| Date: | 05/28/2026 |
|---|---|
| Organization: | Civil Service Commission |
| Docket Number: | B2-25-049 |
The Commission denied HRD's request to reconsider a prior decision granting a candidate additional credit for experience as part of a DOC Captain examination.
On February 21, 2025, the Appellant, Dawn Favalora, then a Correction Officer III (CO III) (Lieutenant) assigned to the Lemuel Shattuck correction facility within the Massachusetts Department of Correction (DOC) system, appealed to the Civil Service Commission (Commission), pursuant to G.L. c. 31, § 24, after the state’s Human Resources Division (HRD) denied her request for credit for certain experience on the Experience & Education (E&E) component of the December 14, 2024 DOC Captain promotional examination.
HRD and the Appellant both filed Cross-Motions for Summary Decision. By Decision dated June 26, 2025 [Favalora I] (also marked App.Exh.10), the Commission allowed, in part, and denied, in part, both motions. HRD was ordered to adjust the Appellant’s E&E score to include credit for her time as the shift commander of the DOC Holding area, but not as the shift commander of shifts on her regularly scheduled patient unit. The Commission ordered an evidentiary hearing on the Appellant’s claims to E&E credit for her specialty assignment service as a Critical Intervention Team (CIT) member, Informal Grievance Officer (IGO/IGC), and instructor teaching at the DOC Academy.
Prior to the evidentiary hearing, the Appellant was promoted to permanent DOC Captain from the current eligible list, along with four other candidates. HRD moved to dismiss the appeal as moot, arguing that the Appellant could not now claim that she was aggrieved by any violation of her civil service rights. The Appellant opposed the motion. By Interim Decision dated October 27, 2025 [Favalora II], I denied HRD’s Motion to Dismiss, without prejudice, and ordered the appeal to proceed to a full hearing, finding that it was not disputed that (1) the Appellant’s claims to additional E&E points for specialty assignment experience would increase her overall final exam score and (2) the increase would make a material and significant difference to her seniority status under the applicable Collective Bargaining Agreement (CBA) vis-à-vis the other four officers promoted simultaneously because DOC uses civil service exam scores to “break a tie” and define seniority among simultaneously promoted officers.
Following a two-day evidentiary hearing and review of additional documentation provided by the parties, which included an “in-camera” filing of copies of the DOC’s Promotional Examination E&E Survey and Responses, by Decision dated February 19, 2026 [Favalora III] the Commission further allowed the Appellant’s appeal, in part, and ordered that HRD (1) recalculate the Appellant’s E&E score (adding 12 points for Q.7 & Q.8 experience as a CIT team member and an IGO/IGC and one point for Q.9 FTO teaching experience) and also recalculate her final exam score, effective prospectively only, and adjust as appropriate her place on the current DOC Captain eligible list; and (2) make the same recalculations, if applicable, to each of the other four DOC Captains promoted together with the Appellant on September 21, 2025. The Commission also ordered that, prospectively, HRD make appropriate revisions to the DOC promotional exam preparation guides and E&E claim forms to eliminate any ambiguity about the eligibility of FTO teaching of a field training practicum to probationary correction officers to E&E credit; and make appropriate arrangements in future examinations for the prospective consideration of CIT and IGO/IGC experience as allowable for E&E credit or, if excluded, preserve a clear documented record for doing so.
The Commission deferred the effective date of the February 19, 2026 Decision for 30 days to permit HRD to file a Motion for Reconsideration, accompanied by an affidavit from percipient witness(es), to rebut the Commission’s reliance on record evidence that the IGO/IGC specialty and the CIT specialty were unreasonably excluded from the 2024 DOC promotional exam; explain why the CIT and the IGO/IGC specialty experience was not included in the survey form used to obtain feedback on the specialty assignments to be included for E&E credit; explain why the suggestion of five survey responders (including one Captain) to add the IGO/IGC as an allowable specialty was not sufficient (although the suggestion of seven responders (but no Captain) was sufficient to add the CIRT to the list); or to provide any other explanation to rebut the Commission’s reliance on record evidence that the IGO/IGC specialty and the CIT specialty were unreasonably excluded from the 2024 DOC promotional exam. The Commission also provided a process through which HRD could request protection of the disclosure of the identity of any witness that would compromise the integrity of the examination process.
On March 20, 2026, the Commission received the “Human Resources Division’s Motion for Reconsideration”, together with the “Affidavit of Shelagh Herbert”. On March 23, 2026, the Commission received the “Appellant’s Opposition to Human Resources Division’s Motion for Reconsideration and Request for Immediate Implementation of Commission Order”, as well as two subsequent submissions from the Appellant seeking the Commission’s immediate action on the Motion for Reconsideration.
After careful review of the parties’ submissions, HRD’s Motion for Reconsideration is denied.
First, the Affidavit of Shelagh Herbert does not comport with the Commission’s February 19, 2026 Decision or provide any reason to reopen the record to consider any facts that the Commission may have overlooked. The statements in the Herbert Affidavit rest entirely on her recollection of unspecified conversations with two of the Subject Matter Experts who had been involved in the development of the E&E component of the 2024 DOC promotional examinations and do not provide any basis to rebut the Commission’s findings. For example, the hearsay statements in the affidavit to the contrary, the documentary evidence at the Commission hearing conclusively established that both the CIT and CNT assignments at the time of the 2024 DOC promotional examinations were described as a special operations response unit (SORU) within DOC’s Special Operations Command Group (SOCG), pursuant to Policy 103 DOC 559 and that both were “voluntary” assignments of specially trained DOC officers used to address crisis intervention situations on an as-needed basis.
Second, the Herbert Affidavit does not cover any of the specific questions that the Commission’s February 19, 2026 Decision intended to provide HRD with the opportunity to address. The affidavit fails to explain what specific analysis, if any, caused the CIT to be omitted from the qualifying specialty assignment survey document circulated among DOC personnel or to rebut the inference that the exclusion was arbitrary or maybe inadvertent. Similarly, the affidavit acknowledged that HRD could not explain why the specialty assignment as an IGO/IGC, a position required by statute, was not included in the initial survey list, or was not added to the list even though a number of survey responders recommended it should be included as a qualifying specialty assignment.
Third, HRD has provided no factor that the Commission overlooked to reach its conclusion that it has been vested with authority to grant relief to the Appellant. The Commission’s authority—here to determine that HRD’s arbitrary and unreasonable exclusion of credit for the Appellant’s specialty experience as a CIT member, an IGO/IGC and as an FTO instructor, respectively, violated the Appellant’s civil service right to a “fair test”, pursuant to G.L. c. 31, § 22-§ 24, and was inconsistent with basic merit principles of civil service law as mandated by G.L. c. 31, § 1—is firmly established in the relevant Commission and judicial precedents cited in the Commission’s prior decisions. See, e.g., Ziobro v. HRD, 38 MCSR 236 (2025); Cote v. HRD, 39 MCSR 164 (2025); Rubeski v. HRD, 37 MCSR 298 (2024); Silva v. HRD, 35 MCSR 132 (2022); Callahan v. HRD, 34 MCSR 225 (2021); Naylor v. HRD, 31 MCSR 113 (2018), after full hearing, 32 MCSR 351 (2019); Clarke v. HRD, 30 MCSR 295 (2017), supplemental decision, 30 MCSR 410 (2017); K. Souza v. HRD, 29 MCSR 15 (2016); Wilbanks v. HRD, 29 MCSR 22 (2016), aff’d, CA 2016-0356 (Suffolk Sup. Ct. 2017), on further review, 30 MCSR 316 (2017); N. Souza v. HRD, 28 MCSR 624 (2015).
Similarly, HRD’s contentions that the Commission lacked jurisdiction to hear the Appellant’s claims because they were untimely and had become moot were fully and fairly considered and decided for the reasons set forth in Favalora III.
As to the issue of untimeliness, the Commission found that the Appellant’s appeal was unique. She had taken specific action to establish her intent to assert claims for her specialty assignment experience, including requesting documentary support from DOC for her CIT experience and submitting the documentary support with her E&E claim that she was able to obtain for her assignments as an IGO/IGC and as an FTO instructor. She also reached out to HRD to ascertain what else she could do to preserve her claims and was informed that HRD did not provide specific advice to individual candidates prior to the examination and was told that she could appeal her concerns after the examination was completed. She then did precisely that—i.e., asserted her claims through a request for HRD review after receiving her E&E score. The Commission found the Appellant’s unique situation distinguished this appeal from other appeals dismissed by the Commission when candidates had submitted neither a claim NOR documentation for an E&E claim but unilaterally, and without reaching out to HRD staff, appealed here without taking any steps to request HRD review and/or otherwise preserve the claim for further appeal. (Favalora III, pp. 7-8, 25)
As to the issue of mootness, the Commission found that, as a matter of first impression, the Appellant’s collective bargaining rights derive from her civil service rights — that is, the priority granted to her in shift assignments under the public collective bargaining law turns on what she is entitled to have been allowed in E&E credits under civil service law. The Commission concluded that, reading the two public employment statutes as a “harmonious whole”, the Commission is authorized to retain jurisdiction to adjudicate the Appellant’s claims to have been wrongfully denied E&E credits under civil service law which have a direct and continuing effect on her employment. (Favalora II, pp. 2-5; Favalora III, pp. 20-23)
Fourth, HRD contends that, in order to implement the Commission’s February 19, 2026 Decision, HRD would be required to remove ALL specialty credits from ALL prior and future DOC promotional examinations and to rescore ALL candidates who took the prior DOC 2024 promotional examinations. That contention is without merit. The Commission’s Decision expressly ordered that the relief granted to the Appellant was to be applied prospectively and that, to assure that the Decision did not inequitably and adversely affect the four candidates appointed simultaneously with the Appellant, HRD shall review those candidates’ scores and make the same limited adjustments to them, if any were applicable. No other candidates on the current DOC promotional eligible lists took timely appeals claiming E&E credits for assignments as CIT members, service as a statutory IGO/IGC, or experience as FTO instructors. The Commission’s relief was expressly tailored to remediate the issue before it in this appeal and to encourage, but not require, that HRD reconsider and clarify the ambiguities that this appeal brought to light for the specialty assignment and teaching credits provided in future examinations. Although it should not be necessary, the Commission expressly confirms that Favalora III does not require HRD to recalculate the scores of any candidates other than the Appellant’s or, possibly, the four other simultaneously-promoted candidates on the DOC Captain’s list.
Accordingly, HRD’s Motion for Reconsideration is denied. The Commission’s February 19, 2026 Decision stands as originally written.
HRD shall forthwith, effective as of March 21, 2026: (1) recalculate the Appellant’s E&E score (adding 12 points for Q.7 & Q.8 experience as a CIT team member and an IGO/IGC and one point for Q.9 teaching experience) and also recalculate her final exam score, effective prospectively only, and adjust as appropriate her place on the current DOC Captain eligible list; (2) make the same recalculations, if applicable, to each of the other four DOC Captains promoted together with the Appellant on September 21, 2025; (3) make appropriate revisions to the DOC promotional exam preparation guides and E&E claim forms to eliminate any ambiguity that FTO teaching of a field training practicum to probationary correction officers is entitled to E&E credit; and (4) make appropriate arrangements for the prospective consideration of CIT and IGO/IGC experience as allowable for E&E credit or, if excluded, preserve a clear documented record for doing so.
Civil Service Commission
/s/ Paul M. Stein
Paul M. Stein, Commissioner
By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein, Commissioners) on May 28, 2026.
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:
Dawn Favalora (Appellant)
Michael J. Owens, Esq. (for Respondent)
We concur with the opinion of the majority to allow this appeal, but on far narrower grounds. We believe that HRD has provided sufficient evidence to show that its decision, in conjunction with subject matter experts from DOC, to not provide E&E credit for the specialty position of CIT, was not arbitrary and capricious.
Based on the sworn affidavit of HRD’s Public Safety Exam Developer, that decision was based on several factors including that: a) it is not a full-time team; b) there is minimal training; c) there is no additional certification or annual training; d) participation is completely voluntary; e) the team is only called upon on an as needed basis; f) the team is not triggered by disorder like the SORU teams; and g) DOC had removed from CIT from SORU because they wanted to formally acknowledge that the other teams are considered more elite than CIT and ensure their policies reflected that importance.
To us, those are at least equally valid reasons for not providing credit for the CIT position when compared with the Appellant’s argument that they should be. For that reason, we cannot conclude that HRD’s decision in that regard is arbitrary or capricious.
Thus, we do not support that part of the decision requiring HRD to give the Appellant credit for hours worked in the CIT position.
To ensure clarity, we do not concur with HRD’s position that implementation of this decision would require a re-grading of all examinations and eliminating credit for all specialty positions for all candiates. That is simply not warranted here and such upheaval to the entire examination process is not prudent or justified.
CIVIL SERVICE COMMISSION
Christopher C. Bowman
Chair
5/28/2026
Shawn C. Dooley
Commissioner
5/28/26
