Airport Fuel Services, Inc. v. Martha’s Vineyard Airport Commission, et al. (Lawyers Weekly No. 12-051-17)
COMMONWEALTH OF MASSACHUSETTS DUKES COUNTY, ss. SUPERIOR COURT CIVIL ACTION 2017-0017 AIRPORT FUEL SERVICES, INC. vs. MARTHA’S VINEYARD AIRPORT COMMISSION and DEPOT CORNER, INC. MEMORANDUM OF DECISION AND ORDER ON THE PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION This action arises out of the defendant, Martha’s Vineyard Airport Commission’s (the Commission) decision to award a lease of Lot #33 in the Airport Business Park (the Property) to the defendant, Depot Corner, Inc. (Depot), following a public bidding procedure. The Plaintiff, Airport Fuel Services, Inc. (AFS), has been the lessee of the Property pursuant to a 20 year lease that expired on March 9, 2017 (the Lease). It constructed a gas station, convenience store, and car wash on the Property and operated them over the term of its lease. In its complaint, AFS alleges that “the 2017 RFP issued by [the Commission] was misleading and an inherently unfair proposal” and seeks an order requiring the Commission to lease the Property to it, according to its bid proposal. The case is before the court on AFS’s motion for a preliminary injunction enjoining the Commission from leasing the Property to Depot. FACTUAL BACKGROUND The following facts are taken from the affidavits and documents submitted in support of and opposition to the motion for preliminary relief. Under the terms of the Lease, AFS was permitted to construct the gas station, convenience store, and car wash which it operated over the Lease term. However, Section Eleven of the Lease provided that: “Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the lease, peaceably and quietly surrender and deliver the Premises to Lessor at Lessor’s option free of subtenants, buildings, additions, and improvements constructed or placed thereon by Lessee.”[1] In 2014, the Commission issued a Request for Proposal (RFP) for a lease for the Premises to commence after the expiry of the AFS Lease, but RFP was withdrawn for reasons that do not affect the court’s ruling on the issues raised by the pending motion. On December 30, 2016, the Commission issued the RFP (which it titled: Request for Qualifications) for a new lease of the Property which is the subject of the present action. In the first section of the RFP, entitled General Information to Proposers, the Commission explained that it “may waive its rights under Section Eleven” (quoted above) to require the present lessee, AFS, to remove the buildings that it constructed on the Property. The RFP went on to state,“[t]he successful Proposer will have the opportunity to either negotiate a separate agreement for the purchase of the existing facilities with the […]
Massasoit Industrial Corporation v. Massachusetts Commission Against Discrimination, et al. (Lawyers Weekly No. 11-031-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-459 Appeals Court MASSASOIT INDUSTRIAL CORPORATION vs. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.[1] No. 16-P-459. Plymouth. December 7, 2016. – March 23, 2017. Present: Cypher, Maldonado, & Blake, JJ. Handicapped Persons. Anti-Discrimination Law, Handicap, Age, Employment, Termination of employment. Employment, Discrimination, Termination. Massachusetts Commission Against Discrimination. Emotional Distress. Damages, Emotional distress. Words, “Handicap.” Civil action commenced in the Superior Court Department on July 2, 2014. The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings. Susanne Hafer for the plaintiff. Wendy A. Cassidy for Massachusetts Commission Against Discrimination. Christopher Maffucci, for the intervener, was present but did not argue. BLAKE, J. The plaintiff, Massasoit Industrial Corporation (Massasoit), appeals from a judgment of the Superior Court denying its challenge to the decision and final order of the Massachusetts Commission Against Discrimination (MCAD). The MCAD decision affirmed a hearing officer’s order, arising from her finding that Massasoit had terminated the employment of William J. Glynn in violation of the handicap and age discrimination provisions of G. L. c. 151B. We affirm. Background. In 1986, Massasoit hired Glynn as a part-time custodian in its outside maintenance department. At the time, Glynn was fifty-four years old. For the ten years prior to his termination, he performed general custodial work at the registry of motor vehicles (RMV) in Brockton to the satisfaction of his supervisors. He had a spotless personnel record with Massasoit, and had never called in sick or missed work due to illness. On March 30, 2007, Glynn left work early because he was not feeling well. Glynn’s son took him to the hospital, where he stayed for three days to treat pneumonia. Glynn asked his daughter-in-law to notify his coworker of his absence from work due to his illness, which she did on the next day Glynn was scheduled to work. The coworker assured her that he would notify their supervisor. On April 6, 2007, less than one week after being discharged from the hospital, Glynn was readmitted with chest pains and diagnosed with a heart attack. The daughter-in-law again notified the coworker of Glynn’s situation, and he assured her that he would notify their supervisor. He also visited Glynn and assured him that the supervisor had been notified. From April 5, 2007, through […]
Categories: News Tags: 1103117, Against, Commission, Corporation, Discrimination, Industrial, Lawyers, massachusetts, Massasoit, Weekly
City of Revere, et al. v. Massachusetts Gaming Commission (Lawyers Weekly No. 10-042-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12111 SJC-12177 CITY OF REVERE & others[1] vs. MASSACHUSETTS GAMING COMMISSION. Suffolk. December 5, 2016. – March 10, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Gaming. License. Administrative Law, Judicial review, Intervention. Practice, Civil, Action in nature of certiorari, Review of administrative action, Intervention, Interlocutory appeal. Jurisdiction, Judicial review of administrative action. Civil action commenced in the Superior Court Department on October 16, 2014. A motion to dismiss the intervener’s complaint and a motion to dismiss the plaintiffs’ second amended complaint were heard by Janet L. Sanders, J. The Supreme Judicial Court granted an application for direct appellate review, and following the order by Sanders, J., for entry of final judgment, the Supreme Judicial Court granted a second application for direct appellate review. Kenneth S. Leonetti & Christopher E. Hart (Michael Hoven also present) for the intervener. Patricia L. Davidson for city of Revere. David S. Mackey (Mina S. Makarious & Melissa C. Allison also present) for the defendant. BOTSFORD, J. This case concerns the process by which the Massachusetts Gaming Commission (commission) awarded a gaming license in late 2014 to Wynn MA, LLC (Wynn). The plaintiffs — an unsuccessful applicant for the license, the city that would have hosted the unsuccessful applicant, a labor union, and individual citizens — filed two complaints in the Superior Court that alleged numerous defects in the commission’s process for awarding the license to Wynn. The commission filed motions to dismiss both complaints. A judge in the Superior Court allowed the motions on all but one count of one of the complaints, permitting only the unsuccessful applicant’s claim for certiorari review to survive. The parties now appeal various aspects of the judge’s decision. For the reasons discussed below, we affirm in part, reverse in part, and remand the case for further proceedings. Background. 1. Gaming in Massachusetts. In November, 2011, the Legislature enacted St. 2011, c. 194, An Act establishing expanded gaming in the Commonwealth (act).[2] Section 16 of the act created the gaming commission and set forth standards under which applicants could obtain a license from the commission to operate a gaming establishment. See G. L. c. 23K, inserted by St. 2011, c. 194, § 16. The act describes two types of licenses. The one […]
Categories: News Tags: 1004217, City, Commission, Gaming, Lawyers, massachusetts, Revere, Weekly
Taylor, et al. v. Martha’s Vineyard Land Bank Commission (Lawyers Weekly No. 10-162-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11963 HUGH C. TAYLOR, trustee,[1] & others[2] vs. MARTHA’S VINEYARD LAND BANK COMMISSION. Suffolk. March 8, 2016. – October 11, 2016. Present: Gants, C.J., Spina, Cordy, Duffly, Lenk, & Hines, JJ.[3] Easement. Real Property, Easement. Martha’s Vineyard Land Bank Commission. Civil action commenced in the Land Court Department on June 9, 2010. A motion for summary judgment was heard by Alexander H. Sands, III, J., and the remaining issues were also heard by him. The Supreme Judicial Court granted an application for direct appellate review. Diane C. Tillotson for the defendant. Gordon M. Orloff for the plaintiffs. Jeffrey T. Angley & Nicholas P. Shapiro, for Roma III, Ltd., amicus curiae, submitted a brief. Greg D. Peterson, Mark S. Furman, & Matthew S. Furman, for Sarah A. Kent, amicus curiae, submitted a brief. LENK, J. The defendant, Martha’s Vineyard Land Bank Commission, owns and manages a nature preserve on the western edge of Martha’s Vineyard. The preserve is comprised of various parcels of land that the defendant purchased in the 1990s. In 2010, the defendant created a hiking trail through the preserve, which it planned to open to the public. The trail began on a main road, crossed over the grounds of an inn owned by the plaintiffs via a forty-foot wide easement, proceeded from there across three parcels of the defendant’s land for whose benefit the easement was created, and then entered a fourth parcel, also owned by the defendant, that was not intended to benefit from the easement. The plaintiffs filed an action in the Land Court to prevent the defendant from using the easement as part of the hiking trail. They argued, among other things, that it was improper, pursuant to Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965), for the trail to cross over the easement and then continue onto the fourth parcel, given that the easement was not intended to serve that parcel. On this basis, a judge of the Land Court granted partial summary judgment for the plaintiffs. Following a bench trial, at which certain remaining issues were resolved in the defendant’s favor, the defendant appealed from the grant of partial summary judgment, and we allowed its application for direct appellate review.[4] The defendant contends that the bright-line rule […]
Thompson, et al. v. Civil Service Commission, et al. (and a companion case) (Lawyers Weekly No. 11-144-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-330 Appeals Court PRESTON THOMPSON & others[1] vs. CIVIL SERVICE COMMISSION & another[2] (and a companion case[3]). No. 15-P-330. Suffolk. May 10, 2016. – October 7, 2016. Present: Cypher, Blake, & Henry, JJ. Civil Service, Police, Termination of employment, Testing, Reinstatement of personnel, Decision of Civil Service Commission. Labor, Police, Collective bargaining, Discharge. Municipal Corporations, Police, Collective bargaining. Police, Discharge, Collective bargaining. Public Employment, Police, Collective bargaining, Termination, Reinstatement of personnel. Administrative Law, Substantial evidence. Damages, Back pay. Civil actions commenced in the Superior Court Department on April 3, 2013. After consolidation, the case was heard by Judith Fabricant, J., on motions for judgment on the pleadings. Alan H. Shapiro (John M. Becker with him) for Preston Thompson & others. Helen G. Litsas for Boston Police Department. Amy Spector, Assistant Attorney General, for Civil Service Commission. BLAKE, J. Between 2001 and 2006, ten officers of the Boston police department (department) submitted hair samples to the department that tested positive for cocaine. In response, the department terminated their employment. The ten officers appealed the terminations to the Civil Service Commission (commission). After extensive hearings, the commission issued a decision upholding the terminations of Preston Thompson, Rudy Guity, Oscar Bridgeman, and William Bridgeforth (hereinafter, four officers), and overturning the terminations of Richard Beckers, Ronnie Jones, Jacqueline McGowan, Shawn Harris, Walter Washington, and George Downing (hereinafter, six reinstated officers or six officers), who were ordered to be reinstated with back pay and benefits to the date the commission hearings commenced. The department and each of the ten officers filed a complaint for judicial review.[4] A judge of the Superior Court affirmed the commission’s decision, modifying only the back pay and benefits awards for the six reinstated officers to the date of each of their respective terminations. The four officers appeal, claiming that the department lacked just cause for their terminations. The department cross-appeals, claiming that there was substantial evidence to warrant the termination of the six reinstated officers.[5] We affirm. Background. 1. Legal framework. A tenured civil service employee who is aggrieved by a disciplinary decision of an appointing authority may appeal to the commission. See G. L. c. 31, § 41. After finding facts anew, the commission then must determine, by a preponderance of the evidence, whether the appointing authority met […]
Nelson v. Conservation Commission of Wayland (Lawyers Weekly No. 11-113-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1437 Appeals Court KENNETH TODD NELSON vs. CONSERVATION COMMISSION OF WAYLAND. No. 15-P-1437. Middlesex. May 16, 2016. – August 31, 2016. Present: Rubin, Milkey, & Neyman, JJ. Zoning, By-law, Wetlands. Municipal Corporations, Conservation commission, By-laws and ordinances. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on December 3, 2014. The case was heard by Peter B. Krupp, J., on a motion for judgment on the pleadings. George F. Hailer for the plaintiff. Mark J. Lanza for the defendant. RUBIN, J. The plaintiff[1] appeals from a judgment of the Superior Court affirming a determination by the conservation commission of Wayland (commission) that there are wetlands on his property.[2] That determination was made under Wayland’s wetlands and water resources protection by-law. See chapter 194 of the Wayland town code (2015) (by-law). Under the by-law’s definition, wetlands are protected more broadly than they are under the Wetlands Protection Act and the accompanying regulations. See § 194-1 of the by-law (“The purpose of this chapter is to provide a greater degree of protection of wetlands, buffer zones, and related water resources, than the protection of these resource areas provided under [G. L.] c. 131, § 40, and the Wetlands Regulations promulgated thereunder by the Massachusetts Department of Environmental Protection”). Compare § 194-2 of the by-law, with G. L. c. 131, § 40, and 310 Code Mass. Regs. §§ 10.01 et seq. (2014). The plaintiff agrees that the town has the authority to provide such broader protection, but argues that the commission’s decision here was not supported by substantial evidence. The plaintiff brought an action in the nature of certiorari (G. L. c. 249, § 4) in the Superior Court. The plaintiff moved for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). The judge denied the motion and upheld the commission’s decision. This appeal followed. The commission made two findings supporting its conclusion that the property at issue contains wetlands within the meaning of the by-law. These findings, in full, provide that “[p]lants including [r]ed [m]aple, American [e]lm, skunk cabbage, and other hydrophilic vegetation comprise at least 50% of the vegetational community.” Further, “[r]unoff water from surface drainage frequently collects above the soil surface.” Section 194-2 of the by-law defines “wetland” as “[w]et meadows, marshes, swamps, bogs, and other areas where groundwater, flowing […]
Categories: News Tags: 1111316, Commission, Conservation, Lawyers, Nelson, Wayland, Weekly
Public Employee Retirement Administration Commission v. Bettencourt (Lawyers Weekly No. 10-047-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11906 PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION vs. EDWARD A. BETTENCOURT. Suffolk. October 6, 2015. – April 6, 2016. Present (Sitting at New Bedford): Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Public Employee Retirement Administration Commission. Retirement. Public Employment, Retirement benefits, Forfeiture of retirement benefits. Constitutional Law, Excessive fines clause. Civil action commenced in the Superior Court Department on December 19, 2012. The case was heard by Garry V. Inge, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Paul T. Hynes (Michael R. Keefe with him) for the defendant. Peter Sacks, State Solicitor (Judith A. Corrigan, Special Assistant Attorney General, with him) for the plaintiff. Ian O. Russell & Patrick N. Bryant for Massachusetts Coalition of Police, amicus curiae, submitted a brief. BOTSFORD, J. The Commonwealth’s law governing public employee retirement systems and pensions requires that a public employee forfeit the retirement and health insurance benefits (retirement allowance or pension) to which the employee would be entitled upon conviction of a crime “involving violation of the laws applicable to [the employee’s] office or position.” G. L. c. 32, § 15 (4) (§ 15 [4]).[1] We consider here whether this mandatory forfeiture of a public employee’s retirement allowance qualifies as a “fine” under the excessive fines clause of the Eighth Amendment to the United States Constitution. We conclude that it does and that, in the circumstances of this case, the mandatory forfeiture of the public employee’s retirement allowance is “excessive.”[2] Background.[3] Edward A. Bettencourt was first appointed as a police officer in the city of Peabody in October, 1980, and became a member of the Peabody retirement system on November 7, 1982.[4] Bettencourt was promoted to the rank of sergeant around 1990, and promoted again to serve as a lieutenant in 2003. In the early morning hours of December 25, 2004, Bettencourt was on duty as a watch commander, and he knowingly accessed, through theInternet and without permission, the Massachusetts human resources division (HRD) computer system, and specifically the HRD Internet site containing individual applicant record information. Gaining the unauthorized access, he viewed the civil service promotional examination scores of twenty-one other police officers, including four officers who were his direct competitors […]
Categories: News Tags: 1004716, Administration, Bettencourt, Commission, Employee, Lawyers, Public, Retirement, Weekly
Parkview Electronics Trust, LLC v. Conservation Commission of Winchester (Lawyers Weekly No. 11-006-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-276 Appeals Court PARKVIEW ELECTRONICS TRUST, LLC vs. CONSERVATION COMMISSION OF WINCHESTER. No. 13-P-276. Middlesex. November 6, 2014. – January 12, 2016. Present: Trainor, Agnes, & Maldonado, JJ. Municipal Corporations, Conservation commission, By-laws and ordinances. Wetlands Protection Act. Department of Environmental Protection. Jurisdiction, Administrative matter. Zoning, By-law, Wetlands. Civil action commenced in the Superior Court Department on June 25, 2004. The case was heard by Mitchell H. Kaplan, J., on motions for judgment on the pleadings. Jill Brenner Meixel (Vincent J. Pisegna with her) for the plaintiff. Wade M. Welch (Melissa C. Donohoe with him) for the defendant. AGNES, J. The Wetlands Protection Act, G. L. c. 131, § 40 (act), sets forth “minimum wetlands protection standards, and local communities are free to impose more stringent requirements.” Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 866 (2007). As we noted in Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 568 (1996), it is not uncommon for a town, under its local by-law, to establish wetland protection standards that are more demanding than those under State law. In such a case, when a local commission concludes that a project meets the requirements of State law, but does not satisfy the requirements of municipal law, it “introduces no legal dissonance and violates no principle of State preemption.” Ibid. In Healer v. Department of Envtl. Protection, 73 Mass. App. Ct. 714, 718 (2009), we explained the requirements that must be met by a local conservation commission that decides to act independent of State law by exercising jurisdiction over wetlands exclusively on the basis of a more stringent local by-law.[1] In the present case, the by-law of the town of Winchester (local by-law) has a more expansive standard for “land subject to flooding” than does the act.[2] Nevertheless, the plaintiff, Parkview Electronics Trust, LLC (Parkview), contends that an order of resource area delineation (ORAD) issued by the conservation commission of Winchester (commission) is invalid under Healer because it was not based “exclusively” on the more stringent provisions of local law.[3] In effect, Parkview maintains that Healer requires a local commission to choose between reliance on State law or local law. For the reasons that follow, we reject this reading of Healer and affirm the judgment. The essential facts are […]
Categories: News Tags: 1100616, Commission, Conservation, Electronics, Lawyers, Parkview, Trust, Weekly, Winchester
City of Worcester v. Civil Service Commission (Lawyers Weekly No. 11-016-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1844 Appeals Court CITY OF WORCESTER vs. CIVIL SERVICE COMMISSION & another.[1] No. 12-P-1844. Suffolk. December 6, 2013. – February 26, 2015. Present: Fecteau, Sullivan, & Maldonado, JJ. Practice, Civil, Review respecting civil service. Civil Service, Police, Decision of Civil Service Commission, Termination of employment, Judicial review. Administrative Law, Hearing, Judicial review. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Statute, Construction. Civil action commenced in the Superior Court Department on October 22, 2010. The case was heard by Carol S. Ball, J., on motions for judgment on the pleadings. Leo J. Peloquin for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission. Meghan C. Cooper for Leon Dykas. MALDONADO, J. The city of Worcester (city) appeals from a judgment of the Superior Court upholding the determination of the Civil Service Commission (commission) that an appointing authority may not suspend or terminate a tenured employee for the employee’s failure to testify at a hearing pursuant to G. L. c. 31, § 41. The city contends that because § 41 does not explicitly establish a statutory testimonial privilege and because police department rules and regulations require officers to provide truthful testimony when requested, the commission exceeded its authority and improperly intruded upon the city’s right to enforce its rules of conduct. We conclude that the commission’s determination that, because the § 41 hearing is held for the protection of the tenured employee and not the appointing authority, the tenured employee may not be sanctioned for the employee’s failure to testify at his § 41 hearing is consistent with the statutory purpose of § 41 and entitled to substantial deference. Therefore, we affirm. Factual background. The relevant facts drawn from the administrative record are undisputed. Leon Dykas was a tenured civil service employee, working as a police officer for the Worcester police department (department). In 2008, Dykas was purported to have engaged in noncriminal misconduct involving his ex-wife in violation of a “Last Chance Settlement Agreement” into which he had entered with the department.[2] Dykas cooperated with the department’s internal investigation and attended an investigatory interview at the department’s bureau of professional standards (BOPS) as ordered. Following review of the BOPS report and a transcript of Dykas’s interview, the chief of police, Gary Gemme, placed Dykas on paid administrative leave pending completion of […]
Mendonca v. Civil Service Commission, et al. (Lawyers Weekly No. 11-162-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]