The Appellant, Darrell Rivera, a Correction Officer II (Sergeant) with the Department of Correction (DOC) brought this equity appeal to the Civil Service Commission (Commission) alleging that DOC improperly adjusted his civil service seniority date after an extended absence due to a work-place injury by excluding the period of his absence in calculating his civil service seniority. I held a pre-hearing conference on April 29, 2026. The Appellant and DOC submitted Pre-Hearing Memoranda; the Appellant appeared pro se and DOC and the state’s Human Resources Division (HRD) appeared through counsel. Pursuant to Procedural Orders dated April 30, 2026 and May 22, 2026, after the Appellant and DOC provided additional information that I had requested, I deemed DOC’s submissions as a Cross-Motion for Summary Decision, to which the Appellant filed an Opposition, which I have also deemed a Cross-Motion for Summary Decision. After review of the parties’ submissions and taking administrative notice of the Appellant’s prior appeals to the Commission (Rivera v. Department of Correction, 26 MCSR 502 (2013) (Rivera I) and Rivera v. Department of Correction, 28 MCSR 221 (2015) (Rivera II), I conclude that the undisputed facts establish that Appellant is entitled to “continuous service status” under Section 33 of Chapter 31 and that, accordingly, his civil service seniority date must be adjusted to his original date of hire in 1995.
Undisputed Facts
- The Appellant, Darrell Rivera, was appointed by DOC as a Correction Officer I (CO I) on September 17, 1995. He was promoted to DOC Sergeant (CO-II) on September 25, 2005 and currently serves in that position. (App. Pre-Hearing Memo; App. Opposition; Rivera I; Rivera II)
- On June 8, 2008, Sergeant Rivera was assaulted on duty by an inmate, causing him to suffer serious hand, wrist and back injuries that required two surgeries and left him with limited function in several of the fingers of his right hand. He initially returned to duty in March 2009 and worked under a restricted duty accommodation until January 2010. At that time, due to some miscommunication, his restricted duty accommodation was allowed to lapse, and DOC relieved him of duty. (Rivera I; Rivera II; DOC Pre-Hearing Memorandum)
- The Appellant received workers’ compensation benefits continuously from January 29, 2010 through October 14, 2014. (DOC Response to Procedural Order)
- Sergeant Rivera continued treatment. He reapplied for and was reinstated on workers’ compensation benefits, although DOC disputed the scope of benefits. Meanwhile, based on one of the medical reports that had found that Sgt. Rivera’s condition was “permanent and he is totally disabled from all forms of employment”, DOC elected to terminate Sgt. Rivera as unfit for duty, effective March 12, 2012. The Appellant appealed that decision appealed to the Commission, which allowed the appeal by Decision in November 2013. (Rivera I; DOC Response to 4/30/26 Procedural Order)
- The Commission’s Decision in Rivera I provided that DOC may require the Appellant to undergo a further medical examination before he was returned to duty and ordered that the Appellant “shall not be entitled to any back pay or benefits for the time period preceding the date upon which a further medical examination determined him fit for duty.” (Rivera I)
- In March 2014, the Appellant filed a new appeal with the Commission and sought to reinstate his prior appeal, alleging that, despite having provided medical opinions that the Appellant was certified as fit to perform all of the essential duties of a CO II, DOC failed to provide him the opportunity for a fitness for duty examination or to reinstate him. (Rivera II)
- The fitness for duty certifications submitted by the Appellant’s medical providers in support of his request for reinstatement included a May 14, 2014 letter from Dr. Marko Dirks, a May 21, 2014 letter from Dr Lawrence Lee, and a June 26, 2014 fitness for duty evaluation by Dr. Jesse Jupiter. (Rivera II; Appellant’s Opposition)
- After a series of preliminary hearings and status conferences, on October 14, 2014, DOC granted the Appellant’s request, ordered him to full duty and the partial workers’ compensation benefits that he was receiving at that time were discontinued as of that date. (Rivera II; Oct 2014 DOC Clearance for Duty letter attached to Appellant’s Pre-Hearing Submissions; DOC Response to 4/30/26 Procedural Order)
- By Decision on April 30, 2015, the Commission declined to reopen the Appellant’s prior appeal in Rivera I, but did allow, in part, his new appeal, finding that DOC did not give Sergeant Rivera’s request for reinstatement the priority he deserved and failed to complete a fitness for duty evaluation “forthwith” as the Commission had ordered. The Commission’s Decision ordered that the Appellant’s reinstatement be made effective “retroactive to August 15, 2014 without loss of compensation or other benefits from and after that date” and stated that the Decision “is not intended to grant the Appellant any further compensation or benefits” and left to “another forum” any claims arising out of his workers’ compensation or other claims for compensation under contract or common law. The Commission explained:
Although a credible argument could be mounted to support Sgt. Rivera’s claim to reinstatement to a date earlier than August 15, 2014, that date is the appropriate point by which time there can be no genuine dispute that, had DOC duly completed the mandated evaluation “forthwith” as ordered, it would have found Sgt. Rivera fit for duty, as multiple other medical opinions had unequivocally attested and provided to DOC as of that date.
(Rivera II)
- At some point in or around 2015, DOC issued a personnel order that revised the Appellant’s 1995 civil service seniority date from September 17, 1995 (his original date of hire) to April 29, 1998, deducting the two years and seven month period of time between his termination on March 5, 2012 and his reinstatement on October 14, 2014. On March 6, 2026, DOC revised the Appellant’s civil service seniority date to February 26, 1998, using the Commission’s retroactive reinstatement date of August 15, 2014. (DOC Pre-Hearing Memorandum; Appellant Opposition)
Applicable Legal Standard
A motion to dispose of an appeal, in whole or in part, via summary decision may be allowed by the Commission pursuant to 801 C.M.R. 1.01(7)(h) when, “viewing the evidence in the light most favorable to the non-moving party”, the undisputed material facts affirmatively demonstrate that the non-moving party has “no reasonable expectation” of prevailing on at least one “essential element of the case”. See, e.g., Milliken & Co. v. Duro Textiles LLC, 451 Mass. 547, 550 n.6 (2008); Maimonides School v. Coles, 71 Mass. App. Ct. 240, 249 (2008); Lydon v. Massachusetts Parole Bd, 18 MCSR 216 (2005). See also Mangino v. HRD, 27 MCSR 34 (2014) and cases cited (“The notion underlying the summary decision process in administrative proceedings parallels the civil practice under Mass.R.Civ.P.56; namely, when no genuine issues of material fact exist, the agency is not required to conduct a meaningless hearing.”); Morehouse v. Weymouth Fire Dept, 26 MCSR 176 (2013) (“a party may move for summary decision when . . . there is no genuine issue of fact and the party is entitled to prevail as a matter of law.”)
Applicable Civil Service Law
Civil service seniority is governed by Sections 33 Chapter 31 which provides in relevant part:
For purposes of this chapter, seniority of a civil service employee shall mean his ranking based on length of service, computed as provided in this section. Length of service shall be computed from the first date of full-time employment as a permanent employee, including the required probationary period, in the department regardless of title, unless such service has been interrupted by an absence from the payroll of more than six months in which case length of service shall be computed from the date of restoration to the payroll; but upon continuous service following such an absence for a period of twice the length of the absence, length of service shall be computed from the date obtained by adding the period of such absence from the payroll to the date of original employment; provided, however, that the continuity of service of such employee shall be deemed not to have been interrupted if such absence was the result of (1) military service, illness, educational leave, abolition of position or lay-off because of lack of work or money, or (2) injuries received in the performance of duty for which compensation was paid pursuant to chapter one hundred and fifty-two, provided that the employee notifies the appointing authority, in writing, not later than six months after the final payment of compensation aforesaid that he is ready, willing, and able to do his former work and files with said appointing authority a certificate of a registered physician that he is able to perform the duties of his position in an efficient manner, and is restored to the payroll.
G.L. c. 31, §1, ¶1 (emphasis added) [FN1]
Analysis
The material facts in this appeal are not disputed. The Appellant was appointed as a full-time permanent CO I on September 17, 1995 and, save for the period he was absent from the payroll due to his work-related injury, he has worked continuously as a tenured civil service employee with DOC. He collected workers’ compensation benefits for his disability from January 29, 2010 through his return to duty on October 14, 2024. In May and June 2014, DOC received certifications from three physicians attesting to the fact that, after examination, the Appellant was found fit to perform all the essential duties of a CO II. The Appellant was returned to duty effective August 15, 2014, following two successful appeals to the Commission seeking to overturn DOC’s termination of his employment and its failure to grant his request for reinstatement to his position as a CO II.
The issue presented here – does the Appellant’s “absence from the payroll” for more than six months fit the criteria for “continuous service status” as set forth in proviso (2) of Chapter 31, Section 33, ¶1? I conclude that it does.
I found no prior Commission decision or judicial precedent directly on point and the parties have cited none. The plain language of Section 33, Paragraph 1 states that a tenured civil service employee who leaves the civil service will have his or her civil service seniority date adjusted to account for the period of absence. However, the statute also provides an exception for certain employees to provide “continuous service status” and thus retain their original civil service seniority date when the absence is attributed to circumstances beyond the employee’s control, including military service, illness, educational leave, layoff, or injury on duty. Viewing the undisputed facts here in the light most favorable to DOC, the Appellant’s absence fits clearly within the applicable statutory language and legislative intent for granting “continuous service status” for absences due to injuries suffered on duty.
Specifically:
- The Appellant received injuries in the performance of duty;
- The Appellant received compensation for his injuries pursuant to chapter one hundred and fifty-two;
- The Appellant brought two appeals to the Commission in 2013 and 2014, well before the final payment of compensation aforesaid claiming that he was ready, willing, and able to do his former work as a CO II;
- The Appellant provided DOC multiple certificates of registered physicians attesting to the fact that he was able to perform the duties of his position in an efficient manner; and
- The Appellant was restored to the payroll in October 2014, retroactive to August 15, 2014 pursuant to orders of the Commission.
DOC argues that the Appellant does not qualify for the exception set forth in Proviso (2) of Section 33, ¶1, because: (1) the Commission’s Decisions ordered DOC to conduct a fitness for duty examination and ordered his reinstatement, but did not grant him continuous service credit under Section 33; (2) the October 2014 letter from DOC that cleared him for duty and ordered him to return to work merely referenced the certification from Dr. Jupiter but was not a “certification” from a qualified physician filed by the Appellant; (3) the Appellant was reinstated by DOC prior to cessation of his workers’ compensation benefits and the proviso for continuous service credit only contemplated a situation in which reinstatement was requested “within six month after” final payment of compensation benefits. None of these arguments has merit.
The Commission’s Decisions did not address the Appellant’s claim to continuous service status because that was not a matter then before the Commission. The Appellant’s right to continuous service status is a statutory right implicit in civil service law that does not require a Commission decision to make effective, except when, as here, DOC has failed to provide such status in violation of the civil service law. The contention that the October 2014 letter does not suffice as a “certification” from a qualified physician overlooks the facts that the letter expressly references and relied on Dr. Jupiter’s medical opinion and the Appellant had provided two other letters from physicians certifying he was ready willing and able to perform his duties as a CO II. Finally, DOC misreads Section 33 to suggest that it only applies if the Appellant requests reinstatement within six months “after” his compensation benefits are terminated. The statute states that such a request be made “not later than” six months after the final payment of compensation. DOC’s interpretation of the statute is contrary to its plain language; indeed, it would exalt form over substance to suggest that DOC’s dilatory conduct, which is what required the Commission’s repeated intervention that eventually resulted in the order for the Appellant’s reinstatement retroactive to August 2014, overrides his statutory right to continuous service status under Section 33.
Conclusion
For the reasons stated above, the Appellant’s appeal under Docket Number E-26-077 is allowed. DOC and/or HRD are ordered to take such action(s) as necessary to adjust the Appellant’s civil service records to reflect a civil service seniority date of September 17, 1995, his original date of appointment.
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 August 6, 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 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:
Darrell Rivera (Appellant)
Eamonn Sullivan, Esq. (for Respondent)
Stephanie Andino (HRD)
Regina Caggiano (HRD)
