The Civil Service Commission voted not to adopt the recommended decision of a DALA (Division of Administrative Law Appeals) Magistrate. The Commission found that due to the course of events, including having the female employee's desk moved into the men's locker room, among other things, that sufficient animus existed on the part of the supervisor against the employee, and against this background, neither the supervisor nor the Appointing Authority displayed an "unprejudiced mind, exercised common sense, or followed the rule of the law" in its treatment of the Appellant/ employee in regard to the suspension without pay the employee received, and granted her appeal. (BayState Legal Defense Service Newsletter, Volume I-2)
Arbitration Award- Reinstating Promotion:
LCCP recently won an arbitration award on behalf of a state officer who was wrongfully denied his promotion after sustaining a job related injury. The Officer had been promoted to sergeant. However, the officer was injured on-duty prior to his starting work in the new position. The Department rescinded the promotion. The Union grieved this rescission and the matter went to arbitration.
The Arbitrator found that the Department violated the CBA when it rescinded the Officer's promotion and the Department was ordered to reinstate him and to be made whole for lost wages and benefits. The Arbitrator found that the Officer had a physical handicap within the meaning of the CBA and essentially the Department discriminated against him.
In summary, in June, 2005, the Officer passed the Civil Service examination making him eligible for promotion to sergeant. Thereafter, he suffered an on the job injury. While he was on IA leave, he was certified eligible for promotion. He was placed on the list. He was never bypassed by the Department and in December, 2006 recommended for promotion. In January, 2007, the Officer received a letter notifying him that his promotion was approved.
The promotion letter indicated that in order to be promoted, the Officer had to be actually employed in the position to which he is promoted within 30 days from the notice of the promotion. The letter said that if he did not return from his injury, this promotion would be rescinded.
The Officer did report for duty. He was told that his medical restrictions were not acceptable to the Department. The Officer was not offered an opportunity to participate in a temporary modified work position. A week later, his promotion was rescinded due to his failure to report to duty. He had in fact reported to work precisely as instructed but was denied the right to assume the duties of his new position.
Although the Department argued that this was a bypass case, the Arbitrator specifically stated that the Department did not bypass him; it promoted him and then rescinded the promotion. The Officer was certified and promoted. He was entitled to the protection of Article VI prohibiting against discrimination based on physical incapacity. The Arbitrator said the Department engaged in handicap discrimination and must reinstate him to the position retroactively. (BayState Legal Defense Service Newsletter, Volume I-2)