COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS

Brenda Paro Nichols,

Petitioner,

v. Docket No. CR-06-919

State Board of Retirement,

Respondent.

Appearance for Petitioner:

Brenda Paro Nichols, pro se

225 Old Highway 33
Maynardville, Tennessee 37807

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, Massachusetts 02108

Administrative Magistrate:

Natalie S. Monroe, Esq.

SUMMARY OF DECISION

The petitioner is not entitled to be classified in Group 2 for retirement purposes because she did not provide care, custody, instruction or other supervision to mentally disabled patients, as she had claimed.

DECISION

On October 26, 2006, the State Board of Retirement (the "Board") determined that petitioner Brenda Paro Nichols should be classified in Group 1, and not Group 2, for retirement purposes under G.L. c. 32, § 3(2)(g). Ms. Nichols appealed the Board's decision pursuant to G.L. c. 32, § 16(4).

I held a hearing on October 20, 2008, at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston. The Board submitted a pre-hearing memorandum, which was marked as Exhibit A for identification. Before the hearing began, the parties stipulated to the facts set forth in paragraphs 1 through 13 of the Board's pre-hearing memorandum (Exhibit A), with one change. The parties agreed to change the word "demoted" in paragraph 3 to "transferred to the position of." The change was made by hand on Exhibit A. During the hearing, five exhibits (Exhibits 1-5) were entered into evidence and Ms. Nichols testified on her own behalf. Neither party presented any other witnesses. There is one tape of the hearing.

FINDINGS OF FACT

Based on the stipulations of fact, the testimony of Brenda Paro Nichols, the exhibits presented at the hearing (Exhibits 1-5), and reasonable inferences drawn from the evidence, I make the following findings of fact:

1. Brenda Paro Nichols was born on April 25, 1956. (Exhibit A at ¶ 1).

2. In November 1988, Ms. Nichols began working for the Department of Mental Retardation ("DMR") as a Mental Retardation Worker I ("MRW I"). (Exhibit A at ¶ 1).

3. In January 2006, Ms. Nichols worked at the Monson Developmental Center, a DMR facility for individuals with developmental disabilities. (Exhibit A at ¶ 1).

4. On January 15, 2006, Ms. Nichols, whose last name at the time was Paro, was transferred to the position of Launderer I as the result of a settlement agreement between Ms. Nichols, AFSCME Local 24 and DMR. (Exhibit A at ¶ 3; Exhibit 4).

5. The settlement agreement stated, in part:

It is agreed by all parties that Ms. Paro will be demoted from her MRW I direct care position to the non-direct care position of Launderer I at the [Monson Developmental Center]. Furthermore, Ms. Paro agrees not to work in direct care in DMR or DMR contracted agencies. Exhibit 4.

6. As a Launderer I, Ms. Nichols' primary duties and responsibilities were to process clean and soiled linens and laundry, operate laundry equipment, and to maintain the linen and clothing needs of the residents at the Monson Developmental Center. (Exhibit A at ¶ 4; Exhibit 3).

7. As a Launderer I, Ms. Nichols typically worked Monday through Friday, from 6:00 a.m. to 2:30 p.m. each day. (Exhibit 4).

8. From approximately 9:00 a.m. to 12:00 p.m. each day, two residents of the Monson Developmental Center worked in the laundry facility where Ms. Nichols worked. (Testimony of Brenda Paro Nichols).

9. Ms. Nichols worked alongside the two residents. She gave them items to fold and took the folded items from them. (Testimony of Brenda Paro Nichols).

10. Other employees in the laundry facility also gave the residents laundry to fold and took the folded items from them. (Testimony of Brenda Paro Nichols).

11. Ms. Nichols did not escort the two residents to or from the laundry facility. (Testimony of Brenda Paro Nichols).

12. Ms. Nichols did not supervise or care for the two residents who worked in the laundry facility. (Testimony of Brenda Paro Nichols).

13. On or about August 4, 2006, Ms. Nichols submitted a Group Classification Questionnaire to the Board. (Exhibit A at ¶ 5; Exhibit 3).

14. On October 26, 2006, the Board voted to classify Ms. Nichols in Group 1 for retirement purposes. (Exhibit A at ¶ 6; Exhibit 1).

15. On October 27, 2006, the Board sent Ms. Nichols a letter notifying her of its decision. (Exhibit A at ¶ 6; Exhibit 1).

16. On November 10, 2006, Ms. Nichols appealed the Board's decision. (Exhibit A at ¶ 7; Exhibit 2).

17. On or about December 11, 2006, Ms. Nichols submitted to the Board a retirement application in which she requested to retire effective December 17, 2006. (Exhibit A at ¶ 7; Exhibit 5).

18. In her retirement application, Ms. Nichols asked to be classified in Group 2 for purposes of calculating her retirement benefits. (Exhibit A at ¶ 7; Exhibit 5).

CONCLUSION

Under Chapter 32 of the Massachusetts General Laws, public employees in the state retirement system are classified into four groups for retirement purposes. See G. L. c. 32, § 3(2)(g). Group 1 is a general category that applies to "[o]fficials and general employees including clerical, administrative and technical workers, laborers, mechanics and all others not otherwise classified." G. L. c. 32, § 3(2)(g). See Maddocks v. Contributory Ret. App. Bd., 369 Mass. 488, 493, 340 N.E.2d 503, 506 (1976) (Group 1 is the "catch-all" category for classifying public employees who do not fit into any other group). Group 2 includes "employees of the commonwealth ... whose regular and major duties require them to have the care, custody, instruction or other supervision of persons who are mentally ill or mentally defective ...." G. L. c. 32, § 3(2)(g). As previously discussed, the Board determined that Ms. Nichols should be classified in Group 1. Ms. Nichols contends that she should be in Group 2 because she cared for developmentally disabled adults at the Monson Developmental Center (the "Center"). As the petitioner, Ms. Nichols has the burden of proving by a preponderance of the evidence that she should be classified in Group 2. I conclude that Ms. Nichols has not met her burden of proof.

An employee's group classification is determined based on her "job duties at the time of retirement." Maddocks, 369 Mass. at 494, 340 N.E.2d at 507. When Ms. Nichols retired, she was a Launderer 1. Her principal job duties were to process clean and soiled linens and laundry, operate laundry equipment, and to maintain the linen and clothing needs of the residents at the Center. For approximately three hours a day, moreover, two Center residents also worked in the laundry facility. Employees, including Ms. Nichols, gave the residents laundry to fold and then collected the folded laundry. Ms. Nichols did not escort the residents to or from the laundry facility, and she did not supervise or care for them while they were there. Finally, in her settlement agreement with the Department of Mental Retardation, Ms. Nichols agreed not to provide any direct care to residents at the Center. Id.

Based on all of these facts, I conclude that when Ms. Nichols retired, her regular and major duties did not require her to have care, custody, instruction or other supervision of "mentally ill or mentally defective" individuals. G.L. c. 32, § 3(2)(g). Specifically, as a Launderer I, Ms. Nichols did not provide any direct care, supervision or instruction to residents at the Center. Even if Ms. Nichols' interactions with the two residents who worked in the laundry facility could be considered direct care, the interactions did not comprise the majority of Ms. Nichols' duties. Ms. Nichols worked eight hours a day, and the residents only worked in the laundry facility for three hours a day. Ms. Nichols therefore is not entitled to be classified in Group 2 for retirement purposes.

In reaching my conclusion, I reject Ms. Nichols' argument that she should be placed in Group 2 because she worked as a Mental Retardation Worker I for over fifteen years. As set forth above, an employee's classification is based on her "job duties at the time of retirement." Maddocks, 369 Mass. at 494, 340 N.E.2d at 507.

Because Ms. Nichols is not entitled to Group 2 classification, she must be classified in Group 1. Maddocks, 369 Mass. at 493, 340 N.E.2d at 506. The Board's decision to classify Ms. Nichols in Group 1 therefore is affirmed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Natalie S. Monroe
Administrative Magistrate

Dated: March 12, 2009