Civil Service overturns 2 day suspension of Weymouth Firefighter

(Picture From Family Guy)

The Civil Service Commission overturned a 2 day suspension of Weymouth Firefighter Kenneth Morehouse who was suspended by Fire Chief Robert Leary for filing a false report. Morehouse reported to the department that he had suffered razor burn after shaving his mustache as a result of a direct order from Chief Leary.

The moral of the story: Don’t get between a firefighter and his mustache…or you may get burned.

The entire decision of Morehouse v. Town of Weymouth may be found by clicking here. The following is taken directly from the decision. Citations, paragraph numbers and original page numbers have been deleted to allow for easier reading.

The Appellant has been employed as a firefighter with the Town of Weymouth since September 2003. He has no prior disciplinary record.

The Weymouth Fire Department has a set of Rules and Regulations. These regulations include standards relating to firefighter uniforms as well as personal grooming and hygiene. The regulations specify the proper length of facial hair. Short facial hair is required so that breathing apparatuses that are worn during certain emergencies can make an air-tight seal to the firefighter’s face.

On October 22, 2004, Weymouth issued a memorandum to its firefighters on proper grooming.

On October 7, 2009, Chief Leary observed that the Appellant had a mustache that Chief Leary believed was longer than permitted by the rules. Chief Leary informed the Appellant that his mustache was too long and instructed him to shave it before returning to work the following shift.

The Appellant trimmed his mustache while home between shifts. The length of the Appellant’s mustache before and after trimming is unclear. However, the Appellant believed that he had shaved his mustache to an appropriate length.

On October 9, 2009, Chief Leary informed the Appellant that his mustache was still too long. Chief Leary ordered the Appellant to immediately shave his mustache.

The tone of Chief Leary’s voice and the directness of his order made it clear to the Appellant that the action was to be taken immediately. The Appellant usually shaves with an electric razor but did not have one with him at work.

A section of the fire station has been closed for a few years and in that section is a locker room. The Appellant found a used razor in a locker.

The Appellant used the razor to shave but was informed by Chief Leary that it was not short enough. The Appellant shaved a second time and that time Chief Leary was satisfied with the length.

The Appellant testified that his face became irritated and he developed razor burn on his skin.

The Appellant completed an injury report and an unprotected exposure form. The Appellant filed these reports with Training Officer Captain Starke but later withdrew the unprotected exposure form.

It is the practice of Weymouth, the union and retirement board to encourage firefighters to document every workplace injury or harmful exposure, so that insurance will cover medical costs in the event that the firefighter develops future medical complications. Pursuant to the union contract, injury reports are signed and forwarded to the retirement board.

Upon review of the Appellant’s injury report, Chief Leary determined that the report was false because the Chief could see no way that shaving could result in a legitimate injury. Chief Leary did not sign the report and did not forward it to the retirement board.

Chief Leary suspended the Appellant for two days for filing a false report.

The Appellant appealed the decision. Chief Leary held a hearing with the Appellant and Paul Hammond, a Weymouth captain and President of Union Local 1616.

The hearing resulted in Chief Leary affirming the decision to suspend the Appellant.

The Appellant appeal the Town’s decision to the Commission.

CONCLUSION:

G.L. c. 31, § 43, provides:

“If the commission by a preponderance of the evidence determines that there was just cause for an action taken against such person it shall affirm the action of the appointing authority, otherwise it shall reverse such action and the person concerned shall be returned to his position without loss of compensation or other rights; provided, however, if the employee by a preponderance of evidence, establishes that said action was based upon harmful error in the application of the appointing authority’s procedure, an error of law, or upon any factor or conduct on the part of the employee not reasonably related to the fitness of the employee to perform in his position, said action shall not be sustained, and the person shall be returned to his position without loss of compensation or other rights. The commission may also modify any penalty imposed by the appointing authority.”

4An action is “justified” if it is “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.”

The Commission determines justification for discipline by inquiring, “whether the employee has been guilty of substantial misconduct which adversely affects the public interest by impairing the efficiency of public service.”

The Appointing Authority’s burden of proof by a preponderance of the evidence is satisfied “if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.”

“The commission’s task…is not to be accomplished on a wholly blank slate. After making its de novo findings of fact . . . the commission does not act without regard to the previous decision of the [appointing authority], but rather decides whether ‘there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision’”, which may include an adverse inference against a complainant who fails to testify at the hearing before the appointing authority.

Under Section 43, the Commission is required “to conduct a de novo hearing for the purpose of finding the facts anew.” The role of the Commission is to determine “whether the appointing authority has sustained its burden of proving that there was reasonable justification for the action taken by the appointing authority.”

The Town has not shown, by a preponderance of the evidence, that it had reasonable justification to suspend the Appellant for two (2) days. The Weymouth Fire Department has a set of Rules and Regulations that govern employee conduct and appearance. These regulations include detailing the acceptable length and patterns of facial hair allowed by firefighters. It is important that firefighters follow these regulations because long mustaches, goatees or beards may obstruct the rescue breathing apparatuses worn during some emergencies. It is the responsibility of Chief Leary and other supervising officers to ensure that all firefighters are ready and able to perform their job duties safely.

Disciplinary action may be appropriate where the regulations are violated. However, in the instant matter, the disciplinary action taken was not the result of the Appellant violating the regulations regarding his mustache length. Rather, Chief Leary suspended the Appellant for allegedly filing a false report. It is the practice in Weymouth to complete and submit a workplace injury report for any injury regardless of whether it appears to be trivial. This is necessary to document injuries or harmful exposures so that insurance will cover the firefighter in the event that a future complication arises. Here, although Chief Leary may have been skeptical about the Appellant’s motive for submitting the injury report, he has not shown that it was a false report. Further, he had a responsibility to submit the injury report, which he did not.

For these reasons, the Appointing Authority has not demonstrated by a preponderance of the evidence that there was reasonable justification to discipline the Appellant.

The Appellant’s appeal under Docket No. D-09-410 is hereby allowed; the 2-day suspension is reversed and the Appellant should be reimbursed for any loss of any pay or benefits associated with this 2-day suspension.

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
This entry was posted in Civil Service News & Information, Mass. Labor Law News & Cases. Bookmark the permalink.

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