2020.10.28 Romeo DLR CERB Appeal

Town of Winthrop · from StateReference · 164 pages · 35.1 MB
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COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS
BEFORE THE COMMONWEALTH EMPLOYMENT RELATIONS BOARD

DLR Docket No. MUP-20-7789

FERRUCCIO ROMEO
Charging Party,

v.

TOWN OF WINTHROP,

Respondent

ee OOS SS SS

CHARGING PARTY FERRUCCIO ROMEO’S REQUEST FOR REVIEW OF THE
DISMISSAL OF CHARGE OF PROHIBITED PRACTICE

I. INTRODUCTION

Charging Party Ferruccio Romeo, a police officer for the Town of Winthrop, appeals the
dismissal of Charge MUP-20-7789. Mr. Romeo holds the rank of sergeant. Yet again, the
investigator has treated Officer Romeo’s Charge as if he had to prove his case on the merits at
the investigation stage.'! However, as will be explained below, Officer Romeo has amply met his
burden to establish that there is probable cause that the Town has violated G.L. c. 150E.

In his Charge, Officer Romeo alleges that the Town violated G.L. c. 150E, §§ 10(a)(1),

! The Commonwealth Employment Relations Board (“CERB”) recently reversed the

dismissal of three of Mr. Romeo’s charges of retaliation against the Town (each arising out of
the same line of events as gave rise to the Charge in this case), holding that the investigators had
taken too cramped a view of Mr. Romeo’s burden to establish a prima facie case. These
decisions are attached hereto as Exhibits F and G. Notably, Investigator Sorokoff, who dismissed
Mr. Romeo’s Charge in this case, was also the investigator who improperly dismissed Charge
MUP-19-7261, which the CERB reversed on July 27, 2020. See Exhibit G.

Exhibits A-J were all exhibits that were submitted by Claimant to the Investigator prior to
the In-person Investigation in this case.

(3), and (4) by unilaterally altering seniority for the purposes of shift bidding, which resulted in
Officer Romeo being placed on the night shift, despite the fact that he holds one of the longest
tenures in the entire Department. More specifically, despite the fact that the Union’s collective
bargaining agreement stated unambiguously that seniority was defined as seniority in the
department, upon Mr. Romeo’s promotion to sergeant the Chief used an alternative method of
calculating seniority — seniority within each rank — to ensure that Romeo received an undesirable
shift. As will be explained below, the Chief has employed this method to unlawfully retaliate in
the past, and he is once again relying on his playbook to retaliate against Officer Romeo.

Although the Department of Labor Relations (“DLR”) Investigator correctly found that
Officer Romeo established probable cause to support the first two elements of his prima facie
case of retaliation, the Investigator erred in finding that Officer Romeo did not establish the third
element of his prima facie case — that the Town took an adverse action against him — and the
fourth element— that the Town’s actions were unlawfully motivated. (Investigator’s Dismissal at
7-9.) As will be explained below, the Investigator improperly prejudged the merits of the case on
the issue of retaliatory motivation, which presents inherently-fact intensive questions that must
be addressed only after evidence has been put on at a full hearing.

The Charge in this case cannot be viewed in a vacuum, as it arose from a course of
retaliatory conduct that has been ongoing since at least 2014. Mr. Romeo was a police officer for
the Town of Winthrop for nineteen years before his termination on January 9, 2015. During his
nineteen years of service, Officer Romeo’s record was unblemished. During the last eleven
years, Officer Romeo was president of Winthrop Police M.C.O.P Local 421, AFL-CIO
(hereinafter “the Union”) and was the Union’s sole officer. On January 9, 2015, Officer Romeo

was terminated as the result of a long-brewing conflict with Chief of Police Terence Delehanty

arising from Romeo’s advocacy as Union President, and particularly his work on contract
negotiations and aiding two female officers who both successfully challenged” gender
discrimination they faced from the Town. Officer Romeo regularly assisted those officers in
filing and processing grievances, posting them on a union bulletin board, and most importantly,
taking those grievances to arbitration.

Importantly, one of the officers for whom Officer Romeo advocated as union president,
Nancy Dalrymple, pursued and won a gender discrimination case before the Massachusetts
Commission Against Discrimination (“MCAD”) in January 2014, and the Town was ordered to
promote her to sergeant. Although the Town had no choice to promote her to sergeant, the Chief
retaliated against her in exactly the same way as he did against Mr. Romeo in this case. The
Chief implemented in-rank seniority (rather than seniority in the department as a whole) for the
purposes of shift bidding to ensure that Ms. Dalrymple would get the less-desirable night shift.

In November 2014, the Town accused Officer Romeo of falsifying a detail slip and
subsequently terminated him. However, the Town’s unfounded allegation was mere pretext.

Officer Romeo submitted a grievance through the Union challenging his termination, and the

Officer Judy Racow brought a gender discrimination suit against the Town and won a

jury verdict for more than $2 million in Racow v. Town of Winthrop, No. 2014-3200-E (Suffolk
Super. Ct. March 22, 2018). Officer Nancy Dalrymple brought a gender discrimination and
retaliation complaint before the Massachusetts Commission Against Discrimination and
prevailed in MCAD and Dalrymple v. Town of Winthrop, 02-BEM-03751, 05-BEM-01174, 05-
BEM-02944, Decision of the Hearing Officer (Jan. 22, 2014). The Town was fined $50,000 as a
result of its egregious conduct.

3 The Union grieved this clear violation of the collective bargaining agreement, but Mr.

Romeo, the union president, was then terminated by the Town, and officers who took control of
the Union after his departure and who were friendly to the Chief withdrew the grievance before it
was arbitrated. (Investigator’s Dismissal at 4.)

Union took his case to arbitration.* The arbitration was held over four days, and after hearing the
testimony of twelve (12) witnesses and considering forty-four (44) exhibits, the arbitrator issued
a decision on February 28, 2016, finding in Officer Romeo’s favor. The Arbitration Award,
attached hereto as Exhibit A, found that Officer Romeo had not engaged in dishonesty and that
the Town lacked just cause to terminate him. As such, the Award ordered the Town to reinstate
Officer Romeo and to make him whole.

Unfortunately, the Arbitration Award did not bring an end to the acrimony the Town has
displayed toward Officer Romeo. Rather than abide by the Award, the Town challenged it in
Superior Court. The Massachusetts Appeals Court ultimately affirmed the Arbitration Award in
May 2018. Officer Romeo was not reinstated to his position until September 8, 2018. The Union
and the Town also could not agree on the amount of back pay and benefits due to Officer
Romeo, and the Union demanded a remedies arbitration. On January 21, 2019, the arbitrator
issued a Remedy Award adopting the Union’s position (attached hereto as Exhibit B).
Thereafter, the Town agreed in writing to pay Officer Romeo $530,000, but then repudiated this
agreement without any meritorious basis. Officer Romeo together with the Union had to file yet

another lawsuit against the Town, Winthrop Police Brotherhood, Local 421 et al. v. Town of

Winthrop, Civ. Act. No. 19-1566E (Suffolk Super. Ct.), in order to enforce the agreement. The
Union also filed a charge before the DLR, MUP-19-7277, alleging that the Town’s repudiation

constituted unlawful conduct in retaliation for Mr. Romeo’s concerted, protected activity as

4 Officer Romeo also filed a lawsuit in Suffolk Superior Court alleging that Romeo v.

Town of Winthrop et al., Civ. Act. No. 2015-02140 H (Suffolk Super. Ct.) alleging that his
termination constituted unlawful discrimination under the Massachusetts Law Against
Discrimination, which remains pending. Additionally, Officer Romeo filed two charges with the
DLR, MUP-14-4210 and MUP-15-4652, which were deferred to his Union arbitration and
remain pending. These charges allege that his termination was in retaliation for his activity as
Union president.

union president, which caused his termination in 2015. Only in July 2019 did the Town finally
submit the $530,000 to Mr. Romeo.

In the midst of all of this acrimony, the Town also took the retaliatory measures
complained of in the instant charge. Although Mr. Romeo was promoted to sergeant on
December 8, 2018,° the Town then used a method of seniority for the purpose shift bidding that
violated the collective bargaining agreement in order to ensure that Mr. Romeo would have low
seniority within the position of sergeant. As a result, Mr. Romeo must now work the night shift.
— refusing to reinstate Officer Romeo to all of his duties (resulting in a significant loss of
compensatory time and Kelly Hours), and denying Officer Romeo the opportunity to sit for an
examination for promotion to lieutenant. The Investigator was too eager to dismiss this claim of
retaliation. First, the Investigator concluded that Officer Romeo that being forced to take the
night shift was not an adverse action — this conclusion defies common sense. Second, the
Investigator held that Mr. Romeo had not established that the Town’s action was unlawfully
motivated. However, as courts in Massachusetts and across the country have found, retaliatory
motivation is a fact-intensive inquiry that is not appropriate to decide without the benefit of

witness testimony and cross-examination. See, e.g., Blare v. Husky Injection Molding Systems

Boston, Inc., 419 Mass. 437, 439 (1995). The Investigator simply took the Town at its word that

its actions were not motivated by unlawful retaliatory animus. Moreover, the Investigator
completely ignored years of retaliatory measures that the Town took against Officer Romeo. The
retaliation complained of in this charge should not be viewed in a vacuum. The Town’s

motivation in taking these actions against Officer Romeo present precisely the kind of fact-

5 The Town had little choice but to promote Mr. Romeo, as he was first on the Civil Service

promotional list for sergeant, and there was an open position. A refusal to promote him would have been
obvious retaliation.

intensive question that can only be resolved through hearing under oath and cross-examination.
Therefore, the Investigator was incorrect to dismiss the charge at the investigation stage.
Il. FACTUAL AND PROCEDURAL BACKGROUND

A. The Town Unlawfully Terminates Officer Romeo in Retaliation for his
Activities as Union President

Ferruccio Romeo was employed as a patrol officer for the Town of Winthrop from 1996
until his termination on January 9, 2015. (Investigator’s Dismissal at 2.) Officer Romeo had
served as the president of the Winthrop Police Union MCOP Local 421 for eleven years prior to
his termination. (Investigator’s Dismissal at 2.) As Union President, a voluntary non-paying
position, Officer Romeo assisted two female Town of Winthrop police officers, Judy Racow and
Nancy Dalrymple, in filing numerous grievances and MCAD Complaints during 2014 — as well
as many others since 2006 — against the Town alleging sex discrimination. (Romeo MUP-14-
4210 CERB Brief at 3, attached as Exhibit K.)° Officer Romeo reviewed, signed off on, and
submitted those grievances to the Chief, and took several of those grievances to arbitration on the
Union’s behalf. (Romeo MUP-14-4210 CERB Brief at 3-4, Exhibit K.)’ Officer Romeo was also
intimately involved in ongoing contract negotiations as the Union’s president. (Investigator’s
Dismissal at 2.) Over the course of 2014, Police Chief Terence Delehanty became increasingly

angry at Officer Romeo for his activity assisting the two female officers and aggressively

€ For the purposes of providing some additional background, Mr. Romeo cites the brief

before CERB in MUP-14-4210, which explains the retaliatory circumstances of Officer Romeo’s
termination. Officer Romeo supported that charge with several affidavits. The brief is attached
hereto as Exhibit K. Charging Party explained these details to the Investigator during the In-
Person Investigation. Additionally, Ms. Dalrymple attended the In-Person Investigation as a
witness for Mr. Romeo.

7 As will be explained, infra, one of the arbitrations involved retaliatory conduct taken by
the Town against Officer Nancy Dalrymple, which was essentially identical to the retaliation that
Officer Romeo now alleges in this case.

negotiating on the Union’s behalf. (Romeo MUP-14-4210 CERB Brief at 3-4, Exhibit K;
Investigator’s Dismissal at 2.)

On December 1, 2014, just a week after the conflict between Chief Delehanty and Officer
Romeo came to its peak, Chief Delehanty placed Officer Romeo on administrative leave
allegedly because he had attended Union contract negotiations on November 24, 2014, while at
the same time being assigned to a paid detail. (Romeo MUP-14-4210 CERB Brief at 4-5, Exhibit
K; Investigator’s Dismissal at 2.) The detail in question was a mobile or “floating” detail that
simply required Officer Romeo to be available with his cruiser to respond to any issues that may
have arisen along a construction truck route. Romeo was able to satisfy his obligations of the
detail while at the same time attending the contract negotiations, since he was able to leave with
his cruiser at a moment’s notice. (Romeo MUP-14-4210 CERB Brief at 5, Exhibit K.) Although
others had in the past regularly attended union negotiations while on details without facing any
reprimand or discipline,’ and Officer Romeo did not hide the fact that he was at the negotiations
while assigned to a detail, and even though he was never paid for the detail, he was terminated
for this supposed misconduct on January 9, 2015. (Romeo MUP-14-4210 CERB Brief at 4-5,
Exhibit K.)

B. Officer Romeo Successfully Challenges His Termination

Following Officer Romeo’s termination, he filed a grievance through the Union, and the
Union demanded arbitration. (Investigator’s Dismissal at 2.) Officer Romeo also filed two
charges with the DLR. After the Town had put Officer Romeo on administrative leave (but prior

to his termination), he filed MUP-14-4210 alleging that the Town had retaliated against him for

In fact, a second officer, Officer Hagemeister, attended the very same union negotiation

while on the same detail as Officer Romeo, but was neither placed on administrative leave nor
terminated. (MUP-14-4210 CERB Brief at 3-4, Exhibit K.)

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his activities as Union president. Although the DLR initially dismissed this charge, Officer
Romeo appealed the dismissal to CERB, and CERB on March 16, 2015, and on May 21, 2015,
the DLR elected to defer the charge pending Officer Romeo’s Union arbitration. On June 24,
2015, Officer Romeo also filed charge MUP-15-4652 to ensure that he adequately challenged his
termination (and not just his placement on administrative leave), which the DLR also deferred to
arbitration. (Investigator’s Dismissal at 2.)

On July 13, 2015, Officer Romeo also filed a lawsuit in Suffolk Superior Court alleging
that the Town had engaged in unlawful retaliation against him in violation of the Massachusetts

Law Against Discrimination, G.L. c. 151B §§ 4(4) and (4A), Romeo v. Town of Winthrop et al.,

Civ. Act. No. 2015-02140 H (Suffolk Super. Ct.), because the Town was motivated to terminate
him because of his advocacy assisting Officers Nancy Dalrymple and Judy Racow in their efforts
to oppose the Town’s gender discrimination. (Investigator’s Dismissal at 2.)

Officer Romeo’s union arbitration began on August 24, 2015, and took place over four
nonconsecutive days. On February 28, 2016, the arbitrator issued an Award (Exhibit A). As
described in the Award, the issues for the arbitrator to decide were: “Was there just cause for the
termination of Officer Ferruccio Romeo? If not, what shall be the remedy?” The arbitrator made

the following relevant findings:

(1) With respect to fulfilling his obligations on the Pump Station detail on November 24,
2014, Mr. Romeo “fulfilled the tasks of working the Pump Station detail that day,
albeit from a location that had not been approved, and was acting honestly when he
submitted the DCR bill for November 24, 2014.” Exhibit A at 20. Mr. Romeo was not
“dishonest when he acted on his belief that he could use the Town Hall as his base
from which he could execute the detail.” Exhibit A. at 20.

(2) Mr. Romeo was “carrying out the detail for the hours required, while at the same
time, participating in the [union] negotiations.” Exhibit A at 20.

(3) Mr. Romeo did not “file[] a false detail slip on November 24, 2014.” Exhibit A at 24.

(4) Mr. Romeo “did not lie to [Winthrop Police Chief Delehanty] during the investigation
on December 1, 2014.” Exhibit A at 22. Mr. Romeo “simply gave his opinion to the
Chief about the detail based on conversation with [DCR manager] Colometo. Mr.
Romeo did not state affirmatively that the detail was a ‘floating detail,’ and never
asserted that Colometo agreed with him, but only offered that as a way of describing
it.” Exhibit A at 22.

(5) During the Town Hearing on December 18, 2014, Mr. Romeo did not engage in
“deliberate misrepresentation” with respect to the sequence of the events of

November 24, 2014. Exhibit A at 23.

(6) “There was not just cause for the termination of Officer Ferruccio Romeo.” Exhibit
A at 24.

The Arbitration Award also ordered the Town to reinstate Officer Romeo and to make him
whole. Exhibit A at 24.
Rather than following the Arbitration Award, the Town filed suit in Suffolk Superior

Court to vacate it in Town of Winthrop v. Winthrop Police Brotherhood, Local 421, 16-0938B,

Civ. Act. No. 16-0938B (Suffolk Super. Ct.). The court initially vacated the Arbitration Award,
which the Union appealed. On May 21, 2018, the Massachusetts Appeals Court issued a decision
reversing the lower court’s decision and directing the court to enter judgment confirming the

Award. See Town of Winthrop v. Winthrop Police Brotherhood Local 421, 93 Mass. App. Ct.

1111, at *3 (May 21, 2018). Even then, the Town delayed implementing the directives of the
Arbitration Award by filing for further appellate review before the Supreme Judicial Court. The

SJC denied the Town’s request on June 29, 2018. Town of Winthrop v. Winthrop Police

Brotherhood Local 421, 580 Mass. 1104 (June 29, 2018).

The Town did not ultimately return Officer Romeo to payroll until July 22, 2018, and it
did not return him to duty until September 8, 2018. (Investigator’s Dismissal at 3.) But after his
reinstatement, the Town and the Union could not agree on the amount of back pay and benefits,

and the Union demanded a remedies arbitration, which took place on October 18, 2018. The

arbitrator issued a Remedy Award (Exhibit B) on January 21, 2019, adopting the Union’s view
of the back pay and benefits the Town owed to Officer Romeo. The Town then agreed in writing
to pay Officer Romeo $530,000 to settle the Remedy Award. However, shortly thereafter, the
Town reneged on its agreement and stated that it would not pay the money to Officer Romeo.
The Town never sought to vacate the Remedy Award in Superior Court.

On April 18, 2019, the Union filed charge MUP-19-7277 alleging that the Town was not
complying with the back pay aspect of the arbitrator’s Arbitration Award and Remedy Award.
(Investigator’s Dismissal at 2 n.5.) The Union and Officer Romeo also filed another lawsuit in

Suffolk Superior Court, Winthrop Police Brotherhood, Local 421 et al. v. Town of Winthrop.

Civ. Act. No. 19-1566E (Suffolk Super. Ct.), alleging breach of contract, contempt of court, and
seeking to confirm the Remedy Award. The Town did not remit the agreed-upon $530,000 to
Officer Romeo until July 2019. (Investigator’s Dismissal at 2-3 n.5.)°

Officer Romeo moved the DLR to revive charges MUP-14-4210 and MUP-15-4652 on
March 2, 2016, shortly after the Arbitration Award issued. The DLR continued to hold those
charges in abeyance until August 15, 2018, when it referred them to mediation. The mediation
took place on July 23, 2019, and did not result in a settlement. (Investigator’s Dismissal at 2.) On
August 9, 2019, the DLR finally allowed Officer Romeo’s motion to revive the charges. On July
27, 2020, the CERB reversed the Investigator’s dismissal of the charge and directed the DLR to
issue a complaint. (CERB Decision on MUP-14-4210 and MUP-15-4652, Exhibit F.) The parties

are in the process of scheduling a hearing on those charges.

3 Once the Town remitted the payment to Officer Romeo, the Union withdrew MUP-19-

7277. (Investigator’s Dismissal at 2-3 n.5.) Prior to the dismissal, Officer Romeo moved to
intervene in that charge in order to challenge the retaliation that he suffered by not being returned
to all of his duties, but the DLR denied his motion because he could pursue those charges in the
instant charge instead.

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Officer Romeo’s civil suit alleging retaliation in violation of the Massachusetts Law
Against Discrimination remains pending and is set for trial in April 2021.

C. The Town Retaliates Further Against Officer Romeo

Upon returning Officer Romeo to his job, the Town refused to assign him to his previous
duties as CJIS Representative, which caused Officer Romeo to lose approximately 50 hours of
compensatory time per year. (CERB Decision on MUP-19-7261 at 2-3, Exhibit G.) These duties
consisted of certification and maintenance of the CJIS system and of confidential passwords.
(CERB Decision on MUP-19-7261 at 3, Exhibit G.) Likewise, the Town refused to return him to
his detail maintenance duties, which consisted of adjusting detail hours, scheduling details, and
following up on collections for details that were not paid. (CERB Decision on MUP-19-7261 at
3, Exhibit G.) As a result of the Town’s refusal to return these detail duties to Officer Romeo, he
has lost 48 “Kelly hours” per year, despite the fact that the arbitrator specifically ordered the
Town to make him whole. (CERB Decision on MUP-19-7261 at 3, Exhibit G.; Arbitration
Award at 24, Exhibit H.)

Officer Romeo filed Charge MUP-19-7261 in order to challenge this retaliatory conduct,
but on March 13, 2020, Investigator Sorokoff issued a decision holding that there was no
probable cause that this conduct by the Town violated the Law, because Officer Romeo could
not establish that the Town’s conduct was motivated by unlawful retaliatory animus. (CERB
Decision on MUP-19-7261 at 3-4, Exhibit G.) Officer Romeo appealed Investigator Sorokoff’s
decision to the CERB, which reversed the decision with respect to the CJIS Representative
position. (CERB Decision on MUP-19-7261 at 4-5, Exhibit G.) The CERB described the Town’s
explanations for its actions as “trivial.” (CERB Decision on MUP-19-7261 at 5, Exhibit G.)

D. Dispute Over Promotional Examinations and Eventual Promotion

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Almost as soon as Officer Romeo was returned to the Town’s payroll, he requested to sit
for a promotional examination for sergeant. Although the Town held a sergeant promotional
examination on April 3, 2018 (prior to Officer Romeo’s reinstatement), an order in Officer
Racow’s lawsuit compelled the Town to permit her to take a makeup examination on October 25,
2018. (Investigator’s Dismissal at 2; CERB Decision on MUP-19-7261 at 3 n.3, Exhibit G.) On
July 23, 2018, a day after Officer Romeo was reinstated to payroll, he sent a letter to Chief
Delehanty expressing interest in sitting for the makeup sergeant’s promotional examination.!°
The Town did not agree to allow him to sit for the examination until September 13, 2018, and the
Town did not provide Officer Romeo with the study materials until September 14, 2018. As a
result, Officer Romeo had 49 days to prepare for the examination despite the fact that officers in
Winthrop are typically provided 90 days or more to prepare. Officer Romeo sought a preliminary
injunction in his civil suit seeking to delay the examination to December 13, 2018, which the
court denied. Nevertheless, Officer Romeo sat for the October 25, 2018 examination, passed, and
was third on the civil service list. In early 2018, the Town had posted a provisional sergeant
position. When it became clear that Officer Romeo was the most-senior officer who applied for
the provisional sergeant’s position, the Town opted not to fill it. A permanent sergeant’s position
became open, and on December 8, 2019, Officer Romeo was finally promoted to sergeant.
(Investigator’s Dismissal at 2.).

E. The Shift Bidding Process and Related Retaliation Against Romeo

The Town had little choice but to promote Officer Romeo given the fact that he was first

on the Civil Service list at the time the permanent sergeant’s position became open — if the Town

10 These facts are briefly referenced in the Investigator’s Dismissal at 2. Officer Romeo

presented them in more detail during the In-Person Investigation. Additionally, these facts are
supported by their inclusion in the Investigator’s Dismissal of MUP-19-7261, which Officer
Romeo can provide upon request.

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had not, it would have risked obvious vulnerability to a claim of retaliation. The Town instead
employed a subtler form of retaliation — forcing Officer Romeo to work on the night shift despite
the fact that he is one of the most senior members of the Department. (Investigator’s Dismissal at
5.) The Town accomplished this goal by using an interpretation of “seniority” for the purpose of
shift bidding that violated the collective bargaining agreement.

The collective bargaining agreement that was in place at the time of the shift bid in
question states specifically that “[s]eniority is defined as the length of continuous full-time
employment in the Winthrop Police Department.” (Patrol Officer and Sergeants CBA, Article
XXXIII, Exhibit A.) This language stands in stark contrast to that within the Lieutenant’s
collective bargaining agreement, which stated “[t]he seniority of Lieutenants shall date from the
time of their promotion to such rank.” (Lieutenants CBA, Article XXXII, Exhibit B.)
Nevertheless, ten (10) days after the Town promoted Officer Romeo to the rank of sergeant,
Deputy Chief Goodwin issued General Order 19-09, which set forth the methodology for the
upcoming shift bid, which would determine each officer’s shift for the following year. (General
Order 19-09, Exhibit D.) The General Order stated that “[a]ll Sergeants not assigned to a special
assignment shall bid their shift according to in rank seniority.” (General Order 19-09, Exhibit D.)
Having wielded this exact same method of retaliation against Nancy Dalrymple when she was
promoted to sergeant in 2014, the Town knew that using this method of determining seniority
would result in Officer Romeo’s assignment to the night shift, since he was the newest sergeant
and therefore had the least in-rank seniority. If the Town had abided by the collective bargaining
agreement and used departmental seniority rather than in-rank seniority, Officer Romeo would
not have been placed on the night shift, as he was one of the most senior officers in the

Department. (Investigator’s Dismissal at 5.)

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The Department implemented the shift bidding process in 2006, and at that time,
seniority was determined by the overall time spent in the department. (Investigator’s Dismissal at
5; 2007-2009 Shift Bid Memos, Exhibit C.) While the Investigator incorrectly asserts that neither
party submitted evidence as to how seniority was determined between 2010 and 2013, Officer
Romeo and Officer Dalrymple both explained that departmental seniority was the norm until the
Chief used in-rank seniority for shift bidding in early 2014 in order to retaliate against Officer
Dalrymple when the Town promoted her to sergeant at the direction of the MCAD. (Dalrymple
MCAD Decision, Exhibit I.)

During the In-person Investigation, Officer Dalrymple explained that in April 2014, she
was reassigned to an overnight shift, which she grieved on April 4, 2014. (Town’s Exhibit 3;
Investigator’s Dismissal at 3.) Then on June 2, 2014, the Department issued a memo regarding
the procedure for the July/August 2014 shift bid, which stated “[iJn order to expedite the process
every officer not assigned to a specialty shall bid their shift according to in rank seniority... .”
(Investigator’s Dismissal at 3; Town’s Exhibit 2.) This memo reflected the first time that in-rank
seniority was used for the purposes of shift bidding, and the change was adopted in order to

retaliate against Officer Dalrymple — in other words, to ensure that she as a new sergeant would

be assigned to an undesirable shift.!!

i The Town’s argument that the in-rank seniority policy had been in place for shift bidding

since 2005 is nonsensical and wrong, given the fact that the shift bidding process was not even
implemented until 2006. The Departmental Rule that the Town relies on in making this argument
by its own terms concerns seniority for the purposes of determining seniority when officers are
assigned to an “investigation, case, or detail” or the Incident of Command when officers arrive
on the scene of an emergency. (Town’s Exhibit 1.) This regulation simply has nothing to do with
shift bidding.

The Town and the Investigator also made much of the fact that the MCAD found no
probable cause for Dalrymple’s subsequent retaliation claim since the in-rank seniority policy
was in place since 2005, but again the MCAD was just factually incorrect. (Investigator’s
Dismissal at 4 n.6.) Moreover, a Lack of Probable Cause Finding by MCAD is “not a final order

14

Officer Dalrymple grieved that change to the shift bidding seniority calculation
methodology on June 12, 2014. (Dalrymple Grievance, June 12, 2014.) The Town denied her
grievance, and Officer Romeo as union president demanded arbitration in November 2014.
(Investigator’s Dismissal at 4.) However, Officer Romeo was placed on administrative leave in
December 2014 and then terminated in January 2015, before the grievance was actually
arbitrated. (Investigator’s Dismissal at 4.) After Officer Romeo was terminated, officers who
were friendly to the Chief took control of the Union and withdrew the grievance, and as such, the
issue was never resolved. (Investigator’s Dismissal at 4.) Thereafter, the in-rank seniority issue
ceased to be an issue, because as Officer Dalrymple explained, personnel changes and
reassignments caused there to no longer be a difference between the officers who had the highest
seniority in the Police Department and the officers who had the highest in-rank seniority.”
(Investigator’s Dismissal at 4 n.8.)

It was not until Officer Romeo was promoted to sergeant that the Chief once again used
in-rank seniority to deny a more desirable shift to an officer with greater seniority within the

department than his in-rank peers. (Investigator’s Dismissal at 4.) Indeed, Officer Romeo had

issued by the full commission in an adjudicatory proceeding.” See Zannerini v. Massachusetts
Commission Against Discrimination, 74 Mass. App. Ct. 1119, at *2 (2009). Indeed, G.L. c.
151B, § 9 permits individuals who have received a Lack of Probable Cause finding to file an
independent claim in Massachusetts Superior Court. See id. Furthermore, courts address such
complaints de novo, and as the First Circuit has explained, the probative force of findings by the
administrative agencies that investigate complaints related to discrimination “varies
considerably” from case to case. See Hilton v. Wyman-Gordon Co., 624 F.2d 379, 383 (1st Cir.
1980). Officer Dalrymple explained during the In-Person Investigation in this case that she chose
not to pursue her MCAD claim in court because by that point, she had been placed in a different
shift, and she was nearing retirement age. Tellingly, Officer Dalrymple had actually filed an
MCAD charge in the late 90s, received a Lack of Probable Cause finding, and nevertheless
prevailed in superior court and then in a reported Appeals Court decision. See Dalrymple v.
Town of Winthrop, 50 Mass. App. Ct. 611, 612-22 (2000). As such, the MCAD finding in this
instance cannot be treated as dispositive.

At the very least, this question is one of fact that must be resolved at a hearing.

15

more seniority within the Department than other sergeants, but he was nevertheless at the bottom
of in-rank seniority and was assigned to the night shift as a result. (Investigator’s Dismissal at 5.)
Further demonstrating the fact that the use of in-rank seniority violated the operative
collective bargaining agreement, the Town then proposed a Memorandum of Agreement
adopting in-rank seniority for shift bidding, and the Union (still controlled by officers friendly to
the Chief) agreed. (Memorandum of Agreement 4] 5, Exhibit E.)
Il. ARGUMENT
The Investigator incorrectly concluded that Officer Romeo failed to demonstrate probable
cause that (1) the Town took an adverse action against Officer Romeo when it forced him to take
the night shift; and (2) the Town was motivated by unlawful retaliatory animus when it used a
seniority system for the purposes of shift bidding that violated the collective bargaining
agreement. The DLR is empowered to dismiss a charge of prohibited practice on a finding that

there is no probable cause to believe that a violation of the law occurred. See Quincy City Hosp.

vy. Labor Relations Com’n, 400 Mass. 745, 748 (1987). The phrase “probable cause” is defined

as “such a state of facts in the mind of the . . . [Investigator] as would lead a [person] of ordinary
caution and prudence to believe, or entertain an honest and strong opinion” that a violation of the

law could have occurred. Massachusetts Correction Officer Federated Union v. Labor Relations

Com’n, 54 Mass. App. Ct. 1114, at *2 n.3 (2002) (internal citations omitted). The probable
cause standard is a relatively modest burden, where the DLR need only determine “that there is

probable cause to believe the conduct could violate the law.” See In the Matter of Mahar

Teachers Association and Michael Magee, MUPL-14-3671, CERB Decision on Appeal of

Hearing Officer Decision, 2017 WL 930092, at *5 n.16 (Feb. 28, 2017) (emphasis added).

Furthermore, it is not the Investigator’s role to make “‘a prejudgment of the merits.” Id. (citing

16

School Committee of Stoughton v. Labor Relations Comm’n, 4 Mass. App. Ct. 262, 272-73

(1976); additional citations omitted).

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 29, 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).

Only the third and fourth elements are at issue, and Officer Romeo will address each in
turn.

A. The Town Took and Adverse Action Against Officer Romeo

The Investigator erred by concluding that Officer Romeo’s assignment to the night shift
was an adverse employment action. Despite conceding that the night shift was less desirable for
Officer Romeo, the Investigator somehow also faulted Officer Romeo for not providing evidence
that “Romeo’s new shift was a less preferable shift.” (Investigator’s Dismissal at 7.) Officer
Romeo explained that the night shift was less preferable to him, and the very fact that it was the
shift that resulted from his low in-rank seniority demonstrates that it was less preferable to the
other sergeant’s as well.

An “adverse employment action” is some personnel action by the employer that
materially disadvantages an employee in some way. City of Holyoke, 35 MLC 153, 156,

MUP054503 (CERB Jan. 9, 2009). The Investigator appears to believe that unless Officer

17

Romeo could show that he received a lower salary or less overtime as the result of taking the
nightshift, then his assignment to the nightshift cannot comprise an adverse employment action.

(Investigator’s Dismissal at 7.) The Investigator relied on In re Board of Higher Education, 43

MLC 148, 2016 WL 7094056, at *11 (CERB Nov. 30, 2016), but that case is easily
distinguishable. There is an obvious and common sense difference between being put on the
night shift, as was the case here, and simply not getting to teach a preferred course schedule, as

was the case in Board of Higher Education. See id. Indeed, placement on the night shift

inherently materially disadvantages an employee because it impacts sleep, family life, and even
safety.

Under analogous retaliation provisions of discrimination statutes, courts around the
country have held that an employee’s transfer to the night shift can constitute an adverse
employment action. As the Sixth Circuit explained in the context of Title VII, “inconvenience
from a less favorable schedule can render an employment action ‘adverse’ even if the

employee’s responsibilities and wages are left unchanged.’” Ginger v. District Columbia, 527

F.3d 1340, 1344 (D.C. Cir. 2008). “A shift assignment that makes normal life difficult for an

employee may constitute an adverse employment action.” Tanaka v. Department Accounting and

General Services, 2011 WL 1598718, at *6 (D. Hawaii April 27, 2011) (internal citations

omitted). Indeed, the court in Freedman v. MCI Telecommunications Corp., 2255 F.3d 840,

(D.C. Cir. 2001), explained that “[i]t is hard to say that transfer to the night shift would not
constitute such a change, at least in conditions or privileges” that would render such a transfer an
adverse employment action.

For example, in Ginger the Sixth Circuit held that switching police officers from a

permanent night shift to a rotating shift was an adverse employment action because it “severely

18

affected their sleep schedules and made it more difficult for them to work overtime and part-time

day jobs.” Ginger, 527 F.3d at 1344. Similarly, in Spees v. James Marine, Inc., 617 F.3d 380,

392 (6th Cir. 2010), the court held that assignment to the night shift was an adverse employment
action despite the fact that the employee testified only briefly that she was not happy with it
because of how it affected her family. Numerous other courts have similarly held that a switch to
an undesirable schedule can constitute an “adverse employment action” in support of a

retaliation claim. See, e.g., Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 788 (3d Cir.

1998) (“Assigning an employee to undesirable schedule can be more than a ‘trivial’ or minor
change in the employee’s working conditions.””); Hamilton v. Rogers, 791 F.2d 439, 441 (Sth
Cir. 1986) (holding that evidence was sufficient to uphold a claim of Title VI retaliation based

on retaliatory assignment to the night shift); Isley v. Aker Philadelphia Shipyard, Inc., 191 F.

Supp. 3d 466, 472 (E.D. Pa. June 9, 2016) (finding a plaintiff had established a prima facie case
of retaliation under Title VII where his transfer to the night shift shortly after he made
complaints was a retaliatory adverse action); Khan v. Cook County, 1996 WL 432410, at *2
(N.D. Ill. July 30, 1996) (considering “whether a change to the night shift is a minor or material
change in working conditions” such that it could constitute retaliation under the Americans with
Disabilities Act (“ADA”) and holding that it could be a material change); Maddox v. County of
San Mateo, 746 F. Supp. 947, 953 (N.D. Cal. 1990) (where a plaintiff alleged retaliation under
Title VI and California Fair Employment and Housing Act (“FEHA”) based in part on the
employer’s refusal to transfer the plaintiff from the graveyard shift, the refusal was treated as an
adverse action).

Furthermore the DLR has routinely found that even minor retaliatory changes in schedule

constitute adverse employment actions. See, e.g., In the Matter of Com., of Massachusetts,

19

Secretary of Administration and Finance, SUP-10-5606, 2014 WL 3347900, at *18 (Davis,

Hearing Officer June 3, 2014) (rejecting the Commonwealth’s argument that a threat to alter the
employee’s work schedule was not an adverse action, “because it changed [the employee’s] work
hours to 8:00 a.m. to 4:30 p.m., and prior to that date, he had regularly worked from 7:30 a.m. —

4:00 p.m.”), reversed on other grounds in In the Matter of Com., of Massachusetts, Secretary of

Administration and Finance, 2015 WL 4709537, at *3-7 (CERB July 31, 2015); In the Matter of

Southbridge School Committee, MUP-06-4762, MUP-07-5010, 2014 WL 495238, at *18

(Hatfield, Hearing Officer Jan. 31, 2014) (Under the adverse action standard . . . , changing [the
employee’s] class schedule and placing her on paid administrative leave constitute adverse
actions.”’).

Here, as a matter of common sense, placement on the night shift does affect Officer
Romeo’s family life as well as the ability to work overtime details. Although the parties did not
delve in great detail to the impact the night shift has had on Officer Romeo during the In-person
Investigation (as Investigator Sorokoff’s questioning focused on other aspects of the alleged
retaliation), the impact would be further developed in a hearing. Officer Romeo’s entire sleep
schedule has been flipped, which unavoidably impacts his relationship with his wife. Moreover,
most overtime details are scheduled for day shifts. If Officer Romeo were to work those daytime
details, his sleep would be even more significantly impacted than it already has been by simple
virtue of being switched to the night shift. Investigator Sorokoff once again treated the In-person
Investigation as if its goal were to make a determination on the merits, deciding a disputed

question of fact on the merits — whether or not the night shift materially disadvantaged Officer

20

Romeo ~ as if it the case was at the hearing stage.'* Her conclusion should be reversed so that the
materiality of the change to Officer Romeo’s can be fully fleshed out through his testimony in a
hearing.

B. The Town was Motivated by Retaliatory Animus

The second element at issue here is whether the Town’s action was motivated by a desire
to penalize or discourage the protected activity. Crucially, as many Massachusetts courts and
courts around the country have observed, the question of retaliatory motive is fact-intensive and
rarely appropriate for disposition absent an evidentiary hearing or trial. See, e.g., Blare, 419
Mass. at 439 (“The ultimate question of the defendants’ state of mind is elusive and rarely
established by other than circumstantial evidence . . . which requires the jury to weight the

credibility of conflicting explanations of the adverse . . . decision.”); Walsh v. City of Worcester,

89 Mass. App. Ct. 1128, at *3 (2016) (“A claim of pretext or retaliation is a fact intensive one.”);

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, (1st Cir. 2000) (“[C]ourts

should exercise particular caution before granting summary judgment for employers on such

issues as pretext, motive and intent”); Wright v. Murray Guard, Inc., 455 F.3d 702, (6th Cir.

2006) (“Inquiries regarding what actually motivated an employer’s decision are very fact
intensive and thus will generally be difficult to determine at the summary judgment stage.”);

Singfield v. Akron Metro Hous. Auth., 389 F.3d 555, 564 (6th Cir. 2004) (explaining that “in

discrimination and retaliation cases, an employer’s true motivations are particularly difficult to
ascertain, . . . thereby frequently making such factual determinations unsuitable for disposition at

the summary judgment stage.”).

12 The Investigator also relied on City of Boston, 35 MLC 289, 291 (May 20, 2009), but in
that case, the “adverse action” was merely an added responsibility for a Boston Public Library
employee to oversee couriers as they counted cash to be taken to the bank — hardly even an
inconvenience.

21

As the Investigator correctly acknowledged, retaliatory motive can be established either
through direct evidence, circumstantial evidence, and reasonable inferences drawn from that
evidence. (Investigators Dismissal at 8.) Additionally, “several factors may suggest unlawful
motivation, such as: timing of the alleged discriminatory act in relation to the protected activity,
triviality of reasons given the by employer, disparate treatment, an employer’s deviations from
past practices, or expressions of animus or hostility toward a union or protected activity.” Town
of Blackstone, 46 MLC 109, 118, MUP-17-5940 (Nov. 25, 2019).

Despite the fact that an employer’s retaliatory motive is a fact-intensive question that
generally cannot be determined without an evidentiary hearing (see supra at 20-21), the
Investigator took it upon herself to do just that without the benefit of any testimony under oath
and without any opportunity for cross-examination. The Investigator accepted the Town’s
explanation for its conduct at face value despite the ample background evidence that could lead
to a plausible inference that the Town used the in-shift seniority to punish Officer Romeo and
saddle him with the night shift.

Since his termination on January 9, 2015, Officer Romeo and the Town have been

oi As the Investigator noted, in a case where a charging party relies on circumstantial

evidence, the CERB uses a tri-partite analysis:

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 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 Sheriff's Department, 27 MLC 155, 160, MUP-1498
(June 4, 2001); Quincy School Committee, 27 MLC 83, 92, MUP-1986 (December 29,
2000). The charging party bears the burden of proving that, but for the protected activity,
the employer would not have taken the adverse action. Athol-Royalston Regional School
Committee, 28 MLC 204, 214, MUP-2279 (January 14, 2002); Town of Athol, 25 MLC
208, 211, MUP-1448 (June 6, 1999).

(Investigator’s Dismissal at 6.)

22

engaged in an unrelenting battle consisting of union arbitration, litigation before the superior and
the Massachusetts Appeals Court (and several different cases no less), and charges before the
DLR. Even when Officer Romeo prevailed at his arbitration in February 2016, the Town did not
reinstate him but instead sought to have the Arbitration Award vacated. Even when Officer
Romeo (through the Union) prevailed at the Massachusetts Appeals Court confirming the
Arbitration Award in May 2018, the Town resisted reinstating Officer Romeo to his job until
September 2018. Even when Officer Romeo prevailed at his remedy arbitration and the Town
initially agreed to an amount to pay him in January 2019, the Town reneged on its agreement and
refused to pay him until July 2019 after Officer Romeo and the Union had filed a lawsuit in
Suffolk Superior Court and the Union filed yet another charge of prohibited practice with the
DLR. The Town did not promote Officer Romeo until it had no choice to do so in December
2019, because refusing to do so would have been extremely obvious retaliation. The upshot here
is that the Town has taken every opportunity to punish Officer Romeo for his union activity, and
the Town’s insistence on using in-rank seniority for purposes of shift-bidding — even though it
violated the collective bargaining agreement — fits that pattern. At the very least, this
acrimonious relationship suffices to demonstrate that the Town could have violated the Law and
that a hearing is appropriate. Only after the parties have put on witnesses, with the opportunity
for cross-examination, can the true motivation for the Town’s conduct be sussed out.

Echoing her approach when she wrongfully dismissed Charge MUP-19-7261, which the
CERB recently reversed, the Investigator once again bent over backwards to explain these facts
away. The Investigator argues that the Town used the same seniority formula it has used since
2014 in its December 2019 shift bidding process. (Investigator’s Dismissal at 8.) Of course the

Investigator has chosen to ignore the fact that the Chief implemented the in-rank seniority

23

method for shift bidding in 2014 (departing from past practice and in violation of the collective
bargaining agreement) in order to retaliate against Officer Dalrymple for her litigation before
MCAD that resulted in an order for the Town to promote her to sergeant. When Officer Romeo
helped Officer Dalrymple challenge this retaliation by taking it to arbitration, the Town fired
Officer Romeo. With Officer Romeo out of the way, the arbitration was withdrawn. After hard-
fought litigation in a union arbitration and in court, Officer Romeo was reinstated in 2018. In
order to avoid the further appearance of unlawful retaliation (since Officer Romeo was first on
the Sergeants promotional list), the Town promoted him but then used the in-rank seniority
method to ensure that Officer Romeo was assigned to the night shift.'* Officer Romeo’s
promotion was the first time that in-rank seniority actually had an impact since Dalrymple
grieved it in 2014, because between 2015 and 2019, departmental seniority was aligned with in-
rank seniority in the Department. Furthermore, the Town implicitly admitted that the in-rank
seniority method of shift bidding violated the operative collecting bargaining agreement, by
proposing an amendment to the agreement soon after Officer Romeo filed this Charge. The
Investigator’s assertion that “Romeo did not present any evidence that the Town expressed any
animus or hostility toward the Union or Romeo’s protected activity” is thus laughable.
(Investigator’s Dismissal at 8.) Any reasonable finder of fact could conclude that the Town’s
actions reflected unlawful animus because of Officer Romeo’s protected activity.

The Investigator acknowledges that Officer Romeo has engaged in “a lot of protected
activity” but asserts that the Town’s retaliation was not close in time to the protected activity.

(Investigator’s Dismissal at 8.) Officer Romeo was only permitted to take the assessment center

i The Investigator’s statement that in-rank seniority was applied to all sergeants misses the

point. (Investigator’s Dismissal at 8.) The Town knew that by using that method, it would
specifically disadvantage Officer Romeo, as he was a new sergeant.

24

examination for promotion to sergeant because he was reinstated as a result of a union arbitration
and obtained an order to be permitted to take the examination from the arbitrator — even then he
was not provided the study materials for the assessment center within the normal time window.
When the Town finally promoted him on December 8, 2018 (again because it had little other
choice), the Town announced a mere ten (10) days later that it would use the in-rank seniority
method for shift bidding, which would result in Officer Romeo’s being assigned to the night
shift. The promotion was the result of his protected activity, and the Town retaliated ten (10)
days later.

Finally, the Investigator credited the Town’s so-called “legitimate reasons” for its use of
in-rank seniority. The Investigator points to the fact that the Union opted not to arbitrate the
policy when it was implemented in 2014, but that happened purely because the Town
terminated Officer Romeo in order to ensure that he could no longer, as president of the
Union, advocate for Officers Dalrymple and Racow. The Town fired him to ensure that he
could not advance their arbitrations, including the arbitration challenging the in-rank seniority
method of shift bidding, and the strategy succeeded. As such, the Town then wielded the same
retaliatory method of shift bidding when Officer Romeo was later promoted. To say that the
Town was simply sticking to its policy is under such circumstances is utterly disingenuous.

The Investigator wrongly pre-judged the merits on these fact-intensive questions without
any benefit of testimony under oath or cross-examination, and therefore the dismissal was
improper.

IV. Conclusion
For the reasons mentioned above, the Commonwealth Employment Relations Board

should reverse the dismissal of the Charge and direct the DLR to issue a Complaint.

25

Respectfully submitted,

Ferruccio Romeo,

Charging Party,
by his counsel,

ff waa
TA Fou
a A tr _-}geuw aw

Harold L. Lichten, BBO # 549689
Thomas P. Fowler, BBO # 688521
Lichten & Liss-Riordan, P.C.

729 Boylston Street, Suite 2000
Boston, MA 02116
(617)994-5800
hlichten@IIrlaw.com
tfowler@llrlaw.com

Dated: October 28, 2020

CERTIFICATE OF SERVICE
A copy of the foregoing document has been sent via electronic mail, this 28" day of
October, 2020 to counsel for the Town of Winthrop Howard Greenspan, Esq.

“4 sao YY
< a COM AL~ Jee lo

Thomas P. Fowler, Esq.

26

Exhibit A

Winthrop Police Union
MCOP Local 421
AFL-CIO

Ferruccio Romeo, President
Stephen Acone, Vice-President
Guilio Bonavita, Secretary/Treasurer
Mary Crisafi, E-Board
617-846-1212

AGREEMENT
WINTHROP POLICE UNION

M.C.O.P. LOCAL 421 AFL-CIO

AND

TOWN OF WINTHROP

JULY 1, 2011 — JUNE 30, 2014

ARTICLE I ;
ARTICLE I .
ARTICLE II
ARTICLE IV
ARTICLE V
ARTICLE VI
ARTICLE VII °
ARTICLE VOI
ARTICLE IX
ARTICLE X
ARTICLE XI

ARTICLE XI .

ARTICLE XIII

ARTICLE XIV
ARTICLE XV -
ARTICLE XVI
ARTICLE XVI
ARTICLE XVIII
ARTICLE XIX
- ARTICLE XX
ARTICLE XXI

TABLE OF CONTENTS
AGREEMENT
INTENT AND PURPOSE
RECOGNITION

- NO DISCRIMINATION -

UNION DUES & AGENCY SERVICE FEE
RIGHTS OF THE EMPLOYER -
GRIEVANCES INVOLVING CIVIL SERVICE
UNION ACTIVITY ON DEPT. PROPERTY

GRIEVANCE PROCEDURE

ARBITRATION

CONTINUITY OF EMPLOYMENT
VACANCIES AND TRANSFERS.
MILITARY SERVICE
BEREAVEMENT LEAVE

SICK LEAVE

PERSONAL LEAVE
SEPARABILITY AND SAVINGS
INSURANCE BENEFITS
HEALTH AND SAFETY
SALARIES AND HOURS

PAY SCHEDULE

LONGEVITY

10

UU
at
12

12
13

15

16 a

17
17
17

18

ARTICLE XXII
ARTICLE XXIII
ARTICLE XXIV
ARTICLE XXV
ARTICLE XXVI
ARTICLE XXVII
ARTICLE XXVIII
ARTICLE XXIX
ARTICLE XXX
ARTICLE XXxI
ARTICLE XXXII
ARTICLE XXXII
ARTICLE XXXIV
ARTICLE XXXV
ARTICLE XXXVI
ARTICLE XXXVI

ARTICLE XXXVIII

APPENDIX A

winthpol.toc

CHIEF PROSECUTOR
OVERTIME

EXTRA PAID DETAILS

UNION BUSINESS

SUBSTITUTIONS

UNIFORMS AND EQUIPMENT
DUTIES

INJURED LEAVE AND LIGHT DUTY
HOLIDAYS

VACATIONS

COURT TIME

SENIORITY

EDUCATIONAL BENEFITS
DISCIPLINARY ACTION
EVALUATIONS

DRUG POLICY

DURATION

SIGNATURE PAGE

QUINN BILL AGREEMENT

18
18

19

28
30
30

31

ARTICLE XXXII
COURT TIME
Any officer who goes to court before or after his/her regular shift or on a day off, shall be
paid a minimal amount equal to four (4) hours. The officer shall be paid the regular rate of pay
for the court time when she/he is on his/her regular tour of duty. Any officer who is requested to

appear in court other than on his/her regular tour of duty shall be compensated at the rate of one

and one-half (1-1/2) times the regular rate.

SENIORITY |

/“SENto XXXIII \

Seniority is defined as the lerigth of continuous full-time’ employment in the Winthrop

Police Department.

The Employer recognizes the principle of seniority in layoffs due to lack of work, |
provided that 'the senior employee is available and qualified to do the remaining work.

The Employer, in recognition of seniority, shall allow an employee to bid for a vacancy
on a different work shift which is caused by death or retirement as long as it is of comparable
duty and rank and does not involve a specialty.

That the seniority provisions of the contract relative only to job bidding for vacancies on
a different work shift? would provide a clause that would allow aggrieved members of the
Bargaining unit to appeal any seniority decision made by the Chief of Police to the Town |
Manager, the Town Manager’s decision shall be final and binding on both parties. Seniority shall
be broken by:

A) Resignation.

(B) Layoff due to lack of work for a period of sixty (60) days.

(C) Discharge for just cause.

ARTICLE XXXIV
EDUCATIONAL BENEFITS
The Employer agrees to compensate each employee Fifty Dollars ($50.00) per year for
each three (3) credits an employee earns towards an Associates Degree or a Bachelors Degree in

law enforcement at an accredited university.

‘

Exhibit B

7 \Cor Loca\ 420
a of Agreement
Between
Town of Winthrop
And
Winthrop Superior Police Officers Union, MCOP Local 430
The Town of Winthrop and the Winthrop Superior Police Officers Union, MCOP

Local 430, hereby agree except as indicated herein the agreement between the parties
effective July 1, 2017 through June 30, 2018 will continue full force and effect.

1. Salaries

July 1, 2018 1.5%
2. The Town will undertake a compensation and reclassification study prior to the

beginning of contract negotiations for the successor agreement effective July 1,
2019. The cost will be conducted at the Town’s expense.

3. Wages

If any other union receives a greater accumulative cost of living raise on the wage
scale the same increase would be applied for this union.

hug. Pat MED SATO NO:

Town of Winthrop Winthfop Superior Police Officers Union,
MCOP Local 430

Date: 0S 113114 ee

Any officer who goes to court before or after his/her regular shift or on a day off, shall be
paid a minimum amount equal to four (4) hours. The officer shall be paid the regular rate of pay
for the court time when she/he is on his/her regular tour of duty. Any officer who is requested to
appear in court other than on his/her regular tour of duty shall be compensated at the rate of one
and one-half (1-1/2) times the regular Tate, _

So
gee

Sa

jy

( ARTICLE Xxx =|
SENIORITY !

Section 1. The Seniority of Ligitenants shall-date from the time of their promotion to
such rank. Employees in the same rank promoted on the same date shall their relative seniority
determined on the bases of the grade they receive on the Civil Service examination for that rank,
broken down to the smallest possible percentage. If the grade of two or more employees is the
same, the date of their application for their respective examinations shall govern.

Section 2. Unless otherwise stated, length of service for all other purposes shall be
calculated in accordance with the provisions of M. G. L. Chapter 31, Section 33.

Section 3. Employees taking a leave of absence of more than six (6) months shall have

the aggregate seniority reduced by said period of absence.

ARTICLE XXXUI
EDUCATIONAL BENEFITS
The Employer agrees to compensate each employee Fifty Dollars ($50.00) per year for
each three (3) credits an employee earns towards an Associates Degree or a Bachelors Degree i in
law enforcement at an accredited university,
The employee will earn these credits on his/her own time and the Employer shall not be
responsible for the employee's tuition.

ARTICLE XXXIV
DISCIPLINARY ACTION

Section 1: Employees who have completed their probationary period of twelve (12) months
shall not be disciplined or discharged except for just cause. The probationary period shall

commence upon the graduation from the Police Academy. :

24

Exhibit C

Winthrop Police Department Page:
Email Report Printed: 11/19/2009 @ 0947

Sent : 05/22/2007 @ 1124 By: Sergeant Stephen P Rogers 581
Subject: SHIFT BIDDING FOR 2007-20

TO: All Officers
FROM: Sgt. Rogers
RE: Shift Bidding for 2007-2008

Shift bidding will run from Monday May 21, 2007 to Monday May 28, 2007 at
4pm.

In order to expediate the process it would be great if every officer
according to seniority picks their shift as soon as possible. As of this
e-mail two people have picked already.

This would make the process go quickly and be done well before Monday May
28, 2007. However understanding this goal may not come to fruition due to
certain inevitable obstacles all officers who have not picked a shift by
Monday May 28, 2007 at 4pm will be contacted in order of seniority to pick
the shift they would like.

The calling process will follow the detail assignment guidelines. If you
have not picked by Monday May 28, 2007 at 4pm please make yourself
available in person, by phone, or email me your preferences in order to me
by that date. If someone cannot be contacted the pick will move to the
next person on the seniority list and so on.

I'm hoping we can all work together and the process will be well done
before Monday May 28, 2007 at 4pm.

Thanks,
Sgt. Rogers

PS Group 1 PM's I look forward to working with you all again on every
single holiday for 2007-2008.

Winthrop Police Department
Email Report Printed: 11/19/2009 @ 0956

Sent : 10/31/2007 @ 1942 By: Chief Terence M Delehanty
Subject: SHIFT BIDDING

TO: All Officers
FROM: Assistant Chief Terence Delehanty
RE: Shift-Bidding for January 2008
DATE: October 31, 2007

Shift-Bidding will be conducted commencing Monday November 2, 2007 and is
to be completed by Monday November 19, 2007 @ 1600 hrs.

All Officers are asked to pick their assignment in order of Seniority.
Please pick your selection and place your name next to it when your name
appears next on the Seniority List. All Officers should make themselves
available in person, by telephone or pager. Officers, who believe they
may not be available, email your preferences (at least 3 in order of
preference) to Sgt. Rogers prior to becoming unavailable.

If you are not available and you do not make your preferences known in
advance, you will be skipped and be given your choice of whatever option(s)
remain. Officers will be contacted in order of Seniority to ensure the time
guidelines referenced above are strictly adhered to.

The process should be completed well before the completion date if everyone
picks when their turn comes up.

For as long as this Agreement remains in effect, the new schedules will
commence with Groupl in the first Sunday in July and January of each fiscal
year. Shift-Bidding will commence on the first Sunday in May and end on the
third Sunday in May for the July Schedule. Shift-Bidding will commence on
the first Sunday in November and end on the third Sunday in November for
the January Schedule.

Sgt. Rogers has been assigned to oversee the Bidding process. Please
contact him with any questions. Any issues that you believe may be
contractual please consult with your Union President.

Page:

Winthrop Police Department Page:
Email Report Printed: 11/19/2009 @ 1009

Sent : 04/24/2008 @ 1700 By: Chief Terence M Delehanty
Subject: SHIFT BIDDING

TO: All Officers
FROM: Assistant Chief Terence Delehanty
RE: Shift-Bidding for July 2008
DATE: April 24, 2008

Shift-Bidding will be conducted commencing Sunday May 4th, 2007 and will be
completed by Sunday May 18th, 2008 © 1600 hrs.

All Officers are asked to pick their assignment in order of Seniority.
Please pick your selection and place your name next to it when your name
appears next on the Seniority List. All Officers should make themselves
available in person, by telephone or pager. Officers, who believe they
may not be available, email your preferences (at least 3 in order of
preference) to Sgt. Rogers prior to becoming unavailable.

If you are not available and you do not make your preferences known in
advance, you will be skipped and be given your choice of whatever option(s)
remain. Officers will be contacted in order of Seniority to ensure the time
guidelines referenced above are strictly adhered to.

The process should be completed well before the completion date if everyone
picks when their turn comes up.

For as long as this Agreement remains in effect, the new schedules will
commence with Groupl beginning their work schedule on the first Sunday in
July and January of each fiscal year. Shift-Bidding will commence on the
first Sunday in May and end on the third Sunday in May for the July
Schedule. Shift-Bidding will commence on the first Sunday in November and
end on the third Sunday in November for the January Schedule.

If there are any questions or concerns please see your supervisor(s), who
will either provide the answer or get the answer for you. Any issues that
you believe may be contractual please consult with your Union President.

Winthrop Police Department Page:

Email Report Printed: 11/19/2009 @ 1054

Sent : 05/24/2009 @ 1914 By: Sergeant Stephen P Rogers 581
Subject: SHIFT BIDDING

MEMO
TO: All Officers
FROM: Sergeant Stephen Rogers
DATE: Sunday May 24, 2009

SUBJECT: Shift Bidding for July 2009
Below is the procedure for the July 2009 shift bid:

¢ Shift bidding will run from Monday May 25, 2009 to Monday June 1,
2009 at 4pm.

¢ The Shifts will commence with the AM shift due in on Saturday July
4, 2009 at 10pm. The Day and PM shifts will begin on Sunday July 5, 2009.
(This is the first Sunday of July as previously agreed to.)

¢ In order to expedite the process it would be great if every officer
according to seniority picks their shift as soon as possible, this would
make the process go quickly and be done well before Monday June 1, 2009.
However understanding this goal may not come to fruition due to certain
inevitable obstacles all officers who have not picked a shift by Monday

dune 1, 2009 at 4pm will be contacted in order of seniority to pick the
shift they would like.

¢ The calling process will follow the detail assignment guidelines.
If you have not picked by Monday June 1, 2009 at 4pm please make yourself
available in person, by phone, or email so we have your preference by that
date. If someone cannot be contacted the pick will move to the next person
on the seniority list and so on.

¢ I'm hoping we can all work together and the process will be done
well before Monday June 1, 2009 at 4pm.

¢ Please be advised I have been the supervisor assigned to manage the
shift bidding process for this bid. Any questions regarding confusion in
the process please contact me and I will assist you. Any issue which is
contractual please see your union president.

¢ Please note the Employer retains all rights and powers that they
have or may hereafter be granted by law in managing the Police Department
and directing the working force and may exercise same without being made
the subject of a grievance except as expressly provided within the
collective bargaining agreement itself. The above shift bidding policy is
solely and exclusively the prerogative of the Employer and only subject to
the limitations that are expressively provided for in the collective
bargaining agreement.

Exhibit D

Town of Winthrop

Police Department
Chief Terence Delehanty

GENERAL ORDER 19-09

TO: SERGEANTS

FROM: DEPUTY CHIEF GOODWIN
DATE: — 12/18/2019

RE: SHIFT BIDS

e Sergeants shift bidding will start on Wednesday December 18, 2019 at 4PM and
conclude on Thursday December 26, 2019 at 4PM.

e All Sergeants not assigned to a special assignment shall bid their shift according to
in rank seniority. If all Sergeants have not picked by Thursday December 26, 2019
at 4PM the Sergeant next to pick who has failed to pick will be skipped and the
next senior Sergeant will have 5 minutes to pick and the process will continue until
all remaining available shifts are selected. Any Sergeant failing to bid a shift by the
given deadline 4PM Thursday December 26, 2019 causing a delay in the process
will be assigned by the administration.

e Ifyou are unable to physically be at the station during the allotted 8 days for
bidding send an email to Deputy Chief Goodwin.

e Any questions regarding the defined bidding process contact Deputy Goodwin.
Any issue perceived to be related to the Collective Bargaining Agreement please
see your Union President.

e The Chief retains all right of assignment defined in Article V of the Collective
Bargaining Agreement ,

The transition date will be announced after Bids are received

RESTRICTED FOR LAW ENFORCENENT USE ONLY: NOT FOR PUBLIC DISSEMINATION

NVIYS9YR9 “LOS XAMDIH “LOS

NVNITIVS “LOS

Ly

C#

c#

Winthrop Police Department
Sgt’s / Supervisor Shift Bid December 18, 2019

AM Shift

Group 1 Group2
DAY Shift
PM Shift

Exhibit E

Memorandum of Agreement
between
Town of Winthrop
and
Winthrop Police Union MCOP Local 421, AFL-CIO

This Agreement is between the Town of Winthrop (the “Town”) and the Winthrop Police Union
MCOP Local 421, AFL-CIO (the “Union”). Except as indicated herein, the collective bargaining
agreement (“CBA”) between the Town and the Union (collectively, the “Parties”) effective July
1, 2017 through June 30, 2018 shall continue in full force and effect.

Ls

i)

Duration

Amend the parties’ CBA to reflect a duration of July 1, 2018 — June 30, 2019.
Article XIX — Salaries and Hours
Effective July 1, 2018, there shall be a wage increase of one and one-half percent (1.5%).

Retroactive payment shall only be made to individuals who are members of the unit or
otherwise employed by the Town as of the time of ratification of this Agreement.

Article XXI — Longevity

The Parties agree to an increase in longevity payments of one-half percent (0.5%)...
Effective July 1, 2018, the annual longevity payments made to qualified employees who
have worked the required number of years as of July 1 of the fiscal year in which the
payment is made shall be:

5 years of service as of July 1 1.0% of base
10 years of service as of July 1 1.5% of base
15 years of service as of July 1 1.7% of base
20 years of service as of July 1 1.9% of base
25 years of service as of July 1 3.5% of base

Retroactive payment shall only be made to individuals who are members of the unit or
otherwise employed by the Town as of the time of ratification of this Agreement.

Article XXIV — Extra Paid Details

The hourly detail rate shall be fifty-five dollars ($55.00) for all details, whether Town
details or private details. The Parties agree that the new detail rate shall not apply
retroactively to details already worked by employees prior to the execution of this
Agreement. New detail rates shall go into effect 30-days afterexeeution-ofthis-

Agreement. Dinnardicetel, Upon fens

\A } ie

5. Article XXXII — Seniority

The Parties agree to delete the language in Article XXXIII in its entirety and replace it
with the following:

Seniority is defined as the length of continuous full-time employment in
the Winthrop Police Department. The employer recognizes the principle
of seniority in layoffs, provided that the senior employee is available and
qualified to do the remaining work consistent with Chapter 31 of the
Massachusetts General Laws.

Seniority for purposes other than layoffs shall be determined first by rank,
second by continuous service in the rank. The employer in recognition of
seniority shall allow an employee to bid for a vacancy on a different work
shift which is caused by death or retirement as long as it is of comparable
duty and rank and does not involve a specialty. In matters relative to
vacancies or other contractual provisions, aggrieved members of the
bargaining unit may appeal any seniority decisions made by the Chief of
Police to the Town Manager; however, the Town Manager’s decision shall
be binding on both parties.

Seniority shall be broken by: a) resignation; b) layoff due to lack of work
for a period of 60 days or more; or c) discharge for just cause.

6. Article XXXIV — Educational Benefits

The Parties agree that bargaining unit members currently employed by the Town who
have not yet acquired their degree as outlined in Article XXXIV of the CBA shall receive
an additional twenty-four (24) months in which to do so. This extension shall not apply
to any new employees hired by the Town after the execution of this Agreement by the
Parties.

This Memorandum of Agreement is subject to ratification by the Union membership, approval
by the Town Manager and funding by the Town Council.

Agreed to by the Parties on the dates indicated below:

TOWN OF WINTHROP WINTHROP POLICE UNION
MCOP LOCAL 421, AFE-CIO.  _~/
date: By: LEZ cue ae
Name: avstie cance Name: Miche af G ire 7
Title: wun naracee Tithe: Uxion Ocestuct

Date: os )z%(z> Date: o5/ «. I>.

Exhibit F

THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS

CHARLES F. HURLEY BUILDING spi odie
MPLOYMENT
19 STANIFORD STREET RELATIONS BOARD
1s" FLoor, Boston, MA 02114
CHARLES D. BAKER PHONE: (617) 626-7132 MARJORIE F. WITTNER
CHAIR
nna Rie AT) See SF JOAN ACKERSTEIN
KARYN E. POLITO efile.dir@mass.gov BOARD MEMBER
LIEUTENANT GOVERNOR www.mass.gov/dir KELLY STRONG
PHILIP T. ROBERTS BoarRD MEMBER
DIRECTOR July 27, 2020

Thomas Fowler, Esq.

Lichten and Liss-Riordan, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116

mms , -

Howard Greenspan, Esq.
220 Broadway, Suite 304
Lynnfield, MA 01940
Saugus, MA 01906

Re: MUP-14-4210, MUP-15-4652, Town of Winthrop and Ferruccio Romeo

Dear Mr. Fowler, Mr. Romeo and Mr. Greenspan:

On July 9, 2020, the Department of Labor Relations (DLR) consolidated the above
referenced charges of prohibited practice for the Commonwealth Employment Relations
Board’s (CERB) review. For the reasons set forth below, the CERB finds probable cause
to believe that the Town of Winthrop (Town) violated Section 10(a)(3), and, derivatively,
Section 10(a)(1) of M.G.L. c. 150E when it placed Ferrucio Romeo (Romeo) on
administrative leave in 2014 and terminated him in 2015. The CERB therefore reverses
the dismissal of MUP-14-4210 and remands both matters to the DLR to issue a complaint
consistent with this ruling.

Background

Romeo has been a police officer with the Town’s Police Department for over twenty
years. From December 2004 until February 2015, Romeo also served as the president
of Winthrop Police, MCOP, Local 421, AFL-CIO (Union).

These charges concern the events leading up to Romeo's termination in January
2015. In or around September 2014, Romeo filed a grievance on behalf of a bargaining

CERB Review of P.C Dismissal (cont'd) MUP-14-4210, MUP-15-4652

unit member and posted documents related to that grievance on a bulletin board at the
police station where he worked. On September 12, 2014, Romeo refused requests by
the Town’s human resource director and police chief to remove the posted documents.

On November 24, 2014, Romeo was assigned to a 7:00 a.m. to 3:00 p.m. detail
with the Department of Conservation at a local pump station. That same day, from 10:00
a.m. to 3:00 p.m., Romeo attended a bargaining mediation session at Winthrop Town
Hall. On December 1, 2014, the Town placed Romeo on administrative leave pending an
investigation into his submitting a detail pay slip for the November 24th pump detail while
attending the mediation session. Another employee also attended the mediation while
working a detail but did not submit a pay slip.

On December 12, 2014, Romeo, on behalf of the Union, and in his capacity as
Union president, filed Case No. MUP-14-4210 with the DLR alleging that the Town had
engaged in prohibited practices within the meaning of Sections 10(a)(1), 10(a)(2),
10(a)(3) and 10(a)(4) when it placed him on paid administrative leave.

Around December 18, 2014, the Town held a disciplinary hearing regarding the
charges against Romeo. On January 9, 2015, the Town terminated Romeo for: 1)
falsifying a detail slip, 2) lying during an investigation; and 3) violating various department
rules and regulations.

On January 14, 2015, a DLR Investigator conducted an in-person investigation of
MUP-14-4210.' The investigation record, including the dismissal letter, reflects that both
parties had the opportunity to present evidence and make arguments regarding Romeo's
termination at the investigation. On March 5, 2015, the DLR Investigator dismissed MUP-
14-4210 on grounds that Romeo had not established that the termination was unlawfully
motivated. The Investigator focused on Romeo's claim that he had been treated

1 Romeo, who is also an attorney, appeared on behalf of the Union during the
investigation. He did not retain counsel until MUP-14-4210 was dismissed.

2 Without additional discussion, the Investigator noted that he dismissed the Section
10(a)(4) allegation under the same analysis that he used with the Section 10(a)(3)
allegation. In a separate discussion, the Investigator dismissed the Section 10(a)(2)
allegation for lack of probable cause to believe that the Town had dominated, interfered,
or assisted in the formation, existence or administration of the Union. He also separately
analyzed and dismissed the independent Section 10(a)(1) allegations pertaining to the
Town’s order that Romeo remove the grievance response from the bulletin board and to
the termination. In his Request for Review, Romeo did not make any arguments
concerning the dismissal of the Section 10(a)(4), 10(a)(2) or independent Section 10(a)(1)
allegations. Instead, he repeatedly argued that the only “reasonable,” or “plausible”
explanation for his termination was his recent Union activity, i.e., supporting the
grievances of the two female police officers and refusing to remove grievance-related
correspondence from the Union bulletin board. We treat these arguments as seeking

2

CERB Review of P.C Dismissal (cont'd) MUP-14-4210, MUP-15-4652

differently than another bargaining unit member who attended the same mediation while
also being assigned to a detail. The Investigator dismissed the charge based on his
finding that this officer was not similarly situated to Romeo because he did not submit a
detail pay slip for the day.

On March 16, 2015, Romeo filed a Request for Review of the dismissal with the
CERB, arguing that the Investigator had improperly overlooked several affidavits that he
had submitted during the investigation. Romeo argues that those affidavits reflect that
Romeo reasonably believed that the detail he was assigned to was a “roving” detail, which
allowed him to attend the contract negotiations as long as he was available to respond in
the event of emergency; that no one had ever objected to or conducted internal
investigations into officers attending contract negotiations while being assigned to a
detail; and that the discipline imposed differed significantly from the Town’s disciplinary
past practice. The Union had also filed a demand to arbitrate Romeo’s grievance over
his termination and Romeo alternatively asked the DLR to defer the charge to the
arbitration.

On May 21, 2015, before the CERB ruled on the Request for Review, the DLR
granted the request to defer MUP-14-4210 to arbitration. On June 24, 2015, Romeo filed
a separate charge, MUP-15-4652, alleging that his January 9, 2015 termination violated
Sections 10(a)(1), (2), (3), and (4) of the Law and requesting that it be deferred to
arbitration along with MUP-14-4210.4 The DLR granted that request without conducting
an in-person investigation into MUP-15-4652.

On February 26, 2016, an arbitrator issued an award. On March 2, 2016, Romeo
filed a request with the DLR to resume processing both unfair labor practice charges.
charges.On August 19, 2019, after the Town had exhausted its judicial appeal of the
award pursuant to M.G.L. c. 150C, and subsequent mediation efforts were unsuccessful,
the DLR granted Romeo’s request to reopen MUP-14-4210 and MUP-15-4652. On July
9, 2020, the DLR decided to consolidate the matters for the CERB’s review and thus both
cases are now before us.

review of the dismissed Section 10(a)(3) allegation only, and, thus, do not address the
dismissal of the Section 10(a)(2), 10(a)(4), and independent Section 10(a)(1) allegations.

3 Since filing the request for review, Romeo has been represented by counsel.

4 On April 4, 2016, in Romeo's reply to the Town's opposition to Romeo's request to revive
both of these charges after the arbitration award issued, Romeo explained that he filed
MUP-15-4652 as a procedural formality because when he filed MUP-14-4210, he did so
in his capacity as Union president. He thus filed MUP-15-4652 in his individual capacity
to ensure that he had standing as an individual to challenge his termination at the DLR.

CERB Review of P.C Dismissal (cont'd) MUP-14-4210, MUP-15-4652

Ruling

As a preliminary matter, we clarify what the record on review consists of in these
consolidated matters. As in all pre-complaint dismissals, the record before us on review
of MUP-14-4210 is the investigation record consisting of the charge, the investigation
exhibits, the dismissal letter, the Request for Review and the Town’s response. 456 CMR
15.05(9); 456 CMR 15.08. Because, as the DLR indicated in the show cause letter, MUP-
15-4652 raises an identical issue arising from the same set of facts that Romeo had the
opportunity to raise in MUP-14-4210, i.e., whether the Town’s decision to terminate
Rome was in retaliation for his concerted protected activity in violation of the Law, and
because that issue has already been fully investigated by the DLR, the record in MUP-
15-4652 consists of the charge and the investigation record in MUP-14-4210.°

Turning to the merits, to establish a prima facie case of a Section 10(a)(3) 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 action was
motivated by a desire to penalize or discourage the protected activity. Town of Carver,
35 MLC 29, 47, MUP-03-3094 (June 30, 2008). It was uncontested during the
investigation that the Union had established the first three elements of the prima facie
case. The fourth element, unlawful motivation, was contested.

Unlawful motivation can be established by direct evidence or circumstantial
evidence and reasonable inferences drawn therefrom. Suffolk County Sheriff's
Department, 27 MLC 155, 159, MUP-1498 (June 4, 2001). Absent direct evidence of
unlawful motivation, several factors may suggest unlawful motivation, including the timing
of the alleged discriminatory act in relation to the protected activity; the triviality of reasons
given by the employer, or shifting and inconsistent reasons given by the employer;
disparate treatment; an employer's deviation from past practices; or expressions of
animus or hostility towards a union or the protected activity. Town of Carver, 35 MLC at
47.

In his Request for Review in MUP-14-4210, Romeo contended that the
Investigator failed to address the evidence of disparate treatment set forth in the affidavits
from police officers and superior officers that Romeo provided during the investigation of
his charge, including, in particular, statements made by one or more affiants to the effect
that the Town had a longstanding practice of permitting officers to leave fixed details; that
the Police Chief had recently received complaints about officers leaving details but, unlike
the Department's response to Romeo leaving his detail, had not initiated an internal
investigation, disciplined any officers or issued any communications regarding this issue;
and that over the years, other officers had left their assigned detail location on many
occasions but none had been disciplined or terminated. The CERB agrees that the
affidavits contain these statements and that the Investigator did not address this
information in the dismissal letter. The CERB has further considered statements in some

5 As noted above, on July 9, 2020, the DLR consolidated MUP-14-4210 with MUP-15
4

CERB Review of P.C Dismissal (cont'd) MUP-14-4210, MUP-15-4652

of the affidavits, which assert that the discipline that the Town imposed on Romeo was
unduly harsh and disproportionate to the alleged offense. Such evidence of disparate
treatment, coupled with the closeness in time between the Town’s discipline and the
dispute between Romeo and the Town over posting grievance-related materials, provides
probable cause to believe that the Town’s conduct violated Section 10(a)(3) and,
derivatively, Section 10(a)(1) of the Law.

For these reasons, the CERB remands these charges to the DLR to issue a
complaint alleging that the Town’s decision to place Romeo on administrative leave in
December 2014 and its decision to terminate him in January 2015 violated Section
10(a)(3) and, derivatively, Section 10(a)(1) of the Law.

SO ORDERED
Very truly yours,

COMMONWEALTH EMPLOYMENT
RELATIONS BOARD

Mee F (ithe,

MARJORIE F. WITTNER, CHAIR

Chan Aicharten

JOAN ACKERSTEIN, CERB MEMBER

Exhibit G

THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS

CHARLES F. HURLEY BUILDING COMMONWEALTH

EMPLOYMENT
19 STANIFORD STREET RELATIONS BOARD
1s" FLoor, Boston, MA 02114
CHARLES D. BAKER PHONE: (617) 626-7132 RE ee
matey juin heel Nevenclidbinae JOAN ACKERSTEIN
. KARYN ee lasagne BoarD MEMBER
Sate OVERNOR www.mass.gov/dir KELLY STRONG
HILIP T. ROBERTS BOARD MEMBER
DIRECTOR July 27, 2020

Harold Lichten, Esq.

Thomas Fowler, Esq.

Lichten and Liss-Riordan, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116

a“ , -

Howard Greenspan, Esq.
220 Broadway, Suite 304
Lynnfield, MA 01940
Saugus, MA 01906

Re: MUP-19-7261, Town of Winthrop and Ferruccio Romeo

Dear Mr. Lichten, Mr. Fowler, Mr. Romeo and Mr. Greenspan:

Ferruccio Romeo (Romeo) appeals from two aspects of a Department of Labor
Relations (DLR) Investigator’s dismissal of the above-referenced charge of prohibited
practice. After reviewing the investigation record, the dismissal and the parties’
arguments on review, the Commonwealth Employment Relations Board (CERB) affirms
one aspect of the dismissal but remands the other aspect to the Investigator to issue a
complaint consistent with this ruling.

Background

This charge concerns the terms under which the Town of Winthrop (Employer or
Town) reinstated Romeo to his position as a police officer with the Town’s Police
Department, where Romeo has served for over twenty years. Romeo also served as
Union president for eleven years, from December 2004 until February 2015. In that

CERB Review of P.C Dismissals (cont'd) MUP-19-7261

capacity, he was involved in contract negotiations and filed grievances. In November
2014, the Town placed Romeo on administrative leave in connection with attending a
contract mediation at the same time he was assigned to work a detail. On January 9,
2015, the Town terminated Romeo. In addition to filing two prohibited practice charges
over the termination, MUP-14-4210 and MUP-15-4652,' Romeo filed a grievance.

On February 26, 2016, an arbitrator issued an opinion concluding that the
Employer had not established just cause for Romeo’s termination. The arbitrator reduced
the discipline to a Letter of Warning and ordered Romeo to be made whole for all lost
wages and benefits less offsetting income. The Town filed a complaint to vacate the
award pursuant to M.G.L. c. 150C. The Superior Court overturned the award. The
Appeals Court subsequently reversed the Superior Court decision and upheld the
arbitration award on May 21, 2018.

On July 22, 2018, the Town reinstated Romeo for pay purposes. On September 8,
2018, the Town reinstated him to duty. On January 21, 2019, the arbitrator issued a
remedy award adopting the Union’s position on backpay owed. On April 11,2019, Romeo
filed the instant charge alleging that, since his reinstatement, the Town had violated
Sections 10(a)(3), 10(a)(4) and, derivatively Section 10(a)(1) of the Law by retaliating
against him for his protected activities in four different ways.2 On April 18, 2019, the Union
filed MUP-19-7277, alleging that the Town was not complying with the arbitrator's remedy
award in violation of Sections 10(a)(1), (3) and (5) of the Law. Romeo and the Union also
sought enforcement of the award in Superior Court. After the Town paid Romeo
$530,000, the Union withdrew MUP-19-7277 before the DLR investigated it.

On March 13, 2020, a DLR Investigator dismissed MUP-19-7261 in its entirety.
Romeo filed a timely request for review of two aspects of the charge: 1) that the Town
had failed to reassign him to certain duties that he had been assigned to before being

1 In Case Nos. MUP-14-4210 and MUP-15-4652, Romeo filed charges respectively in
his capacity as Union President and as an individual, alleging that the Town’s conduct
violated Sections 10(a)(1)-(4) of the Law. The dismissal letter in this matter provides the
complex procedural background of both these cases. In a ruling issued today, the CERB
remanded both charges to the DLR to issue a consolidated complaint alleging that the
administrative leave and termination violated Section 10(a)(3) and, derivatively, Section
10(a)(1) of the Law. The DLR issued the consolidated complaint today.

2 Romeo's original charge in MUP-19-7261 alleged that the Town had failed to bargain in
good faith over a successor collective bargaining agreement in violation of Section
10(a)(5), and derivatively Section 10(a)(1) of the Law. The DLR sent a show cause letter
to Romeo on April 19, 2019, advising him that individual employees have no standing to
file charges alleging that an employer has failed to bargain in good faith. On April 26,
2019, Romeo filed an amended charge alleging that the Town violated Sections 10(a)(1)
(3), and (4) of the Law for interference, discrimination and retaliation for his various
protected activities since his “unlawful and retaliatory termination.”

2

CERB Review of P.C Dismissals (cont'd) MUP-19-7261

terminated; and 2) that the Town failed to permit him to participate in a Civil Service
examination on December 8, 2018 for promotion to lieutenant.

The first allegation concerned two job duties that Romeo performed before he was
terminated: 1) maintaining the Department of Justice Criminal Information Services
(DCJIS) system; and 2) detail maintenance. Before he was terminated, Romeo earned
“Kelly hours,” a form of compensatory time, for performing these duties. Romeo had
performed the DCJIS duties for fifteen years. After Romeo’s termination, Delehanty
reassigned these duties to a lieutenant, who is in a different bargaining unit. Romeo's
detail maintenance duties included adjusting hours, scheduling details and following up
on collections for details that were not paid. Pursuant to a 2010 agreement, the Union
was responsible for pursuing collections. After Romeo’s termination, Delehanty assigned
two other bargaining unit employees to adjust the detail hours. Upon reinstatement,
Romeo asked Delehanty to reassign both the detail and DCJIS duties to him. Although
the Chief and the Deputy Chief indicated that they would, they never did and thus, the
officers who had been assigned to these duties after Romeo was terminated continued
to perform them.

The Investigator dismissed the details allegation because she found no direct or
indirect evidence to support the allegation that the Town refused to reassign these duties
to Romeo because of his concerted, protected activity. She noted that the Union was in
charge of collections, and that Romeo had not been the only bargaining unit member
performing the other detail duties. She also found no evidence of disparate treatment or
animus toward Romeo’s Union activities or the Union generally.

The Investigator dismissed the allegations pertaining to DCJIS responsibilities
based on the considerations that het Town raised, i.e., that it had reassigned those duties
in the intervening years and, once Romeo was reinstated, opted to keep those duties in
a different bargaining unit, rather than reassign them to Romeo.

The Investigator dismissed the allegation pertaining to the lieutenant’s exam on
grounds that M.G.L. c. 31, §59 does not permit persons who have not had one year of
experience as a sergeant to sit for a lieutenant’s exam. Romeo did not directly dispute
this statutory requirement but contended that but for his termination, he would have been
promoted to sergeant, and thus eligible to sit for the lieutenant’s exam. The Investigator
rejected this argument as speculative. She further noted that Romeo had presented no
evidence of disparate treatment, trivial reasons, or evidence of the Town’s animosity
toward the Union or to Romeo’s protected activity.

On review, Romeo argues with respect to the detail duties that the Investigator
failed to consider that, had he not been terminated, he would still have been performing
the detail duties, and the only reason he was not was due to his unlawful termination.
Romeo asserts that the Town’s stated reasons for not reassigning these duties are “red
herrings” because the import of the arbitrators award was to restore Romeo to the
position he would have been in had he not been terminated. Romeo also notes that the
arbitrator's remedy award compensated Romeo for these lost duties.

3

CERB Review of P.C Dismissals (cont'd) MUP-19-7261

Regarding the lieutenant’s exam, Romeo disputes that it was speculative that he
would have attained sergeant rank had he not been terminated.? Romeo also claims
that, to the extent the Town argues that it could not have permitted Romeo to sit for the
exam, he is still owed damages for losing the opportunity to take the exam and be
promoted.

Ruling

The CERB affirms the dismissal of the portion of the charge relating to Romeo’s
sitting for a lieutenant examination. Romeo does not dispute that Civil Service Law,
M.G.L. c. 31, §59, states that only employees who have served for a least a year in the
next lower rank, sergeant, are eligible to take the lieutenant’s exam. Romeo was not a
sergeant as of December 2018, when the exam was held. Furthermore, Romeo appealed
the Town’s decision and the Civil Service Commission denied it. Under these
circumstances, given the statutory prohibition on his taking the exam, even assuming that
Romeo could establish a prima facie case of a Section 10(a)(3)/Section 10(a)(4) violation,
Romeo could not establish that but for his Union or DLR activity, the Town would have
allowed Romeo to sit for the exam.4

We reach a different conclusion regarding the Town’s failure, upon request, to
reinstate Romeo to his former DCJIS duties. As the Investigator explained, to establish
a prima facie case of a Section 10(a)(3) or Section 10(a)(4) violation, the charging party
must demonstrate 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
motivated by a desire to penalize or discourage the protected activity. Town of Carver,
35 MLC 29, 47, MUP-03-3094 (June 30, 2008). It is undisputed that Romeo’s protected
concerted activity in this case includes not only his pre-termination protected conduct as
Union president, but numerous post-termination events of which the Town was aware,
including the Union’s and his involvement in the arbitration proceeding and its aftermath,
and the various prohibited practice charges both he and the Union filed arising out of the
termination.

The only disputed aspect of Romeo’s prima facie case is the fourth element,
unlawful motivation. In the absence of direct evidence, unlawful motivation may be
established through circumstantial evidence and reasonable inferences drawn from that

3 Romeo argues that the CERB should presume he would have been promoted because
he sat for a make-up sergeant exam on October 25, 2018, ranked third on the list despite
having less time to study than other officers, and was promoted to sergeant on December
8, 2019.

4 Romeo’s assertion that he should, at a minimum, be compensated for his inability to
take the exam because he would have been eligible to take it had he not been terminated
is a remedy issue arising out of his termination and not properly raised in this proceeding.

CERB Review of P.C Dismissals (cont'd) MUP-19-7261

evidence. Id. at 48. Several factors may suggest unlawful motivation, including, among
other things, the triviality of reasons given by the employer. Id.

Here, the Town’s main reason for not reinstating Romeo to the DCJIS duties is
that they were already assigned to a lieutenant, and that the arrangement was “working
well.” This is a trivial explanation because it fails to explain why the Town could not or did
not return these duties to Romeo who, prior to his termination, had performed them for
fifteen years. The Town also claims that the arbitration award did not require it to restore
all of Romeo’s former duties. This too is a trivial explanation because, as the Union
correctly notes on review, the point of a make-whole remedy is to restore the situation as
nearly as possible as that which existed prior to the wrongful conduct. Newton School
Committee v. Labor Relations Commission, 388 Mass. 557, 576 (1983) Although, as the
Investigator points out, it is true that Romeo failed to present any evidence that the Town
treated him differently than other bargaining unit members in not reassigning him to these
duties, there is no evidence that any other similarly-situated bargaining unit members
existed. Thus, where it is to be expected that an employer will reassign the duties of a
terminated employee, the triviality and paucity of the Town’s explanation for not restoring
those duties to Romeo, after an arbitrator found no just cause for the termination, provides
probable cause to believe that they were not restored to retaliate against Romeo for the
variety of protected, concerted activity that he has engaged in since 2014 in violation of
Sections 10(a)(4), 10(a)(3) and, derivatively, Section 10(a)(1) of the Law. We otherwise
summarily affirm the Investigator’s decision regarding the detail duties for the reasons set
forth in the dismissal letter.

Conclusion

The CERB affirms the dismissal of that part of MUP-19-7261 alleging that the Town
violated Section 10(a)(4), Section 10(a)(3) and, derivatively, Section 10(a)(1) by not
permitting Romeo to sit for the lieutenants exam or reassigning him certain detail
maintenance duties upon his reinstatement to duty. The CERB remands the allegation
that the Town violated Section 10(a)(4), Section 10(a)(3) and, derivatively, Section
10(a)(1) pertaining to the reinstatement of Romeo’s DCJIS duties to the DLR to issue a
complaint consistent with its ruling.

Very truly yours,
COMMONWEALTH EMPLOYMENT
RELATIONS BOARD

~Meje F lute,

MARJORIE F. WITTNER, CHAIR

CERB Review of P.C Dismissals (cont'd) MUP-19-7261

Chan Aitken

JOAN ACKERSTEIN, CERB MEMBER

APPEAL RIGHTS®

Pursuant to the Supreme Judicial Court’s decision in Quincy City Hospital v. Labor
Relations Commission, 400 Mass. 745 (1987), this determination is a final order
within the meaning of M.G.L. c. 150E, § 11. Any party aggrieved by a final order
of the Board may institute proceedings for judicial review in the Appeals Court
pursuant to M.G.L. c.150E, §11. To claim such an appeal, the appealing party
must file a Notice of Appeal with the Commonwealth Employment Relations
Board within thirty (30)

5 These appeal rights pertain to the CERB’s affirmance of the dismissed
allegations in MUP-19-7261 only. A remand to issue a complaint is not a final
order within the meaning of Section 11 of the Law.

6

Exhibit H

In the Matter of the Arbitration between:

WINTHROP POLICE LOCAL 421

TOWN OF WINTHROP, MASSACHUSETTS

Re: AAA No. 01-15-0002-6830 (Discharge of Feruccio Romeo)

AWARD

There was not just cause for the termination of Officer Ferruccio Romeo. He shall
be given a Letter of Warning for failing to receive authorization for an alternative
location for performing the Pump Detail on November 24, 2014, prior to working
the detail.

He shall be made whole for all lost wages and benefits, less offsetting income. I
shall retain jurisdiction for 30 days to resolve any disputes arising from the award.

fam Eels
February 28, 2016 ruce Fraser ~

Scituate, Massachusetts Arbitrator

2

Winthrop Police Local 421 Arbitration Decision & Award

AAA No. 01-15-0002-6830
Grievance: F. Romeo

Town of Winthrop, Massachusetts February 26, 2016

Hearings were held in the Town of Winthrop, MA on August 24, September 24, October 21,
and November 2, 2015. The Union was represented by Patrick Bryant, Esq., and the Town was
represented by Howard Greenspan, Esq. Post-hearing briefs were received by the Arbitrator on
January 28, 2016.

THE ISSUE

The parties agreed upon the following issue:

Was there just cause for the termination of Officer Ferruccio Romeo?
If not, what shall be the remedy?
THE FACTS

In 2014, the Town of Winthrop, Massachusetts undertook the Winthrop Beach Nourishment
Project funded by the Massachusetts Department of Conservsation and Recreation (DCR). This
project involved moving considerable sand and rock to the Winthrop beach area. In mid-Fall,
2014, it became necessary to add a detail to the daily Winthrop Police Department details in or-
der to assist the traffic in connection with the work being carried out. This detail, known as the
Pump Station detail, required an officer with a cruiser to work out of the D.P.W. pumping station
at the end of Crest Avenue, with license to move about the area as needed.

The Pump Station detail required the officer who had signed up for it on any given day to be

on duty from 9 am until 3 pm-a total of 6 hours-although he was authorized to indicate 8 hours at

3
his signing in at 7 am when he was to report to the DCR office. After signing in, the Pump Sta-
tion detail officers were free to spend the first two hours of the detail as they wished, as long as
they arrived at the pump station by 9 am. The detail required that the officer was to be available
if there was an incident along the truck route that required attention. The detail officer was not
required to remain at the Pump Station, but could cruise along the route as long as the police ra-
dio was on and was able to respond quickly to an incident. A one hour lunch bread was author-
ized as were bathroom breaks, as needed. Generally, work for this detail ceased about 2:30 pm
and the detail officer present was not required thereafter, and was free to leave.

At the time of the incident leading to this grievance, Ferruccio Romeo, the Grievant, had
been a Patrolman for 19 years with the Winthrop Police with an unblemished record, had been
the Union President for some 11 years, and had acquired a law degree and passed the Massachu-
setts Bar during this time. He was not scheduled for a day shift on November 24, 2014, and
signed up for the Pump Station detail for that day. However, as the Union President, he was
scheduled to attend a negotiation session on that date, beginning at 10 am. [Note: The term nego-
tiation will be used throughout to refer to both negotiation and mediation sessions.] He attended
the negotiation session from approximately 10 am to 2:30 pm on November 24, 2014, and did
not go to the Pump Station between 10 and 2+ that day. He submitted a Pump Station detail slip
for 8 hours of work on November 24, 2014.

On November 25, in checking over the detail slips from the day before, Police Chief Terence
Delehanty noticed that Romeo had submitted a slip for 8 hours worked on the Pump Station de-

tail, while for 5 hours of that time, he was engaged in Union-Town negotiations along with the

Chief.

4
On December 1, 2014, the Chief had questioned a number of individuals, including Romeo,
to whom he later wrote the following:
I am writing to inform you that I am placing you on Administrative Leave with
Pay pending the outcome of an internal investigation of a detail you worked on

8/24/14 (sic)

Please turn in your firearm, badge, radio, and I.D. to Sergeant Rogers the Admin-
istrative Sergeant while you are on leave.

I am also ordering you not to discuss this matter with anyone except for your legal
representatives while the investigation is ongoing.

You will be notified when and where your employee interview will take place by
my Office.

On December 9, 2014, Town Manager James McKenna wrote to Romeo informing him that
he would hold a Town Due Process hearing to consider Romeo’s actions on November 24, 2014,
“which might result in discipline including dismissal for just cause.” The hearing was held on
December 18, 2014.

[Note: The following testimony was taken either at the Due Process hearing or at the Arbitration
hearing and is interpolated unless indicated otherwise. }

At the Town hearing, the Chief testified that on November 25, 2014, he realized that he saw
Romeo at the negotiation session while the detail slip indicated he was on detail duty. On De-
cember 1, 2014, he called Romeo to his office, offered him Union representation, which he re-
fused, but stated that he wanted to explain the matter. The Chief stated that Romeo explained
that it was his understanding from speaking with Manager Steve Colometo and Mike Vickery of
DRC that the Pump Station detail was a floating detail, one where you didn’t have to remain in

one place, but as long as you were available to respond, you need not remain in a specific loca-

5
tion. The Chief stated that Romeo felt that because he understood it was a floating detail, that he
hadn’t done anything wrong.

Pursuant to his investigation, the Chief telephoned a number of individuals with Lt. Perrin in
the room. [Perrin presumably heard only one side and was not asked to be a witness at either
hearing.] The Chief testified that he called the DCR Resident Manager Steven Colometo who is
in charge of the Winthrop Beach Project. According to the Chief, Colometo explained that the
purpose of the detail was to monitor truck traffic specifically from the Pump Station location,
and when asked if it was a floating detail, replied that no, it was a stationary detail. Colometo
said he did not recall talking to other officers about it being a floating detail. His memo, dated
October 6, 2014, states, in part, that “Winthrop shall have | detail at Short Beach near D.P.W.
building with a cruiser.”

The Chief also spoke with DCR Inspector Mike Vickery who works for Colometo who stated
it was a stationary detail to monitor truck traffic on Crest Ave. When asked specifically whether
or not he informed the detail officers if they could perform their duties on a floating basis, he did
not directly answer the question, but said that it was a stationary post.

When questioning Officer Feeley about his understanding of the detail, Feeley stated that it
was a Stationary post and that the officer was expected to remain on the post except for bathroom
and lunch breaks. When Officer Defreitas, he replied that the detail was called the “Pump Sta-
tion” and that’s where he thought he should be. Inquiring of Lt Frank Scarpa what he believed
that pump station detail entailed, he replied that you were assigned there to respond to emergen-
cies, “that you were like a one-man strike force, that if anything happened along the truck route

that, you would respond and take care of it. When asked by the Chief if it was his understanding

6
that it was a stationary post, Scarpa said “You had to be there.” From these responses, the Chief
stated that he drew the conclusion that Romeo’s version was not viable.

When questioned at the arbitration hearing whether or not the Pump Station detail was dif-
ferent from the other details, Sergeant Arthur Hickey stated, “The job is to go to the pump house,
take a cruiser, go to the pump house and just sit there. And should an emergency arise, they send
you for anything along the truck route involving the DRC.” When asked if Romeo, while at the
negotiation at the Town Hall, would be able to respond if there were a call to Pump Station de-
tail, Hickey’s response what “Oh absolutely... We're talking a short distance here had there even
been an issue along the truck route or anywhere else in town for that matter.” When asked if it’s
a “roaming detail,” he did not answer directly, but pointed out that it’s kind of crazy sitting in
one spot for eight hours.” On cross examination, he acknowledged that he never advised an of-
ficer assigned to the Pump Station detail that they didn’t have to go there.

When questioned under cross-examination, the Chief admitted he did not have any docu-
ments describing what the Pump Station detail consisted of, and stated that he was not aware
that the officer on this detail is seldom called upon to do anything. He did acknowledge that after
the Romeo incident, he ordered a supervisor to be hired for these details

When cross-examined about the discipline imposed on various officers, the Chief acknowl-
edged he followed a policy of progressive discipline, although he stressed that where you began
would depend on the severity of the event, and the person’s willingness to accept responsibility,
and their willingness to be retrained.

The Chief stated that discipline is commensurate with the infraction, and “when a person

recognizes they have done something wrong and is willing to accept responsibility for that is dif-

7
ferent, much different in my view, than a person who as not accepted responsibility. He contin-
ued, that “when you’ve recognized you did something wrong and you recognize that you
shouldn’t have done that, you won’t repeat it. A person who doesn’t recognize that will repeat it
(the behavior), and I think the goal is to make sure the behavior’s not repeated.” He did not agree
that the fact that he had assigned a supervisor for these details after the Romeo incident meant
that the failure of supervision bore some responsibility for Romeo’s event.

At the Town hearing on December 18, 2014, the Grievant, Ferruccio Romeo, testified that he
had never put a slip in for a detail he didn’t work, that he had worked that detail on November
24, 2014, and stated that he had worked the Pump Station detail three times before that week.

Romeo testified that his understanding of the detail is that it was a mobile detail, it did not
have a fixed post.” He continued that

My belief, based on the information that I had, was that I would be able to fulfill
the requirements of that detail because it was a mobile detail and because of the
distances involve...in case any emergency responded (sic), | would be available
within a general radius of the actual work site.

Romeo testified that when he met with the Chief in his office along with Lt. Perrin, he was
informed that he was being placed on Administrative Leave pending an investigation involving
the detail slip he had submitted. After receiving the Chief's permission to explain his position,
he explained what he had been informed of the detail and stated to the Chief that he “should
know that I would never put in for a slip without actually working a detail.” Romeo continued
that he then explained to the Chief his understanding of what the detail consisted of, in particu-

lar, that he had been informed by Colometo, Vickery, and Lessard that the only responsibility for

that detail was to be available for emergencies.

8

At this point Romeo stated that the Chief left the room saying “Let me see if I can at least re-
scind the Administrative Leave portion.” He returned a short time later, explained that he was
counseled against doing it, and thereupon implemented the Administrative Leave.

Romeo testified on direct examination that on November 24, he followed his usual practice:
he arrived at the station at 7 am, picked up an available cruiser (in this case Winthrop 9-4), then
went to the DCR trailer at Mermaid and Shore where he submitted his slip for the day, putting
the start time of 7 am on the slip but leaving the end time for the DCR official to enter. He then
left, keeping his radio on, and returned to the Police Station about 9:45. When asked on indirect
examination to repeat the events of the morning, he repeated the same chronology, although ad-
mitting that his recollection was perhaps at times faulty.

On redirect examination at the Due Process hearing, the Chief testified that the video and
card access controls for November 24, show that Romeo had arrived at the Police Station park-
ing lot at about 7:24 am in his personal vehicle, entered the police building at 7:29, and left the
building at 8:21. Then, at 9:28 he entered the police parking lot again, entered the police build-
ing at 9:32, and at 9:54 he exited the building to attend the negotiation.

At the arbitration, hearing Romeo agreed with the chronology given by the Chief, explaining
that he had been asked to recall a morning of nearly a month earlier after he had already per-
formed the Pump Station detail three times before that week, and was upset and concerned with
the actual details of the day that followed. He explained further that because the Chief had for-
bade him access to the relevant documents, he just repeated his usual routine. Once he checked
the documentation which was made available to him only in mid-January 2015, he recognized

his error, which he acknowledged at the arbitration.

9

Romeo testified at the arbitration hearing about the morning prior to the negotiation. He stat-
ed that he entered the Winthrop Police Station wearing his uniform and carrying a radio, he
spoke with Lt. Perrin, informing him that he was going over to the negotiation, but did not men-
tion specifically that he was on a detail. He also did not notify either Colometo or Vickery that
he would be attending a negotiation for part of the day. He noted that, looking back on the day,
he should have informed them.

Romeo testified that the negotiation lasted until about 2:30, much longer than everyone had
expected. He left the Town Hall, turned in his keys to the cruiser, and left the area. He drove by
the pump station on his way out of town, about 2:30, but he saw no activity. He stated that he re-
ceived no detail calls on that day and submitted the DCR slip for the detail, for 8 hours.

Romeo once again testified at the arbitration hearing that it was his understanding that it was
a mobile detail and not fixed. When asked what various people told him to lead him to believe it
was a mobile and not a fixed worksite, he stated that when he inquired of Colometo the respon-
sibility of the officer with the cruiser, Colometo replied that he just wanted the officer to be
available if something should happen, stating, “I don’t want to get one of your shift officers tied
up. So just be available.” Romeo reported that when he checked with Lt Lessard, the officer
stressed that you have to be available. He added that he had not received any information from
the Chief or Lieutenants as to what responsibilities were attached to this detail.

Romeo again stated that it was his belief that he “could perform the detail being mobile pret-
ty much anywhere in town because it’s only 1.8 square miles.” He added that when he previously
had worked this detail, he spent roughly several hours at the Pump Station, and the rest of the

time was mobile throughout Winthrop.

10

When asked on cross examination if, according to his understanding, it would permissible to
stay in a house in Winthrop all day as long as he were available, Romeo responded that it could
satisfy his detail obligation but he would not do it — it would be inappropriate.

Lt. Scarpa was asked what he would do if he had been in charge of Romeo when he came in
to the negotiation in uniform, with a cruiser and a radio: how would he deal with it? He stated
that he would determine where Romeo was supposed to be working, and if he had permission to
leave the post. When asked how he would handle Romeo’s case specifically, he would have
counseled Romeo that he should leave or get back to where you were or whatever. He stated,
“but I assumed everybody at the meeting knew that he was on that detail.” He stated further that
if he were not notified but became aware that Romeo was on detail, he would talk to him, would
tell him that he had been at the negotiations for an awful long time and that he should notify the
appropriate people so they could make arrangements. I guess I’d give him a warning, I would
counsel him. “I would say that you would start off with a verbal, written, and then go from there.

On cross-examination, Scarpa stated that he had done several Pump Station details and that
the Chief had asked him what his understanding was concerning the responsibilities of the detail.
He replied that it would be a fixed post, but you could from time-to-time leave it to check the
route. He stated that he would leave it occasionally during the course of an eight hour shift but
he felt that his obligation was to be in the general area of the pump station. “It said pump station;
otherwise it would have just said patrol.” And, when asked if he would sanction an officer bill-
ing for a private detail that he wasn’t present for, Scarpa said no.

As a result of the Due Process hearing, on January 9, 2015, McKenna dismissed Romeo as a

Police Officer for the following reasons:

11

1. On November 24, 2014, you submitted a voucher for a detail slip for pay for 8
hours pay in the total amount of $344 for a detail at the Short Beach Pump Sta-
tion. During the time that you billed for this detail, you were not present at the de-
tail. Billing for services rendered without being present constitutes unacceptable
judgment fraud, and conduct unbecoming a police officer.

2. The above referenced conduct constitutes a dishonest act which is contrary to
the trust that citizens put in public safety officers.

3. You specifically stated that the engineers from the Commonwealth of Massa-
chusetts stated to you that it was unnecessary for you to be physically present at
the detail. Your statement was specifically contradicted by the DCR resident en-
gineer as well as the DCR inspector. Your assertion that you didn’t have to be
present at the detail was also specifically contradicted by other members of the
Police Department.

4. Your statements during the disciplinary investigation and the hearing were un-
truthful which in and of itself constitutes just cause for your dismissal.

5. The above referenced conduct violates the rules and regulations of the De-
partment, specifically 1.4.8 integrity, 1.11.2 personal behavior, and 1.11.113 con-
duct unbecoming an officer.

The above referenced conduct constitutes just cause for your dismissal as a police
officer. Specifically, there is a strong public policy against employing police of-
ficers who are untruthful.

The Town had never previously notified Romeo that he was contemplating discipline for un-

truthfulness.
On January 16, 2015, Officer Romeo grieved his dismissal. It reads, in part, as follows:

On January 12, 2015, I received, via U.S. Mail, written Notice from Town Manag-
er James McKenna, dated January 9, 2015, that he had decided to dismiss me after
he allegedly reviewed all the evidence presented at a disciplinary hearing he pre-
sided over as the Appointing Authority on December 18, 2014....The Notice did
not include an effective date of dismissal. I was never interviewed during the in-
vestigation that was initiated and conducted by Chief Terence M. Delehanty and
Chief Terence M. Delehanty was the only witness to testify on behalf of the Town.
I was ordered not to talk about the alleged investigation or the alleged incident on
December 1, 2014, except for my legal counsel, by Chief Terence M, Delehanty,
which is a violation of my due process rights to prepare a defense and confront

witnesses. I was never allowed or able to cross examine any alleged parties inter-
viewed for the alleged investigation. The disciplinary hearing conducted on De-
cember 18, 2014 was biased and not factual. The facts are in dispute and Chief
Terence M. Delehanty testified untruthfully and has been biased against me for
several years that further create suspicion of his evil motives and intent. This deci-
sion is also after I was threatened by Town Manager James McKenna on January
7, 2015 during a phone call discussion that he placed to me at my home at 9:15
p.m. that if I did not accept a 30 day suspension he would be forced to terminate
me as long as I released the Town of all my pending legal matters against them.
(sic) He also attempted to coerce me by mentioning my loss of healthcare and
pension... The decision to dismiss me is without just cause, procedurally flawed,
and contrary to Law

When the parties were unable to resolve the grievance, the Union appealed to arbitration.

The following provision of the parties Agreement is relevant:

Article XXXV - Disciplinary Action

No permanent employee shall be removed, dismissed, discharged, suspended or
charged in any manner except for just cause and at any hearings or interviews at-
tendant thereto the police officer will have an opportunity to have an attorney pre-
sent on his behalf.

12

The following provisions of the Winthrop Police department — Rules and Regulations are rel-

evant:

Section 1.4.8 Integrity — no Department member shall under any circumstances
make any false official statements or intentional misrepresentation of facts;

Section 1.11.2 Personal Behavior — Each member shall while on duty conduct
him/ herself in a manner that will reflect credit on themselves and the Winthrop
Police Department. No employee shall engage in conduct which tends to bring the
Department into disrepute or reflects discredit upon the members of the Depart-
ment or which tends to impair the operation or efficiency of the Department or
the employees;

Section 1.11.13 Conduct Unbecoming an Officer — Members shall not commit
any specific act or acts of immoral, improper, unlawful, disorderly, or intemper-
ate conduct, whether on or off duty, which reflect(s), discredit or reflect(s) unfa-
vorably upon the member, upon othermembers, oruponthe police department. Members shall

13

conduct themselves at all times, both on and off duty, in such a manner as to re-
flect most favorably on the department and its members.

Conduct unbecoming a member shall include that which tends to indicate that the
member is unable or unfit to continue as a member of the department, or tends to
impair the operation, moral integrity, reputation or effectiveness of the depart-
ment or its members.

The following article of the Winthrop Police Department — Detail Policy, is relevant.
ARTICLE IX. VIOLATION GUIDELINES

Progressive discipline shall apply for all violations of these rules and regulations,
policy and procedures or orders of the Chief of Police.

CONTENTIONS OF THE TOWN

The Town contends that the removal of the Grievant was for just cause. Specially, it charges
him with (1) filing a false detail slip; 2) lying to the Chief during the course of his investigation;
and (3) lying at the Due Process hearing held by the Town of Winthrop to determine his disci-
pline. I will consider them in turn.

Charge 1.

The charge of filing a false detail slip was based on Romeo’s submission of a detail payment
slip for the amount of $344 for a day’s work on November 24, 2014, in which he indicated that
he had worked 8 hours of detail duty, whereas for at least 4 of these 8 hours he was attending a
negotiation session in Town Hall.

Romeo claimed that the detail was a “floating detail,” which permitted him license to roam
in the vicinity of the truck route in his cruiser while waiting for a call from the dispatcher that he

was needed, and argued that the Town Hall was positioned in an acceptable location to wait for a

14
radio summons. His contention that the detail was to be labeled a “floating detail” was not sup-
ported by other police officers or DCR employees and must be considered a false claim.

The Chief testified that officers on a shift for the Town or detail duty could participate in ne-
gotiations, usually over their lunch break, but he was aware of no policy that would allow an of-
ficer on detail for the third party to participate in negotiations. Based on this testimony and facts,
Romeo was charged with filing a false detail slip.

The Town contends that the submission of the detail bill by Romeo for service not rendered
constituted unacceptable judgment, and conduct unbecoming a police offer, and that his conduct
also violated Department Rules of Conduct. The Town maintains that the Grievant violated these
rules and regulations when he submitted a false detail slip for 8 hours of work on November 24,
2014. It maintains that Police officers are required to refrain from indictable conduct... they im-
plicitly agree that they will not engage in conduct which calls into question their ability and fit-
ness to perform their official responsibilities.

Charge 2.

The Town contends that Romeo lied to the Chief during the course of the investigation, spe-
cifically with respect to the duties and responsibilities of the detail. According to the Chief at the
investigation on December 1, 2014, Romeo told him that the detail was a “floating detail” and he
was not required to be at a specific location. He also informed the Chief that he had spoken with
Manager Colometo as to his responsibilities on the detail. The Chief stated he also interviewed
Colometo (by phone) who told him that the purpose was to monitor truck traffic specifically
from that location. The Chief also reported that when he asked if it was a “floating detail,” Co-

lometo said no and that he had not advised officers that it was a floating detail.

15

The Town further claims that Romeo’s testimony to the Chief of what Colometo had told
him was completely contradicted by Colometo at the arbitration who, among other things, testi-
fied that he never told Romeo that he wasn’t supposed to be either at the Pump Station or on the
truck route.

Charge 3.

The Town contends that Romeo lied during the Town hearing when he testified as to his ac-
tivities on the day before the negotiation began. According to Romeo’s testimony at the Due
Process hearing, he got his slip signed at the DCR offices, picked up a coffee and bagel, went to
the pump station, and remained there until about 10 am when he went to Town Hall for the ne-
gotiation.

The Town revealed at the end of the Due Process hearing that the video and door access con-
trols on the Police Station show that Romeo entered the police parking lot at 7:24 am in his per-
sonal vehicle, entered the police building at 7:29, and left the building at 8:21, Then, at 9:28 he
entered the police parking lot again, entered the police building at 9:32 and at 9:54 he exited the
building to attend the negotiation next door, The Town contends that this recitation of his
whereabouts for the 3 hours (7-10 am) before the negotiations began, is a complete fabrication
and lie.

More generally, the Town continues that if the only misconduct of Romeo was filing a false
detail slip (Charge 1), there would be some grounds for reversing the dismissal based on the
principles of progressive discipline. However, it argues that due to this untruthfulness, it would

violate public policy to reduce the discipline and to reinstate Romeo.

16

The Town offers several cases where there has been a ruling against a police officer who has
lied. The Town states that police officers who lie on a police report filing criminal charges and
lying under oath are all felonies and Courts have ruled that it would be a violation of public poli-
cy permitting someone who committed such as act to work as a police officer. Put simply, the
Town asserts that Romeo’s proven record of dishonesty prevents him from useful service as a
law enforcement officer.

In sum, the Town concludes that Romeo submitted a fraudulent request for detail reim-
bursement, lied about the lack of need for an officer to be present during this detail, and further
lied about his whereabouts on the day in question.

Finally, the Town rejects the assertion by the Union that the Town’s actions were in retalia-
tion for carrying out his duties as Union President. Although there was evidence presented that
the Grievant and the Chief had locked horns a number of times, there was no evidence of retalia-
tion against Romeo for his diligence doing his Union President’s job.

CONTENTIONS OF THE UNION

The Union contends that Officer Ferruccio Romeo, a veteran police officer and Union Presi-
dent with a spotless personnel record, was not terminated for just cause when he attended a ne-
gotiation while assigned to a detail. It maintains that he violated no actual or known policy, his
conduct was consistent with conduct allowed by other officers, the investigation of the matter
ignored contrary evidence, and the punishment far exceeded progressive discipline, in particular
the punishment meted out to officers for similar or more severe conduct, such as for insubordina-

tion, lying, or unexcused absences. The Union also maintains that the animosity between the

17
Chief and Romeo which has existed for years, surely contributes to the severity of the punish-
ment.

The Union contends that the Town failed to establish that Romeo violated a policy of the
Department, or that it was completely unreasonable for him to believe that officers could attend
a negotiation while assigned to a detail (especially a non-stationary detail). The only dispute
about the mobile nature of the detail is, with radio contact in case Romeo was needed and a
cruiser at his disposal, whether he could go to a negotiation meeting in Town Hall and remain
for an extended period of time. There is no question that officers on detail have spent their lunch
hour at negotiation sessions, some for longer stretches.

The Union further contends that the Town’s contention that Romeo was untruthful during the
investigation, the Town’s termination hearing, or the Arbitration hearing, do not rise to the level
of deliberate lies, intended to deceive the Town about the facts at issue here. In particular, Ro-
meo’s statements about the Pump Station were consonant with the DCR representative and fel-
low police officers. In addition, his original statements concerning his whereabouts during the
period of 7-10 am on November 24, while inaccurate, were not intended to mislead, and were a
byproduct of the Town preventing him from adequately preparing for the hearing. Moreover, the
Town Manager did not point to this discrepancy as contributing to his decision to terminate.

In addition to failing to provide requisite notice of the untruthfulness charges, the Union
agues the Town’s case suffers from the following defects: 1) The Chief never formally inter-
viewed Romeo, despite a written promise to do so; 2) The Chief never interviewed the supervi-
sors on the shift in question, which would have confirmed that they knew Romeo was at the ne-

gotiations; 3) The Chief did not interview all the people who worked the Pump Station detail, or

18
examine the past practice of officers attending negotiations while on a detail; 4) The Chief never
disciplined supervisors for allowing Romeo to attend negotiations while assigned to a detail.

Finally, the Union contends that the termination of Romeo was inconsistent with the com-
mitment to progressive discipline. The offense of attending a negotiation while on a non-
stationary detail cannot be regarded as an inherently serious act, as illustrated by the Chief's
permission for other officers to do so in past negotiations. Moreover it is inconsistent with the
discipline imposed on other officers found to be AWOL, or untruthful, and the penalty is not
supported by Romeo’s blemish-free performance history. In fact, Romeo’s forthright admissions
about his conduct argue against termination.

Here, the Town claimed it terminated Romeo for attending contract negotiations while as-
signed to a detail, and for making false statements about the nature of the detail and his wherea-
bouts that morning. While the Town phrased its charges in various ways, the case boils down to
two charges: 1) attending negotiations while assigned to a detail is conduct unbecoming and/or
dishonest; and 2) Romeo’s December | statement about his conversation with Colometo and his
December 18 statement about his November 24 whereabouts from 7:30-8:20 am, were untruth-
ful. Both charges fail on procedural and substantive grounds.

DISCUSSION

The Town contends that the removal of the grievant was for just cause. Specially, it charges
the Grievant with (1) filing a false detail slip; 2) lying during the course of the investigation; and
(3) lying at the hearing held by the Town of Winthrop to determine his discipline. I consider

them in turn.

19

The first charge is that Officer Romeo submitted a false detail slip. Referring to Black’s
Law Dictionary, we find the following:

FALSE - In law, this word usually means something more than untrue: it means

something designedly untrue and deceitful and implies an intention to perpetrate

some treachery or fraud... The word “false” has two distinct and well recognized

meanings: (1) intentionally or knowingly or negligently untrue; (2) untrue by mis-

take or accident or; honestly after the exercise of reasonable care...

False Token —a false document or sign of the existence of a fact

The statements above capture the essence of what I take is meant by the Town’s accusation

that the Grievant submitted a “false slip.” The claim is that the Grievant knowingly and deliber-
ately submitted a document stating that he had worked the Pump Station detail from 9-2+ on
November 24, 2014, when in fact he had not.

What is meant by “working the Pump Station detail”? The Grievant correctly believed that
he should be on the ready to respond to any incident along the truck route. He also believed that
being present in the Town Hall on November 24 would fulfill the requirements of working the
detail: he had radio contact with the dispatcher, although he was not called that day; he was in
very close proximity at all times to the truck route he was assigned to assist in case of difficulty;
he had a cruiser at his disposal; and he was free to respond if called.

It was Romeo’s belief that his physical location, while waiting for a call, was flexible: he be-
lieved that the Town Hall was an acceptable location, and that it was reasonable to position him-
self there, given the requirements of the detail. He offered the following: “I could perform the
detail being mobile pretty much anywhere in town because the town is only 1.8 square miles.”

When asking DCR manager Colometo to characterize the responsibility of the Pump Station de-

tail, Romeo recalled him saying words to the effect, I just want you to be available if something

20
happens. I don’t want to get one of your shift officers tied up. So just be available. Colometo
made it very clear that a primary requisite of this detail is that the officer assigned should always
be available to respond.

The critical question here is the following: Was Romeo working the Pump Station detail
when he was working the detail from the Town Hall? I find in the affirmative. He was perform-
ing all the tasks of working the detail for some 5 hours that day, albeit from an unapproved loca-
tion. There was no protestation from either the Town or DCR that the detail had not been per-
formed satisfactorily.

However, Romeo did not ask for nor receive approval from the DCR personnel or the shift
commander for this change of venue before he opted to make the change. It was a mistake not to
do so, disobeying the verbal instructions he had been given by Colometo. But I do not find him
dishonest when he acted on his belief that he could use the Town Hall as his base from which he
could execute the detail. He was, in the words of Colometo, “available” the entire shift. I find
that he fulfilled the tasks of working the Pump Station detail that day, albeit from a location that
had not been approved, and was acting honestly when he submitted the DCR bill for November
24, 2014.

It is worth noting that because he was engaged in working the Pump Station detail while at-
tending the negotiation, the issue of detail time spent by him at the negotiations that was raised
is not relevant. He was carrying out the detail for the hours required, while at the same time, par-
ticipating in the negotiations.

The second charge brought by the Town is that Romeo lied to the Chief during the course of

the investigation conducted by the Chief on December 1, 2014. According to the Chief’s testi-

21
mony, Romeo explained that it was his understanding of the detail, gained from speaking with
Manager Steve Colometo of DCR, that he characterized the detail as a floating detail: a detail
where you didn’t have to remain in one place as long as you were available. Because he under-
stood it to be a floating detail in this sense, he didn’t believe that he had done anything wrong on
November 24 when he worked the detail from the Town Hall.

Romeo also informed the Chief that he had spoken with Manager Colometo as to his respon-
sibilities on the detail. When asked what he said to Colometo, he responded,
I asked Mr. Colometo what was required of the officer with the cruiser. I did not
say anything about a location. I asked him what’s the responsibility of the officer
with the cruiser. And he stated to me as I just want it to be available if something
happens. I don’t’ want to, you know, I don’t want to get one of your shift officers
tied up. So just be available.
In addition, Romeo testified at the Due Process hearing in response to a question about how he
could work the detail on November 24 and yet attend the negotiation, replied,
My belief, based on the information that I had, was that I would be able to fulfill
the requirement of the detail because it was a mobile detail and because of the
distance involved: [and] in case [of] any emergency response, I would be availa-
ble with[in] a general radius of the actual work site.
I can find no testimony from Romeo where he asserted that Colometo gave him permis-
sion to work the detail from other than the Pump Station.
According to the Chief, Colometo, who was interviewed on the telephone on the same day,
December 1, explained that the purpose of the detail was to monitor truck traffic and emergen-

cies along the truck route primarily from the Pump Station location. When he inquired if it was a

floating detail, the Chief stated that Colometo replied no, it was a stationary detail.

22

No one, neither Romeo, Colometo, nor the Chief, provided a definition (or definitions) of a
floating detail as it applies to police work. (Black Law Dictionary and Google also fail to do so.)
But in my view, a definition is irrelevant. It is clear that Romeo believed, albeit erroneously, that
the detail gave wide latitude as to where the officer might work from, and this is what he con-
veyed to the Chief. Colometo, on the other hand, expected the officer to sit at the Pump Station
or drive on the truck route. This was Colometo’s testimony at the arbitration hearing a year later.

On December 1, 2014, Romeo simply gave his opinion to the Chief about the detail based on
conversation with Colometo. He did not state affirmatively that the detail was a “floating detail,”
and never asserted that Colometo agreed with him, but only offered that as a way of describing
it. I find that he did not lie to the Chief during the investigation on December 1, 2014.

The third charge brought by the Town is the contention that Romeo lied during the Town
Hearing on December 18, when he testified to his pre-negotiation activities on November 24.
According to Romeo’s testimony at the Due Process hearing, he picked up his cruiser, got his
slip signed at the DCR offices, picked up a coffee and bagel, went to the pump station, and re-
mained there until about 10 am when he went to Town Hall for the negotiation. The Town re-
vealed at the end of the Due Process hearing that the video and door access controls on the Po-
lice Station show that Romeo entered the police parking lot at 7:24 a.m. in his personal vehicle,
entered the police building at 7:29, and left the building at 8:21, Then, at 9:28 he entered the po-
lice parking lot again, entered the police building at 9:32 and at 9:54 he exited the building to at-
tend the negotiation next door. The Town contends that his recitation of his whereabouts for the

3 hours (7-10), the time before the negotiations began, is a complete fabrication and lie.

23

Romeo testified at the arbitration hearing that the Town’s statement of his whereabouts on
November 24" were indeed correct, and he had erred on his recollection on December 18. He
pointed out that the testimony he gave at the time recalled from events of almost a month before,
that this was the fourth Pump Station detail he had worked that week, and because the Chief
froze his access to all documents until January 22, 2015, he was not able to refresh his memory
using the video and door access monitor records before the Town hearing on December 18,
2014. Instead, he simply repeated what he had done the previous times he had worked the detail.

Although Romeo’s testimony at the Town hearing was inaccurate, I do not find it was in-
tended to deceive. Rather I find that it was a failure to recollect accurately what had occurred on
the morning in question. He had nothing to gain by offering this incorrect account of his activi-
ties between 7-10 am that morning. His time was his own between 7 am and 9 am and returning
at about 9:30 am to prepare for the negotiations with his lawyer would be expected.

Moreover, the Grievant is a lawyer, he has dealt with interrogations and lying for years in his
capacity as the Union President, and he is well aware of what perjury is, and what damage per-
jury can bring to a police officer. He was aware that lying in these circumstances could potential-
ly jeopardize his career as a police officer. Once he saw the video and keycard records infor-
mation from that morning, days after the Due Process hearing, he realized that he had misspoken
during the Town hearing.

I find the inaccuracy of the testimony reflecting what actually occurred the morning of No-
vember 24 was contributed in large part due to the Town preventing him access to the video and

keycard records before the Due Process hearing. I find no deliberate misrepresentation on his

part.

24

In summary, | find that Charge 1, that the Grievant filed a false detail slip on November 24,
2014, was not proven. Romeo worked the Pump Station detail from start to finish, albeit from an
unauthorized location, the Town Hall, with no apparent defect.

He was aware that the intention of Colometo was to have an officer at the Pump Station or
on the truck route, yet he chose not to seek prior authorization for a change of location to the
Town Hall, from either the DCR or his shift commander, but worked the detail from that unau-
thorized location. For this action, he shall be given a Written Letter of Warning for not following
the Pump Station guidelines.

I find that Charges 2 and 3 were not proven by the Town.

AWARD
There was not just cause for the termination of Officer Ferruccio Romeo. He shall
be given a Letter of Warning for failing to receive authorization for an alternative
location for performing the Pump Station detail on November 24, 2014, prior to

working the detail.

He shall be made whole for all lost wages and benefits, less offsetting income. I
shall retain jurisdiction for 30 days to resolve any disputes arising from the award.

te a

Scituate, MA / Bruce Fraser
February 26, 2016 Arbitrator

Exhibit I

COMMONWEALTH OF MASSACHUSETTS
COMMISSION AGAINST DISCRIMINATION

MCAD and NANCY DALRYMPLE,

Complainants
v. Docket Nos.: 02-BEM-03751
05-BEM-01174
TOWN OF WINTHROP,! 05-BEM-02944
Respondent

Appearances: Jonathan J. Margolis and Beth R. Meyers, Esqs. For Complainant
Michelle Randazzo and Peter E. Montgomery, Esqs. For Respondent

DECISION OF THE HEARING OFFICER

I. PROCEDURAL HISTORY

On November 7, 2002, Nancy Dalrymple (“Complainant”) filed a complaint with
the Massachusetts Commission Against Discrimination (“MCAD”) charging that the
Town of Winthrop discriminated against her on the basis of gender and retaliated against
her for filing prior complaints alleging discrimination.” On April 28, 2005, Complainant
filed additional charges of gender discrimination and retaliation against the Town of
Winthrop and individually-named respondents.* On November 4, 2005, Complainant
filed a third charge of gender discrimination and retaliation against the Town of Winthrop
and individually-named respondents.’ A lack of probable cause finding was issued in the

first complaint on March 11, 2004 but was reversed after appeal on September 30, 2005.

‘ At the commencement of the public hearing, the parties agreed to release the individual respondents from
the case.

> MCAD Docket No. 02-BEM-03751.

* MCAD Docket No. 02-BEM-01174.

* MCAD Docket No. 05-BEM-02944

On December 21, 2007, a preliminary disposition was issued in the second complaint in
which the claims against individuals David Goldstein, Richard DiMento and Virginia
Wilder were found to lack probable cause but the claims against the Town were found to
have probable cause. A probable cause finding was issued by the Investigating
Commissioner in the third complaint on September 2, 2010.

The cases were certified for a public hearing on January 28, 2008, February 10,
2009, and August 23, 2011, respectively. It was determined that the matters would be
consolidated and heard together. The public hearing commenced on July 8, 2013 and
continued on July 9, 11 and 15, 2013. On the first day of hearing, Complainant moved to
dismiss claims against individually-named Respondents Virginia Wilder, Martin O’Brien,
Brian Perrin, and Susan Bolster. The motion was granted.

The following witnesses testified at the public hearing: Complainant, Michael
McManus, Virginia Wilder, Stephen Rogers, Paul DeLeo, Susan Bolster, Frank Scarpa,
and Ronald Vecchia. The parties submitted Joint Stipulations of Fact and forty-nine (49)
agreed-upon exhibits. In addition, Complainant submitted five (5) additional exhibits and
Respondent submitted three (3) additional exhibits. Two (2) chalks pertaining to Paul
DeLeo’s promotion to lieutenant were also submitted.

Based on all the relevant, credible evidence and the reasonable inferences drawn
therefrom, I make the following findings and conclusions.

Il. FINDINGS OF FACT

1. Complainant became a permanent police officer in the Town of Winthrop in
1982. Transcript I at 27. For a number of years she was the only woman on the

force. Transcript II at 42. Complainant has a Bachelor of Arts degree and a

Master of Science degree in the fields of political science and criminal justice
administration. She attended the police academy and holds certificates of
completion in areas of first aid, fingerprinting, breathalyzer operation, and
investigation of sex offenses. At various times during her tenure with the
Winthrop Police Department, she was the police union vice president and member
of the police union executive board. At the time of public hearing she was the
second most senior member of the Department. Only Lieutenant Frank Scarpa
had more seniority. Joint Exhibit 11.

. Prior to January 1, 2006, the Winthrop police chief reported to the Winthrop
Board of Selectmen which functioned as the Appointing Authority for the
Winthrop Police Department. The chief could not hire or promote without the
Board’s approval. Transcript II at 94. Although the Board of Selectmen was
technically the Appointing Authority, it deferred to the Chief’s recommendations
regarding the appointment and promotion of police personnel. The Board of
Selectmen was a part-time entity administered by an executive secretary. Virginia
Wilder served as the Board’s executive secretary from 1989 to January 1, 2006.
Wilder was the conduit between department heads and the Board of Selectmen.
She knew about litigation brought by Complainant against the Town, attended
Complainant’s jury trial against the Town, and testified at the MCAD in regard to
previous claims brought by Complainant. Transcript II at 162-167. On January 1,
2006, the Town changed to a town council form of government and abolished the

Board of Selectmen. Transcript II at 93.

3. The Winthrop Police Department operates under the provisions of Massachusetts
civil service law. Joint Stipulation 35. In 1987, Complainant took, but did not
pass, a civil service examination for promotion to police sergeant. Transcript I at
36.

4. In 1989, Complainant filed an MCAD complaint alleging that she was treated
differently from other members of the Winthrop Police Department in regard to
such matters as executing arrest warrants and participating in drug raids. The
charge went to public hearing and resulted in an award of $25,000.00 in damages

and an additional award for attorney’s fees. See Dalrymple v. Town of Winthrop,

15 MDLR 1473 (1993). The award was upheld on appeal. See Town of

Winthrop v. MCAD and Dalrymple (Suffolk, ss, CA 965667C, November 1998,

Cratsley, J), affirmed Town of Winthrop v. Dalrymple and another,

Memorandum and Order pursuant to Appeals Court Rule 1:28 (Doc. No. 99-P-
280, December 28, 2000).

5. Between 1990 and 1991, Complainant brought several additional charges to the
MCAD pertaining to a shift reassignment, the omission of her name in regard to
firearm recertification, and the refusal to reassign her to the station during her
second pregnancy.

6. In August of 1992, Complainant was terminated from her position as police
officer for “conduct unbecoming” in regard to her alleged refusal to return to
work after a leave of absence following her second pregnancy and her efforts to
extend the leave based on a doctor’s note addressing problems with her hands (a

work-related injury to one hand and pregnancy-related tendonitis in the other).

Chief Angelo LaMonica initiated the termination. Complainant appealed to the
Civil Service Commission and, after being out of work for almost three years, the
Civil Service Commission in 1995 ordered Complainant reinstated with back pay
upon a medical determination that she was fit to return to duty. Transcript I at 27-
28.

. In 1995, Complainant filed a complaint with the MCAD for gender discrimination
and retaliation arising out of her dismissal from the police force. The case was
removed to Suffolk Superior Court (Docket No. 95-4248B). Following trial, a
jury awarded Complainant damages in the amount of $575,000.00 for
compensatory and punitive damages against the Town of Winthrop and
individually against former Police Chief LaMonica. The verdict was upheld on

appeal. See Dalrymple v. Town of Winthrop, 50 Mass. App. Ct. 611 (2000). The

Supreme Judicial Court subsequently denied further appellate review. Joint
Stipulation 58. The judgment was common knowledge within the Town of
Winthrop and its police department. Transcript III at 115, IV at 11, 28-29.

In 1995, Complainant took a civil service examination for sergeant and placed
third on the list for promotion to sergeant. Transcript I at 36. The Town
promoted the top two patrol officers to sergeant off the eligible list. Respondent’s
Exhibit 2 (arbitration decision at p. 2); Transcript I at 37.

. On October 23, 1999, Complainant again took a civil service examination for
sergeant. Complainant placed first on the March 23, 2000 eligible list.
Complainant’s Exhibit 1; Transcript I at 37; Respondent’s Exhibit 2 (arbitration

decision at 2). It is customary in the Town of Winthrop Police Department to

10

1.

select the first candidate on the eligible list to fill a vacancy unless there is a valid
reason for bypass in which case the Chief must provide a written justification for

the bypass. Goldstein Deposition at 452°

. In December of 2000, Michael McManus became chief of the Winthrop Police

Department. Transcript II at 92. He had previously been a lieutenant. Transcript
IL at 51. Prior to his appointment as chief, there were four lieutenants and five
sergeants. Transcript II at 103. There had been five sergeants in the Department
since at least 1995. Transcript III at 49. After his appointment, there were three
lieutenants (Perrin, Scarpa, and Lessard) and five sergeants (DeLeo, Femino,
Hickey, Scholwin, and Diaz). Chalk A; Transcript I at 176; Transcript II at 69,
104.°

In 2001, the Town paid Complainant $784,633.96 in compensatory and punitive
damages and interest in fulfillment of the 1995 jury award, the MCAD award(s),
and possibly other judgments that Complainant held against the Town. Joint
Stipulation 59; Transcript II at 169. Around the time that the judgment was paid,
Ronald Vecchia and Marie Turner were re-elected to the Winthrop Board of
Selectmen after a period of time when they were off the Board. Transcript IV at
76; Turner Deposition at 11, 64. They both denied any recollection of discussions

about the Appeals Court verdict for Complainant even though it represented

5 David Goldstein was the Winthrop Police Chief from 2004 to 2009. He does not live in Massachusetts
and, thus, could not be served with a subpoena to command his testimony at the public hearing. In lieu of
live testimony, I accepted portions of his November, 2006 deposition into evidence.

° According to Joint Stipulation of Facts #22, the 2001 Annual Town Report lists Paul Deleo as a
lieutenant. I discredit this information since it conflicts with the credible evidence cited herein as well as
Joint Stipulation 41 which states that Sergeant DeLeo was promoted to lieutenant on March 1, 2002.

12

13:

14.

15

almost half of the police personnel budget. Id. at 77, 79; Deposition at 28. I do

not credit their testimony.

. Chief McManus testified in at least one prior action brought by Complainant

before the MCAD and in the jury trial. Transcript I at 34, II at 43.

In March of 2002, the Town promoted Sergeant Paul DeLeo to lieutenant.
Respondent’s Exhibit 2 (arbitration decision at p. 2); Chalks A & B; Joint
Stipulation 41. DeLeo was first on the civil service eligible list for lieutenant.
Transcript II at 115. During McManus’s tenure as chief, he never recommended
an officer for promotion who was lower than first on a promotion list. Transcript
II at 68.

After DeLeo’s promotion, there were four lieutenants and four sergeants.
Transcript I at 49; Chalk B. One of the existing lieutenants, Lt. Perrin, was
moved out of the day shift and put in charge of detectives. Transcript II at 113.
After DeLeo’s promotion and Lt. Perrin’s transfer, some shifts lacked supervisory
coverage which made it more likely that a supervisory officer would have to be
hired on an overtime basis to ensure the presence of a superior officer on all

shifts. Transcript II at 152-153; III at 116.

. Chief McManus did not request funding for an additional sergeant’s position in

his proposed budgets for fiscal years 2002 (7/01-6/02) and 2003 (7/02-6/03).
Transcript II at 105-107. He testified that he did not do so because even without a
fifth sergeant’s position, there were still two superior officers on each shift.
Transcript II at 109, 120. Chief McManus testified that he did not believe another

sergeant would significantly reduce supervisory overtime because: 1) the fifth

position would be assigned to a particular shift; 2) overtime costs on the other
shifts would be unaffected; and 3) the Department always spends whatever
overtime is allocated. Transcript II at 126-127. I do not credit his testimony.

16. Then-Board of Selectman Marie Turner testified at deposition’ that the Board
didn’t requisition a promotional list for sergeant after Deleo’s promotion to
lieutenant because the Police Department was operating well with four lieutenants
and four sergeants and because of extreme cutbacks on overtime. Deposition at
38. However, she also stated that she didn’t know about overtime usage
following DeLeo’s promotion and never requested to see supervisory overtime
data. Deposition at 47, 74. According to Turner, Complainant should not have
won “close to a million dollars” in damages because she was not subjected to
discrimination. Deposition at 36-37, 62-63, 66. Nonetheless, Turner denied
having any conversations about Complainant’s litigation and denied that there
was any discussion about Complainant winning a lawsuit against the Town.
Deposition at 62-64. I do not credit Turner’s testimony.

17. Sergeant Stephen Rogers, police union president from 2003 to 2004, testified in
contradiction to Chief McManus that four sergeants was an insufficient number to
achieve the cost-effective goal of having two supervisors on every shift.
Transcript III at 55; Complainant’s Exhibit 5 (“Promotion Versus Overtime
Expenditure”). Rogers testified that he provided McManus with Complainant’s
Exhibit 5 while McManus was chief. The document purports to show the cost

savings of promoting supervisors versus spending on supervisory overtime.

” Marie Turner was a member of the Winthrop Board of Selectman in 2000 to 2003 when Michael
McManus was the chief of police. The parties agreed to submit portions of Turner’s deposition in lieu of
her live testimony.

18.

19.

Transcript III at 57-58. According to Sergeant Rogers, prior to a shift
configuration in 2006, it was necessary to have a total of nine or ten supervisors
(sergeants and/or lieutenants) in order to maintain supervisory coverage on each
shift. Transcript III at 62. In March of 2002, there were only seven supervisors in
the Department aside from the Chief, who supervised the whole department and
Lt. Perrin, who supervised detectives. Chalk B; Transcript III at 62-63.

Chief McManus asserted that he did not know how many times Complainant had
taken the sergeant’s promotional exam or where she stood on the promotional list
for sergeant as of March, 2002. Transcript II at 123-124. I do not credit this
testimony.

Former Executive Secretary Virginia Wilder testified that she was approached by
Complainant multiple times in 2002 about whether the Board planned to call for
the sergeant’s list on which she was the top candidate. Transcript II at 176.
Wilder said that she informed Complainant that fiscal constraints prevented the
appointment of a fifth sergeant. Transcript II at 180-181. Although I credit that
this is what Wilder told Complainant, I do not credit the substance of what she
said. I found Wilder to be an evasive witness who testified unconvincingly that
she couldn’t recall “talk” about Complainant’s prior lawsuit, that she didn’t object
to the jury’s verdict of $575,000.00 for Complainant, and that she considered the
jury as having done “what they had to do.” Transcript II at 165, 171. These
assertions are contradicted by the deposition testimony of Police Chief Goldstein

who stated that “it may very well have been” Wilder who told him that she didn’t

20

21.

22.

23.

agree with the court decision in favor of Complainant and that Wilder was “not

reticent about the decision.” Deposition at 82.

. The eligible list from the 1999 sergeant’s exam expired in October of 2002.

During the life of the eligible list -- on which Complainant was the top-scoring
candidate -- the Town did not use it to make any promotions to sergeant.
Transcript II at 63.

Prior to the expiration of the eligible list for sergeant in October of 2002,
Complainant filed a grievance on September 13, 2002 stating that the Town’s
failure to make a promotion from the list constituted discrimination and retaliation
against her. Respondent’s Exhibit 2. The grievance, denied by Chief McManus,
proceeded to arbitration and resulted in an arbitration decision denying the
grievance on the basis that the Town of Winthrop’s Board of Selectmen (the
Appointing Authority) was not obligated to fill a sergeant’s position whenever a
vacancy occurred. Respondent’s Exhibit 2 (arbitration decision); Transcript I at
174.

Complainant testified that filling a fifth sergeant’s position from the eligible list
on which she was the top candidate would have reduced the need for supervisory
overtime. Transcript I at 66. She acknowledged, however, that a fifth sergeant
would not eliminate supervisory overtime on all shifts. Transcript I at 163, 168.
According to Chief McManus, the money to cover the cost of promoting a patrol
officer to sergeant in 2002 would have been approximately $5,000.00 to
$6,000.00 and could have been found in the police department budget. Transcript

II at 81.

10

24. Complainant volunteered for and began serving as school resource officer in the
fall of 2002. Prior to taking the school resource assignment, she worked the 4:00
p.m. to midnight shift, for which she received an eight percent pay differential.
During the time that Complainant served as school resource officer, she continued
to receive the eight percent night-shift pay differential even though she worked an
“administrative schedule” which consisted of working Mondays through a half-
day on Fridays. Transcript IJ at 12. While she served as school resource officer,
Complainant took time off during school vacations without counting it as vacation
time until Chief Goldstein prohibited her from doing so. Transcript I at 80-82; II
at 10-11; Goldstein Deposition at 61.

25. On October 19, 2002 Complainant took another civil service exam for police
sergeant. Transcript I at 40, 148; Joint Stipulation 43.

26. On November 7, 2002, Complainant filed the first of the three complaints at issue
in this decision: MCAD complaint 02 BEM 03751. Complainant charged that
the Town of Winthrop engaged in gender discrimination and retaliation against
her by allowing the eligible list for sergeant to expire in October of 2002 so that
she would not be promoted because of her previously-filed sex discrimination
claims.

27. On March 31, 2003, a new eligible list for sergeant was established by the state
Human Resource Division from the 2002 sergeant’s exam. Terence Delehanty
was first on the eligible list with a score 80; Complainant and Stephen Rogers
were tied at second place on the eligible list with scores of 74. Joint Stipulation

44.

11

28.

29

30.

On April 28, 2003, the Board of Selectmen appointed two male patrol officers --
Terence Delehanty and Stephen Rogers -- as acting sergeant sergeants. Joint
Exhibit 5; Transcript I at 72. Rogers was selected to fill a vacancy created by
Sergeant Diaz who was deployed on a military assignment for approximately
eight weeks. Transcript II at 13, 131; III at 68; Joint Stipulation 45. Delehanty
was selected to fill in for Sergeant Scholwin who was preparing to retire.
Transcript I at 73, 127. At the time the acting promotions were made, Rogers and
Diaz worked the same 4:00 p.m. to midnight shift whereas Complainant worked
days as school resource officer. Transcript II at 14; 133-134. Delehanty was then
a permanent patrol officer for seven years, Rogers was then a permanent patrol
officer for eight years, and Complainant was then a permanent officer twenty-one

years. Transcript III at 68.

. Chief McManus testified that when he recommended Delehanty and Rogers as

acting sergeants, he hadn’t yet seen the May 2, 2003 certification of candidates
from the October 19, 2002 civil service exam for sergeant. Transcript II at 130,
142. While Chief McManus may not have seen the actual certification (Joint
Exhibit 1; Transcript II at 13), I do not believe that he was unaware of the
candidates’ relative standings on the eligible list from which the certification
derived.

According to Chief McManus, while Delehanty and Rogers were serving as
acting sergeants, they asked permission to attend command school. Transcript | at
20; II at 134-135. Because too few people enrolled in the summer command

school program, Rogers went to the next scheduled session which occurred after

12

31

32,

33;

he returned to patrol officer from his acting sergeant assignment. The command
school serves as a training school for recently-promoted sergeants. Transcript III
at 71. Chief McManus was not credible when he testified that he would have
approved Complainant’s request to go to command school if she had asked. In
permitting Rogers to attend command school, Chief McManus evinced an intent

to promote him to the permanent rank of sergeant.

. On May 2, 2003, three candidates were certified to the Town of Winthrop off the

eligible list from the October, 2002 exam for sergeant: Terence Delehanty, the
top-ranked candidate and the next two candidates -- Complainant and Stephen
Rogers -- who were tied. Joint Stipulation 44.

On May 19, 2003, Terence Delehanty was promoted to permanent sergeant to fill
the vacancy caused by Sergeant Scholwin’s retirement. Transcript | at 74; Joint
Stipulation 46.

In January of 2004, Chief McManus retired and in the following month, David
Goldstein became the Winthrop police chief. Transcript II at 40; II at 192;
Goldstein Deposition at 17. After being hired, Police Chief Goldstein had
conversations with the Board of Selectmen’s Executive Secretary Virginia Wilder
about Complainant’s litigation against the Town. Goldstein Deposition at 38.
Chief Goldstein testified at deposition that “it may very well have been” Wilder
who told him that she didn’t agree with the court decision in favor of Complainant
and that Wilder was “not reticent about the decision.” Deposition at 82. Chief

Goldstein also requested that the Town allow him to promote a fifth sergeant on

13

34.

35.

the basis that it was more cost effective than hiring sergeants on supervisory
overtime. Goldstein Deposition at 23, 70. I credit this testimony.

Shortly after Chief Goldstein was hired in January of 2004, he “commissioned”
Sergeant Stephen Rogers to perform a financial analysis of police department
personnel costs entitled “Supervisor Budget Expenditure Analysis.” Deposition at
70-72. Based on the analysis, Chief Goldstein concluded that it would be better to
hire another sergeant rather than pay for supervisory overtime. Complainant’s
Exhibit 6; Goldstein Deposition at 70, 105. Chief Goldstein estimated that the
difference in pay between a police officer and a sergeant was approximately
$100.00 per week and that this expenditure would result in a “substantial savings”
in supervisory overtime. Goldstein Deposition at 70, 93, 105, 113. The study
states that the Department spent $30,250.21 in overtime costs to fill vacant
supervisor spots on shifts in FY 2004 (July 1, 2003 to June 30, 2004) whereas the
total cost of adding two supervisors would have been $13,180.29. Complainant’s
Exhibit 6.

According to Sergeant Rogers, the addition of two supervisors would have
permitted lieutenants or sergeants to be assigned to each of the three groups
within the police department’s day, evening and overnight shifts. Transcript III at
104-106. Rogers testified that such an arrangement would have ensured that two
supervisors were assigned to work each shift since shifts were, at all times, staffed
by two out of a shift’s three groups. Id. The plan also called for one supervisor to
work an outside beat in situations where there were two supervisors on the same

shift. Transcript III at 102. Sergeant Rogers testified that having two supervisors

14

36.

Bx.

38.

39.

assigned to work the same shift meant that there would be supervisory coverage
even if one of the supervisors took time off for sickness, vacation, personal time,
training, etc. Sergeant Rogers asserted that such an approach would substantially
reduce, albeit not eliminate, supervisory overtime but that without promoting
another sergeant it wasn’t possible. Transcript III at 55, 94.

Chief Goldstein communicated his support for increasing the number of sergeants
to the Town Manager and to the Board of Selectmen via Executive Secretary
Wilder. Deposition at 89-91. On July 20, 2004, Chief Goldstein requested that
the Board of Selectmen call for the sergeant’s list in order to add one or more
supervisory officers as a way of reducing the costs for supervisory overtime, but
the Board did not act favorably on his request. Transcript II at 195; Joint Exhibit
13.

Chief Goldstein testified credibly that prior to becoming chief he was told by the
Board of Selectmen that there were five sergeant positions, but that after
becoming chief, he was told by the Board that there were “not” five positions.
Deposition at 22. The reduction in sergeant positions was not negotiated with the
police union nor was it brought before Town Meeting.

In the summer of 2004, Complainant voluntarily returned to the 4:00 p.m. to
midnight shift after serving two academic years as school resource officer.
Transcript I at 78-80, 92.

In August of 2004, Chief Goldstein requested a certification of names from the
October 19, 2002 examination in order to fill a sergeant’s vacancy created by the

retirement of Sergeant Diaz which had occurred approximately six months earlier.

15

40.

41.

Joint Exhibit 19; Transcript I at 93; II at 136. Two names were certified:
Complainant and Rogers, who both had scores of 74. Id.; Joint Exhibit 1.

In order to assist in selecting between the tied candidates, Chief Goldstein
designated a “promotion board” consisting of two internal officers -- Lieutenant
Frank Scarpa and Sergeant Salvator Femino -- and two external officers.
Sergeant Femino had previously testified as a Town witness at one of
Complainant’s earlier MCAD hearings. Transcript I at 101. The promotion board
conducted an oral review of the two candidates on September 23, 2004.
Transcript I at 94; II at 3. Board members filled out forms on which they graded
answers to questions to six hypothetical questions, three informational questions,
the candidates’ oral presentations, and the candidates’ appearance and
communication skills. Joint Exhibit 43. The form did not contain a place for
members of the board to take account of the candidates’ length or breadth of
experience. Id.; Transcript I at 102.

Complainant had approximately three weeks to prepare for the review process.
Transcript I at 96. The candidates received instructions to submit an outline and
prepare an oral presentation addressing “The Winthrop Police Department
Through the Next Five (5) Years” and prepare for an oral examination regarding
relevant laws, regulations, bylaws, and requirements for search warrants and
eyewitness identifications. Joint Exhibit 45. Complainant testified that she
believed Rogers received notice of the review process sooner that she did.

Transcript II at 15. I do not credit this testimony.

16

42. Sergeant Rogers testified that the training he had received at command school
helped him prepare for the presentation. Transcript III at 78. He made a
PowerPoint presentation using a projector belonging to the Town. Id.

43. Complainant testified that she thought about using an overhead projector or slides
for her presentation and contacted the Chief about the availability of projection
equipment but she was told it wasn’t available so she used an easel with flip pages
on which she wrote handwritten material. Transcript I at 99-100. At the end of
her presentation, Complainant was asked whether she believed that the screening
process had been fair and she answered yes. Transcript I at 102.

44. The promotion board recommended Rogers for the sergeant’s position even
though Complainant had fifteen years more seniority on the police force and there
were no female superior officers on the Winthrop Police Department. Transcript I
at 103; Joint Exhibit 8. Frank Scarpa participated in the promotion board as the
chairperson. Transcript IV at 34; Goldstein Deposition at 88.

45. The Town of Winthrop promoted Rogers to sergeant, effective September 27,
2004. Joint Stipulation 47. The promotion of Rogers left Complainant as the
only individual remaining on the sergeant’s list.

46. Chief Goldstein characterized Complainant as having strong and weak points as a
police officer. Deposition at 41. He described her strengths as dealing with the
public, handling desk duties in the dispatch area, handling walk-in issues, and
being respectful to her supervisors. Deposition at 42. He described Complainant
as honest, intelligent, and “for the most part” a team player, but noted that she

could be “overly critical,” was at times “very insecure” in regard to decision-

17

making, required coaching, and “oftentimes” asked too many questions.
Deposition at 42-43.

47. On April 19, 2005, Chief Goldstein emailed Secretary Wilder to again express his
view that adding an acting supervisor would be a “good idea” in terms of
“supervisory overtime. Joint Exhibit 14.

48. On April 28, 2005, Complainant filed MCAD charge 02-BEM-01174 alleging
gender discrimination and retaliation against the Town of Winthrop and
individually-named Respondents in regard to the Town promoting Rogers to
sergeant in September of 2004.

49. In the summer of 2005, the Town of Winthrop Board of Selectmen called for a
new exam for police sergeant. Transcript I at 112-114. The new test was given in
October of 2005, around the same time that the previous eligible list for sergeant
expired. Transcript I at 118; Complainant’s Exhibit 2. Complainant took the
exam and scored at the top of the list. Id.

50. The eligible list from the October 19, 2002 sergeant’s exam expired on October 1,
2005 without being used by the Town.

51. Chief Goldstein again wrote the Board of Selectmen in October of 2005 about
ways of decreasing overtime costs. Joint Exhibit 3. The Chief’s letter noted that
an “inordinate” amount of overtime funds were devoted to supervisory overtime,”
that one of the active lieutenants was unable to supervise members of the patrol
force because he was on light duty, and that the Department’s supervisory staff

(consisting of four sergeants and four lieutenants) were the most senior members

® The letter asserts that between July 1, 2005 to October 1, 2005, supervisory overtime costs amounted to
$25,966.88. Joint Exhibit 4 at p.2.

18

of the force with the largest share of accumulated leave such as vacation days and
the highest rates of compensation when working overtime. Joint Exhibit 3, p.4;
Transcript III at 91. To address these matters, one of the Chief Goldstein’s twelve
proposals was to increase the existing number of lieutenants and sergeants by two
positions. Joint Exhibit 3, p. 5. The proposal was rejected by the Board of
Selectmen -- Brian Perrin,? Sue Bolster, and Martin O’Brien — who were
concerned that the Police Department was top heavy with supervisors. Transcript
IL at 19.

52. On November 4, 2005, Complainant filed MCAD charge 05-BEM-02944 alleging
gender discrimination and retaliation against the Town of Winthrop and
individually-named respondents in regard to the Town declining to promote her to
sergeant off the civil service list that expired on October 1, 2005.

53. In 2006, an eligible list was established from the October 22, 2005 sergeant’s
exam. Complainant’s name was at the top of the list. Complainant’s Exhibit 2.
She was not promoted to sergeant off the list.

54. At some point in 2006, Chief Goldstein altered the shift configuration in order to
reduce supervisory overtime problems. Transcript III at 85-86, 98. Under the
revised shift configuration, a lieutenant was put in charge of all groups within a
shift whether or not the lieutenant was not on duty. Goldstein Deposition at 28-
29. The Chief entered into an agreement with the union to run shifts with only
four individuals, to designate the senior patrol officer as the “Officer in Charge”

and to give that officer a stipend. Deposition at 36. As of the date of deposition,

° Brian Perrin was a lieutenant on the Winthrop Police Department as well as a member of the Board of
Selectmen.

19

55.

56.

57.

58.

59

Chief Goldstein had only given the Officer in Charge designation to one female
officer, Judy Racow, on a single occasion. Deposition at 48. Chief Goldstein
stated that in addition to Complainant, Officer Racow had filed a charge of
discrimination against the Police Department. Deposition at 57.

Complainant was out of work from January of 2008 to December of 2010 for
reasons unrelated to this litigation. Transcript | at 139. The parties have
stipulated that the period from January 8, 2008 up to and including October 19,
2010 should be excluded from any calculation or award of damages.

Chief Goldstein left the Winthrop Police Department in early 2009. He was
succeeded by Terence Delehanty who was appointed Chief in September of 2009.
In the fall of 2011, Complainant took a promotional exam for sergeant but did not
pass. Transcript II at 30.

In September of 2012, the Town of Winthrop made Mary Crisafi its first female
sergeant. Transcript I at 103, 129. The Town had not made any sergeant
promotions since that of Stephen Rogers in 2004. Transcript I at 168. There was
a special ceremony to mark the promotion. Transcript IV at 42. Complainant was

emotionally disturbed by the promotion. Transcript IV at 43.

. Complainant testified that her attempts to be promoted have “taken over [her] life

and that she experiences pain whenever she works under a less senior male
officer. According to Complainant she let go of her anger from earlier disputes
with the Town because she was “vindicated” in 2000 and 2001, but that after
being denied promotion, she felt herself as becoming “invisible” on the force.

Transcript II at 28. Complainant testified that due to holding in her feelings, she

20

60

has had stomach problems, lost hair, had chest pains, had sporadically high blood
pressure experienced chronic hives, and has experienced insomnia. Complainant
testified to feelings of anger, rage, despair, hopelessness and frustration.
Transcript I at 134. Complainant stated that her symptoms caused her to seek
medical care from her primary care physician, a gastroenterologist, a cardiologist
and a pulmonologist, but not any mental health professionals. Transcript I at 134;
II at 26. She was prescribed stomach medication for acid reflux and Xanax for a
period of time but only took the latter medication “occasionally” because she
didn’t want to be on it.” Transcript I at 136. Complainant did not place any
medical records into evidence and had no health care professionals testify on her
behalf. Complainant acknowledged that she had abdominal pain prior to 2002
and distress also caused by the illness and death of her mother in 2003 and her
house burning down in November of 2005, an event which resulted in a four-plus
year absence from her home and the loss of all the contents of her house.
Transcript II at 26, 29-30. Complainant testified that she did not seek treatment
with any mental health care professionals and did not introduce medical records

into evidence.

. Lt. Frank Scarpa is a thirty-seven year member of the Winthrop Police

Department, former union president, and Complainant’s shift commander for
approximately eight years. Transcript IV at 28-29. He testified that
Complainant’s lack of success at being promoted has emotionally affected her
over the years. Transcript IV at 40. According to Lt. Scarpa, Complainant would

frequently remark on her status. He described it as “weighing” on her mind. Id.

21

at 41. He assessed her as a very good patrol officer, an officer who “knows her
stuff,” and someone he can rely on. Transcript IV at 41. Lt. Scarpa asserted that
she would be a very good sergeant. Id.

61. Complainant testified that the amount of overtime she worked has varied over the
years. She worked less overtime prior to 2006 and more thereafter because her
children were older. Transcript I at 124-125. Starting in 2006, she also earned
several thousand dollars per years covering shifts as a senior patrol officer.
Transcript I at 125. Complainant testified that had she been promoted to sergeant
in 2002 or thereafter, her base pay would have been larger, her “Quinn bill”
percentage would have been larger, her longevity pay would have increased, and
her pension would have been higher. Transcript II at 21.

62. The parties stipulated that Complainant earned $728.040 per week as a step 6
patrol officer in FY 03; $749.880 per week as a step 6 patrol officer in FY 04 and
$779.878 per week as a step 6 patrol officer in FY 05. Joint Stipulations 49-51.
During those same years sergeants in the Winthrop Police Department earned the
following: $826.62 per week; $851.434 per week and $885.486 per week. Joint
Stipulations 52-54. From 2002, Complainant had received a 25% Quinn bill
salary increase which is calculated using her base salary rate.

Ill. CONCLUSIONS OF LAW

A. Gender Discrimination

Complainant does not proffer direct evidence of forbidden bias and therefore, in
order to establish a prima facie case of disparate treatment discrimination, she must show

that she: (1) is a member of a protected class; (2) was performing satisfactorily; (3)

22

suffered an adverse employment action; and (4) was treated differently from similarly-
situated, qualified person(s) not in her protected class. See Lipchitz v. Raytheon

Company, 434 Mass. 493 (2001); Abramian v. President & Fellows of Harvard College,

432 Mass. 107 (2000) (elements of prima facie case vary depending on facts).

The first two elements are satisfied in that there were no female supervisors in the
positions of sergeants or lieutenant during the years when Complainant sought
promotion, and that Complainant was a member in good standing of the Winthrop Police
Department who scored at or near the top of multiple promotional exams. Regarding the
third element of a prima facie case, Complainant alleges that the Town subjected her to
the following adverse actions: it failed to make any promotions to sergeant from the
1999 sergeant’s exam which Complainant topped (02-BEM-03751);"” it promoted Rogers
to sergeant in September of 2004 even though Complainant had the same exam score and
greater seniority (05-BEM-01174); and it failed to promote Complainant from the
eligible list for sergeant which was established in October of 2002 and expired in October
of 2005 (05-BEM-02944). Complainant’s allegations are supported by credible evidence
that the Town failed to make any promotions to sergeant between 1999 and 2005
whenever she topped civil service eligible lists for the position; overlooked Complainant
for elevation to acting sergeant in 2003 in favor of less senior male patrol officers who

were thereby given a leg up in the permanent promotion process, and declined to

‘© Respondent argues that since no one was promoted, there was no adverse action resulting from
Complainant’s failure to attain sergeant status as a result of the 1999 exam results. Such an argument
overlooks the fact that the Town promoted individuals to sergeant from civil service exams in 1995 and
2002 when Complainant was not the top-scoring candidate but declined to do so from the 1999 civil service
exam when Complainant was the top-scoring candidate. Since the Town traditionally promotes candidates
in the order of their standing on civil service eligible lists, the failure to make any sergeant promotions from
the 1999 exam was tantamount to a refusal to promote Complainant. Compare Wheelock College v
MCAD, 371 Mass. 130, n.6 (1976) (suggesting that there would be no prima facie case where college
declined to rehire an academically-qualified woman due to teaching position being abolished).

23

permanently promote Complainant to sergeant in 2004 in favor of a male candidate with
the same score by using a screening process of dubious neutrality. In all of these
situations, Complainant was on the losing end of circumstances that favored similarly-
situated male patrol officers.

Respondent asserts that the Town’s failure to make sergeant promotions at various
times when Complainant topped eligible lists for the position is not an adverse action, but

such a contention is without merit. See Hurley v City of Melrose Police Department, 27

MDLR 7 (2005) (where police chief declined to use eligible list and delayed sergeant
promotions in order to open the field to younger candidates, such inaction deemed an
adverse action evidencing age discrimination). Whether alone or in concert with other
conduct favoring male competitors, such inaction is evidence of discriminatory animus.
Having established a prima facie case of discrimination, the burden of production
shifts to Respondent to articulate and produce credible evidence to support legitimate,

nondiscriminatory reasons for not promoting Complainant. See Abramian, 432 Mass.

116-117; Wynn & Wynn v. MCAD, 431 Mass. 655, 665 (2000). Respondent focuses on

fiscal constraints to justify the lack of any permanent sergeant promotions off the eligible
list which remained in effect for a three-year period following the 1999 sergeant exam.
According to Chief McManus, he did not request funding to make such a promotion in
fiscal years 2002 and 2003 even though the number of sergeants decreased from five to
four because he did not believe another sergeant would significantly reduce supervisory
overtime. His testimony is supported by the assertion of former Executive Secretary

Wilder that fiscal constraints prevented the appointment of a fifth sergeant and by the

24

assertion of then-Selectman Marie Turner that the Police Department operated well with
only four sergeants.

In regard to acting sergeant promotions in April of 2003, the selection of Terrance
Delehanty reflects his status as the top candidate on the 2003 eligible list for sergeant! in
combination with the Town’s practice of selecting the top candidate for permanent
promotion absent a compelling reason for bypass. Since Delehanty was the presumed
favorite for the next permanent promotion, it stands to reason that the Town gave him the
acting position. The selection of Stephen Rogers was justified on the basis that he
worked the same four-to-midnight shift as the sergeant whose place he temporarily filled,
in contrast to Complainant who worked days as a school resource officer.

When Respondent finally made a permanent promotion to sergeant in 2003, it
selected Delehanty in conformity to his rank on the eligible list and, in the following
year, selected Rogers, with whom Complainant was tied, to fill a second sergeant’s
vacancy. In order to justify the latter promotion, Respondent administered an ostensibly-
neutral selection process. The selection board consisted of internal and external panelists.
The board entertained oral presentations from candidates Rogers and Dalrymple and
evaluated their responses to a uniform set of interview questions. The foregoing
circumstances are sufficient to satisfy Respondent’s burden at stage two.

Complainant, at stage three, must show by a preponderance of evidence that
Respondent’s articulated reasons were not the real ones but a cover-up for a

discriminatory motive. See Knight v. Avon Products, 438 Mass. 413, 420, n. 4 (2003);

Lipchitz v. Raytheon Company, 434 Mass. 493, 504 (2001). Complainant retains the

"' Chief McManus claimed not to have seen a certification of candidates for permanent promotion to
sergeant prior to selecting Delehanty for acting promotion, but I believe that Chief McManus was aware of
Delehanty’s position as the top candidate on the eligible list.

25

ultimate burden of proving that Respondent’s adverse actions were the result of

discriminatory animus. See id.; Abramian, 432 Mass. at 117. I conclude that

Complainant has satisfied her burden at stage three for the following reasons.

Following Complainant’s appointment to the Winthrop Police Department, there
were numerous years when she stood at the top of civil service lists for promotion to
sergeant without any positive result. Her name first rose to the top of such a list from a
1995 civil service exam after two males were promoted to sergeant. Several years later
she once again stood at the top of civil service list for promotion when she scored highest
on the 1999 civil service exam for sergeant. In neither case, did Respondent make use of
the lists as long as Complainant topped them.

After the promotion of Paul DeLeo to lieutenant in March of 2002, the number of
sergeants on the force decreased from five to four. At that time, it would have been cost-
effective to fill a fifth sergeant’s position. I base my conclusion on the fact that DeLeo’s
promotion caused additional supervisory officers to be hired on an overtime basis in
order to ensure the presence of a superior officer at all times. Then-Chief McManus
conceded that the cost of adding a sergeant would have been only five to six thousand
dollars yearly and could have been found in the police department budget. His successor,
Chief Goldstein, also acknowledged that it would have been more cost-effective to hire
another sergeant rather than to pay for supervisory overtime and, for this reason, sought
(albeit unsuccessfully) to fill a fifth sergeant’s position. Sergeant Rogers likewise
testified that the existing number of sergeants was insufficient to achieve the cost-

effective goal of having two supervisors on every shift which, according to Sergeant

26

Rogers, required a total of nine or ten supervisors rather than the seven who were
available to supervise patrol officers in March of 2002.'*

Notwithstanding the cost-effectiveness of filling the fifth sergeant’s position,
Respondent refrained from back-filling DeLeo’s sergeant slot for as long as Complainant
was the top candidate on the eligible list for sergeant from the 1999 exam. I conclude
that it did so in order to avoid having to promote Complainant in conformity to its
practice of selecting the top candidate off an eligible list unless compelling reasons
justified a bypass. Since Complainant stood at the top of the eligible list between March
of 2000 and October of 2002 and since there were no compelling reasons to bypass her
for promotion, adherence to the practice would have resulted in awarding Complainant
the fifth sergeant’s position if it were filled during the life of the eligible list.

After the eligible list expired in October of 2002, Complainant took yet another
civil service exam for sergeant in October of 2002. She received an exam score that was
lower than that of Terrance Delehanty but was the same as that of Stephen Rogers. Six
months later, Respondent made acting promotions of Patrol Officers Delehanty and
Rogers. These acting promotions paved the way for the subsequent permanent
promotions of the male candidates by giving them experience as sergeants and by
allowing them to attend command school. The acting promotions were followed in May,
2003 by the permanent promotion of Delehanty and in September, 2004 by the permanent
promotion of Rogers. While neither of these actions resulted in the bypass of

Complainant on the eligible list from the October of 2002 exam, they nonetheless had the

2 'y 2004 arbitration decision about the staffing of superior officers on the Winthrop Police Department
opined that the Appointing Authority was not obligated to fill a sergeant’s position whenever a vacancy
occurred, but that decision analyzes the parties’ collective bargaining obligations and not whether the
refusal to fill the position violated Chapter 151B. Respondent’s Exhibit 2.

27

effect of favoring male employees with seven and eight years’ experience, respectively,
over Complainant who was a female candidate with twenty-one years of experience.

The allegedly-neutral screening process for permanent promotion was, moreover,
tainted by Stephen Rogers receiving access to Town equipment for his presentation to the
promotion board whereas Complainant was denied such access. Although the Town
sought to portray male candidate Stephen Rogers as superior to Complainant in 2004,
then-Chief Goldstein testified that Complainant was a strong candidate in terms of
dealing with the public, handling desk duties in the dispatch area, handling “walk-ins,”
and being respectful to her supervisors. He described Complainant as honest, intelligent,
and generally a team player, although sometimes overly critical, insecure in making
decisions and prone to asking too many questions. Lt. Frank Scarpa, a thirty-seven year
member of the Winthrop Police Department, former union president, and Complainant’s
shift commander for approximately eight years, described Complainant as a very good
patrol officer, one who “knows her stuff,” someone he can rely on, and someone who
would be a very good sergeant.

The promotion of Rogers resulted in the continued lack of any female superior
officers on the Winthrop Police Department for another nine years. Complainant
subsequently took another civil service exam in 2005 for sergeant and again scored at the
top of the list but never became a sergeant. I infer from the above circumstances that
Complainant’s gender played a ‘“material and important ingredient”’ role in the selection

process. See Chief Justice for Administration and Management of the Trial Court v.

MCAD, 439 Mass. 729 (2003) citing Lipchitz v. Raytheon Co., 434 Mass, 493, 506, n. 19

(2003) (jury could infer that female candidate was not promoted because of

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discriminatory intent where reasons for promoting a male candidate over a female
candidate could be considered false). Gender discrimination has been demonstrated by
the pretextual reasons given for failing to fill a fifth sergeant’s position, by the staffing of
open sergeant slots (acting and permanent) with male candidates in preference to
Complainant, and by the failure to fill sergeant positions during times when Complainant
stood as the top candidate on eligible lists. The financial rationales provided by
Respondent do not stand up to factual scrutiny, as evidenced by contrary data compiled
by Chief Goldstein and Sergeant Rogers. Respondent attempts to address each and every
circumstance that resulted in Complainant’s non-promotion, but does not adequately
explain why Complainant, unlike her male comparators, failed to secure a supervisory
position after decades on the Department and why there were no female supervisors until
2012. Based on the foregoing, Complainant has proven by a preponderance of the
evidence that Respondent discriminated against her based on her gender.

Even if nondiscriminatory reasons played some part in the decisions to promote
Delehanty and Roger, the evidence establishes that a combination of gender-based and
retaliatory animus played a motivating role in depriving Complainant of any promotions
throughout her decades-long employment by the Winthrop Police Department. I
conclude that Respondent’s gender and retaliatory animus (see below) are inextricably
intertwined as determinative factors in this case.

B. Retaliation
Chapter 151B, sec. 4 (4) prohibits retaliation against persons who have opposed
practices forbidden under Chapter 151B or who have filed a complaint of discrimination.

Retaliation is a separate claim from discrimination, “motivated, at least in part, by a

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distinct intent to punish or to rid a workplace of someone who complains of unlawful

practices.” Kelley v. Plymouth County Sheriff’s Department, 22 MDLR 208, 215

(2000), quoting Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1040 (D.

Mass. 1995). In the absence of direct evidence of a retaliatory motive, the MCAD must

follow the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 Mass. 972 (1973) and adopted by the Supreme Judicial Court in Wheelock College v.

MCAD, 371 Mass. 130 (1976). See also Abramian v. President & Fellows of Harvard

College, 432 Mass. 107, 116 (2000); Wynn & Wynn v. MCAD, 431 Mass. 655 (2000).

To prove a prima facie case of retaliation, Complainant must demonstrate that: (1) he
engaged in a protected activity; (2) Respondent was aware that he had engaged in
protected activity; (3) Respondent subjected him to an adverse employment action; and
(4) a causal connection exists between the protected activity and the adverse employment

action. See Mole v. University of Massachusetts, 58 Mass. App. Ct. 29, 41 (2003);

Kelley v. Plymouth County Sheriff’s Department, 22 MDLR 208, 215 (2000). While

proximity in time is a factor in establishing a causal connection, it is not sufficient on its

own to make out a causal link. See MacCormack v. Boston Edison Co., 423 Mass. 652

n.11 (1996), citing Prader v. Leading Edge Prods., Inc., 39 Mass. App. Ct. 616, 617

(1996).
Once a prima facie case is established, the burden shifts to Respondents at the
second stage of proof to articulate a legitimate, non-retaliatory reason for their action(s)

supported by credible evidence. See Blare v. Huskey Injection Molding Systems Boston

Inc., 419 Mass. 437, 441-442 (1995) citing McDonnell Douglas Corp v. Green, 411 U.S.

792 (1973). If Respondents succeed in doing so, the burden then shifts back to

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Complainant at stage three to persuade the fact finder, by a preponderance of evidence,
that the articulated justification is not the real reason, but a pretext for retaliation. See

Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001). Complainant may carry this

burden of persuasion with circumstantial evidence that convinces the fact finder that the
proffered explanation is not true and that Respondents are covering up a retaliatory
motive which is a motivating cause of the adverse employment action. Id.

Applying the aforementioned elements to the matter at hand, there can be no
doubt that Complainant participated in protected activity when she filed MCAD
complaints in 1989, 1990, 1993, 1995, 2002, and 2005. Following the adjudication of the
matters brought in 1990s, Complainant collected $784,633.96 in damages from the Town
in 2001 to redress discriminatory acts by Respondent. Various Town witnesses seek to
downplay the impact of the award, but I do not credit their testimony. More accurate
expressions of the Town’s views were communicated in the deposition testimony of
former Board of Selectman Marie Turner and Chief Goldstein. Turner asserted that
Complainant should not have won the award because she was not the subject of
discrimination. Executive Secretary Virginia Wilder was described as “not reticent” in
stating that she didn’t agree with the court’s decision in favor of Complainant. Various
town officials were compelled to testify in the legal proceedings brought by Complainant.

I conclude that Complainant’s lawsuits against the Town fostered a deep
resentment against Complainant which caused her to be denied an acting promotion to

sergeant in 2003'° and permanent promotions from the 1999 sergeant’s exam which she

8 Respondent argues that any claims based on the April, 2003 acting sergeant promotions are untimely
because the acting promotions took place after Complainant filed her November, 2002 MCAD complaint
and more than six months prior to Complainant filing her April and November, 2005 MCAD complaints. I
do not accept this rationale because the full impact of the acting promotions did not become apparent until

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topped"; the 2002 sergeant’s exam on which she stood in a second-place tie;'” and the
2005 sergeant’s exam which she topped.'® Rather than maintain a staff of five permanent
sergeants as it had previously done, Respondent spent more money throughout the 2002
to 2006 period to fill sergeant positions on an overtime basis. The evidence indicates that
it did so in order to avoid promoting Complainant, despite the testimony of Chief
McManus that additional supervisors were not needed to cover shifts. In arriving at th

The text goes on. The rest is in the file.