shift as a result of the bid shift process did not constitute an adverse
employment action.
II. No Retaliatory Motive
In addition, the Investigator found that Romeo failed to show that the Town’s
actions were unlawfully motivated. (Investigator Decision, p. 8) Absent direct evidence,
unlawful motivation may be established through circumstantial evidence and reasonable
inferences drawn from that evidence. Several factors may suggest unlawful motivation,
including the timing of the alleged discriminatory act in relation to the protected activity,
triviality of reasons given by the employer, disparate treatment, an employer’s deviation
from past practices, or expressions of animus or hostility toward a union or the protected
activity. Town of Carver, 35 MLC at 48 citing Melrose School Committee, 33 MLC 61,
69, MUP-02-3549 (September 27, 2006)). In an indirect, or circumstantial, evidence case,
the CERB applies the tri-partite analysis articulated in Trustees of Forbes Library v.
Labor Relations Commission, 384 Mass. 559 (1981). Under this analysis, once the
charging party establishes a prima facie case, the employer may rebut it by producing
evidence that a legitimate reason motivated the adverse action, If the employer produces
one or more legitimate reasons, the charging party must establish that but for the
protected activity, the employer would not have taken the adverse action. Id. at 565-566;
Suffolk County Sheriff's Department, 27 MLC 155, 159, MUP-1498 (June 4, 2001). Ifa
lawful cause would have led the employer to the same conclusion in the absence of
protected activity, the employer will prevail. Southern Worcester County Regional
Vocational School District v. Labor Relations Commission, 386 Mass. 414, 418-19
(1982) quoting Trustees of Forbes Library, 384 Mass. at 565-566.
“{U]nlawful discrimination is, at its essence, the failure to treat similarly-situated
persons similarly for impermissible reasons.” Bridgewater State Univ. v. Bryan, SUP-14-
3771 (Nov. 30, 2016). “It is net CERB’s role to second guess the wisdom of an
employer’s business decisions, but only that the employer had reasons for the decision
and facts to support it.” City of Boston and SENA, Local 9158, MUP-18-6679 (March
31, 2020) citing Trustees of Forbes Library, 384 Mass. at 565.
Here, the Town did not deviate from past practice in its use of in rank seniority
for shift bidding and Romeo presented no evidence of disparate treatment. As discussed
above, the Department has used the same shift bid process based on in rank seniority
since 2006. Romeo’s argument that the Town “engaged in unlawful discrimination when
it refused to accord him more favorable treatment than other similarly-situated employees
has no support in common sense or the Law.” Bridgewater State Univ. v. Bryan, SUP-14-
377] (Nov. 30, 2016).
“In or around 2005, former Police Chief David Goldstein put into place the
presently used bid-shifting [sic] arrangement, where assignments are chosen by seniority
in rank. Lieutenants choose first by seniority, then sergeants by seniority, and then patrol
officers by seniority.” (Winthrop Exhibit B, MCAD Dalrymple Investigative Disposition,
10
pp. 2, 3; Investigator Decision, p. 4) This procedure is consistent with “seniority” as
defined in the “Manual of Rules and Regulations for the Government of the Police
Department of the Town of Winthrop” (hereinafter “Rules and Regulations”) prepared by
then Police Chief David Goldstein and adopted by the Board of Selectmen on February
28, 2005 in accordance with G.L. ¢. 41, § 97. (Winthrop Exhibit C, Manual of Rules and
Regulations) Section 1.7.5 of the Manual of Rules and Regulations states that “[s]enority
shall be determined first by rank, second by continuous service in the rank.” (Winthrop,
Exhibit C, Manual of Rules and Regulations)
Romeo relies on seniority as defined in collective bargaining agreement (CBA) at
Article XXXIII, in effect at the time of the December 2019 shift bid process, that
“Seniority is defined as the length of continuous full-time employment in the Winthrop
Police Department” and argues that the CBA definition of seniority must apply to
everything affected by seniority. The CBA, however, limits the definition of seniority in
the Article XXXII to the specific conditions of “layoffs due to lack of work.” (Romeo
Exhibit A, CBA, p. 27) Nevertheless, following Romeo’s misinterpretation in this case,
the parties amended the CBA to add clarifying language to reflect the Department’s
longstanding practice of applying departmental seniority to layoffs and in rank seniority
for all other purposes as set forth in the Rules and Regulations adopted in 2005. See
Investigator’s Decision, pp. 3-4 n. 5; Romeo Exhibit E, Memorandum of Agreement,
signed May 29, 2020) In addition, as mentioned in the December 2019 shift bid notice,
the CBA specifically provides at Article V ~ Rights of the Employer that “except as
specifically and directly modified by express language in a specific provision of this
Agreement, the Employer and its agents, including the Chief of Police, retain all rights
and powers .. . granted by law in managing the police Department and directing the
11
working force . . . includ[ing but not] limited to, the establishment of rules and
regulations; . ..” (Winthrop Exhibit E, CBA Article V; Romeo Exhibit D, Shift Bid
Notice)
The shift bidding process that has been in effect since 2006 has never been the
subject of collective bargaining, and neither the union nor the employer ever made a
request that it be included in the CBA prior to 2020. Neither is shift bidding covered
under civil service law. Dedham v. Dedham Police Assn., 46 Mass. App. Ct. 418 (1999).
Although Romeo alleged that until the shift bidding process at issue took place in
December 2019, there was no difference between the officers who had the highest
seniority in the department and those who had the highest in rank seniority, he provided
only his assertion that this was the case, and Dalrymple’s complaint in 2014 regarding the
same shift bidding process stated that “I, as well as other Sergeants within the
Department, was not given the opportunity to bid in order of seniority for the created
Administrative Sergeant’s Position” suggests that there were other officers similarly
situated through the years who were subjected to and disadvantaged by the same shift
bidding process based on in rank seniority. Similarly, the timing of the shift bid process,
ten days after Romeo’s promotion to Sergeant, is not evidence of bias, but rather reflects
an adjustment of the schedule of the officers in the rank to accommodate a new member.
Based on the above, the Investigator correctly concluded that Romeo had failed to
meet his burden to establish a prima facie case of retaliation by the Town for using in-
rank seniority for shift bidding purposes, a process the Police Department had used since
2006, which deprived Romeo his preferred work shift. The Investigator, therefore,
properly dismissed the allegation of prohibited conduct.
12
CONCLUSION
For the foregoing reasons, the Investigator’s dismissal of the charges should be
affirmed.
Respondent,
Town of Winthrop,
By its attorn
Howard L. Greenspan
BBO # 210420
200 Broadway, Suite 304
Lynnfield, MA 01940
(781) 598-4545
hgreenspan@greenspanlawyers.com
13
Town of Winthrop - Exhibit List
Exhibit A - MUP-19-7261 Investigator Decision, March 13, 2020
Exhibit B- MCAD Dairymple Investigative Disposition, August 10, 2015
Exhibit C -- Winthrop Police Dept., Manual of Rules and Regulations, excerpt,
adopted, February 28, 2005 _
Exhibit D — Chief Delahanty letter to Nancy Dalrymple, April 9, 2014
Exhibit E - CBA, Article V — Rights of the Employer
WINTHROP - EXHIBIT A.
THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS
CHARLES F, HURLEY BurLoinG COMMONWEALTH
19 StaniForD STREET RES LOYMENT
; 1: FLoon. Boston. MA 02114 LATIONS Boar
CHARLES D. ‘Baker PHone: (617) 626-7132 MARUORIE F. WITTNER
FAX: (617) 626-7187 Cralr
KARYN E. POLITO efile. dir@mass.gov KATHERINE G, Lev
LIEUTENANT GOVERNOR www.mass.govidir Bond MENeER
PHILP T. ROBERTS JOAN ACKERSTEIN
DirecYor Boarb Men BEA
March 13, 2020
Ferruccio Romeo
§ Hitching Hill Road
Saugus, MA 01906.
Howard Greenspan, Esq.
220 Broadway, Suite 304
‘Lynnfield, MA 01940
Re: MUP-19-7261, Town of Winthrop and Ferruccio Romeo
Dear Mr. Romeo and Mr. Greenspan:
On April 11, 2019, Ferruccio Romeo (Romeo) filed a charge of prohibited
practice with the Department of Labor Relations (DLR}, alleging that the Town of
Winthrop (Town) had violated Section 10(a)(3), 10(a)(4), and, derivatively, Section
+ 10(a)(1) of Massachusetts General Laws Chapter 150E {the Law).’ Pursuant to
Section 11 of the Law, as amended -by Chapter 145 of the Acts of 2007, and
Section 15.05 of the DLR’s Rules, | conducted an in-person investigation of this
allegation on February 24, 2020,2 Based on the evidence presented during the
investigation, | dismiss the allegations for the reasons explained below.
Background
Romeo has been a police officer in the Town for approximately 24 years.
He also served as the President for MASS COP Local 421 (Local 421 or Union)
fromm December 2004 until February 2015, As Union President, Romeo negotiated
' At the investigation, Romeo withdrew his allegations that the Town had violated
Sections 2 and 5 of the Law. Romeo also withdrew certain of his retaliation
allegations, including that the Town had failed to fully comply with an arbitrator's
order, that the Town failed to provide him with equal time and material for
promotional exams, and the Town unlawfully failed to promote him to a full-tims
sergeant position.
2} held the record open until February 27, 2020 to enable the parties to provide
certain specified additional information.
Dismissal (cont'd) MUP-19-7261
collective bargaining agreements with the Town and engaged In other protected
activity including filing grievances ainst the Ti i ibi
charges wath re ng ag fe Town and filing prohibited practice
On or about November 24 2014, Romea was assi il
i 24, ’ igned to work a detail from
7:00 a.m. until 3:00 p.m. Believing he only had to be “on cal!” during this detail,
Romeo also attended a mediation session for a successor collective bargaining
agreement under the auspices of the Joint Labor Management Committee on the
Romeo filed a grievance challenging his termination. On June 24, 2015, Romeo
also filed MUP-18-4652 alleging that the Town had terminated him for his protected
activity.3 The DLR deferred both of his charges to arbitration. On July 13, 2015,
Romeo also filed a discrimination lawsuit against the Town in Suffolk Superior
rt. ' ‘
On February 28, 2016, arbitrator Bruce Fraser (Fraser} found that the Town
lacked just cause to terminate Romeo and ordered Romeo's reinstatement with
back pay. On March 2, 2046, Romeo requested that the DLR revive his two
charges, MUP-14-4210 and MUP-15-4652.4 The Town filed a Complaint in
Superior Court to vacate the arbitrator's award. On April 5, 2017, the Superior
Court vacated the arbitration award. Romeo then filed with the Court of Appeals,
which, on May 21, 2048, vacated the Superlor Courts decision and reinstated the
arbitration award.5 ;
3 During the in-person Investigation, Romeo motioned to consolidate this casa with
MUP-14-4210 and MUP-15-4652. However, given the fact that | am dismissing
this case, consolidation is not appropriate,
4 The charges were subsequently referred to mediation but were not resolved.
> in October 2018, Fraser held a remedy hearing. On January 21, 2019, Fraser
issued an award detailing what remedy was due Romec for his termination without
just cause, including specific payments for lost straight wages, details, overtime,
paid leave, taxes, interest, and the cost of his health insurance. Fraser specifically
noted that Romeo had performed additional job duties involving detail maintenance
and maintenance of the Department of Criminal Justice Information System
(DCUIS), averaging about 90 hours ber year of “due time.” Fraser ordered the
Town to include payment for these 90-hours per year to Romeo,
Thereafter, on April 18, 2019, Local 424 filed a charge, MUP-19-7277, alleging that
the Town was not complying with the backpay aspect of Fraser's order. On May
2
Dismissal (cont'd) MUP-19-7264
On July 22, 2018 Romeo was reinstated for pay purposes. After attending
required training, he was reinstated to duty on September 8, 2018. Romeo has not
assumed any official role with Local 421 upon his return to duty.
On April 3, 2018, prior to Romeo's return, the Town had conducted an
examination for promotion to sergeant, Based on an unrelated court order, another
officer wes permitted fo sit for a make-up.exam on October 25, 2018. Romeo algo
sat for the October make-up promotional exam for the sergeant positions. On April
4, 20 M 9, an updated eligible list for sergeant was established; Romeo was ranked
third,
On April 10, 2019, Romeo attended a Union meeting regarding a proposed
Memorandum of Understanding (MOU) for a successor collective bargaining
agreement (CBA). Remeo spoke out against the proposed MOU. During an April
77, 2018 Union meeting to vote on the MOU, Romeo again openly voiced his
Opposition to the MOU. The members voted against the propased MOU.”
In-Service Training
On December 10, 2048, the Police Department issued an employee training
policy. Section Xii includes a provision that states:
ifthe employee is attending department approved training and it falls
on the employees|'] day: off the employee shall use his/her Kelly
Hours® if the training is on the employees|'] regularly scheduled
work day or 6 hours before or § hours after employees’) regularly
scheduled work day, employee will be placed in training in-lieu of
his or her regularly scheduled work day.
16, 2019, Local 427 and Romeo also filed another civil action in Superior Court,
After the Town paid Romeo $530,000, the Union withdrew MUP-19-7277,
§ The Town subsequently pramoted Romeo to sergeant on December 6, 2019.
? At the in-person investigation, Romeo stated his belief that the Town was aware
of his comments because the Acting Union President, James Feeley, is good
friends. with the Police Chief, Terence Delehanty (Delehanty). However, he
presented no evidence to establish that Feeley told Delehanty of Romeo's
comments or that Delehanty learned of them any other way.
“8 When the Police Department changed the officers’ schedule to a ten-hour
workday, working 4 days on then 4 days off, in order to compensate for additional
time off, the officers had to "pay back” 60 hours, called “Kelly hours.” The officers
could use “Kelly hours” to attend required training or perform certain work-related
functions approved by Delehanty.
3
Dismissal (cont'd) MUP-19-7264
Romeo and other employees attended in-service training from February 11,
2019 through February 14, 2049. Any employee who attended the training on an
off day was credited for 8 hours @ day for a total of 32 hours, Any employee who
attended the training in lieu of his or her shift was credited for 10 hours a day, for
a total of 40 hours. Romeo attended on his off days, so he was only credited for 8
hours a day. He objected when he learned that at least 2 other officers, who
attended in lieu of their shifts, were credited with 10 hours per day.
On February 27, 2019, Romeo and another officer filed a grievance
because the officers were not raceiving an equal amount of eradit for attending the
in-service training. In his grievance, Romeo quojed Detective Sergeant Steve
Rogers’ February 15, 2019 email which read, “fals has always been the practice
in service is 8 Kelly Hours of credit per day attended.”
On May 1, 2019, Austin Faison, ‘Town Manager, denied the grievance
noting that “the credit for in-service training in lieu of shift as well as the application
of Kelly hours for training purposes has been consistently applied in the
department since the adoption of the 4 and 4 shift,”
Assignment of Prior Duties upon Romen’s Reinstatement
Prior to his termination, Romeo had been assigned two additional job
responsibilities which earned him additional “Kelly hours” or compensatory time.
~ One of tlie extra duties involved maintaining the DCJIS. Romeo, who had been
assigned this duty for 15 years prior to his termination, eared 50 hours of
compensatory time per year for performing this duty which included certification
and maintenance of the system and of the confidential passwords. The other duty
involved detail maintenance.® For this duty, Romeo was responsible for adjusting
hours, scheduling details and following up on collections for details that were not
paid.’ He received four "Kelly hours" a month for this responsibility. Romeo asked
to have both of these duties reassigned to him when he was reinstated. Although
Delehanty and the Deputy Chief indicated they would talk about it, the duties have
not been reassigned to Romeo. In Romeo's absence, Delehanty assigned the
DCJIS duties to a lieutenant, who is in a different labor organization, not Laca! 421.
° During the in-person investigation, Romeo did not provide any information
regarding how tong he was responsible for these detail-telated duties prior to his
termination, The Town provided evidence that in 2011-2012, Sgt. Femino was
responsible for the detall assignment. In 2012-2013, Julio Bonavita (Bonavita) had
been assigned as the detail officer. Both were credited for 40 hours for the year for
these duties. :
© In 2010, the Town and the Union signed an agreement stating that ihe Town
would provide the Union with all invoices that were past due after an officer worked
a detail so that the Union could pursue collection.
4
Dismissal (cont'd) MUP-19.7264
Delehanty assigned two other bargaining unit employees, William Hagemeister
and Bonavita, io adjust detail hours,
Provisional Sergeant Position
In early 2018, the Police Department posted a provisional sergeant position.
Romeo and two other employees applied. Romeo was the most senior candidate.
provisional position.11 At some point, the Acting Town Manager, David Cressmen
(Cressmen), opted not io fill the position."? During the in-person examination, the
Town explained that although it held an April 3, 2018 sergeant promotional exam,
the Town was subsequently required to hold a make-up exam, which did not take
place.until October 25, 2618, Cressmen decided not to fill the provistonal sergeant
position until the lists from the two exams could be merged. Ultimately, he decided
not to fill the provisional sergeant position at all. The Town subsequently placed
at least the top three candidates in permanent sergeant positions, including
Romeo."5
Around this time, Delehenty offered to make Romeo the officer in charge
which would have increased his pay. Romeo refused the officer in charge status,
in part because that the pay and other benefits were not equal to that of the
provisional sergeant position. .
Promotion Exarnination for Lieutenant Position
On December 8, 2018, the Police Department held an examination for the
promotion to a ligutenant pasition. Civil service law states that only employees who
had served at feast a year In the next lower rank, sergeant, are eligible to sit for
tha promotional examination for feutenant.4 Romeo, who was not a sergeant at
the time, was informed he would not be permitted to take the examination.
Prior to the exam, on November 10, 2018, Romeo filed an appeal with the
Givil Service Commission. He argued, in part, that had he not been terminated ,
™ Around this time, another officer in Local 421’s bargaining unit, Judy Racow,
became a provisional sergeant through an unrelated civil litigation rather than the
posted position.
* Neither party provided a date when this decision was made.
*? When permanent sergeant positions opened, the Town made appointments by
order of civil service ranking off the merged list. Romeo was ranked third. When
a third sergeant position Was available, the Town promoted Romeo to se@rgeant on
December 8, 2019,
“ See Massachusetts General Laws Chapter 31, Section 59.
5
Dismissal (cont'd) ; ; MUP-19-7261
he may have been promoted to sergeant, allowing him to sit for the fleutenant’s
promotional examination. On May 9, 2049, the Civit Service Commission
dismissed Romeo's appeal.
Position of the Partles
Romeo argues that the Town retaliated against him for his protected activity
in violation of Sections 10(a)(3) and (4) of the Law by: %) crediting him for only 32
hours for attending in-service training: 2) failing to reassign him to certain duties
he was assigned to prior ta his termination, 3) falling to Select him as a provisional
sergeant; and 4) failing to permit him to participate in an examination for promotion
to fieutenant, Romeo argues that the Town's actions retaliated agalnst him for his
protected activity prior to his termination, his protected activity of fighting his
termination, his filing charges with the DLR and his ouispokenness against the
proposed MOU for a successor CBA during Union meetings. More specifically,
Romeo maintains that he and others were only credited with 32 hours for their
attendance at in-service training, but others were credited with 40 hours. Upon his
seinstatement, Romeo requested that the Town reassign him to certain duties he
held prior to his termination, involving the DCJIS. system and detail maintenance,
for which he had earned "Kelly hours” and compensatory time. The Town has nat
reassigned these duties to Romeo, so he is not earning the same “Kelly hours”
and compensatory time he earned prior to the termination. Additionally, although
the Town posted for a provisional sergeant position, Romeo alleges the Town
decided not to fill it after he expressed interest in the position. Romeo notes that,
as the most senlor candidate, he should have been the successful candidate.
Lastly, Romeo believes that he was not permitted te sit for the lieutenant
promotional exam because he was not a sergeant, but that he would likely have
been a sergeant at that time if not for his unjust termination.
The Town contends that it did not violate the Law regarding any of the four
allegations, The Town followed its training policy and treated Romeo exactly the
same as it treated all other employees whe attended the in-service training on a
day off. As for the second issue, the Town notes that the arbitration award did not
require the Town to reassign Romeo to every duty he held prior to his termination.
In Romeo's absence, the Town assigned the DCJIS duties to a Sieutenant in a
different bargaining unit, and the Town believed that the lieutenant should continue
to perform those duties. As for the detail-related duties, the Town asserted that it
is the Union's responsibility to pursue collectian pursuant to the 2010 agreement
so the Town does not assign this duty any fonger."5 In regard to the other detail
related duties that the Town does assign, those duties have not always been
assigned to Romeo. In the past, the Town has assigned these duties to other
*5 During the in-person investigation, Romeo explained that regardless of the 2010
agreement, Delehenty still assigned one or more bargaining unit employees to
handle certain responsibilities regarding details, Including recording changes
based on the actual number of hours that an officer worked on a specific detail.
8
Dismissat (cont'd) MUP-19-7261
bargaining unit employees and therefore, the Town maintains that its decisi
continue to have other employees perform these duties even after "Romeo's
reinstatement was not retaliatory. As fo the provisional sergeant position,
Crassmen opted not to fill that position immediately after it was posted because he
wanted to wait until the list from the Aprilexam and the fist from the October make-
up &xam could be merged. Ultimately, no one was ever selected as a provisional
sergeant through that posting. The Town asserts that this decision did not have
anything to do with Romeo's protected activity, and he was subsequently promoted
toa permanent sergeant position. Lastly, Romeo could not sit for the lieutenant
Promotional examination simply because he did not have the necessary
qualifications; he did not have one year of experience as a sergeant. Overall the
Town maintains that Romeo's protected activity had no bearing on any of its
actions.
Analysis
A public employer that retaliates or discriminates against an employee for
engaging in activity protected by Section 2 of the Law violates Section 10(a){3) of
the Law. Southern st ional Vocational School District v. Labor
Relations Commission, 386 Mass. 414 (1982); School Committee of Boston v.
Labor Relations Commission, 40 Mass. App. Ct. 327 {1 996). A public employer
that retatiates or discriminates against an employee for signing or filing a cornplaint
or giving any information or testimony to the DLR violates Section 10{a){4) of the
Law. Because unlawful retaliation Is the essence of a charge under Section
10(a){3) and 10(a){4), similar elements of proof apply to both kinds of cases.
Commonwealth of Massachusetts, 6 MLC 1397, 1400, SUP-2790 (August 27,
1979).
To establish a prima facie case of retaliation, the charging party must show
that: (1) the employee engaged in concerted activity protected by Section 2 of the
Law; (2) the employer knew of the concerted, protected activity; (3) the employer
took adverse action against the employee; and (4) the employer's action was
motivated by a desire to penalize or discourage the protected activity. City of
Holyoke, 35 MLC 153, 156, MUP-04-4503 (Jan. 9, 2009): Town of Carver, 35 MLC
22, 47, MUP-03-3094 (June 30, 2008); City of Boston, 35 MLC 289, 291, MUP-04-
4077 (May 20, 2009); Town of Clinton, 12 MLC 1361, 1365, MUP-5659 (Nov. 9,
1985).
The CERB has consistently defined adverse action as an adverse
personnel action, such as a suspension, discharge, involuntary transfer or
reduction in supervisory activity. The mere assignment of additional
_ Tesponsibilities, though possibly inconvenient or even undesirable, does not
constitute an adverse employment action unless It materially disadvantages the
charging party in some way. City of Boston, 35 MLO 289, 291, MUP-04~-4077 (May
20, 20089) (citing MacCormack v. Boston Edison Co., 423 Mass. 652, 662 {1996)).
7
Dismissal (contd) MUP-19-7261
Absent direct evidence, unlawful motivation may be established through
circumstantial evidence and reasonable inferences drawn from that evidence.
Several factors may suggest unlawful motivation, including the timing of the
alleged discriminatory act in relation to the protected activity, triviality of reasons
given by the employer, disparate treatment, an employer's deviation from past
practices, or expressions of animus or hostility foward a union or the protected
activity. Town of Carver, 35 MLC at 48 (citing Melrose School Committee, 33 MLC
61, 69, MUP-02-3549 (September 27, 2006)). Under an indirect, or circumstantial,
evidence case, the CERB applies the tri-pariite analysis articulated in Trustees of
Forbes Library v. Labor Relations Commission, 384 Mass. 559 (1981). Under this
analysis, once the charging party establishes a prima facie case, the employer
may rebut it by producing evidence that a legitimate reason motivated the adverse
action. {f an employer produces evidence of a legitimate, non-discriminatory
reason for taking the adverse action, the case becomes one of “mixed motives.”
The CERB then considers whether the employer would have taken the adverse
action but for the employee's protected activity. Suffolk County Sheriffs
Departnent, 27 MLC 155, 160, MUP-1498 (June 4, 2001); Quincy School
Comrnittes, 27 MLC 83, 92, MUP-1986 (December 29, 2000). The charging party
bears the burden of proving that, but for the protecied activity, the employer would
hot have taken the adverse action. -Royalston Regional Schoo! mittee
28 MLC 204, 214, MUP-2279 (January 74, 2002); Town of Athol, 25 MLC 208,
211, MUP-1448 (June 6, 1999).
Romeo established the first three elements of a prima facie case of
- fetaliation. When he served as the Union President from December 2004 until
February 2015, Romeo filed numerous grievances and prohibited practice charges
against the Town and he participated in bargaining sessions with the Town, which
sometimes necessitated the involvement of the JLMC. After he was terminated,
Romeo filed a grievance that went to arbitration. He pursued the matter to the
Court of Appeals. Romeo also filed and pursued prohibited practice charges, -
before and after his termination. After his reinstatement, Romeo maintains that he
further engaged in protected aétivity during the two Union meetings in April 2019.
Although he claims that the Town may be aware of this activity because the Acting
Union President is friends with Delehanty, this is merely speculative.
Nevertheless, Romeo has clearly been engaged in other protected activity and
thare is no dispute that tha Town was aware of this protected activity.75
*® During the in-person investigation, Romeo mentioned that he has filed a number
of grievances since his reinstatement. However, the only grievance specifically
referenced was his grievance on February 27, 2019 alleging that the Town violated
the CBA pertaining to how time was credited for attending the in-service training.
No information was provided about the other grievances and, therefore, there is
No evidence to demonstrate that he filed these other grievances prior to the Town's
alleged unlawful actions, :
Dismissal (cont'd) MUP-19-7261
Romeo also established that he suffered material harm based on the
Town's actions. Romeo was not credited with the same number of hours for
attending the in-service training as certain other employees: he was not assigned
to ail of his previous duties which resulted in him earning less compensatory time
and fewer "Kelly hours"; Romeo was not selected for the provisional sergeant
position, which would have resulted in higher pay and benefits; and he was not
permitted to sit for the lieutenant promotional exam and therefore was not able to
be promoted fo the higher paying lieutenant position. Given the above, Romeo
has established the first three elemenis of a prima facie case.
In order to establish the fourth and last element needed to establish a prima
facie case, Romeo must demonstrate that the Town's actions were unlawfully
motivated. Romeo did not provide any direct evidence linking the Town's alleged
adverse actions to his protected activity. instead, Romeo relies on circumstantial
evidence and his extensive protected activity. | now address whether Romeo has
established that the Town's aotions were unlawfully motivated in his four discrete
allegations, serially.
In-Service Training
Romeo alleges that the Town's refusal to credit him for the same number of
hours that it credited certain other employees for attending the February 2019 in-
service training was motivated by an intent to discriminate against him and retaliate
against him due to his protected activity. However, Romeo has not established
probable cause to believe that the Town was unfawiully motived when it credited
Romeo with 8 hours per day instead of 10 hours a day for his participation af the
training. All employees who, like Romeo, attended the training on their days off
were credited for & “Kelly hours.” All employees who were scheduled to work on
the training days, and therefore took the training in tieu of their shifts, were credited
for 10 hours. Because all the employees who attended the training in fieu of their
shifts were treated alike, and all the employees who attended the training on their
days off were treated alike, there is no evidence of any disparate treatment
between Romeo and similarly situated employees. The Town did not give a trivial
reason for its actions; the Town instead followed its training policy, and it acted In
accordance with its past practice when it credited Romeo for 8 hours a day for his
attendance at the training. Moreover, Romeo did not present any evidence that
the Town expressed any animus or hostility toward the Union or his protected
activity.” Therefore, Romeo has not established the fourth element of a prima facie
case of retaliation because there is no basis to conclude that the Town was
motivated by any unlawful considerations when it credited Romeo for a total of 32
1” To the extent that Romeo maintains that the Town terminated him in retallation
for his protected activity, | note that there have been no findings to date, by the
arbitrator or by the DLR, to support this conclusion and whether the Town
unlawfully terminated Romeo is not at issue in the instant charge.
9
Dismissal (cont'd) MUP-19-7264
hours for his attending the in-service training. Consequently, 1 dismiss this
allegation for lack of probable cause.
Provisional Sergeant Position
Romeo contends that the Town opted not to fill the posted provisional
Sergeant position once he applied for the position in retaliation for his protected
activity. Romeo argues that he had the most seniority and should have been
selected If the Town filled this position in accordance with its past practice. The
Town, though, did not fill the position. Because it did not fill the position, there is
no evidence of disparate treatment. Neither party provided any evidence at the in-
person investigation that the Town deviated from its past practice by declining to
fill the provisional sergeant position after itwas posted. in this regard, neither party
presented any evidence about whether other posted positions have not bean filled
in the past. Additionally, Romeo did not provide any evidence that the Town
expressed any animus towards the Union or his protected activity. The fact that
the Town offered to make Romeo the offtcer in charge in order to, at least
somewhat, increase his compansation to blunt the negative impact of its decision
not to fill the previsionat sergeant position, and the fact that the Town subsequently
promoted Romeo to a permanent sergeant position militates against finding that
the Town was unlawfully motivated when it declined to fill the provisional sergeant
position.
Even assuming, arguendo, that Romeo has established a prima facie case
of retaliation, the Town produced evidence to show that it had legitimate, non-
discriminatory reasons for Its actions The Town decided not fo hire anyone as the
provisional sergeant unti! the list from the original examination and the make-up
exam, which Romeo took, could be combined. At that point, the Town opted to fill
the permanent sergeant positions rather than a provision sergeant position.
Romeo was unable to demonstrate that but for his protected activity, the Town
would have filled the provisional sergeant job and would have offered the position
to him. Accardingly, | dismiss this allegation for lack of probable cause.
Promotional Examination for Lieutenant Position
Romeo contends that he was not permitted to sit for the promotional
examination for a lieutenant position on December 8, 2018 because of his
protected activity. Civil service law states that only employees who served at least
a year in the next lower rank, sergeant, are eligible to sit for the promotional
examination for a lieutenant position. Because Romeo was not a sergeant at the
time of the promotional examination, he did not have the baseline qualifications to
sit for the examination. Romeo suggests that had he not been terminated, he
would have been promoted to sergeant and would have been qualified to sit for
the December 8, 2018 lieutenant promotional exam. However, this is purely
10
Dismissal (cont'd) MUP-19-7261
speculative.* The facts remain that at the time of the December 8, 2018
examination, Romeo did not mest the necessary qualifications. Neither party
presented any evidence that the Town ever allowed a non-qualified candidate to
sit for a promotiona’ exam in the past. Therefore, there is no evidence of disparate
treatment or failure to follow the past practice. The Town did not offer trivial reasons
for its decision; it was following the Civil Service Law. Lastly, Romeo did not
demonstrate any evidence of the Town's animosity towards the Union or towards
Romeo's protected activity. Accordingly, Romeo has not established a prima facie
case of retaliation. | dismiss this allegation for lack of probable cause,
Assignment of Prior Duties upon Romeo’s Reinstatement
Romeo was assigned certain duties, specificaly maintaining the DCJIS
System and maintaining the detail system, prior to his termination. Upon his
reinstatement, Romeo asked Delehenty to reassign these dutles to him. Delehenty
indicated he would discuss the matter, but then never addressed it with Romea
again. Delehenty did not reassign either of these duties to Romeo. Romec asserts
that the Town did not reassign these duties to him in retaliation for his protected
activity.
The issue here is not whether Romeo would have kept these duties had he
not been terminated. Arbitrator Fraser addressed that issue by awarding Romeo
money for the 90 hours he lost par year for not performing these duties while
Separated from service. The Town correctly asserted that Fraser’s award did not
Specifically require the Town to return these duties to Romeo upon his
reinstatement, so there was no legal requirement for them ta do so. Tha issue here
is whether the Town’s dacision not to reassign these duties to Romeo after his
reinstatement was unlawfully motivated.
Romeo did not demonstrate that the Town engaged in any disparate
freatment or that the Town expressed any animus or hostility toward the Union or
Romeo's protected activity. Neither parly presented any evidence as to whether
the Town's actions deviated from its past practice. There was no evidence
presented whether any other employees who were absent for a significant time
were reassigned to all their former responsibilities upon their return. Further, the
Town provided reasons for its decision not ta reassign the duties to Romeo. First,
the Town argues that the 2010 agreement makes the Union responsible for certain
fotlow up duties for detail payments, not the Town, As to the other detall-related
duties that the Town stil! assigns, the Town presented evidence that it had not
assigned these duties dnty to Romeo in the past. Other officers were assigned 40
hours a year in 2011-2012 and 2012-2013 to handle certain detaif related duties.
As for the DCJIS responsibilities, the Town had reassigned these duties to a
% Romee cited no case law in support of his position that the DLR should assess
his situation based on an assumption that he would have held a sergeant position
if the Town had not terminated him.
1
Dismissal (contd) MUP-19-7264
member of a different bargaining unit ‘in the intervening years while Romeo was
contesting his termination. Upon Romeo's reinstatement, the Town opted to keep
the duties within the other bargaining unit, assigned to the same lieutenant, rather
than restore these duties of Romeo. Based on these considerations, | do not find
probable cause to believe that the Town's actions were unlawfully motivated.
However, even assuming Romeo did establish a prima facie case, the Town
demonstrated that legitimate reasons motivated its decision. First, the Town
demonstrated that the Town did not exclusively assign the detail duties to Romeo
in the past. In fact, one of the employees who now holds this duty, Bonavita,
previously performed these dutias in 2012-2013. As for the DCJS duties; although
Romeo performed these duties for numerous years prior to his termination, once
he was terminated, out of necessity, the Town assigned these duties to someone
else, These duties were assigned to a lieutenant who is outside of Local 421's
bargaining unit. Even upon Romeo's retum, the Town opted to keep the current
arrangement in place as it was working well. Romeo did not present any
arguments or evidence establishing that the Town would have assigned these
duties to Romeo but for his protected activity. Accordingly, | do not find probable
cause to believe that the Town retaliated against Romeo due to his protected
activity when it did not reassign him to perform the OCJIS System duties or the
detail duties upon his reinstatement. Because | find no probable cause to believe
that the Town violated Section’ 10(a)(4), (3) and (4) of the Law in the manner
- alleged, | dismiss the charge in its entirety. -
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS
Kad hon ah
GAIL SOROKOFF, ESQ.
INVESTIGATOR
APPEAL RIGHTS
The charging party may obtain review of this dismissal by filing a request with the
Commonwealth Employment Relations Board (Board) within ten days of receipt of
this dismissal, pursuant to DLR Rule 456 CMR 4 5.05(9). The request shall contain
a somplete statement setting forth the facts and reasons upon which such request
is based. The charging party shall include a certificate of service indicating that it
has served a copy of its request for review on the opposing party or its counsel,
Within seven (7) days of feceipt of the charging party's request for review, the
respondent may file a response with the Board,
12
WINTHROP — EXHIBIT B
INVESTIGATIVE DISPOSITION
Case Name: Nancy J. Dalrymple v. James McKenna, Town Manager,
' Terence Delehanty, Police Chief
MCAD Docket No.: 1SBEM00308
EEOC Docket Na.: 16C-2015-00752
No, of Employees: 25+ .
Investigator: - Janet Cha, Compliance Officer I
Recommendation: Lack of Probable Cause
Introduction
On February 18, 2015, Complainant Nancy J. Dalrymple filed a complaint against
Respondents James McKenna, Town. Manager, Terence Delehanty, Police Chief, alleging
discrimination based on gender (female) and retaliation in violation of M.G.L. c. 151B, §
4, 9 1, 4, 4A, and Title VII, as amended, .
Compiainant’s Allegations
Complainant's three cases (MCAD Docket Nos, 02-BEM-03751, 02-BEM-01174, and 05-
BEM02944) against the Town of Winthrop Police Department and individuals were
consolidated and heard together in July 2013. On January 22, 2014, the Commission
ordered the Winthrop Police Department to promote Complainaut to sergeant retroactively
with additional settlements for damages and a civil fine.
Complainant’s allegations are as follow: In or around July 1980, Complainant began
Working for Winthrop Police Department as a police officer. On March 31, 2014,
Complainant was swom in as sergeant, However, Respondents did not offer the usual
celebration, such as a swearing-in ceremony, photos, and cake.
in early April 2014, Respondent changed Complainant's work hours, and she began
working overnight shifts. In late April 2014, Complainant filed a grievance with the union,
but it was denied. Since being placed on the overnight shift, Complainant has asked
Respondent Delehanty to reassign her, but he has refused.
in June 2014, Respondent Delehanty authorized Sergeant S.R. to conduct a department
shift bid. Respondent Delehanty exempted Sergeant S.R. from the shift bid, even though
Complainant is more senior in rank, Unlike Complainant, Sergeant 3.R. enjoys a flexible
schedule, Complainant grieved this issue at a step two hearing on September 11, 2014, but
Respondent McKenna and Respondent Deichanty denied Compiainant’s grievance.
Neney J Dalrymple v. James McKenna, Town Manager, Tezeneo Delehanty, Police Chief
1
1SBEMB0308
Respondent Delehanty has not invited her to staff meetings. She is the only supervisor to
not have attended a staff meeting with Police Chief Delehanty.
Respondent Delehanty has failed to thnely notify Complainant about trainings and
meetings,
Respondent's Position .
Respondent McKenna is the Winthrop Town Manager. Respondent Delehanty is the
Winthrop Chief of Police. At present, Complainant is a sergeant for the Town of
Winthrop,
Respondents’ position is as follows: In March 2014, Complainant sought 2 low key
swearing in ceremony. On March 31, 2014, Complainant's attomey emailed, “I thought
we made it clear that Nancy docs not want anyone other than her family to be present at the
swearing in.” :
In or around 2005, former Police Chief David Goldstein put into place the presently used
bid-shifting arrangement, where assignments are chosen by seniority in rank. Liewtenants
choase first by seniority, then sergeants by seniority, and then patrol officers by seniority.
Complainant lost her grievance, because her understanding of her seniority rights was -
incortect, Nonetheless, Labor Counsel Howard Greenspan wrote to Complainant’s
attorney on October 2, 2014, stating that the Town was considering a reassignment on the
day shift if Complainant withdrew her grievance, Complainant, however, chose to remain
on her ovemight shift, because the extra pay at night was more importent to her.
Complainant wrote in an email, dated October 14, 2014, “In light of the fact that I am
nearing my retirement which should make SOME very happy my night differential is very
important to me, Loosing 10% would be a very big loss in salary as well as for retirement
purposes. Also the inability of not being able to work any details during my four day shifts
on would be a hardship. f would therefore request that I retain my differential.” Since
April 2014, when slie was assigned the overnight shift, Complainant has logged an extra
1,108 hours, in addition to her regular full-time scheduls,
Respondent Delebanty selected Sergeant $.R. to work in his administration, as an
administrative assistant. Therefore, he was exempt from the shift-bidding arrangement.
Sergeant $.R. has an administrative schedule, but works some nights.
Respondents deny excluding Complainant from staff mectings, Respondent Delehanty’s
practice, prior ta Complainant’s promotion fo sergeant, included lieutenant-only meetings,
where lieutenants were expected to disseminate any pertinent information to sergeants
under their charge.
Respondents deny not Providing Complainant opportunities to attend trainings. :
Respondents selected Complainant and another officer to become Hostage Negotiators,
Nancy J Dalrymple v. James McKenna, ‘Town Managor, Terenco Datehanty, Police Chief
2
1SBEM00308
which required special training provided by the North Metro Swat Commanders,
Complainant attended the training on March 24, 2015.
Summary of Investipation and Analysis
Sex Discrimination (Disparate Treatment)
To establish a prima facie case of discrimination based on sex, Complainant must show she
is a member of the protected catagory, she was adequately performing her job duties, she
suffered an adverse employment action and was treated differently from similarly situated
co-workers who are not in the same protected classes or the adverse job action occurred '
under circumstances that raises a reasonable inference of unlawful disorimination, If the
Cotnplainant establishes a prime facie case of discrimination, Respondent bas the burden
of articulating a legitimate, non-disoriminatory reason for the termination. Finally, if the
Respondent has proffered evidence of a legitimate, non-discriminatory reason for its
actions, the Complainant must show that Respondent's reason was a pretext for unlawful
discrimination.
‘Complainant is a female, who is adequately performing her job duties, as she remains
employed. Complainant alleges the following adverse actions: (1) Respondent did not
prepare the usual celebratory events surrounding her sweating in as a sergeant; (2)
Respondent reassigned Complainant to an overnight shift, while Sergeant Rogers is
permitted a flexible schedule; (3) Respondent did not include Complainant in staff
meetings; and (4) Respondent did not timely notify Complainant of trainings and meetings.
In terms of the swearing in ceremony, Respondents admit that it did not provide the vsuat
celebration, However, Respondents provide a legitimate, nandiscriminatory reason for the
pared down swearing in ceremony. Respondents state that Complainant was the one who
sought a pared down cersmony. In an exnail, dated March 31, 2014, Complainant's
attorney wrote to the Town of Winthrop’s attomey, “I’m sorry, I thought we had made it
clear that Nancy does not want anyone other than her family to be present at the swearing
fn
. i
In terms of the bid-shifting arrangement, Respondents admit that Complainant was
reassigned to the overnight shift and that it denied Complainant's grievance regarding the
qeassigument, Respondents provide a legitimate, nondiscriminatory reason for the
reassignment and denying her grievance. When determining placements, Respondents
utilize a bid-shifting arrangement that has been in place since 2005, whereby rank and
setority are considered, Complainant’s witness, a sergeant, confirms that the bid-shifting
arrangement was properly applied.
Complainant offers Sergeant §.R. as a comparator, She states that she was assigned
Sergeant 5.R.’s previous overnight shift even though she is more senior, Respondents do
not deny that Complainant is more senior. However, Respondents argue that Sergeant $.2.
is not au appropriate comparator, because he is serving as an administrative assistant to
‘Nancy § Dalrymple v. Janes McKenna, Town Manager, Terence Delchanty, Police Chief
3
1SBEM00308
Respondent Delehanty, Therefore, Respondents state that Sergeant S.R."s main hours
followed an administrative employee's schedule as opposed to an officer's schedule.
Also, investigation confirms that Respondents offered Complainant an opportunity to work
a day shift in exchange for dropping her intemal grievance. However, investigation
reveals that Complainant declined the offer, because of the pay differential between the
two assignments. On October 14, 2014, Complainant emailed Respondents, “In light of
the fact that I’m nearing retirement which should make SOME very happy my night
differential is very important to me, Losing 10% would be a very high loss in salary as
well as for retirement purposes, Also the inability of not being able to work details during
my four day shifts on would be # hardship. 1 would therefore request that I retain my
differential as other have.” Respondents state that since she was assigned to the overnight
shift, Complainant has logged an extra 1,108 hours, in addition to her regular full-time’ .
schedule, Also, Respondents state that Complainant bid on and was awarded a day shift,
effective July 26, 2015. .
Respondents admit that Complainant has not been invited to Respondent Delehanty’s staff
meetings, but provides a legitimate, nondiscriminatory reason for not including
Complainant. Respondent Delehanty states that since becoming chief, he hes been
attempting to implement a more formal chain of command with more responsibilities given
to lieutenants. Investigation reveals that prior to Complainant becoming a sergeant,
Respondent Delehanty held lieutenant-only meetings as well as staff meetings that
included sergeants and lieutenants, In an email dated, October 20, 2010, Respondent
Delehanty wrote, “Their [sic] will be 2 Lieutenants meeting an October 29", 2010 at 9 AM
in my conference room. Please bring with youa productivity breakdown for each
employee under your command and a sick leave analysis for the seane, for the last year,”
in an email dated, January 25, 2612, “All supervisors: Over the next few weeks I will be
scheduling a staff meeting for the Lieutenants and Sergeants.” Also, investigation reveals
that at the lieutenant-only meetings, none of the sergeants, the thajority of whom are male,
were included; not just Complainant.
Respondents deny that Complainant was not invited to trainings, As evidence
Respondents provide an email, dated February 9, 2014, which states, “The training on the
has been cancelfed...Until they have your email address I will keep you up to date on
this training.”
Moreover, Complainant does not provide sufficient evidence of. discriminatory pretext
related to her gender. At present, two of the four sergeants, ane of whom is Complainant,
are female. 7
Retaliation
To establish a prima facie case of retaliation, Complainant must demonstrate that she
engaged in a protected activity, Respondents were aware that she had engaged in protected
activity, Respondents subjected her to an adverse employment action, and a causal
Neney J Dalrymple v. James McKenna, Town Manages, Terence Delehanty, Polfce Chief
4
15BEMO0308
connection exists between the protected activity and the adverse employment action, If
Complainant establishes a prime facie case, Respondents may show that legitimate,
nondisctiminatory reasons exist for the adverse action. If Respondents succeed in offering,
such reason, Complainant must then show that Respondents’ reasons are pretextual,
On January 22, 2014, after filing three MCAD complaints, the Commission held in
Complainant’s favor and ordered the Winthrop Police Department to promote Complainant
to sergeant retroactively with additional settlements for damages and a civil fine.
Approximately three months later, Complainant was reassigned to the overnight shift.
Respondent provides a legitimate, nondiscriminatory reason for reassigning her to the
overnight shift, specifically rank and seniority, as discussed in the preceding section, Even
if Complainant could show that the Respondents reasons for eliminating staff meetings
‘were at all related to Complainant’s complaints of discrimination, she has not shown that
the elimination of these meetings materially disadvantaged her, such that it constituted an
adverse employment action. Investigation reveals that communications between
Complainant and her superiors continued, which served a similar purpose as the staff
‘meetings. Moreover, Complainant dees not provide sufficient evidence of discriminatory
pretext. Therefore, a lack of probable cause finding is recommended.
Individuat Liability
The legal standard for individual liability is that the person named had the authority or duty
to act on behalf of the employer and acted in deliberate disregard of the Complainant's
tights allowing the inference of intent to discriminate. The Complainant has uot presented
sufficient evidence upon which & reasonable fact finder could believe Respondents James
McKenna and Terence Delehanty is individually liable for discrimination against her based
upon gender (female).
Conclusion ; .
A finding of Lack of Probable Cause is recommended for Complainant’s claim{s} of
discrimination based on gender (female) against Respondents James McKenna, Town
Manager, and Terence Delehanty, Police Chief.
CPi HL. foe
Jangficha Lila Roberts
Invéstigator Enforcement Advisor
Nancy J Dalryaple v. James McKenna, Tawo Manzger, Teronca Deichanty, Police Chief
1SBEMO00308
Disvositi .
Pursuant to section 5 of M.G.L. c. 151B of the Massachusetts General Laws, and in
conformity with the foregoing findings, I have this day determined that. a Lack of
Probable Cause is being rendered on this case. Complainant will be afforded the
opportunity to appeal this decision.
Uist (0 POS
Tnvestigating Commissioner
Nancy J Dalrymple v. James McKenna, Town Manages, Terence Delchanty, Police Chief
6
ISBEM00208
WINTHROP — EXHIBIT C
MANUAL OF RULES AND
REGULATIONS —
FOR THE GOVERNMENT OF THE
POLICE DEPARTMENT OF THE
TOWN OF -
WINTHROP, MASSACHUSETTS
™~,
This manual of Rules and Regnlations for the goverment of the Police Department of
§ was prepared by the Chief of Police and adopted
the Town of Winthrop,
ede
»y 175
1.7.6
17,7
highest-rank:_
officer in the chain of command baving the authority to issue such order,
1. heze fwo or more Mamibesaresssgned to an investigation, cae or
seniority for command purposes over other Members assigned to the
investigation, detail, or casa. -
Smergency, the seaior Departmental Member at the scene shall
. commend m the absence of a supervisor,
Supervisory Accountability: A. Communding Officer or supervisor ia the
delegated individual in charge of a shif,, Division, or Unit. Jn addition to
1 All supervisors shall be delegated muthority commensurste with the
of their position.
2. Supervisors shall be particularly alert in carrying out the onters of the
i altered
order shall in each inutance be immediately reported to the supervisor's
Superior,
3. in accordance with other provisions of these mule, a supecvisor
. Gesignated ty the chief shall ivastigste all casce of alleged
subordinate misconduct. Supervisors may prefer oltarges to enforce
compliance with the Roles and Reguistions,
senate RULES &@ REGS doer sete
WINTHROP ~ EXHIBIT D
TOWN OF WINTHROP Willem Ma Goss
POLICE DeparTMENT Tet: 617.539.5800
Fans 617,846,3174
Terence Delohaaty
Chrtof of Potine
Apzil 9, 2014
*
Sergeant Nancy Dalrymple
Winthrop Police Department
3 Metcalf Square
Winthrop, MA 02152
RE: Grievance filed on April 4, 2014
Sergeant Dalrymple:
Tam in xeceipt of your grievance dated April 4, 2014, which J received on April 7, 2014.
Tn surnmary, your grievance alleges that your assignment to Sergeant on group 2 AM’s
Violates the seniority. clause of the collective bargaining agreement, You also allege that by
placing you on the AM shift that ] specifically discriminate against you because of your prior
( claims, You also allege that unharmonious relations have not been promoted between you and
my office, the grievance provision has been violated, the recognition clause has been viclated
end the vacancy and transfer provision has also been violated. For clarity, I will address each
issue in its own paragraph. . :
Seniority:
Your grievance is denied as it relates to seniority. 1.7.5 of the Manual of Rules and
Regulations enacted by my predecessor clearly states how seniority will be calculated. The
paragraph clearly states that seniority will be determined first by rank and then by continuous
service in that rank. The Manual of Rules and Regulations have all been negotiated with the
Union Representatives by my predecessors as yepresentatives of the Town prior to their
implementation, as required by the Massachusetts Labor Relations Commission and chapter
SOE. :
Discrimination:
Your grievance is denied as it relates to discrimination, The only consideration that was given
tp your assignment is where an opening exisied. Sergeant Famino is in. fact retiring and a
supervisor is needed for that shif. Based on your 2002 seniority and the analysis of the
seniority regulation 1.7,5., I determined that the shift was appropriate.
{+ Shift Bidding:
Shift bidding does not exist in the collective bargaining agreement and therefore the grievance
and remedies are denied on that basis, However, as a matter of practice the department is
allowed to shift bid at a tims determined by my office. Tn the past the time frame for shift
bidding has been between July 1 and August 3 ofeach year. When a shift bid is posted you
Will be able to bid fi shifts that your seniority allows, .
Recognition Clouse: ,
Your grievance is denied on the basis this provision is not grievable,
Promoting Harmonious Relations:
Your grievance is denied on the basis that this provision is not gtievable and no evidence of
contractual violations,
Grievance Provision:
‘Your grievance is denied on the alleged violation of the grievance provision, which you cited
as Article V and in fact it is Article VIII; therefore both Aaticles are denied,
Vacancies and Transfers: .
Tam granting your grievance as itrelates to Article XI sines Sergeant Femino’s retirement was
not posted on the Union Bulletin Board, The notice will be posted on April 9; 2014 and will
close at 8am on April 16% 2014, ‘Therefore, your assignment is temporary in natare pending
the outoome of the posting,
ec, Union President
Howard
James Mckenna
WINTHROP — EXHIBIT E
4
2
" ARTICLEV a |
; RIGHTS OF THE EMPLOYER ’ ; : i
. ° Section}: recognition of the fact that the laws of the Commonwealth of Massachusetts
vest tesponsibility to.the people of the Town of Winthrop in-the Employer and the Chief of. ,
Police for the efficient and economical operation of the Police Department, iti is. herein agreed
that excepts: -spscificallyand® ‘direttlyamodified: ‘byrexpress language: ‘aespecific: provision: of.
‘thiss ‘Agreement, the Employer and its agents, including the Chiefof Police, retain all rights and
powers that they have or may hereafter’ be granted by lawi in managing the police Department
and directing the working force and may exercise same. without being made the. subject ofa
grievance except as expressly provided herein.
Saidrights and powers inalnde but arein.no ray tobe costo aimitod to, the”
establishment of rules and regulations; theirightto:dstermine tho: extent-10 awhich: svork-witlbe .
artform so fshe, bargriningronit hex: nish to hire, fire, suspend orin soy ial
lye
=
¢
determine hours-for and the munber of eamployees réquired at any. ‘location; to determine the
qualifications:and competence of; to evaluate the performance off to assign. any added, Jessened .
or differed work or responsibility to; to set standards and requirements applicebleto and tomake :
| determintition of the alumber of steps and ¢ligibility for ai in-step wage increase ‘for; to make any -
‘pay-deduction because of absenceor failure to perform work by any employes covered by this a .
vn} . i
?
i
t
i
i
i
é
" Agreeinent,iand to introdueo new or.to change existiiig operational methods:
The above rights are aolely and exclusively the prerogative of the Eruployer subject only
to such limitations as are expressly provided for in this Agreement.
ARTICLE VI ;
GRIEVAN CES INVOLVING CIVIL SERVICE.
‘+ The Union, in recognition of the Town's having. affirmed its belief in and compliance
with the state law insofar as they define the:rights, duties.and obligatiozis of a municipality under
_ the General Laws, uider the rules, regutations and procedures of the Civil Service Commission.
(Massachusetts General Laws, Chapter 31} relative to employees’ seniority, promotion, ,
reassignment, discharges, reduction in rank, removals and suspensions, hereby: agrees that any
~ grievances, coniplairit or appeal which under ‘past practices and procedures would norinally have
iil