Opinion
No. 96-1475 C
December 30, 1997
MEMORANDUM OF DECISION AND ORDER ON WAYNE FARRELL'S MASS.R.CIV.P. 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS
INTRODUCTION
Plaintiff, Wayne Farrell, filed this complaint pursuant to G.L.c. 30A and seeks judicial review of a decision rendered by the Civil Service Commission affirming his termination from the City of Gardner Police Department. On July 10, 1996, plaintiff filed a Mass.R.Civ.P. 12(c) motion for judgment on the pleadings contending that the Civil Service Commission's decision is not supported by substantial evidence and that the decision is based on errors of law.
For the reasons stated infra, the decision of the Civil Service Commission is AFFIRMED.
BACKGROUND
Pursuant to the guidelines for judicial review under G.L. c. 30A prescribed by Southern Worcester County Regional Voc. School Dist. v. Labor Relations Com'n., 386 Mass. 414, 420 (1982), this court accepts the following facts as found by the Civil Service Commission:
Plaintiff's History
Wayne Farrell (Plaintiff) is a veteran police officer in the City of Gardner (City). Plaintiff was first appointed to the Gardner Police Department (Department) on June 6, 1976. During plaintiff's nineteen year career as a City police officer he sustained seventeen injuries in the line of duty. Six of those injuries were to plaintiff's back. For each of the seventeen instances of injuries sustained while on duty, plaintiff received full compensation and benefits pursuant to G.L.c. 41, § 111F, which governs the rights of police officers injured on duty (IOD).
Plaintiff is a member of the International Brotherhood of Police Officers Union (IBPO) Local #380. The IBPO represents patrol officers in contract negotiations with the City and various other employment actions affecting the salary and benefits of Gardner City police officers. Plaintiff was serving as president of IBPO Local #380 at all times relevant to this matter.
The Instant Injury
The series of events giving rise to this action began on October 8, 1994. On that date, plaintiff was assigned to police cruiser Number 12 (Car 12). Plaintiff is a cigarette smoker and Car 12 is the designated smoking vehicle for patrol officers. Plaintiff completed the standard "Vehicle Check Out" form, noting that the front seat-back was loose and had caused aggravation to his pre-existing back condition. Plaintiff's supervisor, Lieutenant James Dufort (Dufort), notified police chief Ralph Evangelous (Chief) about plaintiff's complaint concerning Car 12. The Chief ordered Dufort to inspect the vehicle and repair the seat if necessary. On October 18, 1994, Dufort notified plaintiff that the vehicle had been inspected and repaired by West Street Auto repair shop.
On October 23, 1994, plaintiff was assigned Car 12 for patrol duty from 11:00 P.M. until 7:00 A.M. At 4:01 A.M., while in the course of his tour, plaintiff reported that he injured his back while exiting Car 12. Pursuant to departmental policy, plaintiff advised department headquarters that he was proceeding to Heywood Hospital for treatment of the injury. Dr. Gaudet, the attending physician at Heywood Hospital, examined plaintiff and concluded that plaintiff could return to work with modified duties on the next day, October 25, 1994. The physician recommended certain restrictions on plaintiff's activities including an order that he not lift, pull or push more than ten pounds for three days. The Gardner City Police Department, however, has no employment position that makes allowances for such light duty.
On October 24, 1994, the Chief received an anonymous note suggesting that plaintiff was not injured. Subsequently, the Chief reviewed plaintiff's work history. To the Chief, that work history suggested a pattern of sick leave abuse. The Chief determined that plaintiff's sick leave often corresponded with hunting seasons and holiday seasons.
The Examination and The Surveillance
On October 25, 1994, in accordance with G.L.c. 41, § 111F, the Chief instructed Deputy Police Chief Sandra Dines (Dines) to arrange an examination for plaintiff with Net/Works, a medical care provider working under contract with the City to evaluate employee injuries and to determine the ability of employees to perform their duties. Also on October 25, the Chief met with Gardner Mayor Charles Manca (Mayor), to discuss arrangements for private investigative surveillance of plaintiff. ABM Security (ABM) was then engaged by the Chief to commence surveillance of plaintiff.
Plaintiff was examined by Dr. Paul Vom Eigen (Vom Eigen) of Net/Works on October 25, 1994. Plaintiff complained to Dr. Vom Eigen of pain in his lower back and pain in his cervical spine. As a consequence of that pain, he was, he claimed, unable to sit for longer than ten minutes and stand or walk for more than thirty minutes. Dr. Vom Eigen determined that Farrell was unable to return to work due to an acute sprain of the cervical spine.
On October 26, 1994, Dines approved the payment of salary and benefits to plaintiff in accordance with the assessment made by Dr. Gaudet at Heywood Hospital on October 24. ABM began its surveillance of plaintiff on October 26, and continued through November 4, 1994. On that latter date, sources within the Department informed plaintiff that he was under surveillance per order of the Chief. ABM submitted its report to the Chief on November 8, 1994, detailing its observations of the activities of plaintiff. The report described instances of plaintiff's engaging in yard work, hanging Halloween decorations while balancing on a porch railing, and lifting a mattress and box spring onto his truck.
On December 7, 1994, the Chief and the Mayor required plaintiff to be examined by Dr. Guistilisi, an orthopedic surgeon. Upon examining plaintiff, Dr. Guistilisi found that plaintiff may have suffered a soft tissue strain, but that plaintiff was then capable of returning to work. Not satisfied with Dr. Guistilisi's view, plaintiff sought the further opinion of Dr. Vom Eigen. Vom Eigen, relying on plaintiff's continued complaints of back pain, disputed Dr. Guistilisi's diagnosis.
Prompted by Dr. Guistilisi's report and the report of ABM investigators, the Mayor directed the Chief to order plaintiff to return to work. On January 6, 1995, the Chief complied and ordered plaintiff back to work. Upon his return to duty, plaintiff complained of continuing back pain. Citing that pain, plaintiff departed early from his first two shifts of duty.
On January 9, 1995, plaintiff was examined by his personal physician, Dr. Clayman, who deemed plaintiff capable of performing only light duty pending further evaluation. On February 7, 1995, Dr. Clayman conducted a CAT scan of plaintiff's lumbar spine. The results of the CAT scan showed no significant abnormality. Dr. Clayman subsequently referred plaintiff to two specialists who each diagnosed plaintiff's injury as "chronic back pain". Neither specialist was able to identify a specific injury causing plaintiff's back pain. Relying on his initial IOD claim, plaintiff did not report for work after January 9, 1995, and he was placed on administrative leave on April 7, 1995.
The Discharge Proceeding
In February, 1995, the Mayor referred plaintiff's case to the Attorney General for investigation as a fraudulent IOD claim. The Attorney General and State Police conducted their investigation between February, 1995, and April, 1995. On April 7, 1995, the investigators from the Attorney General's office and the State Police (Investigators) met with plaintiff regarding his IOD claim. At that meeting, the Investigators confronted plaintiff with ABM's surveillance reports and photographs of plaintiff engaging in conduct inconsistent with the symptoms that plaintiff described to Dr. Vom Eigen. In their report to the City, the Investigators noted that plaintiff did not exhibit the limitations of physical dexterity and strength of which he had complained to Dr. Vom Eigen. Two specific observations were made by the Investigators in their report: at the interview, plaintiff was able to lift a wooden chair and pass it over a desk and plaintiff was able to remain seated for over two hours without complaining of any discomfort. Notwithstanding the observations of the Investigators and the reports of ABM, the Attorney General's office declined to commence a criminal prosecution.
Plaintiff has not made a persuasive suggestion that the Attorney General's decision was a bar to further action against him by the City.
On April 5, 1995, the Chief notified plaintiff that, effective April 8, 1995, his sick leave would be exhausted. On April 7, 1995, Dr. Clayman, plaintiff's personal physician, cleared plaintiff for a return to duty. When plaintiff failed to report for duty on April 7, 1995, he was placed on administrative leave. On April 13, 1995, plaintiff was notified that the Department had undertaken an internal affairs investigation of his IOD claim.
According to G.L.c. 31, § 41, which governs the termination of civil service employees, the Appointing Authority must provide a civil service employee with a letter of contemplated action before that employee may be terminated. On May 8, 1995, the Mayor, as the Appointing Authority for the City of Gardner, sent plaintiff a notice of contemplated action. On May 15, the Mayor received a supplemental report from Dr. Guistilisi. The report detailed Guistilisi's conclusion that plaintiff's claim was fraudulent. Dr. Guistilisi based his conclusion on his observations of the ABM video and the Chief's report.
On May 26, 1995, the City's designated hearing officer conducted a hearing concerning plaintiff's taking of sick leave. The hearing officer found plaintiff's conduct to be fraudulent and accused plaintiff of violations of Department rules and regulations. On June 23, 1995, the Mayor, in his capacity as Appointing Authority, adopted the hearing officer's decision and terminated plaintiff as a police officer for abuse of sick leave, filing false reports, not being forthright or honest in disclosing his physical condition to his physician and the Department, and misappropriation of disability payments. The Appointing Authority also relied upon plaintiff's violations of the Rules and Regulations of the Gardner Police Department, to wit breaches of standards of professional conduct and responsibility, improper conduct and neglect of duty.
Plaintiff appealed the Appointing Authority's decision to the Civil Service Commission. The Commission affirmed the Appointing Authority's decision to terminate plaintiff, thus giving rise to the instant action.
DISCUSSION
I. THE PROCESS OF REVIEW
Superior Court Standing Order 1-96(4) provides that a motion for a judgment on the pleadings under Mass.R.Civ.P. 12(c) is the appropriate vehicle for the disposition of an action for judicial review of an administrative decision. The effect of such a motion is to address the legal sufficiency of the complaint. See Wilson v. Commonwealth, 31 Mass. App. Ct. 757, 763, aff'd, 413 Mass. 352 (1992). In ruling on such a motion, the court must determine whether, "taking all of the plaintiffs' factual allegations as true, they are legally sufficient to make out a claim [that the Commission erred]." Id. We shall assess plaintiff's challenge to the Civil Service Commission's decision from that perspective.
In determining whether allegations are legally sufficient, a court, ruling on a complaint for judicial review under G.L.c. 30A, is confined to the record of the administrative hearing unless procedural irregularities are alleged. See G.L.c. 30A, § 14(5); LeMaine v. City of Boston, 27 Mass. App. Ct. 1173, 1174 (1989). Because plaintiff does not allege any procedural irregularity, this court's review will be confined to the four corners of the record of the administrative agency.
The party appealing an administrative decision bears the burden of demonstrating the decision's invalidity. See Merisme v. Board of Appeals on Motor Vehicle Liab., 27 Mass. App. Ct. 470, 474 (1989). At bar, the plaintiff will be tasked with that burden. The burden is made more difficult by the analytical principle that requires the court to give due weight to the agency's experience, technical competence, specialized knowledge, and the discretionary authority conferred upon it by statute. See G.L.c. 30A, § 14(7); Iodice v. Architectural Access Bd., 424 Mass. 370, 375-376 (1997). "This standard of review is highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom." Flint v. Commissioner of Public Welfare, 412 Mass. 416, 420 (1992). Thus, this Court must accord appropriate value to the agency's experience and expertise, and, for that reason, the plaintiff's path is decidedly up-hill.
A. The Question of Substantial Evidence
Plaintiff first contends that the Commission's fact finding is flawed and that, therefore, its decision is unsupported by substantial evidence. In the face of an insufficient evidence challenge, however, the agency's decision will be upheld if there exists substantial evidence to support the decision. See Hickey v. Commissioner of Public Welfare, 38 Mass. App. Ct. 259, 262 (1995). "Judicial inquiry under the substantial evidence test is limited to the determination of whether, within the record developed before the administrative agency, there is such evidence as a reasonable mind might accept as adequate to support the agency's conclusion." Massachusetts Oilheat Council v. Department of Pub. Util., 418 Mass. 798, 805-806 (1994), quoting Seagram Distillers Co. v. Alcoholic Bev. Control Comm'n, 401 Mass. 713, 721 (1988).
We proceed from the proposition that, "[The] substantial evidence test is commonly understood to require that agency findings must rest upon such evidence as a reasonable mind might accept as adequate to support a conclusion; review under the standard entails scrutiny of the whole record to determine whether substantial evidence exists." Boston Edison Co., v. Boston Redevelopment Auth., 374 Mass. 37, 54 (1977). That review focuses upon the question of whether there is substantial evidence to support the decision, and, accordingly, the court may not make its own credibility evaluations or engage in a de novo assessment of the weight to be accorded to the evidence. See Hickey v. Commissioner of Pub. Welfare, 38 Mass. App. Ct. 259, 262 (1995); see also Boston Edison Co., supra, 374 Mass. at 76 (Quirico, J., concurring).
Plaintiff urges this Court to disregard the findings made by the Commission with regard to the investigative report compiled by ABM Investigators and the testimony given by the Chief, Dufort and Dines. He asks the court to set aside the credibility evaluations made by the Commission upon the evidence, testimonial and documentary, presented to it. Plaintiff contends, at bottom, that the Court should substitute its fact finding determination for that of the Commission. See Southern Worcester County Regional Voc. School Dist., v. Labor Relations Com'n, 386 Mass. 414, 420 (1982). (discussing the deference paid to agency findings and rulings on fairly conflicting views). But, in assessing the Commission's decision, the court is not permitted to make de novo determinations of fact, to make credibility choices or to draw inferences different from those drawn by the Commission. Id., at 420-421. Even if the court, hearing the matter de novo, had been inclined to a different conclusion, the court cannot elevate its assessment of the evidence over that of the Commission. Id. Therefore, this court must go about its review tasks without questioning the persuasiveness of the evidence offered to the Commission.
Upon review of the administrative record, this court concludes that there exists substantial evidence reasonably to support the Commission's conclusions. The Commission made more than one hundred, twenty different findings of fact in this case. Included in the Commission's findings are documented instances of plaintiff's engaging in activity that is inconsistent with his alleged injury. Plaintiff argues that approximately twenty-nine of those findings were either not supported by the evidence presented to the Commission or represented errors of law (see IB. infra). Even assuming, arguendo, the plaintiff's contentions in regard to those twenty-nine findings, the Court concludes that the Commission's decision is such that a reasonable mind could accept the decision as adequately supported by the evidence aliunde.
Based upon the entire record of the Commission hearing and the evidence submitted therein, the court determines that plaintiff has not borne his burden of demonstrating that the Commission's decision is unsupported by substantial evidence. See Merisme, supra, 27 Mass. App. Ct. at 474. (discussing the burden placed on the moving party of a G.L.c. 30A action). The decision of the Commission affirming the termination of plaintiff is supported by the evidence submitted at the hearing and is an appropriate exercise of its statutory discretion to determine the effect of the evidence it found to be credible.
B. The Questions of Error of Law 1. The Chapter 41, § 111F Challenge to Dr. Guistilisi's Report
Plaintiff argues that the Commission made findings of fact that are erroneous as a matter of law. Plaintiff contends that the Commission did not appropriately take into account the provisions of G.L.c. 41, § 111F, which govern the payment of benefits to police officers who are injured in the line of duty. Plaintiff points to a number of the Commission's findings of fact that, he concludes, are inconsistent with the provisions of that statute.
In the main, plaintiff charges that the Chief and the Mayor violated certain procedural safeguards protecting the rights of police officers injured on duty. The provisions of G.L.c. 41, § 111F, allow of no dispute that a police officer, truly injured on duty, is entitled to full benefits during the period in which he is injured. Before extending such benefits to a police officer, however, the Chief may require the police officer to be examined by a physician designated by the Appointing Authority. See Id. The Mayor of Gardner, as the Appointing Authority, had designated Dr. Vom Eigen to conduct § 111F examinations. Plaintiff argues that the Chief violated § 111F when he required plaintiff to undergo a further examination by Dr. Guistilisi. Thus, plaintiff concludes, the Mayor erred in his termination of plaintiff based on the § 111F-violative medical report of Dr. Guistilisi, and the erroneous termination ought to be remedied by this Court's restoration of plaintiff to his office.
Plaintiff's syllogism may or may not be valid. We need not, however, reach the merits of plaintiff's challenge to the use of Dr. Guistilisi's report, for, even if the plaintiff's conclusion is accepted with the result that the Guistilisi report ought not have been considered by the Commission, this Court's view that the Commission's result is sustainable remains unchanged. The Commission's error, if such it were, was harmless because, after excising the report of Dr. Guistilisi, there remains an abundance of other evidence sufficient to support the Commission's decision.
In brief, that "other" evidence included instances of plaintiff engaging in yard work, carrying mattresses, and driving, walking and sitting for extended periods. Each of these instances is in direct contradiction to the symptoms and physical limitations plaintiff described to Dr. Vom Eigen, Dr. Clayman and two other specialists and upon which each physician based his or her respective diagnosis.
2. The Challenge to the Commission's Review of Work History
Plaintiff next argues that the Commission erred in considering the plaintiff's seventeen prior instance of injuries incurred on duty. Plaintiff contends that consideration of those instances is not timely, is beyond the scope of the present action and, therefore, has no bearing on the matter at bar. The pith of plaintiff's argument is that the Chief conceded, de facto, the legitimacy merits of plaintiff's prior IOD incidents by paying out benefits to plaintiff and not challenging plaintiff's claims in a timely fashion. Plaintiff also relies on G.L.c. 31, § 41 (governing Civil Service Commission proceedings) in arguing that only the reports filed with regard to the alleged injury of October 23, 1994, might properly be employed in the instant termination proceeding.
The Court concurs that plaintiff's earlier (and presumably lawful) receipt of IOD benefits may not serve as evidence of plaintiff's wrongdoing in the case at bar. Even though the Commission can, in its discretion, consider a stale charge against an employee when determining the ultimate disciplinary action to be taken on subsequent charges of breaches of duty, see Superintendent of Belchertown State School v. Civil Service Comm'n., 9 Mass. App. Ct. 756, 760-761 (1980), there is, at bar, no persuasive evidence of fraud with regard to earlier IOD claims submitted by plaintiff. Accordingly, the Commission's reference to plaintiff's past injuries is relevant only to the proposition that such injuries may have been aggravated by the incident occurring in Car 12 on October 23, 1994, and the Commission ought not to have viewed those stale instances of alleged fraud as supporting the termination sub judice.
The same result ensues, however, as in Section IB1, supra. Even after excising plaintiff's history of injuries from consideration as evidence that the instant incident was fraudulent, the Commission's decision is supported by other substantial evidence. The Commission's error with regard to plaintiff's history of IOD incidents is thus harmless in light of the evidence properly considered by the Commission.
See fn 3, supra.
II. The Discrimination Claim
Plaintiff advances a final, peripheral argument as a basis for overturning the Commission's decision, contending that the Chief and the Mayor discriminated against him because he is the union president of IBPO Local #380. Plaintiff suggests that the Chief fabricated the charges of sick leave abuse because he was a union activist and that, for the same illegitimate reason, the Mayor terminated plaintiff. Plaintiff concludes that his termination was rooted in reprisal for his union activities. He urges this Court to rule, ergo, that his termination is not sustainable.
The record at bar is, however, of no assistance to plaintiff's claim. Plaintiff has offered only a bald assertion, without any credible, non-speculative evidence in support. In fact, the transcript record of the Commission hearing reflects a mutually respectful management-labor relationship between the Chief and the Mayor on the one hand and plaintiff on the other. Testimony was presented to the Commission which suggested an amiable and cooperative history between the Chief and plaintiff in resolving employee grievances within the Department. Plaintiff's claim of anti-union discrimination in this matter is a baseless grasping at straws.
ORDER
It is hereby ORDERED that Wayne Farrell's motion for judgment on the pleadings is DENIED and judgment shall enter for the defendants AFFIRMING the decision rendered by the Civil Service Commission on October 28, 1996.
_________________________ Daniel F. Toomey Justice of the Superior Court
DATED: December, 1997