Decision  Martins, Joseph v. State Board of Retirement (CR-16-14)

Date:	11/30/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-16-14

• Petitioner: Joseph Martins
• Respondent: State Board of Retirement
• Appearance for Petitioner: Alan J. Marshall, Esquire
• Appearance for Respondent: Kathryn Doty, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

The Petitioner has not met his burden of proving that he is entitled to a termination retirement allowance pursuant to G.L. c. 32, § 10(2)

Decision

Pursuant to M.G.L. c. 32, § 16(4), the Petitioner, Joseph Martins, is appealing from the December 24, 2015 decision of the Respondent, State Board of Retirement Board (SBR), denying his application for a termination retirement allowance pursuant to  

G.L. c. 32, § 10(2).  (Exhibit 1.)  The Petitioner’s timely appeal was received on January 11, 2016. ¹ (Exhibit 1.)   The Petitioner’s timely appeal was received on January 11, 2016.  (Exhibit 2.)  A hearing was scheduled to be held I held on March 22, 2018 at the offices of the Worcester Registry of Deeds, 90 Front Street, Worcester, MA.   

The March 22, 2018 hearing was continued due to inclement to weather.  On April 9, 2018, the parties filed a Joint Motion to Waive Hearing and Set a Briefing Schedule.  The motion was allowed.   (Attachment C.)

The Petitioner’s written submission was received on June 26, 2018 and included Petitioner’s Exhibits A and B. (Attachment A.)  The Respondent’s optional brief was due on July 11, 2018.  The Respondent did not file a brief.  Therefore, I will utilize the pre-hearing memorandum filed by the Respondent on March 16, 2018 with Exhibits 1-10 in order to ascertain the Respondent’s position in this case.  (Attachment B.)  The record closed on July 11, 2018.

FINDINGS OF FACT

Based upon the submissions of the parties, I hereby render the following findings of fact:

1. The Petitioner, Joseph Martins, born in 1957, was formerly employed by the Springfield Technical Community College (STCC) as a Maintainer I.  He entered state service in August 1998   (Exhibit 4.)
2. The Petitioner served in the United States Military prior to his employment at STCC.  His years of creditable service are not an issue in this case.  (Attachment B.)
3. As a Maintainer I at STCC, the Petitioner was subject to the provisions of the Collective Bargaining Agreement between the Board of Higher Education (employer) and the American Federation of State, County and Municipal Employees, Local 1067/Council 93, AFL-CIO (union).  (Attachment A.)
4. On August 25, 2015, the Petitioner was suspended for a period of three (3) days for failing to attend a mandatory OSHA training on July 28, 2015.  (Exhibit 7.)
5. Throughout his career at STCC, the Petitioner was subject to multiple disciplinary and corrective actions, including, but not limited to:

a. Abuse of sick time and falsification of his time sheet on July 23, 2009 (Exhibit 8, p. 5);

b. Sexual harassment of a female co-worker on September 12, 2005.  According to the Petitioner, he made the statement, “{stripping the floor of wax, you have to treat it like a woman, you have to keep it wet or it won’t work.”  The Petitioner admitted this comments to the STCC Human Relations Department.  The remark was also confirmed by other co-workers who were in the vicinity at the time the comment was made.  (Id.,p. 8.);

c. Not adhering to proper break times and bathrooms not being cleaned on November 7, 2005.  Specifically, the Petitioner began his shift at 7:00 AM, and at 9:45 AM, after an anonymous complaint, was found sitting in the computer center surfing the internet and viewing personal ads.  Spot checks of his assigned areas revealed that “the bathrooms were indeed quite dirty, and the entire floor looked as if nothing had been done since the start of Joe’s shift.” (Id., p. 13.);

d. Failing to clean his work area to quality standards on September 5, 2001.  (Id., pp. 14-15.);

e. Failure to report to work without calling in because his cell phone battery was dead on December 29, 2003.  This transgression resulted in an eight (8) day suspension without pay for unauthorized use of non-reporting to work and not calling in to report absence.  (sic) (Id., p. 17.);

f. Failing to clean his work area in accordance with quality standards on  August 13, 14, 15 and 17, 2001.  (Id., pp. 20-23.)

6. On September 15, 2015, the Petitioner was provided with the opportunity to provide STCC with any information that he would like to have reviewed in conjunction with a September 3, 2015 re-inspection/walk through of his assigned work area.   The Petitioner did not provide any information to STCC.  (Exhibit 3.)
7. On September 18, 2015, the Petitioner’s employment was terminated because STCC found that he was in violation of multiple sections of Article 28 of the AFSCME Collective Bargaining Agreement.  (Exhibits 3 and A.)
8. The Termination Notice listed four (4) reasons for the Petitioner’s termination, to wit:

a. Willful neglect or non-performance of one or more assigned duties;

b. Demonstrated incompetence in the performance of one or more assigned duties;

c. Behavior that seriously interferes with the normal operation of the institution, the department or any member of the workforce and

d. Insubordination, which shall mean a refusal to carryon (sic) a direct order.

(Id.)

9. The lists of deficits set forth in the termination letter followed in the Termination Notice by a single paragraph describing a September 3, 2015 inspection by the Petitioner’s superiors that was the basis for the charges levied against him in the termination letter.  It was also asserted, “these deficits have been brought to your attention most recently after an inspection on August 25, 2014.”  (Id.)
10. The Petitioner did not file a grievance following his termination.  (Attachment A.)
11. On September 23, 2015, the Petitioner applied for a termination retirement allowance pursuant to G.L. c. 32, § 10(2).  The Petitioner retired on superannuation effective September 18, 2015.  (Exhibit 4.)
12. In the Employer’s Certification that accompanied the Petitioner’s application for a termination retirement allowance, Janet Nadeau, Senior Director of Human Resources noted, under the pains and penalties of perjury, that the Petitioner “has been removed or discharged from his position without moral turpitude on his part.” (Exhibit B.)  (Emphasis added.)
13. On December 10, 2015, the Petitioner faxes a letter to the SBR that stated, “I, Joseph A, Martins, understand that I can’t unretired if the Board doesn’t approve my Section “10-2” “involuntary retirement.”  (sic) (Exhibit 6.)
14. At its meeting on December 23, 2015, the SBR denied the Petitioner’s application for a Section 10(2) retirement allowance.  (Exhibit 1.)
15. The Petitioner filed a timely appeal.  (Exhibit 2.)

Conclusion

After a careful review of the submissions and exhibits produced in this case, I have concluded that the Petitioner is not entitled to prevail in this appeal.  He has not met his burden of proving that he is entitled to a Section 10(2) termination retirement allowance.

The Petitioner’s sole argument is that he was not discharged for conduct that constitutes moral turpitude.  He is correct.  That point is conceded.

However, in asking me to rely on this argument, the Petitioner has also tacitly suggested that I overlook the provisions of G.L. c. 32, § 10(2)(c).  This section provides that “[any member who is removed or discharged for violation of the laws, rules and regulations applicable to his office or position…shall not be entitled to a termination retirement allowance provided for in this subdivision.”

In this case, the Petitioner was terminated for multiple violations of his employment contract.  His termination was the final step in the disciplinary process. 

The Petitioner was terminated for myriad violations of laws or rules applicable to his position throughout his career. 

The SBR was justified in denying the Petitioner’s application for a termination retirement allowance.  See Abigail Brisson v. State Board of Retirement, CR-07-112 (Division of Administrative Law Appeals December 4, 2009; no Contributory Retirement Appeal Board Decision).  In Brisson, supra, a probationary employee who had violated a last chance agreement and was convicted of operating under the influence was not entitled to a termination retirement allowance.  See also, Sundar Pandit v. State Board of Retirement, CR-07-508 (Division of Administrative Law Appeals August 12, 2009; Contributory Retirement Appeal Board July 26, 2010.).  In Pandit, supra, a Department of Revenue employee was terminated for repeatedly violating attendance rules was determined to be ineligible for a termination retirement allowance.  See Nancy Belliveau v. State Board of Retirement, CR-13-456 (Division of Administrative Law Appeals April 1, 2016; no Contributory Retirement Appeal Board Decision).  The Belliveau case, supra, involved an employee of the Massachusetts Regional Planning Commission who was terminated after two (2) written warnings for insubordination, sick time accrual violation, time sheet policy violation, and her office behavior that involved communication and conflict issues was properly denied a termination retirement allowance.

Based on the forgoing, the decision of the SBR denying the Petitioner’s application for a Section 10(2) retirement allowance is affirmed.

So ordered.

Division of Administrative Law Appeals:

BY,

 

Judithann Burke
Administrative Magistrate
 

DATED:  November 30, 2018

¹ The post-mark date on the Petitioner’s January 6, 2016 appeal letter is January 8, 2016.  The appeal is determined to be timely.