Mendonca v. Civil Service Commission , 86 Mass. App. Ct. 757 ( 2014 )

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13-P-1979 Appeals Court
PAUL MENDONCA vs. CIVIL SERVICE COMMISSION & another.1
No. 13-P-1979.
Suffolk. September 15, 2014. - December 12, 2014.
Present: Berry, Kafker, & Carhart, JJ.
Veteran. Handicapped Persons. Public Employment, Provisional
employee, Termination, Reinstatement of personnel. Civil
Service, Termination of employment, Reinstatement of
personnel. Employment, Termination. Administrative Law,
Substantial evidence.
Civil action commenced in the Superior Court Department on
January 13, 2012.
The case was heard by Garry V. Inge, J., on a motion for
judgment on the pleadings.
Richard L. Neumeier (Galen Gilbert with him) for the
plaintiff.
Iraida J. Alvarez, Assistant Attorney General, for the
defendants.
CARHART, J. Paul Mendonca appeals from the entry of
judgment in favor of the defendants following a Superior Court
1
Executive Office of Labor and Workforce Development.
2
judge's denial of his motion for judgment on the pleadings.
Mendonca had sought review pursuant to G. L. c. 31, § 44, of a
decision by the Civil Service Commission (commission) upholding
his layoff by the Executive Office of Labor and Workforce
Development (EOLWD). Mendonca alleged that the layoff violated
his rights as a disabled veteran. We agree and reverse.
Background. Mendonca is a disabled Vietnam War veteran.
He holds a bachelor of science degree in business management
from Suffolk University, and a master's degree in business
administration from the University of Massachusetts. Mendonca's
extensive work history includes management, training, and
marketing in the human resources field. He has negotiated and
managed labor agreements to ensure labor law compliance; he has
established and implemented human resources systems for various
companies; he has recruited and trained staff; and he has
secured competitive State abandoned property audit contracts for
private companies.
On May 3, 1999, the Commonwealth hired Mendonca as a
provisional Administrator III. A Management Questionnaire (MQ)
describing Mendonca's position shows that Mendonca was
responsible for administering the Commonwealth's federally
funded Job Search/Job Readiness Program (JS/JR). Mendonca
worked closely with several State agencies, including the
Departments of Transitional Assistance (DTA), Unemployment
3
Assistance (DUA), and Career Services (DCS), and ensured that
JS/JR "[wa]s operated according to Federal, State and
contractual requirements." Mendonca's duties included
negotiating and drafting interdepartmental service agreements;
specifically, he "[r]ecommend[ed] amounts and conditions for
reimbursement, scope of services, program requirements, key
performance objectives, budget provisions and staffing
configurations to ensure contractual goals are achievable."
On March 29, 2007, the human resources division of EOLWD
determined that the title Program Coordinator II more accurately
reflected Mendonca's duties. However, Mendonca retained the
title Administrator III. Mendonca was laid off on April 10,
2008, when his position was eliminated as a result of budget
cuts. Four other Administrator III positions existed at that
time: Web services manager, deputy director of contracts and
procurement (deputy director), Hurley Building superintendent
(superintendent), and manager of the office of multilingual
services. The individuals holding these positions included one
veteran holding a permanent original appointment, and three
nonveterans.
The MQ for each respective position lists its requirements.
The Web services manager must hold a "Bachelor's degree in Fine
Arts" and have five to ten years' experience developing and
managing Web sites. The superintendent position "requires a
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high degree of technical knowledge in building systems including
fire detection/alarm systems; HVAC[2] systems; plumbing and
electrical systems; elevator systems; State and local building
codes; and [Americans with Disabilities Act] requirements." The
superintendent "must be on call 24 hours a day, seven days a
week, and must be prepared to immediately bring resources to
bear to resolve emergency situations." For example, the
superintendent must be able to resolve dangerous building
conditions and malfunctioning heating or air conditioning
systems. The manager of the office of multilingual services
must be bilingual in English and Spanish, and the position
"requires mastery of several foreign languages" and a
"Linguistics degree." Finally, the deputy director "advise[s]
agency personnel on procurement matters associated with the
Commonwealth's operations and policy to ensure . . . compliance
with all applicable state and federal laws, rules and
regulations." The deputy director position entails managing and
training staff in matters "relating to procuring goods and
services; managing multi-year encumbrances of state and federal
funds for Federal/State programs, grants; Interdepartmental
Service Agreements and miscellaneous Agreements; writing
proposals . . . ; approving attorney fee requests; and contract
review." The deputy director analyzes and recommends action on
2
Heating, ventilation, and air conditioning.
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issues relating to procurement and contracts with private
entities, "ensuring compliance with state and federal laws and
Executive Orders." The position requires "a minimum of an
Associate[']s Degree in Accounting and or Business Management,"
along with five years' experience in accounting, finance, and
contract and procurement management.
EOLWD determined that Mendonca could not be retained
because he was not qualified for any of the other Administrator
III positions. Mendonca appealed EOLWD's decision to the
commission, which held a hearing on August 3, 2009. David E.
Olsen, human resources director for EOLWD, testified that he was
responsible for laying off Mendonca. He noted Mendonca's
veteran status and stated that he understood G. L. c. 31 to
require "[t]hat veterans shall be retained in title until all
other similarly situated offices are eliminated." Olsen
therefore investigated the remaining Administrator III positions
to determine whether Mendonca could be retained.
Olsen concluded that Mendonca could not be retained as an
Administrator III because the remaining positions were "very
different" from Mendonca's job, and "Mendonca's skill and his
personnel file, his resume, his background, had always been in
either human resources, job placement type of work." Olsen did
not consider Mendonca for any positions outside of the
Administrator III title because the positions were "not
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similarly situated"; they either had different job
classifications or dealt with the public instead of staff.3
Olsen testified that, in evaluating Mendonca's case, he "was
operating within the scope of [his] interpretation of the law."
Dana Johnson testified for Mendonca. Johnson is a
rehabilitation counselor. She evaluates individuals to
determine "if somebody's under employed or if somebody actually
is employable or what it would take to make somebody
employable." She often provides expert testimony in insurance
and divorce cases. Johnson testified that transferable skills
are those "that you can take from one job and bring them to
another." Nontransferable skills are those limited to a
particular position or field. In Johnson's opinion, Mendonca's
position as JS/JR coordinator required transferable skills
including: evaluating a government program and determining what
training or further resources the employees may need to improve
performance; budgeting; handling State reimbursements;
coordinating services with other government agencies; and
3
Olsen testified that Administrator III was a "staff
oriented" position, meaning it dealt solely with a State agency
and its staff. A "line oriented" position deals directly with
the public. Mendonca was an Administrator III; however, Olsen
testified that Mendonca's duties more closely resembled those of
a "Program Manager." Olsen stated that he did not consider
Mendonca for any Program Manager positions because "[t]hose jobs
were line oriented as opposed to staff oriented," and it would
be very unlikely that a "staff oriented" manager would "cross
over" to become "line oriented" because it is rare that "[a]n
individual could possess both skills."
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assessing vendor contracts to ensure that the Commonwealth's
money is well spent. Mendonca was required in his position to
read, analyze, and follow through on contracts, which Johnson
also considers to be transferable skills.
On December 15, 2011, the hearing officer issued a written
decision which contained thirty-three findings of facts. Of
particular relevance to our discussion is the following finding:
"30. In regard to the position of Deputy Director of
Contracts and Procurement, [Mendonca] has no experience in
contract procurement activities and the laws regarding
trade and procurement regulations. He has not reviewed
procurement contracts, granted agreements or approved fee
requests from attorneys representing [DUA], Unemployment
Insurance clients. [Mendonca] does not possess knowledge
of [EOLWD]'s Affirmative Market Program or of the laws and
regulations on trade such as the North American Free Trade
Agreement ('NAFTA') and the Trade Adjustment Assistance
Act. Furthermore, [Mendonca] does not possess knowledge,
skills or abilities relating to the MARS system (the
state's accounting system), financial systems, or GAP
(general accounting principles) policies and procedures
specific to the comptroller's office."
The hearing officer concluded, based on her findings, that
(1) Mendonca is not entitled to relief under the Veterans'
Tenure Act, G. L. c. 30, § 9A, because his position is
"classified"; (2) as a matter of law, Mendonca is not entitled
under the Disabled Veterans' Act, G. L. c. 31, § 26, to an
absolute preference in employment; (3) Mendonca is not entitled
to relief under G. L. c. 31, § 39, because he was a
"provisional" employee; and (4) EOLWD's decision that Mendonca
was not qualified for any of the other Administrator III
8
positions was supported by substantial evidence. Mendonca
sought Superior Court review pursuant to G. L. c. 31, § 44. On
October 11, 2013, the Superior Court judge upheld the
commission's decision.
Discussion. 1. Standards of review. The commission was
required "to determine, on the basis of the evidence before it,
whether [EOLWD] sustained its burden of proving, by a
preponderance of the evidence, that there was reasonable
justification for the action taken by [EOLWD]." Brackett v.
Civil Serv. Commn., 447 Mass. 233, 241 (2006). "Reasonable
justification in this context means 'done upon adequate reasons
sufficiently supported by credible evidence, when weighed by an
unprejudiced mind, guided by common sense and by correct rules
of law." Ibid., quoting from Selectmen of Wakefield v. Judge of
First Dist. Ct. of E. Middlesex, 262 Mass. 477, 482 (1928). The
judge was required to uphold the commission's decision if
supported by substantial evidence. Ibid.
"[W]e review the commission's decision to determine if it
violates any of the standards set forth in G. L. c. 30A,
§ 14(7), and cases construing those standards." Plymouth v.
Civil Serv. Commn., 426 Mass. 1, 5 (1997). While we are "bound
to accept the findings of fact of the commission's hearing
officer, if supported by substantial evidence," Leominster v.
Stratton, 58 Mass. App. Ct. 726, 728 (2003), "we are required to
9
overturn commission decisions that are inconsistent with
governing law." Plymouth, supra. We review conclusions of law
de novo, Andrews v. Civil Serv. Commn., 446 Mass. 611, 615
(2006), and ask "whether, on the basis of the transcript of
evidence before the [hearing officer] and the [hearing
officer]'s findings and conclusions, the commission
substantially erred in a way that materially affected the rights
of the parties." Gloucester v. Civil Serv. Commn., 408 Mass.
292, 297 (1990). Mendonca bears the burden of proving the
invalidity of the commission's decision. See Brackett, supra at
242.
2. Veterans' Tenure Act. The hearing officer concluded
that Mendonca was not entitled to additional rights under the
Veterans' Tenure Act, G. L. c. 30, § 9A, because Administrator
III is a classified position. Under that statute, veterans
holding positions not classified under the civil service laws
may not be laid off except in accordance with G. L. c. 31,
§§ 41-45. G. L. c. 30, § 9A, as amended by St. 1978, c. 393,
§ 8. General Laws c. 31, §§ 41-45, require that a layoff be for
"just cause," and that the employee have notice, a hearing, and
review of the decision. If layoff of a veteran holding an
unclassified job "results from lack of work or lack of money,"
the Veterans' Tenure Act provides that such veteran "shall not
be separated . . . while similar offices or positions in the
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same group or grade . . . exist unless all such offices or
positions are held by such veterans." G. L. c. 30, § 9A.
The Administrator III position is classified under the
civil service laws, see G. L. c. 31, § 45(1), and the Veterans'
Tenure Act applies, by its terms, to veterans holding positions
that are not classified. See Aquino v. Civil Serv. Commn., 34
Mass. App. Ct. 538, 541 (1993) (applying the "well-known maxim"
that "expression of one thing is the exclusion of another").
Because Mendonca's position was "expressly exempted by the
language of [G. L. c. 31, § 9A,]" there was no error in the
hearing officer's conclusion. Barkin v. Milk Control Commn., 8
Mass. App. Ct. 517, 520 (1979).
Indeed, as a "provisional" employee, Mendonca could not
achieve tenure4 and could be terminated at any time. See G. L.
c. 31, § 14; Sullivan v. Commissioner of Commerce & Dev., 351
Mass. 462, 465 (1966); Dallas v. Commissioner of Pub. Health, 1
Mass. App. Ct. 768, 771 (1974); Fall River v. AFSCME Council 93,
Local 3177, AFL-CIO, 61 Mass. App. Ct. 404, 408 n.4 (2004).
EOLWD did not need to show just cause for its action, Rafferty
v. Commissioner of Pub. Welfare, 20 Mass. App. Ct. 718, 723
4
"A tenured employee in the civil service system is one who
initially occupied a position by original appointment pursuant
to G. L. c. 31, § 6, and has completed the probationary period,
or one who has received a 'promotional appointment' on a
permanent basis as provided in G. L. c. 31, § 8." Andrews, 446
Mass. at 613.
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(1985), and Mendonca was not entitled to a hearing because he
was not "discharged as a result of allegations relative to his
personal character or work performance." G. L. c. 31, § 41,
inserted by St. 1978, c. 393, § 11.
3. Disabled Veterans' Act. Under the Disabled Veterans'
Act, "[a]n appointing authority shall appoint a veteran in
making a provisional appointment under section twelve," and "[a]
disabled veteran shall be retained in employment in preference
to all other persons, including veterans." G. L. c. 31, § 26,
inserted by St. 1978, c. 393, § 11. General Laws c. 31, § 26,
represents "a legislatively created mechanism under which
veterans receive a preference over non-veterans in certain types
of civil service employment." Aquino, 34 Mass. App. Ct. at 539.
Because the statute requires that "disabled veterans be[] kept
on the payroll in preference to others," Provencal v. Police
Dept. of Worcester, 423 Mass. 626, 630 (1996), "all employees
having the same title in a particular departmental unit who are
not disabled veterans must be laid off first according to
seniority, followed by such employees who are disabled veterans
according to seniority." 1980 Op. Atty. Gen., Rep. A.G., Pub.
Doc. No. 12 at 98 (July 21, 1980).
Here, EOLWD laid off Mendonca while retaining three
Administrator IIIs who are not veterans, and one Administrator
III who is not a disabled veteran. The hearing officer
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concluded that EOLWD's actions did not violate G. L. c. 31,
§ 26, because "substantial evidence established that [Mendonca]
could not show that there were any other Administrator III
positions for which he was qualified within EOLWD into which he
could have been transferred." Massachusetts courts have
recognized a "basic requirement that the veteran being preferred
be otherwise qualified to perform the duties of the office or
position to which he was appointed." Hutcheson v. Director of
Civil Serv., 361 Mass. 480, 497-498 (1972) (Quirico, J.,
dissenting), and cases cited. Mendonca offered his resume and
Johnson's testimony to demonstrate his qualification for two of
the remaining Administrator III positions -- Hurley Building
superintendent and deputy director of contracts and procurement.
The hearing officer relied on Olsen's testimony, the documentary
evidence, and Johnson's testimony regarding transferable skills
in concluding that Mendonca was not qualified for any other
Administrator III positions. While the record supports the
hearing officer's findings concerning the Hurley Building
superintendent position, we cannot agree that it provides
substantial evidence that Mendonca was unqualified for the
deputy director position.
"'Substantial evidence' means such evidence as a reasonable
mind might accept as adequate to support a conclusion." G. L.
c. 30A, § 1(6). While Olsen testified that Mendonca's job "was
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very different" from those performed by the other Administrator
IIIs, the title Administrator III is "applied to a position or
to a group of positions having similar duties and the same
general level of responsibility." G. L. c. 31, § 1, inserted by
St. 1978, c. 393, § 11 (defining "Title"). To avoid this
reality, Olsen testified that Mendonca's duties more closely
resembled those of a program manager, which is a "line oriented"
position. Olsen then stated that he did not consider Mendonca
for a program manager position because they were "line oriented"
as opposed to "staff oriented" and therefore not "similarly
situated" to Mendonca's Administrator III position. Thus,
according to Olsen's testimony, Mendonca was not qualified for
the Administrator III positions because those are "staff
oriented" and Mendonca was a "line manager," and Olsen did not
need to consider Mendonca for a "line oriented" program manager
position because Administrator III is "staff oriented" and G. L.
c. 31, § 26, only requires Olsen to investigate "similarly
situated offices."
In hiring Mendonca as a provisional employee, EOLWD was
required to substantiate that Mendonca "meets the proposed
requirements for appointment to the position [of Administrator
III] and possesses the knowledge, skills and abilities necessary
to perform such duties." G. L. c. 31, § 13, amended by St.
1985, c. 257, § 4. "A provisional appointment . . . shall be
14
terminated" whenever it is determined "that the person appointed
does not, in fact, possess the approved qualifications or
satisfy the approved requirements for the position," G. L.
c. 31, § 14, inserted by St. 1978, c. 393, § 11; however,
Mendonca's provisional employment was not terminated when he was
reclassified as a "line oriented" Program Coordinator II.
Olsen's stated justification for not retaining Mendonca either
in his titled Administrator III position or in the Program
Coordinator II position was that an individual rarely possesses
the skills to work in both "staff oriented" and "line oriented"
positions. Olsen also testified that Mendonca's experience was
in human resources (a "staff oriented" field), and that his
duties as JS/JR coordinator more closely resembled those of a
"line manager." We do not think that "under the substantial
evidence test," Olsen's inconsistent testimony and circular
logic could "reasonably form the basis of impartial, reasoned
judgment." Cobble v. Commissioner of the Dept. of Social
Servs., 430 Mass. 385, 393 n.8 (1999).
The deputy director position requires an associate's degree
in business administration. Mendonca has a bachelor's degree in
business management and a master's degree in business
administration. While the hearing officer found that Mendonca
"does not possess knowledge, skills or abilities relating to
the" Commonwealth's accounting system, financial systems, and
15
general accounting policies and procedures specific to the
comptroller's office, Mendonca's MQ shows that he was
responsible for "reconciling statewide claimed earnings,
invoicing, determining and accounting for specific Career Center
earnings," and working closely with other EOLWD departments "for
successful program outcomes and adherence to approved budgets."
Moreover, Johnson testified that Mendonca's experience "working
with the state reimbursement," "do[ing] some of the budgeting
work and work[ing] within the system" were transferable skills.
The hearing officer found that Mendonca "has no experience
in contract procurement activities and the laws regarding trade
and procurement regulations" despite crediting Johnson's
testimony that Mendonca's transferable skills include "being
able to analyze contracts, being able to work with vendors,
. . . being able to work with other state agencies, [and] being
able to read and analyze the requirements for submitting . . .
requests." Mendonca's position as JS/JR coordinator involved
reading, analyzing, and following through on contracts while
following State procedures. Mendonca's experience in labor
relations undoubtedly involved reading, analyzing, and applying
Federal laws and regulations, and his resume demonstrates that
he has experience with cash management and audits in relation to
compensation and benefits. As an Administrator III, Mendonca
"reconcile[d] performance earnings for the JS/JR program,"
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"[r]ecommend[ed] amounts and conditions for reimbursement," and
"[m]onitor[ed] the preparation of documents to validate DCS
compensation, resolve discrepancies and prepare invoice to DTA
to secure program funding." Thus, contrary to the hearing
officer's finding, Mendonca does "possess knowledge, skills or
abilities" relating to financial systems and general accounting
policies and procedures specific to the Commonwealth.
While "the substantial evidence test accords an appropriate
degree of judicial deference to administrative decisions,"
reversal by a reviewing court is required "if the cumulative
weight of the evidence tends substantially toward opposite
inferences." Cobble, supra at 391. The evidence in this case
demonstrates that Mendonca is a disabled veteran, that he is
qualified for the Administrator III position, and that EOLWD
laid him off while retaining four Administrator IIIs who are not
disabled veterans. General Laws c. 31, § 26, mandates a
preference for disabled veterans in continuing the employer-
employee relationship, Provencal, 423 Mass. at 628, and applies
with respect to other employees in the same title. Andrews, 446
Mass. at 616-617. "Preference to veterans must be a reality[;]
[i]t cannot be made illusory or a mere gesture" by performing
only the most cursory consideration of a veteran's
qualifications for similarly situated positions. Opinion of the
Justices, 324 Mass. 736, 744 (1949). Olsen's stated reasons for
17
not retaining Mendonca cannot be considered "sufficiently
supported by credible evidence" to overcome the preference which
the statute provides, Selectmen of Wakefield, 262 Mass. at 482;
nor does his testimony provide substantial evidence in support
of the hearing officer's findings. The judge's decision
upholding the hearing officer's findings and conclusions is not
"legally tenable" in light of the statutory preference for
disabled veterans, School Comm. of Brockton v. Civil Serv.
Commn., 43 Mass. App. Ct. 486, 490 (1997), quoting from
Gloucester v. Civil Serv. Commn., 408 Mass. 292, 297 (1990).5
Conclusion. The judgment is reversed, and the case is
remanded to the Superior Court for the entry of a new judgment
ordering the commission to vacate its decision and enter a new
decision ordering the reinstatement of Mendonca to an
Administrative III position retroactive to April 10, 2008.
So ordered.
5
The defendants argue that Mendonca has waived his right to
be reinstated as an Administrator III because the JS/JR program
has been eliminated and he only sought reinstatement to his "old
job" in Superior Court. However, Mendonca also sought from the
Superior Court "a Decision . . . finding that the lay off from
his position was not justified." Because Mendonca is entitled
to the veterans' preference, which applies to those holding the
same title, Andrews, supra, he has not waived his right to be
reinstated as an Administrator III.