Pursuant to G.L. c. 31, § 2(b) and/or G.L. c. 7, § 4H, the Chair of the Civil Service Commission (Commission) enlisted a Magistrate of the Division of Administrative Law Appeals (DALA) to conduct a full evidentiary hearing regarding the above-captioned matter on behalf of the Commission.
Pursuant to 801 CMR 1.01 (11) (c), Magistrate Kenneth Bresler issued the attached Tentative Decision (dated February 2, 2026, and which contains forty Findings of Fact) to the Commission, and the parties were then afforded thirty days in which to file written objections with the Commission. The Appellant submitted objections on March 3, 2026, and the Appellant filed a response on March 10, 2026.
After careful review and consideration of the entire record, the Commission voted to adopt the findings of the Magistrate but reached a different conclusion regarding whether there is just cause to discipline the Appellant. Based on the Magistrate’s own analysis, “The Department had an adequate reason to discipline Firefighter Gronemeyer: He broke [a toilet in the Fire Department].” It was an oversight for the Magistrate to then conclude that discipline was not warranted because, in the Magistrate’s opinion, the Appellant’s misconduct was not perfectly symmetrical with a prior incident of misconduct by the Appellant. In discipline appeals, the Commission is first charged with conducting a de novo review to determine if the public employee engaged in misconduct that adversely affected the public’s interest. Based on the Magistrate’s own analysis, and the Commission’s own review of the record, the Appellant did indeed engage in such misconduct.
After reaching that conclusion, the Commission, with adequate reasons, may modify the discipline imposed, but only if the Commission’s findings significantly differ from that of the Appointing Authority. The Magistrate, based on his findings, reached a starkly different conclusion about the extent of the misconduct and the context in which it occurred. The Commission is bound by those findings of the Magistrate even if we may have reached different findings had a member of the Commission served as the hearing officer. Taking all of this into account, and considering all evidence in the record, the Commission affirms the Town’s decision to discipline the Appellant and modifies the penalty imposed to a suspension of one tour of duty, which appears to be consistent with the Magistrate’s findings.
Civil Service Commission
/s/ Christopher Bowman
Christopher C. Bowman
Chair
By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein, Commissioners) on May 28, 2026.
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:
Joseph Kittredge, Esq. (for Appellant)
Katherine McNamara Feodoroff, Esq. (for Respondent)
Thomas Bocian, Esq. (Chief Administrative Magistrate, DALA)
- In the course of explicating the Law of the Case and in his Analysis, the Magistrate discussed certain topics not germane to the Commission’s final decision. Those opinions are the Magistrate’s own.
TENTATIVE DECISION
On February 12, 2025, the Appellant, Jacob Gronemeyer (Appellant), acting pursuant to G.L. c. 31, §§ 41-43, appealed to the Civil Service Commission (Commission) from the decision of the Milford Fire Department (Department) to suspend him for eight 24-hour shifts and require him to complete the Modern Assistance Program for Anger Management. The Commission held a prehearing conference on March 18, 2025, via remote videoconference. Subsequently, following designation by the Commission Chair pursuant to Section 43 of G.L. c. 31, I presided over a full evidentiary hearing, which was digitally recorded, on June 5, 2025 in-person at the Commission’s offices and October 30, 2025 remotely by Webex. (One witness could not testify on June 5, 2025 due to an injury. The second day of the hearing was held after the witness had recovered and all attendees were available.) The full hearing was declared public. The Commission received five (5) Appellant exhibits and thirteen (13) Respondent exhibits into evidence (collectively, the “Exhibits”). Each party filed a post-hearing brief on January 12, 2026. For the reasons set forth below, I recommend that Appellant’s appeal be allowed.
FINDINGS OF FACT
Based on the Exhibits entered into evidence and the testimony of the following witnesses:
Called by the Department:
▪ Mark Nelson, Fire Chief
▪ James Vignone, Fire Captain
Called by the Appellant:
▪ Appellant Firefighter Jacob Gronemeyer
and taking administrative notice of all matters filed in the case, pertinent law and reasonable inferences from the credible evidence, a preponderance of evidence establishes these facts:
- Because fighting fires is inherently dangerous, training is an important part of the job for a firefighter. The Department conducts training for firefighters every day. The Department’s approach to training is not “Train until you get it right,” but rather, “Train until you cannot get it wrong.” (Testimony of Nelson)
- Firefighter Gronemeyer has been a firefighter with the Milford Fire Department since October 2015. (Testimony of Gronemeyer)
- In the morning of January 3, 2025, Captain Vignone told firefighters in the kitchen of one of the Department’s fire stations that training that day would include crawling through a tube and between wall studs. (Testimony of Gronemeyer; testimony of Vignone; Resp. Ex. 5)
- Such training requires firefighters to remove the self-contained breathing apparatuses that they normally carry on their backs, while continuing to breathe through them. When they crawl through the tube, also called a pipe (which is corrugated and eight feet long), firefighters push their breathing apparatuses ahead of them in what is called a low-profile maneuver. When they pass between wall studs, firefighters must also remove their apparatuses. (Testimony of Nelson; testimony of Vignone)
- Firefighter Gronemeyer is a large man; he is 6 feet, 2 inches tall, and weighs approximately 250 pounds. In the past, his shoulders have gotten stuck in the pipe, and he has struggled to get through it three or four times. When he learned on January 3, 2025 that training that day would include crawling through the tube, he got anxious and upset, especially because he thought firefighters were required to crawl through the tube once per year and he had done so in the previous month. (Testimony of Gronemeyer)
- Firefighter Gronemeyer stated that the exercise involved a tight space and he didn’t like the exercise; stated that firefighters crawled through the tube only once per year and that firefighters had done so recently; questioned why they were doing it again; and paced in the kitchen. (Testimony of Gronemeyer; testimony of Vignone; Resp. Ex. 5)
- To reduce his anxiety and, in his words, to blow off steam, Firefighter Gronemeyer went to the apparatus bay (where firetrucks are parked), which has a pullup bar. There, he did three or four sets of pullups, between eight and 11 pullups per set. (Testimony of Gronemeyer)
- Firefighter Gronemeyer had learned to use physical exercise to reduce his anxiety in 2022, when he had been required to participate in a coaching and/or counseling program. (Testimony of Gronemeyer)
- After doing pullups, Firefighter Gronemeyer felt “pretty good” and less anxious. (Testimony of Gronemeyer)
- After doing pullups, Firefighter Gronemeyer went to the fire station’s gym and lifted dumbbells. (Testimony of Gronemeyer)
- After lifting dumbbells, Firefighter Gronemeyer went to a restroom in the fire station, entered a stall, used a toilet, and lowered the toilet seat. (Testimony of Gronemeyer)
- Approximately a third of the toilet’s rim broke off, down to, and in some places past, where the curve of the toilet bowl merged into the toilet’s base. That is, some of the toilet’s rim, bowl, and base broke. (Resp. Ex. 3 (photographs))
- The toilet seat had four plastic or rubber bumpers (pads that keep a toilet seat from directly sitting on a toilet bowl). (Resp. Ex. 3)
- Firefighters had not reported cracks in this toilet to Chief Nelson. (Testimony of Nelson)
- Captain Vignone had not previously noticed cracks in the toilet. (Testimony of Vignone)
- Firefighter Gronemeyer yelled out that he had broken the toilet. Various Department personnel, including Captain Vignone, responded to the restroom. (Testimony of Gronemeyer; Resp. Exs. 5, 6)
- Firefighter Gronemeyer was in the restroom, upset and mumbling. (Resp. Ex. 5)
- After the damage was cleaned up, Captain Vignone met with Firefighter Gronemeyer to have him explain what had happened. Firefighter Gronemeyer said that he was upset about training and felt himself getting worked up. In similar situations, when he needed to “blow off steam,” Firefighter Gronemeyer did pullups. He went to do some pullups and then to the restroom. When he was done using the toilet, he knocked the seat down as he always did, which cracked the toilet. He apologized. (Resp. Ex. 5)
- Captain Vignone said that the training was nothing to worry about and that it could be made fun. He asked Firefighter Gronemeyer if he was in the right state of mind to continue the shift, and Firefighter Gronemeyer said yes. (Resp. Ex. 5)
- At some point after breaking the toilet, Firefighter Gronemeyer got a telephone call from his ex-wife about their daughter, who has a condition of concern and who was refusing to go to school that morning. He talked to his daughter and convinced her to go to school. (Testimony of Gronemeyer)
- Firefighter Gronemeyer completed the morning’s training, including crawling through the tube. (Testimony of Gronemeyer; testimony of Vignone; Resp. Ex. 5)
- After training, Firefighter Gronemeyer got called into Chief Nelson’s office.
- Chief Nelson, Captain Vignone, and Firefighter Gronemeyer attended this second meeting on January 3, 2025. Firefighter Gronemeyer told Chief Nelson the following: He recently got divorced. His daughter refused to go to school that morning, at least initially; he had had a difficult morning. He had been annoyed at the training, because it involved the tube-crawling. He considered it a once-per-year exercise and he had completed it in the past year. He felt himself getting worked up, so he went to do pullups in the apparatus garage. Afterward, he went to the restroom, where he knocked or flicked the toilet seat down. The toilet broke. (Testimony of Nelson; Resp. Ex. 13)
- At the meeting, Chief Nelson talked to Firefighter Gronemeyer about separate incidents in 2016 and 2022. Firefighter Gronemeyer commented on the 2022 incident and defended his action; Chief Nelson considered the comment to be blatantly false. Nonetheless, Chief Nelson minimized the importance of the 2022 incident, calling it a “customer service issue.” Chief Nelson offered Firefighter Gronemeyer counseling, as in 2022. Firefighter Gronemeyer declined and said he was fine. Chief Nelson told him that he had broken the toilet out of anger and aggression. Chief Nelson sent him home on paid leave. (Testimony of Nelson; testimony of Vignone; testimony of Gronemeyer; Resp. Ex. 13; App. Ex. 4)
- Chief Nelson was disappointed at Firefighter Gronemeyer’s getting upset. No other firefighter had objected to the training. (Testimony of Nelson)
- Chief Nelson considered Firefighter Gronemeyer’s anger and aggression on January 3, 2025 to be similar to the 2022 incident; he was angry and aggressive toward members of the public in 2022 and toward a supervisor in 2025. (Testimony of Nelson)
- Chief Nelson considered Firefighter Gronemeyer’s reaction to the tube-crawling training to have been insubordination. He called Firefighter Gronemeyer’s reaction an outburst that was a problem, even if the toilet did not shatter after Firefighter Gronemeyer used it. (Testimony of Nelson)
- After the second meeting on January 3, 2025, Captain Vignone asked Firefighter Gronemeyer to email him about the incident and Firefighter Gronemeyer did so. He reported that at approximately 9:00 a.m. that day, he used the upstairs men’s restroom in Station 1. He “flicked the toilet seat down” with one hand and the “front of the toilet broke off.” (Resp. Exs. 4, 5)
- On January 6, 2025, Chief Nelson put Firefighter Gronemeyer on paid administrative leave, “pending the conclusion of the investigation.” (Resp Ex. 7) (This was apparently written confirmation of what Chief Nelson did on January 3, 2025.) On January 10, 2025, Chief Nelson indefinitely extended Firefighter Gronemeyer’s administrative leave. (Resp. Ex. 8)
- On January 31, 2025, Chief Nelson held a hearing to determine whether just cause existed to discipline Firefighter Gronemeyer. Firefighter Gronemeyer attended the hearing but did not provide a statement, testify, or otherwise provide evidence. (Resp. Ex 1)
- Also on January 31, 2025, Chief Nelson determined that just cause existed to discipline Firefighter Gronemeyer. (Resp. Ex 1)
- Also on January 31, 2025, Chief Nelson wrote a memorandum to Firefighter Gronemeyer, reporting that just cause existed to suspend him for eight 24-hour shifts and require him to complete the Modern Assistance Program for Anger Management. (Resp. Ex 1)
- In the January 31, 2025 memorandum, Chief Nelson wrote to Firefighter Gronemeyer, “[Y]ou must be worthy of the Town’s continuing trust,” and that the allegations against him “call into serious question your trustworthiness and integrity.” (Resp. Ex 1)
- Chief Nelson based his determination on a report from Captain Vignone to Chief Nelson, the meeting that Captain Vignone had held with Firefighter Gronemeyer, the meeting that Chief Nelson had held with Firefighter Gronemeyer and Captain Vignone, and the email from Firefighter Gronemeyer, all on January 3, 2025. (Resp. Ex 1)
- Chief Nelson wrote in part:
I met with you on January 3, 2025, and you indicated you knocked the toilet seat down and the toilet cracked. You stated you were annoyed. Likewise, in your email to me on January 3, you indicated you “flicked” the seat down[,] breaking the front of the toilet.
Your statement that you knocked or “flicked” the toilet seat down in the same manner as you typically do is not credible. Clearly, you have never cracked the toilet. Further, a plastic toilet seat cover dropping onto a toilet after simply being “flicked” closed, even if not placed, with care, by you down, would lack the force necessary to cause such extreme damage. Further, in both interviews with Capt. Vignone and me, you indicated that you were annoyed by the training course. Thus, the only plausible explanation is that you, with extreme force, slammed the seat onto the toilet out of annoyance. It was the force of your push that broke the toilet.
As a result of your actions on January 3, 2025, you destroyed town property[,] amounting to conduct unbecoming a firefighter.
In reaching my decision, I also considered your prior discipline stemming from a May 28, 2022 incident resulting in a documented verbal warning and employee assistance program counseling.
(Resp. Ex 1)
- The toilet cost $695 to replace. (Testimony of Nelson; App. Ex. 5)
- Firefighter Gronemeyer was suspended for eight 24-hour shifts on February 4, 8, 12, 16, 20, 24, and 28, and March 4, 2025. (Resp. Ex. 1)
Firefighter Gronemeyer’s 2022 oral warning
- On May 11, 2022, Lieutenant Scott Keefe memorialized a conversation he had had with Firefighter Gronemeyer in April 2022 about an incident on March 28, 2022. (Resp. Ex 10)
- Lieutenant Keefe wrote that the incident involved a 16-year-old patient and his mother. He wrote in part:
The patient was suffering from a serious incident. The lack of compassion, empathy, and care you showed to the patient and his mother is unacceptable. You became agitated and yelled at the patient, and… indicat[ed] the medical event was not serious.
(Resp. Ex 10)
- Firefighter Gronemeyer was required to participate in a coaching and/or counseling program “to improve performance.” (Resp. Ex 10)
LAW OF THE CASE
What Firefighter Gronemeyer was disciplined for
In his January 31, 2025 memorandum to Firefighter Gronemeyer, Chief Nelson wrote that “you destroyed town property[,] amounting to conduct unbecoming a firefighter.” (Resp. Ex 1) That conduct and charge is what is before me and what I issue this tentative decision about.
The wording of the January 31, 2025 memorandum is important. Chief Nelson did not discipline Firefighter Gronemeyer or inform him he was being disciplined for conduct unbecoming a firefighter, including destroying property. Chief Nelson did not discipline Firefighter Gronemeyer or inform him he was being disciplined for insubordination or his reaction to learning about the tube-crawling training.
In the hearing before me, Chief Nelson testified that he considered Firefighter Gronemeyer’s reaction to the tube-crawling training to have been insubordination. I asked him whether he had disciplined Firefighter Gronemeyer for breaking the toilet and insubordination. He answered yes.
As I drafted this tentative decision, I emailed the parties:
I am inclined to write my [tentative] decision based on the grounds for discipline in the memorandum and not the expanded grounds that Chief Nelson testified about.
A lawyer for the Department emailed me on January 6, 2026 and clarified, “The Town does not intend on pressing a separate insubordination charge.”
In its post-hearing brief, the Department took this position: Firefighter Gronemeyer’s alleged conduct unbecoming a firefighter entailed, not only his breaking the toilet, but his “intemperate behavior [which] began when Captain Vignone announced the crawl tube training exercise….” (Milford F.D. Br. 6) This is not a stray reference; the Department discusses Firefighter Gronemeyer’s reaction to the training for two pages. (Milford F D. Br. 6-7)
The essence of due process is that a person in jeopardy of serious loss receive notice of the case against him and opportunity to meet it. Mathews v. Eldridge, 424 U.S. 319, 348 (1976). However, Firefighter Gronemeyer received no notice that he had been disciplined for his reaction to the training. When I emailed the parties about Chief Nelson’s testimony about insubordination and quoted the language from his January 31, 2025 memorandum, the Department responded that it was not proceeding on a charge of insubordination – but it did not use the opportunity to clarify that it still intended to argue that it had based its discipline on Firefighter Gronemeyer’s reaction.
In his post-hearing brief, Firefighter Gronemeyer did not address whether his reaction to the training constituted conduct unbecoming a firefighter. His brief indicated that he did not know that the Department considered his reaction to be an issue. (App. Br. 10 (“Two (2) years later, the toilet bowl breaks, Gronemeyer is found responsible for conduct unbecoming and suspended without pay….”))
Not only did Firefighter Gronemeyer probably not know that the Department considered his reaction to be an issue, I did not know. I was surprised to read the Department’s discussion in its brief.
I base this tentative decision on whether Firefighter Gronemeyer engaged in conduct unbecoming a firefighter by breaking the toilet and not on anything else.
Whether expert testimony about the toilet was necessary
Toward the end of the second day of hearing, I asked the parties:
Do we need an expert to testify about the vulnerabilities of toilets? I’m not being facetious….[I]t's easy for me to say, “Oh, flicking down a toilet seat would not break a toilet” or “Flicking down a toilet seat very hard would break it,” but I’m not sure I know enough about toilets….Should this hearing be over evidentiarily or should we explore whether a toilet expert exists?
(1:15-16)
The Department’s lawyer commented “off the top of [her] head” and wondered whether a plumber or even a physicist would be able to testify to the issue. (1:16) She laughed as she mentioned a physicist, which I interpreted as skepticism.
Firefighter Gronemeyer’s lawyer stated:
I don't see how a plumber would be able to opine on the amount of force necessary to break a porcelain seat without breaking the plastic seat.
(1:17) Note that Firefighter Gronemeyer’s lawyer commented on a plumber and not an expert in general.
I next said:
…I'm not insisting on a witness. Do the lawyers want to close the evidence today? Or do you want to think about it?
(1:17)
The Department’s lawyer responded:
…I'm hard pressed to figure out who I could call to be an expert witness…so I think it probably makes sense for us to rest…with what we have.
(1:18)I asked the lawyers to tell me if they changed their minds. Firefighter Gronemeyer’s lawyer did not say anything else.
In his post-hearing brief, Firefighter Gronemeyer argued at length that the Department had not called and established by expert testimony that he had forcefully broken the toilet. (App. Br. 7-8) I disregard this argument, which I was surprised to read.
I gave Firefighter Gronemeyer’s lawyer ample opportunity to (1) opine whether an expert witness was necessary and (2) inform me if he changed his mind. Before the hearing ended, Firefighter Gronemeyer’s lawyer was skeptical about a plumber as an expert, but did not address the need for an expert in general. He obviously decided after the hearing that the Department was required to have called an expert, but did not inform me of that position either, before submitting his post-hearing brief.
I raised the issue for a reason. Firefighter Gronemeyer’s lawyer did not weigh in before the evidence closed and weighed in only when he submitted his post-hearing brief. I do not believe it is fair to consider this issue at this point, and I decline to do so.
Ultimately, the unavailability of this argument to Firefighter Gronemeyer does not matter in this tentative decision, as I write below.
The Department’s last-chance agreement with another firefighter
At the hearing, both parties compared the discipline that Firefighter Gronemeyer received with discipline that another firefighter, referred to as “Firefighter G,” received for separate incidents. (Although Firefighter Gronemeyer’s last name starts with “G,” he of course is separate from Firefighter G.) The parties extensively explored Firefighter G’s series of acts and course of discipline. The Department tried to establish that Firefighter Gronemeyer’s discipline was fair in comparison with Firefighter G’s discipline; Firefighter Gronemeyer tried to establish the opposite.
The facts of Firefighter G’s last-chance agreement include these:
On June 17, 2020, after Firefighter G was instructed to finish a written report, he punched a sheetrock wall in a fire station. (Resp. Ex 9)
On December 31, 2020 and January 5, 2021, the Town of Milford, Firefighter G, and the firefighters’ union variously signed a settlement agreement. (Resp. Ex 9)
The settlement agreement included that Firefighter G would be suspended and unpaid for 10 days, equaling five 24-hour days. (Resp. Ex 9)
Firefighter G agreed to counseling by a psychotherapist for at least six months and until the therapist determined that Firefighter G no longer needed it. (Resp. Ex 9)
However, more important to this discussion than the substance of the last-chance agreement is this provision in the agreement:
7. Non-Precedential: The parties agree that this Agreement and resulting discipline shall apply only to the instant matters and shall not, either in whole or part, serve as precedent in any other matter or dispute between the Town and any other employee and shall not create a precedent in any other matter. No party hereto shall introduce this Agreement or resultant discipline into any other case for any reason at any time except to enforce its terms or in a subsequent proceeding relating to future discipline of [Firefighter G]. The parties specifically agree that this agreement and resulting discipline does not create any “past practice” and waive any right to make this argument at any future proceeding.
(Resp. Ex. 9)
In a December 31, 2025 email, I asked the parties to brief the significance of this provision. I stated, “I am inclined to disregard this exhibit in my [tentative] decision.”
In its post-hearing brief, the Department wrote in part that it
solely introduces Exhibit 9 into evidence for demonstrative purposes and to provide an evidentiary basis for Chief Nelson’s testimony regarding the discipline of Firefighter G and demonstrate his decision was without political bias. Notably, the Agreement does not prevent the Chief from testifying to the circumstances surrounding this discipline at any future hearings.
(Milford F.D. Br. 9) This argument does not make sense to me. I don’t know what “demonstrative purposes” mean. Nor does this contention make sense to me: “[T]he Agreement does not prevent the Chief from testifying to the circumstances surrounding this discipline.” The Department may be trying to distinguish Firefighter G’s discipline (which, it seems to concede, Chief Nelson could not testify about) from the circumstances of the discipline (which, it seems to contend, Chief Nelson could testify about). However, the provision covers the discipline and the agreement – and the agreement discusses the circumstances. (Resp. Ex. 9, p. 1) Any such distinction does not hold.
The provision bars the Department from “introduc[ing] this Agreement or resultant discipline into any other case for any reason at any time.” Does not “any reason” mean any reason? I think it does. Yet, the Department has introduced it. Did the parties, with a wordy provision, intend to craft an iron-clad, absolute prohibition on the use of the agreement as a precedent, without any wiggle room? They did. Yet one of the parties to that agreement and in this appeal argues that it is not prohibited from using the agreement.
Firefighter Gronemeyer, too, wants to use the agreement in this appeal, although his position is tentative and conditional, as follows;
Gronemeyer submits that Resp. Exh. 9 must be, in part, maintained as a part of the record and the remaining portion of the exhibit is dependent upon the legal arguments asserted by Milford. Gronemeyer asserts that page R0042, of Resp. Exh. 9 is probative and directly relevant to his argument that he was subjected to disparate disciplinary treatment by Milford.
(App. Br. 11) Firefighter Gronemeyer argues that I should consider the agreement, but not why I can consider it when the agreement itself bars its introduction into evidence. The fact that I admitted the agreement does not mean that I should have admitted it or that I should consider it now, as Firefighter Gronemeyer might be arguing. (“Resp. Exh. 9 must be…maintained as a part of the record.”) At the start of the hearing, I had 63 pages of exhibits before me (including cover pages), which I did not scrutinize. Neither party brought to my attention this single-spaced provision in an agreement whose relevance was not apparent.
It is not simply a matter of the provision’s declaring that the agreement should not be introduced into any other proceeding and that I should enforce the prohibition. It is also a matter of the parties’ declaring that the agreement is not a precedent. When people craft a document and declare that it has no precedential value, they and the declaration should be believed, especially if the reason for the declaration is unexplained. See Bush v. Gore, 531 U.S. 98, 109 (2000) (“Our consideration is limited to the present circumstances…”).
I disregard the agreement, the testimony about Firefighter G’s discipline, and the parties’ arguments about it.
Ultimately, the unavailability of Firefighter G’s last-chance agreement to the Department does not matter in this tentative decision, as I write below.
Adverse inference
Firefighter Gronemeyer did not testify at the hearing on January 31, 2025 before Chief Nelson. (Resp. Ex 1) The Department argues that I should draw an adverse inference from his decision not to testify; Firefighter Gronemeyer argues that I should not draw such an inference.
I decline to draw an adverse inference. “In a civil action, a reasonable inference adverse to a party may be drawn from the refusal of that party to testify on the grounds of self-incrimination.” Custody of Two Minors, 396 Mass. 610, 616 (1986) (emphasis added). I can guess why Firefighter Gronemeyer did not testify on January 31, 2025, but his reason is not in the record. I do not know if his reason was to avoid self-incrimination. Therefore, I do not believe that I may draw an adverse inference under the law.
Moreover, Firefighter Gronemeyer admitted to breaking the toilet; he admitted it in the fire station’s restroom, to Captain Vignone in a meeting, to Chief Nelson and Captain Vignone in a second meeting, in an email to Captain Vignone, and in the hearing before me. He denied lowering the toilet seat forcefully and doing so out of anger. Had he testified in the hearing before Chief Nelson and been questioned, I expect that he would have given the same account.
APPLICABLE CIVIL SERVICE LAW
A tenured civil service employee aggrieved by a disciplinary decision of an appointing authority made pursuant to G.L. c. 31, § 41, may appeal to the Commission under G.L. c. 31,
§ 43, which provides in relevant part as follows:
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.
Under Section 43, the Commission is required “to conduct a de novo hearing for the purpose of finding the facts anew.” Falmouth v. Civ. Serv. Comm'n., 447 Mass. 814, 823 (2006). However, “[t]he 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.’” Id., quoting internally from Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983).
An 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 ” Commissioners of Civil Service v. Municipal Ct. of Boston, 359 Mass. 211, 214 (1971); Cambridge v. Civil Service Comm'n., 43 Mass. App. Ct. 300, 304 (1997); Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482 (1928). 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.” School Comm. v. Civil Service Comm’n, 43 Mass. App. Ct. 486, 488 (1997); Murray v. Second Dist. Ct., 389 Mass. 508, 514 (1983).
Section 43 of G.L. c. 31 also vests the Commission with authority to affirm, vacate or modify discipline but that discretion is “not without bounds” and requires sound explanation for doing so. See, e.g., Police Comm’r v. Civil Service Comm’n, 39 Mass. App. Ct. 594, 600 (1996) (“The power accorded to the commission to modify penalties must not be confused with the power to impose penalties ab initio . . . accorded the appointing authority”). See also Town of Falmouth v. Civil Service Comm’n, 447 Mass. 814, 823 (2006), quoting Watertown v. Arria, 16 Mass. App. Ct. 331, 334 (1983). However, the Supreme Judicial Court has added that, in the absence of “political considerations, favoritism, or bias,” the same penalty is warranted “unless the commission’s findings of fact differ significantly from those reported by the town or interpret the relevant law in a substantially different way.” Falmouth, 447 Mass. at 824.
ANALYSIS
I examine whether the Department had adequate reasons sufficiently supported by credible evidence and guided by common sense. Commissioners of Civil Service v. Municipal Ct. of Boston, 359 Mass. at 214; Cambridge v. Civil Service Comm'n., 43 Mass. App. Ct. at 304; Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. at 482.
Adequate reasons
The Department had an adequate reason to discipline Firefighter Gronemeyer: He broke the toilet.
However, the Department also disciplined Firefighter Gronemeyer because Chief Nelson considered Firefighter Gronemeyer’s anger and aggression on January 3, 2025 to be similar to the 2022 incident; he was angry and aggressive toward members of the public in 2022 and toward a supervisor in 2025. (Testimony of Nelson) However, the evidence shows that Firefighter Gronemeyer was anxious and upset on January 3, 2025, not angry and aggressive toward a supervisor. The evidence does not show that Firefighter Gronemeyer was aggressive toward members of the public in 2022.
Credible evidence
The Department did not have credible evidence that Firefighter Gronemeyer (1) was still anxious or angry after doing pullups and working with dumbbells and (2) lowered toilet seat with excessive force, such as slamming it.
Common sense
Common sense cuts in opposite ways here. On one hand, common sense indicates that if Firefighter Gronemeyer was anxious or angry about the tube-crawling training and needed physical exercise to blow off steam, he was anxious or angry when he used the toilet. Common sense indicates that if the toilet shattered, Firefighter Gronemeyer lowered the seat with excessive force, such as slamming it.
On the other hand, common sense indicates that: (1) Firefighter Gronemeyer, after doing pullups and working with dumbbells, may have been less anxious or upset (Day 1 hearing, 1:37 (after doing pullups, Firefighter Gronemeyer was less anxious)), or no longer anxious or upset at all (Day 1 hearing, 1:38 (Firefighter Gronemeyer testified that when he used the restroom, he was not angry or upset)); (2) Firefighter Gronemeyer’s flicking down a plastic toilet seat (that is, not a hard or heavy object), with four plastic or rubber bumpers designed to cushion the seat from the toilet bowl, was not enough to shatter a toilet bowl, even if Firefighter Gronemeyer flicked down the toilet seat with force; and (3) the toilet had some sort of crack or defect that Firefighter Gronemeyer was not responsible for, that may have developed over time and through use by multiple people, and that the crack or defect finally led to the toilet shattering when one person, who happened to be Firefighter Gronemeyer, lowered the toilet seat.
Which alternative is more plausible? Which application of common sense makes more sense? The latter alternative (the straw that broke the camel’s back/the flick that shattered a toilet bowl), especially because it is more grounded in the evidence and less grounded in assumptions than the former alternative.
“Under section 43, the appointing authority carries the burden to prove to the Commission by a ‘preponderance of the evidence’ that there was ‘just cause’ for the action taken. Id. See, e.g., Falmouth v. Civil Serv. Comm’n, 447 Mass. 814, 823 (2006); Police Dep’t of Boston v. Collins, 48 Mass. App. Ct. 411, rev. den., 726 N.E.2d 417 (2000).” Evan MacLean v. Department of State Police, D-25-100 (Dec. 4, 2025).
Firefighter Gronemeyer broke the toilet; that is undisputed. He may have broken it because of a defect in the toilet. He may have destroyed it in anger and with excessive force. However, the Department has not proved the latter possibility.
The Milford Fire Department has not proved by a preponderance of the evidence that Firefighter Jacob Gronemeyer destroyed a toilet in anger and by using excessive force, thereby engaging in conduct unbecoming a firefighter. I need not reach whether the discipline imposed on Firefighter Gronemeyer was appropriate had I found that he had destroyed a toilet in anger and by using excessive force.
CONCLUSION
For all of the above reasons, I recommend that Jacob Gronemeyer’s appeal under docket no. D1-25-044 be allowed.
CIVIL SERVICE COMMISSION
/s/ Kenneth Bresler
Kenneth Bresler
Administrative Magistrate
Division of Administrative Law Appeals
Date: February 2, 2026
- The Commission follows the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR §§1.00, et seq., in its adjudicatory proceedings, with Chapter 31’s provisions or any rules promulgated thereunder taking precedence.
- A link to the recording of the full hearing was provided to the parties. If there is a judicial appeal of this decision, the plaintiff in the judicial appeal is obligated to use the recording to provide an accurate transcript, satisfactory to the court, to the extent that they wish to challenge the decision as unsupported by the substantial evidence, arbitrary and capricious, or an abuse of discretion.
- In contrast to Firefighter Gronemeyer’s impression that firefighters crawled through the tube once per year, Chief Nelson declined to specify how frequently firefighters engage in such training. (Testimony of Nelson)
- I discuss below how Firefighter Gronemeyer came to be required to participate in this program.
- At issue in this appeal is how forcefully Firefighter lowered the toilet seat – whether he flicked or knocked it down, as he usually did, or used more force, such as slamming it – and whether he did so while anxious, upset, or angry.
- The exact condition should remain unnamed to preserve the privacy of an apparent minor.
- The 2016 incident is ultimately insignificant, because Chief Nelson, in his subsequent memorandum imposing discipline on Firefighter Gronemeyer, did not cite it. I discuss the 2022 incident and discipline below.
- I do not characterize the two incidents the same way. The Corrective Action Form about the March 28, 2022 incident (Resp. Ex. 10) indicates to me that Firefighter Gronemeyer was angry (he “yelled at the patient”) but not necessarily aggressive. Nor did the evidence indicate to me that Firefighter Gronemeyer was angry and aggressive on January 3, 2025. The evidence is that he was anxious and upset.
- I discuss insubordination below.
- At the hearing, the Department emphasized that Firefighter Gronemeyer did not mention that he was anxious or upset when he flicked down the toilet seat. (Day 1 hearing, 32:00) However, the absence of any such mention is not significant; such an absence does not signify anything. In addition, no evidence exists that after Firefighter Gronemeyer did pullups and used dumbbells, he was still anxious or upset. (Day 1 hearing, 1:37 (after doing pullups, Firefighter Gronemeyer was less anxious))
