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Decision

Decision  Joseph, Emmanuel v. Boston Fire Department 12/18/25

Date: 12/18/2025
Organization: Civil Service Commission
Docket Number: G1-25-139
  • Appellant: Emmanuel Joseph
  • Appearance for Respondent: Robert J. Boyle, Jr., Esq.
  • Hearing Officer: Shawn C. Dooley

The Commission allowed the bypass appeal of a candidate seeking appointment as a Boston firefighter as the Boston Fire Department failed to show that the candidate’s tardiness to a meeting, his questions surrounding relocation and salary during his interview, and an overall impression of aloofness provided reasonable justification to bypass him for appointment. 

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Decision

On June 11, 2025, the Appellant, Emmanuel Joseph, acting pursuant to G.L. c. 31, § 2(b), filed a timely appeal with the Civil Service Commission (Commission), challenging the decision of the Boston Fire Department (BFD) to bypass him for an original appointment for the position as a fulltime firefighter. The Commission held a remote pre-hearing conference on July 1, 2025. On September 23, 2025, I conducted an in-person full evidentiary hearing at the Commission’s offices. The hearing was recorded via Webex.[1]  Both parties filed proposed decisions.  For the reasons set forth below, Mr. Emmanuel’s appeal is allowed.

FINDINGS OF FACT

The BFD entered eight exhibits (Exhibits 1-8) into evidence, and the Appellant did not enter any exhibits. Based on the documents entered into evidence and the testimony of the following witnesses:

Called by the BFD:
 

  • Leonardeen De Souza (Former BFD Director of Human Resources)[2]
  • Bettye Jarrett (City of Boston Property Management Security Officer)
  • Michael Gaskins (BFD Diversity Recruitment Officer)
  • Richard Francis (Acting Deputy Chief of BFD’s Personnel Division)

Called by the Appellant:

  • Emmanuel Joseph, Appellant

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 the following facts:

  1. The Appellant is a Boston resident and a naturalized citizen, originally from Haiti. (Testimony of Appellant)
  2. The Appellant is a graduate of a Boston high school. He has taken college courses but has not earned a degree. (Exhibit 2)
  3. The Appellant served as a Correction Officer with the Massachusetts Department of Correction for two years. There is nothing in the record showing that the Appellant had any disciplinary issues related to attendance or tardiness.  (Exhibit 2)
  4. On October 14, 2023, the Appellant took and passed the civil service examination for firefighter, administered by the state’s Human Resources Division (HRD). (Stipulated Fact)
  5. On March 7, 2024, HRD established the eligible list for Boston Firefighter. (Stipulated Fact)
  6. On November 27, 2024, HRD issued Certification No. 10242 (Haitian Creole Speaking Certification) to BFD, upon which the Appellant was ranked 10th among those willing to accept appointment. (Stipulated Fact)
  7. On December 10, 2024, at 11:31 A.M., the BFD emailed all candidates notifying them that all applications and supporting material must be submitted on or before December 24th and that an orientation would be held on January 6th at 3:00 P.M. (Exhibit 3)
  8. That same day, nine minutes later, at 11:40 A.M., the Appellant responded to the BFD notification stating that he would be out of the country on January 6th. (Exhibit 3)
  9. When the BFD notified him at 11:47 A.M. that he could miss the January 6th orientation if he provided the BFD with a copy of his travel itinerary, the Appellant responded with an email eight minutes later, at 11:55 A.M., with his itinerary attached. (Exhibit 3)
  10. Between December 10, 2024, and January 22, 2025, a series of email exchanges took place between the BFD and the Appellant, all of which show a degree of seriousness and promptness by the Appellant. (Exhibit 3)
  11. On December 24, 2024, the Appellant timely submitted his application package to BFD. (Exhibit 2)
  12. On January 21, 2025, the Appellant emailed the BFD to confirm that he had returned to Boston. (Exhibit 3)
  13. On January 23, 2025, the BFD emailed the Appellant with instructions to appear for his orientation on January 27, 2025, at 9 AM in the Human Resources Conference Room at Boston Fire Headquarters. The BFD’s email reminded the Appellant that he needed to be on time and to plan for parking challenges.  (Exhibit 3)
  14. Sometime between 9:01 A.M. and 9:10 A.M. on January 23rd, the Appellant entered the BFD headquarters for the orientation.  He signed in at the security desk and hand-wrote his arrival time as 9:01 A.M. (Exhibit 8)[3]
  15. During his orientation, the Appellant attributed his tardiness to traffic.  (Testimony of De Souza)
  16. At 10:00 A.M. the next morning (January 28th), the Appellant successfully completed a remote Haitian Creole fluency examination.  (Exhibit 3 and post-hearing correspondence from the BFD)
  17. On February 26, 2025, without having received a conditional offer of employment, the Appellant was notified that he was required to complete a written psychological examination on March 5, 2025. (Exhibit 3)
  18. On February 28, 2025, the BFD convened an interview panel for the upcoming Fire Academy class. The BFD utilized a three-person panel consisting of Ms. DeSouza; Richard Francis[4] (Chief Francis), Acting Deputy Chief of Personnel; and Patrick Slattery, a Fire Captain assigned to the Personnel Division. The interview panel asked each candidate the same set of questions and took notes from each interview. (Testimony of Ms. DeSouza and Chief Francis; Exhibits 5-7) [5]
  19. The Appellant was asked eight questions during the interview.  (Exhibits 5 -7)
  20. When asked about his work experience and how it related to being a Boston firefighter, the Appellant spoke about his tenure as a correction officer and his desire to give back to the community. (Exhibit 7)
  21. When asked why he wanted to become a Boston firefighter, the Appellant spoke about wanting to be “part of something bigger” and being helpful to others. (Exhibit 7)
  22. When asked to discuss how he has responded to a work emergency or crisis, the Appellant spoke about a fellow correction officer being stabbed on the job and how he (the Appellant) had immediately responded and assisted. (Exhibits 5-7)
  23. When asked to describe a time that he has worked with people from diverse backgrounds, the Appellant referenced his employment at DOC; the need for everyone to have each other’s back and the need to “be yourself” and “prove yourself”. (Exhibit 5)
  24. When asked about the “toughest professional decision” he has ever made, the Appellant talked about his decision to leave his employment at DOC after two years because of a long commute and not wanting to relocate his family to be closer to the facility that he was assigned to. (Exhibit 5)
  25. When asked to discuss a career goal that he had accomplished, the Appellant talked about graduating from the DOC training academy; the pressure that all candidates faced; the “brotherhood” that he experienced and the need to work together. (Exhibits 5 – 7)
  26. When asked if he was EMT certified, the Appellant said he was not.  (Exhibits 5 – 7)
  27. When asked what makes him “the best candidate” for the job, the Appellant spoke about his willingness to learn; that he can do anything he sets his mind to; and about his overall desire to help other people. (Exhibit 5)
  28. At the conclusion of each interview, candidates are asked if they have any questions for the interview panel.  The handwritten notes associated with this inquiry for each of the three panelists are as follows:  DeSouza: “What happens if I want to move?”; Francis:  No written notes; Slattery: “Asked what the pay was. Asked about living in Florida”. (Exhibits 5-7)
  29. On March 5, 2025, again without having received a conditional offer of employment, the Appellant was required by the BFD to sit for a written psychological examination. (Exhibit 3; post-hearing correspondence from the BFD; Testimony of Appellant.)[6]
  30. On May 2, 2025, the BFD notified the Appellant that he was being bypassed for appointment.  The bypass letter stated in relevant part:

As part of the consideration process, a candidate’s approach and motivation to the pursuit of acquiring [sic] the position of Firefighter requires dedication and commitment.  During the hiring process, to accommodate your personal obligations, the Department had an individual orientation for you on January 27, 2025. You arrived late for the interview with no explanation for your lateness.  Your demeanor was aloof and almost dismissive.  You were interviewed on February 28, 2025, (sic) during the interview when asked if you had any questions, you asked, ‘what happens if I want to move?’.  You then proceeded to inform the interview panel of your desire to move to Florida and then questioned how much is the starting salary of a Firefighter.  The interview panel found that your demeanor was, again, aloof and nonchalant.  Your questions coupled with your demeanor at both the orientation and the interview gave the interview panel great pause and concern regarding your candidacy and commitment to the position of firefighter.”

(Exhibit 1)

APPLICABLE CIVIL SERVICE LAW

The core mission of Massachusetts civil service law is to enforce “basic merit principles” for “recruiting, selecting and advancing of employees on the basis of their relative ability, knowledge and skills” and “assuring that all employees are protected against coercion for political purposes, and are protected from arbitrary and capricious actions.” G.L. c. 31, § 1; see, e.g., Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 259 (2001); MacHenry v. Civil Serv. Comm’n, 40 Mass. App. Ct. 632, 635 (1995), rev. den., 423 Mass. 1106 (1996); see also Brookline v. Alston, 487 Mass. 278 (2021) (analyzing broad scope of the Commission’s jurisdiction to enforce basic merit principles under civil service law). The civil service system is designed to guard against political considerations, favoritism, and bias in governmental hiring and promotion.

Original appointments of civil service employees are made from a list of candidates, called a “certification”, whose names are drawn in the order in which they appear on the applicable civil service “eligible list”, using what is called the 3n+1 formula.  G. L. c. 31, §§ 6 through 11, 16 through 27; Personnel Administration Rules, PAR.09.  To deviate from the rank order of preferred hiring and appoint a person “other than the qualified person whose name appears highest,” an appointing authority must provide written reasons – positive, negative, or both – consistent with basic merit principles. See G.L. c. 31, § 27; PAR.08(4). This is commonly referred to as a bypass. “In addition to bypassing a candidate for appropriate negative reasons, an appointing authority may bypass a candidate for positive reasons, as when one police candidate obtains specialty training and assumes specialty responsibilities that another candidate has not.” Carnes v. Norwell, 34 MCSR 91 (2021).

The Commission’s role is to determine whether the appointing authority has shown, by a preponderance of the evidence, that it has “reasonable justification” for the bypass after an “impartial and reasonably thorough review” of the relevant background and qualifications bearing on the candidate’s present fitness to perform the duties of the position. Boston Police Dep’t v. Civil Serv. Comm’n, 483 Mass. 461, 474-78 (2019); Police Dep’t of Boston v. Kavaleski, 463 Mass. 680, 688-89 (2012); Beverly v. Civil Serv. Comm’n, 78 Mass. App. Ct. 182, 187 (2010); Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-28 (2003). Reasonable justification means that the appointing authority’s actions were based on adequate reasons supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law. Selectmen of Wakefield v. Judge of First Dist. Ct. of E. Middlesex, 262 Mass. 477, 482 (1928). See also Commissioners of Civil Serv. v. Mun. Ct. of the City of Boston, 359 Mass. 214 (1971). “The Commission’s role, while important, is relatively narrow in scope: reviewing the legitimacy and reasonableness of the appointing authority’s actions.” Beverly, 78 Mass. App. Ct. at 187 (citing Falmouth v. Civil Serv. Comm’n., 447 Mass. 814, 824-26 (2006)). The Commission owes “substantial deference” to the appointing authority’s exercise of judgment in determining whether there was reasonable justification shown. Beverly, 78 Mass. App. Ct. at 188.

ANALYSIS

The BFD argues that the Appellant’s late arrival for an orientation, two questions that he posed at the end of his interview, and the Appellant’s overall demeanor call into question his “commitment to the position of firefighter”, providing justification to bypass him for appointment; despite there being nothing in the Appellant’s background that would disqualify him as a suitable candidate to become a Boston firefighter. As such, the BFD has not shown, by a preponderance of the evidence, that the Appellant lacks “commitment to the position of firefighter”, the stated reason for bypass. Therefore, the Appellant’s bypass decision is overturned; the Appellant’s appeal is allowed; and the BFD shall provide the Appellant with one additional consideration for appointment.

When viewed in its entirety, the record shows that the Appellant has displayed a serious commitment to his career goal of becoming a firefighter.  First, he took and passed a two-part examination for firefighter which includes a written component and an entry level Physical Abilities Test (ELPAT).  When he received notification that the BFD was making appointments to the position of firefighter, he timely notified the BFD of his interest in being appointed. Within minutes of receiving notification that the scheduled orientation conflicted with travel plans out of the country, he contacted the BFD, provided supporting documentation and arranged for an alternate date. Prior to attending the re-scheduled orientation, he timely submitted his application for employment and followed up with an email to confirm whether he should wait until the re-scheduled orientation to submit his personal references or do so prior to the initial orientation session date.

Setting aside the issue of whether he was tardy for the orientation session, discussed in more detail below, the Appellant did attend the orientation session and then attended and successfully completed a Haitian Creole language proficiency evaluation the very next day.  He then appeared before a 3-member interview panel and responded to eight structed questions with what I conclude were thoughtful and somewhat insightful answers.  His compliance with the BFD process did not end there.  Even though MCAD guidelines prohibit the BFD from conducting medical examinations prior to issuing a conditional offer of employment,[7] which BFD states they never offered to the Appellant, he complied with a BFD directive to complete a lengthy written component of a psychological examination. While I appreciate the Department admitting that they should have cancelled the exam, the fact of the matter is that they didn’t and although they state they did not score the exam, the Appellant was still required to go through a very invasive and personal evaluation.

The fact that a bypass was issued after these steps were taken and no issue surrounding these additional evaluations are listed as a reason for bypass raises concern. As stated in Kelley v. Boston Fire Department, 31 MCSR 382, 385 (2018):

Applied here, once the BFD began accessing Mr. Kelley’s medical information, including medical information related to his disability rating with the VA, it was precluded from effectively changing its mind regarding whether or not the non-medical issues, of which it was already aware pre-conditional offer of employment, justified a decision to bypass Mr. Kelley for appointment.

Since it is apparent that BFD continued the hiring process with medical evaluations after the interview, the BFD is not justified in bypassing him after the fact for issues that were not significant enough to stop further evaluations.   And while there may not have been a formal conditional offer of employment offered, given the continuation of the process, it is understandable that the Appellant considered that an offer had been made.

               Even after meeting all of these requirements, the BFD, focusing on two discrete events during the months-long vetting process, somehow reached the sweeping conclusion that the Appellant had not demonstrated a serious commitment to being appointed to the position of firefighter. 

               The first event involves whether, and to what extent, the Appellant arrived late for his orientation session.  To put this in the proper context, there is no evidence that the Appellant was ever disciplined for attendance or tardiness issues while employed at DOC for two years; he was apparently punctual for all other appointments including the interview, the language proficiency examination, the impermissible psychological examination, as well as a drug test; and he appears to have submitted all required paperwork on-time or ahead of schedule.  Instead of considering all of this compelling evidence to assess the Appellant’s ability to be punctual, they instead focus on whether the Appellant appeared minutes late for the orientation session.

Further, the evidence does not support the suggestion by the security officer that the Appellant was approximately 20 minutes late on the morning in question. According to other BFD witnesses, an orientation would not even go forward if a candidate was more than 15 minutes late and another BFD witness concedes that the Appellant may have arrived as early as 7 minutes after the scheduled interview time.  After considering all the testimony and given the time required to sign in and have the security officer escort him to the conference room, I conclude that the Appellant likely arrived at or around approximately 9:05 A.M. for the 9:00 A.M. orientation.  Although being punctual for all meetings is important, particularly for candidates seeking public safety positions, I find that the BFD overestimated the Appellant’s tardiness and failed to consider the mountain of other evidence showing that the Appellant has a track record of being punctual.

I now turn to the only other building block for the BFD’s conclusion that the Appellant lacked commitment to the position of firefighter: the interview.  First, despite years of admonishments by the Commission to the civil service community that all interviews should be recorded, the BFD failed to do so.  That is particularly problematic when, as here, the BFD is relying on highly subjective conclusions that the Appellant, a naturalized citizen who was born in Haiti, was “aloof” or showed a poor “demeanor” during the interview.  As referenced above, I found the Appellant’s responses to the eight structured interview questions to be directly responsive, thoughtful, and somewhat insightful.  Even the BFD seems to tacitly acknowledge that the Appellant’s responses to the structured interview questions were acceptable.  What the BFD takes issue with is how the Appellant responded when asked, at the end of the interview, if he had any questions of the panel. As these interviews were apparently not recorded, it is challenging to reconcile the divergent accounts of what the Appellant said, and the context in which he said it.  Even, however, if I were to fully accept the version presented by the BFD witnesses, the Appellant’s questions, while clumsy, do not, when taken in the proper context, support the BFD’s overarching conclusion that the Appellant showed a lack of commitment to becoming a Boston firefighter.

While one can appreciate that any employer would want a person to show significant excitement vis-à-vis a hiring opportunity, not being demonstrative in an outward expression of commitment does not factor into basic merit principles. Making a determination of a candidate’s sincerity and interest is very difficult in a short meeting, even more so when the person is not a native English speaker. One would imagine the candidate’s nerves would play a factor in an interview setting and that would be amplified for someone who was not raised speaking English, leading to difficulties in comprehending / conveying subtleties in a conversation. What may have been determined to be a nonchalant attitude may have simply been anxiety, shyness, or an overall uncertainty of the process.

CONCLUSION 

For all the above reasons, Emmanuel Joseph’s appeal under Docket No. G1-25-139 is hereby allowed.  Pursuant to its authority under Chapter 310 of the Acts of 1993, HRD or the BFD in its delegated capacity, shall:

  1. Place the name of the Appellant at the top of any current or future special certification for Boston Firefighter candidates fluent in Haitian Creole until he is appointed or bypassed. [8]
  2. Upon reconsideration, the BFD shall comply with all applicable laws, rules and guidelines, including those related to only conducting medical examinations after issuing a bona fide conditional offer of employment.
  3. The BFD shall audio / video record interviews for all entry-level civil service firefighter positions.

Once the Boston Fire Department has provided the above-referenced relief, it shall notify the Commission, copying the Appellant, so the Commission can determine whether the Appellant’s name shall no longer be placed at the top of certifications issued to the Boston Fire Department for the position of Firefighter.

CIVIL SERVICE COMMISSION

/s/ Shawn C. Dooley

Shawn C. Dooley

Commissioner

By a vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein – Commissioners) on December 18, 2025.  

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 CMR 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: 

Emmanuel Joseph (Appellant)

Robert Boyle, Esq. (for Respondent)  


 

[1]  The Commission sent the parties a copy of the recording. If there is a judicial appeal of this decision, the plaintiff in the judicial appeal would be obligated to use the recording to supply the court with a written transcript of the hearing to the extent that they wish to challenge the decision as unsupported by the substantial evidence, arbitrary and capricious, or an abuse of discretion.

[2] Ms. DeSouza is no longer employed by BFD and is currently the Chief Human Resources Officer at the Massachusetts Convention Center Authority.

[3] I heard divergent testimony from various witnesses regarding the Appellant’s exact arrival time including:  7-10 minutes late (De Souza); 20 minutes late (security officer); “very late” (Gaskins); and 1-2 minutes late (Appellant).  For the reasons discussed in the analysis, I find that the Appellant arrived between 9:01 A.M. and 9:10 A.M., and that the exact arrival time was closer to 9:01 A.M. than 9:10 A.M.

[4]Richard Francis is a permanent District Chief of BFD who was acting in a higher rank as the Deputy Chief of Personnel at the time of the Appellant’s interview.

[5] As no recordings of the interviews were submitted as evidence, I infer that the interviews were not recorded.

[6] In post-hearing correspondence, the BFD wrote in part that:  “After his interview, he [the Appellant] sat for the written psychological test, but the Department did not score it at all. The Department did not score his test because it did not make him a conditional offer.”

[7] Both the federal Americans with Disabilities Act, 42 U.S.C. §§ 12112(d)(2)-(3), and the Massachusetts Fair Employment Practices Act, G.L. c. 151B, § 4(16), strictly regulate how employers may acquire and use private, medical information about a candidate for employment—essentially precluding inquiry into a candidate’s medical history without first having made a bona fide (i.e., “real”) offer of employment based on an evaluation of “all relevant non-medical information.” See, e.g., Police Dep’t of Boston v. Kavaleski, 463 Mass. 680, 682, n.5 (2012); O’Neal v. City of New Albany, 293 F.3d 998, 1007-1009 (7th Cir. 2002); Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130, 137-39 (D. Mass. 1998), citing “ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations” (EEOC Notice 915.002 October 10, 1995); Massachusetts Commission Against Discrimination, “Guidelines: Employment Discrimination on the Basis of Handicap”, §IV & §V, available at https://www.mass.gov/doc/mcad-guidelines-on-disability-discrimination-in-employment/download.

[8] If after 2 years, BFD has not called for a special certification for candidates fluent in Haitian Creole, the Appellant may file a motion for reconsideration solely on the issue of relief. 

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