Decision  Bernard, Berlinda v. EOHHS 9/17/26

Date:	09/17/2026
Organization:	Civil Service Commission
Docket Number:	C-25-262

• Appearance for Appellant: Berlinda Bernard
• Appearance for Respondent: David Markowitz, Esq.
• Hearing Officer: Caroline E. De Luca, Esq.

The Commission affirmed the decision of the Executive Office of Health and Human Services to deny an employee’s request for reclassification from her current title of Program Coordinator II to Program Coordinator III as she was unable to show that she performed the level-distinguishing duties of the higher classification a majority of the time. 

Decision

CSC Law Clerk Edward Groome assisted with the drafting of this decision

Pursuant to G.L. c. 31, § 2(b), the undersigned Chair of the Civil Service Commission (Commission) assigned the above-captioned reclassification appeal to the Commission’s Deputy General Counsel, Caroline De Luca, to serve as Presiding Officer for initial adjudication on behalf of the Commission.

Pursuant to 801 CMR 1.01(11)(c), Presiding Officer De Luca issued the attached Tentative Decision to the Commission on August 5, 2026. The parties were afforded thirty days to provide written objections to the Commission. On August 20, 2026, the Appellant filed timely objections to the Tentative Decision. The Respondent did not file objections. After careful review and consideration, the Commission finds that the Appellant’s objections do not warrant modification of the Tentative Decision.

In her objections, the Appellant first argues that the Tentative Decision, while recognizing the Commission’s flexible framework for applying outdated classification specifications, did not meaningfully apply that framework to the specialized legal and Public Records responsibilities she performed. As recognized in the Tentative Decision, when analyzing a reclassification appeal, it is within the Commission’s discretion to weigh all of the facts and make a determination based on the evidence presented. That discretion permits the Commission to avoid an overly literal application of outdated classification specifications and, where appropriate, to consider occupational evolution, new technology, and the material broadening of a position’s duties. The flexible framework does not, however, dispense with the requirement that an appellant demonstrate that her actual duties warrant the higher classification. Rather, it permits the Commission to consider the substance of the employee’s duties and all of the evidence presented in determining whether that burden has been met. Given the totality of the evidence, the Appellant has not met that burden here. 

She then argues that the Tentative Decision placed disproportionate weight on her lack of personnel supervision and insufficient weight on her functional responsibilities. The Appellant also contends that the conclusion does not adequately reconcile the findings concerning the scope, independence, and complexity of her work with the denial of her reclassification appeal.  The Tentative Decision did not rest solely on her lack of personnel supervision. It considered the substance of the Appellant’s actual responsibilities and concluded that the Appellant’s responsibilities did not establish that she performed the level-distinguishing duties of a Program Coordinator III for a majority of her working time.

Finally, the Appellant argues that the Commission should independently review the weight afforded to management testimony where contemporaneous documentary evidence provides a more objective description of her responsibilities. The Commission is unpersuaded by this objection. In reviewing the Tentative Decision, the Commission has independently considered the record, including the documentary evidence concerning the Appellant’s responsibilities, and finds no basis to disturb the Presiding Officer’s findings. Although the record demonstrates that the Appellant performed difficult and valuable work, the dispositive question is whether she performed the level-distinguishing duties of a Program Coordinator III for the requisite majority of her working time. The record does not establish that she did so.

Accordingly, after considering the Appellant’s objections and reviewing the Tentative Decision and the record, the Commission voted to affirm and adopt the Tentative Decision of the Presiding Officer, thus making it the Final Decision of the Commission.

The Appellant’s appeal under Docket No. C-25-262 is denied.

By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, Stein, Commissioners) on September 17, 2026.

Civil Service Commission

/s/ Christopher C. Bowman

Christopher C. Bowman
Chair

Either party may file a motion for reconsideration within ten days of receipt of this Commission order or decision. Under the pertinent provisions of the Code of Mass. Regulations, 801 C.M.R. § 1.01(7)(l), the motion must identify a clerical or mechanical error in this order or decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion for reconsideration does not toll the statutorily prescribed thirty-day time limit for seeking judicial review of this Commission order or decision.

Under the provisions of G.L. c. 31, § 44, any party aggrieved by this Commission order or decision may initiate proceedings for judicial review under G.L. c. 30A, § 14 in the Superior Court within thirty (30) days after receipt of this order or decision. Commencement of such proceeding shall not, unless specifically ordered by the court, operate as a stay of this Commission order or decision. After initiating proceedings for judicial review in Superior Court, the plaintiff, or his / her attorney, is required to serve a copy of the summons and complaint upon the Boston office of the Attorney General of the Commonwealth, with a copy to the Civil Service Commission, in the time and in the manner prescribed by Mass. R. Civ. P. 4(d).

Notice to:
Berlinda Bernard (Appellant)
David A. Markowitz, Esq. (for Respondent)

Tentative Decision

                 On November 14, 2025, the Appellant, Berlinda Bernard (Appellant or Ms. Bernard), pursuant to G.L. c. 30, § 49, filed a timely appeal with the Civil Service Commission (Commission), contesting the decision of the Executive Office of Health and Human Services (EHS) to deny her request for reclassification from her current position of Program Coordinator II (PC II) to the position of Program Coordinator III (PC III). [FN2]

                The Commission held a pre-hearing conference on January 6, 2026. On March 24, 2026, I conducted an in-person full evidentiary hearing at the offices of the Commission in Boston. The hearing was recorded via the Webex videoconferencing platform, and copies were provided to the parties. [FN3] The parties filed proposed decisions, whereupon the administrative record closed. For the reasons stated below, I recommend that the Commission deny Ms. Bernard’s appeal. 

Findings of Fact

                I admitted sixteen exhibits from the Appellant (A. Exhibits 1-16) and fifteen exhibits from the Respondent (R. Exhibits 1-15). Based upon the documents submitted and the testimony of the following witnesses:

Called by the Respondent:

• Mary F. Connelly, Classification and Compensation Lead, EHS
• Megan O’Rourke, Senior Deputy General Counsel, EHS

Called by the Appellant:

• Berlinda Bernard, the Appellant

and taking administrative notice of all pleadings filed in the case, pertinent rules, statutes, regulations, case law and policies, and drawing reasonable inferences from the credible evidence, I make the following findings of fact:

The Appellant’s Background

1. The Appellant is a college graduate and possesses a degree in Business Management as well as a certificate in Paralegal Studies from an American Bar Association-approved program. (R. Exhibit 2, R0013)
2. The Appellant first began working for the Commonwealth of Massachusetts as a paralegal on May 17, 2017. She resigned on January 4, 2020. (A. Exhibit 6, A0029)
3. After several years working in the private sector, the Appellant was re-hired by EHS as part of its public records team on January 8, 2023. The Appellant served in this role until March 16, 2026. (R. Exhibit 1, R0002; Testimony of the Appellant)
4. The public records team, when fully staffed, consists of three attorneys and one paralegal. (Testimony of Megan O’Rourke)
5. In her role with EHS, the Appellant was classified as a Program Coordinator II. Her functional title was Paralegal. (R. Exhibit 1, R0002)
6. As part of her duties, the Appellant was tasked with responding to public records requests (PRRs or requests). This aspect of her job encompassed between 82% and 95% of her time. (Testimony of Megan O’Rourke; R. Exhibit 1, R0006)
7. PRRs are broadly categorized as either “Routine” or “Non-Routine” based upon the level of complexity, the identity of the requestor, the nature of the request, the sensitivity of the topic, whether privileges are implicated, whether the request may be the subject of discovery in litigation, and whether another agency will need to review the document production. This categorization was implemented as part of the team’s protocols by Senior Deputy General Counsel Megan O’Rourke but existed in some form during the tenure of Ms. O’Rourke’s predecessor. (Testimony of Megan O’Rourke)
8. Requests which are classified as Routine may be re-classified as Non-Routine based on the identity of the requestor, such as media figures or the offices of elected officials, or during processing by the team depending upon the nature of the records themselves. (Testimony of Megan O’Rourke)
9. At the time the Appellant joined EHS as a PC II, there were two attorneys working in the public records division: the Appellant’s then-supervisor SK and attorney PS. (Testimony of Megan O’Rourke)
10. In May of 2023, only the Appellant and her supervisor SK were available to handle incoming PRRs due to understaffing and PS taking a leave of absence. (Testimony of Megan O’Rourke; Testimony of the Appellant)
11. During this time, the Appellant processed both Routine and Non-Routine PRRs. (Testimony of the Appellant)
12. In response to understaffing within the division, EHS hired two additional attorneys, who began working for EHS in July and August of 2023. (Testimony of Megan O’Rourke)
13. The Appellant assisted in training these attorneys, specifically with the team’s procedures for processing PRRs. (Testimony of Megan O’Rourke; Testimony of the Appellant; Testimony of Mary Connelly; R. Exhibit 8, R0048)
14. Megan O’Rourke was named Acting Senior Deputy General Counsel in November of 2024. She permanently assumed the role of Senior Deputy General Counsel during the summer of 2025. (Testimony of Megan O’Rourke)

The Appellant’s Duties

15. The Appellant’s Form 30 describes her duties generally as “a wide range of activities associated with document collection, review, and production, and particularly the Public Records Law.”  Her specific duties include:
    1. Complying with the duties of a secondary Records Access Officer;
    2. Responding to public records requests in accordance with the Public Records Law by collecting relevant materials, evaluating legal issues, and issuing responses;
    3. Maintaining databases and tracking systems to provide current, accurate information on Public Records Requests; 
    4. Appropriately directing and facilitating certain inquiries made to the public records team; 
    5. Conducting document redactions to public records exempt under M.G.L. c. 4, § 7(26); 
    6. Performing other document collection, review and production work as needed and assigned; 
    7. Performing such general legal work as required. (R. Exhibit 6, R0027)
16. The Appellant’s duties with respect to PRRs consisted of:
    1. monitoring the Outlook inbox created to receive requests; 
    2. “triaging” requests into categories of either “Routine” or “Non-Routine”; 
    3. Entering incoming PRRs into the team’s “tracker” or case management system to monitor their status;
    4. contacting custodians of records to inform them which records were requested;
    5. compiling responsive records into working folders;
    6. performing redactions to avoid the unintended disclosure of personally identifiable information (PII), privileged information, or information otherwise not subject to disclosure; 
    7. monitoring the status of PRRs to ensure production occurred within the statutorily mandated 10-day period; and
    8. sending out custodial emails containing the production of records, or letters indicating that the documents sought were not in the possession of EHS. (Testimony of Megan O’Rourke)
17. The majority of PRRs are classified as Routine and would be assigned to the Appellant during her time with EHS. The Appellant “triaged” certain requests as Non-Routine based on guidance she had received from her manager, which would be processed by attorneys on the team. (Testimony of Megan O’Rourke; Testimony of the Appellant)
18. On at least one occasion, PRRs being processed by the Appellant were reassigned to attorneys on the team due to the complexity of the requests. (Testimony of the Appellant)
19. The Appellant was responsible for identifying parts of Routine requests where redactions of exempt material would be needed, such as the redaction of material protected under the Health Insurance Portability and Accountability Act (HIPAA). (Testimony of Megan O’Rourke)
20. The Appellant created a manual to be used by staff for the processing of PRRs, explaining the use of Adobe to perform necessary redactions. (R. Exhibit 10, R0075-76; A. Exhibit 11; Testimony of the Appellant)
21. The Appellant was designated as the Primary Records Access Officer (RAO) from May of 2023 to January of 2026, and listed as such on the EHS website. (A. Exhibit 2, A0016; Testimony of Megan O’Rourke)
22. There is one other EHS division in which an individual classified as a PC II has served as a Primary RAO. (A. Exhibit 5, A0027)
23. The key duties of a Primary RAO are to serve as a point of contact for the public to answer PRR related questions and to submit an annual report detailing the PRRs processed by the team in the previous year to the Secretary of the Commonwealth. (A. Exhibit 2, A0016; Testimony of Megan O’Rourke)
24. The Public Records Team conducts meetings twice per week in which team members discuss incoming PRRs, the status of pending PRRs, and during which team members raise questions or identify irregularities related to pending requests. On occasion, PRRs would be reclassified from Routine to Non-Routine at these meetings. (Testimony of Megan O’Rourke)
25. In the year 2025, the Appellant processed approximately four hundred (400) PRRs out of a total of approximately six hundred (600) for the year overall. (Testimony of Megan O’Rourke)
26. In most cases, the Appellant’s direct supervisor, Megan O’Rourke, did not review the PRRs processed by the Appellant prior to production, relying instead on team members to flag complexities, and program attorneys assisting the custodians of records to review such documents prior to transmitting them to the public records team. (Testimony of Megan O’Rourke)

The Duties of a Program Coordinator II

27. The level distinguishing duties of a Program Coordinator II are: 
    1. Provide on-the-job training and orientation for employees.
    2. Develop and implement procedures and guidelines to accomplish assigned agency program objectives and goals.
    3. Review reports, memoranda, etc. for completeness, accuracy and content. 
    4. Confer with management staff and other agency personnel in order to determine program requirements and availability of resources and to develop the criteria and standards for program evaluation. 
    5. Evaluate program activities in order to determine progress and effectiveness and to make recommendations concerning changes as needed. 

The Duties of a Program Coordinator III

28. The level distinguishing duties of a Program Coordinator III are:
    1. Develop and implement standards to be used in program monitoring and/or evaluation. 
    2. Oversee and monitor activities of the assigned unit. 
    3. Confer with management staff and others in order to provide information concerning program implementation, evaluation and monitoring and to define the purpose and scope of proposed programs. 
29. A PC III is expected to exercise “direct supervision . . . over . . . 1-5 professional personnel and indirect supervision . . . over 6-15 professional, administrative, technical, and/or other personnel.” (R. Exhibit 5, R0021)
30. The Appellant’s work to create a manual on PRR processing and the process of performing redactions did not encompass 50% or more of her time. (Testimony of the Appellant)
31. The Appellant did not “[o]versee and monitor activities of the assigned unit.”  Nor did she supervise other employees or review the performance of other employees. (Testimony of the Appellant; R. Exhibit 6, R0008)
32. The Appellant did not “confer with management staff and others in order to provide information concerning program implementation, evaluation, monitoring and to define the purpose and scope of proposed programs.” (A. Exhibit 7, A0038; Testimony of the Appellant)

Applicable Legal Standard

Section 49 of G.L. c. 30 provides in relevant part as follows:

Any manager or employee of the commonwealth objecting to any provision of the classification affecting his office or position may appeal in writing to the personnel administrator . . . Any manager or employee or group of employees further aggrieved after appeal to the personnel administrator may appeal to the civil service commission. Said commission shall hear all appeals as if said appeals were originally entered before it. If said commission finds that the office or position of the person appealing warrants a different position reallocation . . . it shall be effective as of the date of the appeal . . ..

                Generally speaking, “the bar for proving that one’s position is misclassified is set very high.” Shields v. Dep’t of Revenue, 21 MCSR 263, 266 (2008). To obtain a reclassification, as a general rule, an employee must establish that they are performing duties encompassed within the higher-level position a majority (i.e., at least 50% or more) of the time. See Thompson v. Division of Insurance and HRD, 29 MCSR 565 (2016) (an appellant must prove this by a preponderance of the evidence); Pellegrino v. Dep’t of State Police, 18 MCSR 261 (2005) (at least 51%); Gaffey v. Dep’t of Revenue, 24 MCSR 380, 381 (2011) (more than 50%); Madison v. Dep’t of Public Health, 12 MCSR 49 (1999) (at least 50%); Kennedy v. Holyoke Cmty. College, 11 MCSR 302 (1998) (at least 50%). More specifically, the Appellant must demonstrate that the majority of the time they are performing their duties, they perform activities that are “level distinguishing duties”. Duties which fall within both the higher and lower title do not count as “distinguishing duties”. “Where duties are equally applicable to both the lower and higher titles, although they may be described slightly differently for each title, those types of overlapping duties are not distinguishing duties of the higher title.” Saunders v. Dep’t of Lab. Standards, 32 MCSR 413, 415 (2019). 

The Commission is not bound to apply the classification specification in every case, particularly where the job title is not a good fit. Blodgett v. Massachusetts Highway Dep’t, 24 MCSR 588 (2011); Lefebvre v. Department of Early Education, 22 MCSR 149 (2009). When analyzing a reclassification appeal, it is within the Commission’s discretion to weigh all of the facts and to make a determination based on the evidence presented. Past reported Commission reclassification decisions have established that the Commission is not bound to interpret classification specifications in an overly literal fashion when adjudicating a case. Blodgett, 24 MCSR 590 (2011); Lefebvre, 22 MCSR 149 (2009). The Commission also possesses discretion to take into account all the facts and evidence admitted when making a decision in reclassification appeals in cases where the specifications against which current job responsibilities are being measured are outdated. When accounting for outdated specifications, the Commission has previously considered major shifts in the occupation’s field in cases where the description is highly rigid to determine the reasonability of the description. These factors include the role’s adaptation of new technology and the evolution or material broadening of the title’s scope of duties. Strong v. Dep’t of Public Health, 37 MCSR 192, 199 (2024). 

Analysis

By a preponderance of the evidence, I find that the Appellant has not met her burden to demonstrate that she performs the level distinguishing duties of a Program Coordinator III during a majority of her working hours. 

The Appellant has raised several arguments for why reclassification is warranted. First, she argues that she operated at a high level and with a great degree of independence, processing hundreds of PRRs per year with minimal direct oversight. Second, she points to the manuals she created as guidance for her coworkers regarding procedures for processing PRRs and performing redactions before record production. Third, the Appellant notes that she was tasked with providing training to new colleagues, who are attorneys classified as Counsel II. Finally, the Appellant contends that the specifics of her daily duties, including her task of triaging PRRs, her serving as the Primary Records Access Officer for much of her tenure, and the degree of legal analysis required to identify exemptions from the public records law all warrant a higher classification to account for the complexity of her work. 

It is undisputed that the Appellant did not supervise other employees at any point during her tenure with EHS. Although the Appellant characterizes her task of “triaging” public records requests as “assigning” work to her colleagues, she acknowledges that she did not supervise the attorneys on her team, nor did she supervise other employees. When asked whether she oversees or monitors the duties of her unit, the Appellant acknowledged that she only oversees the work that she performs. To the extent that the Appellant tracked the status of PRRs being processed by her colleagues for the purpose of compiling her annual report to the Secretary of the Commonwealth, this does not constitute oversight of the unit by which she was employed. Nor does this constitute oversight of her colleagues, as the Appellant’s role in triaging out these requests was based on guidance she received from her manager, and her creation of manuals related to PRR processing and redactions were also based on existing standards. The Program Coordinator III series is definitionally a supervisory role, and a lack of such responsibilities has generally been sufficient to deny reclassification in similar cases. See Fishman v. Dep’t of Public Health, 35 MCSR 205, 211 (2022); see also Crawford v. Department of Revenue, 28 MCSR 500 (2015); MacLean v. Department of Conservation & Recreation, 24 MCSR 573, 575 (2011).

The task of training other employees in the agency’s procedures and protocols is one of the level distinguishing duties for a PC II, not a PC III. As such, this cannot serve as the basis for reclassification. See Lannigan v. Department of Developmental Services, 30 MCSR 494, 500 (2017) (evidence of duties that do not exclusively fall within the sought-after, higher-graded position will not be factored into a calculation that could lead to reclassification). 

The Appellant acknowledged in her testimony that her work does not fall within the third level distinguishing duty for a PC III: “Confer with management staff and others in order to provide information concerning program implementation, evaluation and monitoring and to define the purpose and scope of proposed programs.” Because she admits that she does not perform this duty, further analysis of this duty is not necessary. 

The Appellant centers her argument around the first level distinguishing duty of a PC III: “[d]evelop and implement standards to be used in program monitoring and/or evaluation.” She cites her day-to-day work processing PRRs, the manuals she created to explain the procedures for processing PRRs and utilizing Adobe to perform redactions, and her other duties associated with processing PRRs such as triaging, intake, redactions, issuance of responses, and her classification as the Primary Records Access Officer. As to the Appellant’s designation as the Primary RAO, the uncontradicted testimony of Megan O’Rourke indicates that the duties of a Primary RAO are to compile an annual report for the Secretary of the Commonwealth and to serve as the point of contact for individuals requesting records from EHS. There is no evidence in the record to firmly establish how much time the Appellant spent on compiling her annual report, but the available evidence indicates it was less than the majority of her time. Regarding the Appellant’s function as a point of contact, this is consistent with her task of performing intake and production of records and does not rise to the level of creating standards for the purpose of program monitoring. Finally, it is worth noting that the Appellant’s own exhibit indicates that at least one other individual classified as a PC II performed this duty. (A. Exhibit 5, A0027). The Appellant cannot carry her burden with this Primary RAO functional title alone. 

The Appellant’s other duties, which form more than 80% of her work time, do not meet the definition of PC III duties as laid out in the specification. As the Appellant herself acknowledged, to the extent she develops standards for the processing of PRRs, these standards apply only to her, and do not constitute guidelines for monitoring any particular program. The Appellant’s duties are accurately captured by her Form 30, which lists redactions, evaluating legal issues, maintaining databases, tracking systems, and performing document review, collection and production as some of her specific responsibilities. The Appellant has not claimed at any point to have developed standards utilized in program monitoring or evaluation. Although the Appellant’s workload was significant, the volume of work performed is not a sufficient basis for reclassification by itself. See Pope v. Dep’t of Revenue, 35 MCSR 166, 170 (2022) (noting that an increased workload is insufficient to show reclassification is warranted). There is no doubt that the Appellant performed difficult and valuable work in processing PRRs, and that she was a diligent worker prior to her separation from the agency. However, the question in a reclassification appeal is not whether the Appellant performs difficult or valuable work, or even whether she operates at a high level, but whether she performs the level distinguishing duties of the position sought for a majority of her time. However imperfect the specifications setting forth these duties may be [FN4], they are the reference point the Commission is obligated to use when determining whether to allow a reclassification appeal. Strong v. DPH, 37 MCSR 192, 199 (2024) (HRD-approved Classification Specification document “traditionally has served as the touchstone for reclassification appeals”). The preponderance of evidence shows that the Appellant does not perform these level distinguishing duties. 

Conclusion

                For the reasons stated above, I recommend that the Commission deny the appeal of Berlinda Bernard filed under docket number C-25-262.

Civil Service Commission 

 /s/Caroline E. De Luca

Caroline E. De Luca
Commission Deputy General Counsel

Notice to: 
Berlinda Bernard (Appellant)
David Markowitz, Esq. (for Respondent)

2.  The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR §§ 1.01, et seq., apply to adjudication before the Commission with G.L. c. 31, or       any Commission rules, taking precedence.

3.  A link to the audio/video recording was provided to the parties.  If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be          obligated to supply the court with a transcript of this hearing to the extent that they wish to challenge the decision as unsupported by the substantial ev      idence, arbitrary and capricious, or an abuse of discretion. If such an appeal is filed, the recording provided to the parties should be used to transcribe        the hearing. 

4. I note that the specifications for the Program Coordinator series have not been updated in almost forty years.