COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Margaret R. Tudryn,

Petitioner

v. Docket No. CR-06-1104

State Board of Retirement,

Respondent

Appearance for Petitioner:

Margaret R. Tudryn, pro se

43 Dryads Green
Northampton, MA 01060

Appearance for Respondent:

Erin C. Nally, Esq.

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

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G. L. c. 32, § 16(4), the Petitioner, Margaret R. Tudryn, is appealing the December 1, 2006 decision of the Respondent, State Board of Retirement, denying her request for a Group 2 classification. (Ex. 2) The appeal was timely filed. (Ex. 1) A hearing was held January 9, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, § 4H.

Various documents are in evidence. (Exs. 1 - 8. Exhibit 8 was filed by the Petitioner post-hearing by February 15, 2008 when the record closed, and is an account of incidents at work.) ("B") One tape was used. The Petitioner testified. Both parties made arguments on the record. The Respondent filed a pre-hearing memorandum. ("A")

FINDINGS OF FACT

1. Margaret Tudryn, M.S.W., L.C.S.W., d.o.b. 8/7/49, began employment with the Department of Social Services (DSS) in1975 as a Caseworker. She worked at the Springfield office. By 1990, she was a Social Worker D for DSS. From March 2004, she has worked in this position at the Pittsfield office. (Ex. 5. Testimony.)

2. As a Caseworker between 1975-1990, Ms. Tudryn was assigned various functions. As an Intake/Screener she interviewed DSS clients, processed applications, made referrals, and interfaced with police officers and with hospitals during emergencies. As an Adolescent Worker, she worked with teenagers and their families, with schools, and with the court system. As an Assessment Worker, she evaluated the risks children were facing and she developed interventions. As an Ongoing Worker, she gave support services to families to prevent child abuse or neglect, and identified barriers families had to surmount. As a Family Resource Worker, she recruited foster parents and trained them in parenting skills. As an Emergency Response Worker, she responded to and investigated emergencies involving children to determine their risks and if interventions were needed. Starting in and around 1997 and continuing to the present, Ms. Tudryn has given support and mediation services to foster parents, kinship families, and pre-adoptive and adoptive parents. (Ex. 5. Testimony.)

3. The job description, Form 30, for a DSS Social Worker D contains a general statement of duties and responsibilities which reads as follows:

Under the general supervision of an employee of a higher grade who periodically reviews work for performance and effectiveness: makes case assignments to social service staff; supervises substitute care, home finding and adoption services provided by Social Workers; supervises and evaluates the level and quality of intake, assessment, service planning and case management services; coordinates case reviews; approves major casework decisions; reviews departmental reports; provides orientation for new employees; identifies training needs of employee; establishes and maintains effective relationships with courts, collateral agencies and providers; performs related duties as required. (Ex. 4)

Specific duties are described as:

Provides individual and group information, consultation, training and case review …. Conducts evaluation of subordinates and the quality and effectiveness of their client service plan …. Conducts assessment and intake studies and develops preliminary service plans for applicants for services …. Reviews assessment and intake studies and service plans for clients & applicants for services …. Provides supervision of case management activities …. Diagnoses clients' needs and develops, implements and evaluates service plans for clients as part of consultation with employees of lower grade and for own clients …. Makes case assignments to assigned direct social service staff …. Participates with area management staff in area planning, budgeting, resource development and evaluation. (Ex. 4)

Qualifications listed in the job description include having:

Knowledge of the theories of human behavior and development … of principles and practices of social work and social casework … counseling … crisis intervention … community organization in social work … child welfare services administration …. Knowledge of teaching methods and techniques and their use in orientation and in-service training programs …. Skill in the practice of effective intervention with children, families, and disabled adults …. (Ex. 4)

4. As a Social Worker D, Ms. Tudryn provides clinical supervision to the five to seven Social Workers on her staff. She conducts regular staff meetings, trains new workers concerning DSS policies and procedures, evaluates her staff's job performances, and oversees all the case management activities in the Protective Unit in the Pittsfield office. (Exs. 3 & 5. Testimony.)

5. When her Social Worker staff members are away from work for periods of time, Ms. Tudryn covers their active cases. She also accompanies her Social Workers on their client or family visits to help them deal with difficult and/or dangerous situations. When she has had her annual performance reviews, these tasks have been noted and discussed as a positive aspect of her job performance. (Ex. 6. Testimony.)

6. Ms. Tudryn has been confronted directly by and has had to help her staff Social Workers cope with dangerous and threatening people. When she worked as a Social Worker she experienced situations when she was in the presence of murderers and batterers. She has heard gunshots fired close to her office. Her offices, including the Pittsfield office, have been in crime prone areas. In dealing with clients, she has engaged in efforts to help children or parents in domestic violence situations where the efforts failed. Over the years some of her clients and those of her staff have some of her Social Workers whose clients have witnessed a parent being murdered by the other parent. She had dealt with mentally ill, explosive, and drug-addicted parents. There have been times when the press has followed some of her cases which has given her added stress. She has faced threats from parents at courthouses when she has been involved in care and protection petitions to gain custody of their children for DSS. She has had trouble coping with the cumulative effect of the various experiences she and her staff have had dealing with dangerous people, violent behaviors, and children who have suffered. (Ex. 8. Testimony.)

7. Ms. Tudryn's employer has recognized that DSS workers, including while they are in their offices, face significant safety concerns. Safety planning committees and safety procedures and guidelines are used to help DSS staff cope with violent people and working in crime-prone surroundings. Ms. Tudryn has often accompanied her staff Social Workers on client visits for safety reasons. (Exs. 7 & 8. Testimony.)

8. Ms. Tudryn completed a Classification Questionnaire with the State Board of Retirement toward securing a Group 2 job classification for her position. In her questionnaire, Ms. Tudryn noted her experiences through the present time of facing violent people, and of working with children and parents who have been victims of violence, abuse, and neglect. She noted that having face-to-face encounters DSS clients and their parents is a frequent occurrence in her work. (Exs. 3 & 8. Testimony.)

9. The State Board of Retirement informed Ms. Tudryn by letter of December 1, 2006 that her request was denied, and that her position was classified in Group 1. Ms. Tudryn filed a timely appeal. (Exs. 1 & 2.)

Conclusion

Ms. Tudryn is not entitled to a Group 2 classification. G. L. c. 32, § 3(2)(g) provides a system for classifying employees' jobs for retirement purposes. Group 2 covers "employees of the commonwealth … regardless of any official classification … whose regular and major duties require them to have the care, custody, instruction or other supervision of … persons who are mentally ill, mentally defective, or defective delinquents or wayward children …." Classification is based on the job that the member has at the time of retirement. Maddocks v. CRAB, 369 Mass. 488 (1976). Ms. Tudryn provided much information about what she has faced when working in the past as a staff Social Worker. But, the focus for determining her proper group classification will be her current job in the DSS Pittsfield office as a Social Worker D, which involves primarily supervising, monitoring, assisting, and evaluating her staff Social Worker/case managers.

Ms. Tudryn credibly testified that she frequently and routinely fills in for unavailable or away from work staff Social Workers whom she directly supervises. This is supported by the accounts of her work in her annual performance evaluations. Her testimony and these evaluations also show that she directly assists her staff Social Workers by sometimes attending client visits or meetings with clients' parents. Despite these occasions of doing this hands-on, face-to-face work with clients and their families, Ms. Tudryn's evidence is not sufficient to demonstrate such tasks constitute a major part of her job duties. Ms. Tudryn questions the completeness of her Form 30 job description, but she acknowledges that she performs the work set forth within it which addresses tasks primarily in the nature of providing supervision, assistance, and oversight of her staff Social Workers. She just knows that so often she is engaged in direct work with DSS clients and their families, and is exposed to dangers from those encounters so that this work should be highlighted in her Form 30 job description as a main part of her duties. I conclude, that if one of her expected regular and major duties is to perform the same amount of direct face-to-face encounters with DSS clients and their families as her staff does, then that duty would appear in her Form 30 job description. It does not.

One recent case is on point with Ms. Tudryn's circumstances. In Jacobsen Conastra v. State Board of Retirement, CR-05-599 (DALA, 10/23/07) (No CRAB Dec.), a DSS Social Worker D working at the New Bedford office was denied a Group 2 classification. Like Ms. Tudryn, Ms. Jacobsen Conastra directly supervised a staff of Social Workers, and often accompanied them on their client or family visits, and filled-in to cover their caseload when they were out from work. She also was exposed to violent people and confronted dangerous situations. About 60% of her work involved care and protection petitions. About 50% of her clients or their parents suffered from mental illnesses. Nevertheless, her regular and major duties were found to be managing and supervising the work of her staff. See, Pickett v. State Board of Retirement, CR-06-447 (DALA, 8/7/07) (No CRAB Dec.) (Licensed Social Worker holding the job of Administrative Assistant II at a mental health facility investigating resident/client complaints by conducting interviews mostly alone with the resident/client to maintain confidentiality, and who sometimes suffered assaults from combative residents/clients, was not given a Group 2 classification because he did not have regular and major duties of providing care, custody, supervision, and instruction for these residents/clients.); Flacks v. State Board of Retirement, CR-03-348 (DALA, 6/18/04) (No CRAB Dec.) (Clinical Social Worker III within the Department of Mental Health who developed and implemented a case management system which involved meeting with clients toward determining their eligibility for services, was not classified in Group 2 because the work did not involve providing care, custody, instruction or supervision to the clients.).

Even if Ms. Tudryn's work involves a fair amount of hands-on social work with DSS clients and their families, if that is not the main or predominant job responsibility, she cannot prevail in her claim. In Harris v. CRAB, Superior Court Civil Action No. 01-3036-G (7/3/02), a pharmacist at a Department of Mental Health out-patient clinic was found to be instructing and counseling DMH clients on how to take medication as a regular and major duty. That was sufficient for a Group 2 classification.

Case law does not find the fact that the member is exposed to dangerous situations involving work with the kind of persons listed in Group 2, to be a controlling factor for gaining a Group 2 classification. Therefore, even if at times Ms. Tudryn is exposed to dangerous persons in her work, that will not be enough for a Group 2 classification. In Rebell v. CRAB, Massachusetts Appeals Court, No. 89-P-1259 (3/20/91), the job of drawing blood from inmates as a regular and major duty was not found to be giving them care, custody, instruction, and supervision, and no Group 2 classification was given.

For these reasons, the decision of the State Board of Retirement is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Sarah H. Luick, Esq.
Administrative Magistrate

DATED: April 30, 2008


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