On March 20, 2025, the Appellant, Tony Rodrigues (Appellant), filed an appeal from the February 28, 2025 decision of the Department of Correction (DOC) terminating his employment based on his inability to perform the essential functions of his position as a Correction Officer I (CO I). A remote pre-hearing conference was held on April 29, 2025. The parties subsequently agreed to waive an evidentiary hearing and instead dispose of this matter via cross motions for summary decision. The parties submitted Joint Agreed Upon Findings of Facts [JAUF], Joint Exhibits [JE] 1-13, and separate briefs providing their respective positions supporting cross motions for summary decision in their favor. For the reasons set forth below, DOC’s Motion for Summary Decision is allowed, the Appellant’s Motion for Summary Decision is denied, and the Appellant’s appeal is dismissed.
FINDINGS OF FACT
1. This is an appeal brought pursuant to G.L. c. 31, §§ 41 and 43, by the Appellant, Tony Rodrigues, challenging his separation from the position of CO I with the DOC. (JAUF 1; JE 2)
2.TheAppellant began employment with DOC, as a CO I, on or about July 8, 2001. He held tenure as a civil service employee in this position. (JAUF 2)
3.On or about October 14, 2020, the Appellant incurred an injury to his right knee. At the time of the injury, he immediately returned to work as a CO I. (JUAF 3)
4. On or about January 20, 2023, the Appellant had right knee arthroscopic surgery. He was then out of work and received workers’ compensation benefits until on or about December 11, 2023. (JAUF4 & 5)
5. On or about December 11. 2023, the Appellant returned to his CO 1 position under DOC’s Temporary Modified Work Program, DOC Policy 103 DOC 221 (TMWP). (JUAF 6; Administrative Notice [103 DOC Policy 221])
6. As stated in 103 DOC 221.02:
The goal of the [TMWP] is to provide [DOC] employees with an opportunity to return to work after a work-related injury, when it is available, where a limited period of modified duty is required for medical reasons. To the extent that this program can also benefit employees with non-work-related injuries, then those employees should have access to temporary modified work when it is available. In returning these employees to work, it is also the Department’s goal that positions that have been identified as suitable for the TMWP be staffed by TMWP employees, thereby freeing up full duty employees for the more physically demanding aspects of correctional work. The Department recognizes that the employees participating in the TMWP are not necessarily capable of performing the essential functions of their position, for this limited time period, but this is consistent with the temporary nature and the goal of the TMWP. The Department’s Division of Human Resources shall maintain a list of TMWP positions identified by each institution.
(Administrative Notice [103 DOC Policy 221 (emphasis added)])
7. Eligibility to participate in the TMWP is defined in 103 DOC 221.03:
Prior to the employee actually assuming duties under the TMWP, the employee shall provide the Department with a medical report which contains a diagnosis of the employee’s medical condition and indicates that the employee is capable of performing the modified work assignment. That medical report must indicate that the employee’s need for modified work is not likely to be permanent and should be resolved within one hundred and twenty (120) days. The medical report shall specifically indicate what body part(s) are involved and what the employee’s restrictions are. If the employee is restricted by their physician, with regard to incarcerated and civilly committed individual contact, then the note must clearly state that the employee is capable of having, at the very least, incidental contact with incarcerated and civilly committed individuals. Incidental contact with incarcerated and civilly committed individuals is the interaction with incarcerated and civilly committed individuals where that interaction is generally limited to coincidental meetings in common spaces, but it specifically excludes the exercise of supervision or care and custody obligations with respect to incarcerated and civilly committed individuals. (Administrative Notice [103 DOC Policy 221 (emphasis added)])
8. Pursuant to 103 DOC Policy 221.05:
Once an employee has returned on a TMWP, that employee shall provide medical documentation of medical restrictions, if any, on the 30th, 60th, 90th, and 120th days. If the employee is unable to provide such documentation at these times, participation by the employee in TMWP shall be suspended or terminated and the employee shall be placed on an appropriate type of leave if available. (Administrative Notice [103 DOC Policy 221 (emphasis added)])
9. The TWMP policy also provides:
Before the expiration of one-hundred and twenty (120) days, if the employee’s medical documentation indicates that the need for modified work continues, the Superintendent for the institution shall determine whether the employee’s TMWP should be extended for up to, but not more than, sixty (60) days. . . . Such an extension of the TMWP shall require that the employee and their Union sign a waiver of the terms of the collective bargaining agreement, which limits TMWP to one-hundred and twenty days (120) days. The employee shall be responsible for securing such waivers . . . (103 DOC Policy 221.06)
When any TMWP comes to an end, the employee must either return to full duty work or be removed from active work status. If the employee returns to full duty, medical documentation must be provided which releases the employee for full duty work. (103 DOC Policy 221.07.A)
(Administrative Notice [103 DOC Policy 221 (emphasis added)]
10. TheAppellant has been unable to work and last reported for work as a CO I on March 4, 2024. (JAUF 7; JE 7 )
11. The Appellant was terminated from the TMWP on March 22, 2024, after failing repeatedly to provide the updated medical documentation required to remain in the program. He was ordered to report to duty on his next shift with a medical note which cleared him for full duty without restrictions. (JAUF 6; JE 11)
12. On or about September 17, 2024, DOC received medical records from the Appellant’s treating physician (Orthopedic) indicating that his right knee was at a point of “maximum medical improvement” and that he “falls within the medium work category” with limitations including “no standing for greater than 2 hours at a time and no lifting greater than 20 pounds.” (JAUF 8; JE 5 & JE 6)
13. In order to hold the position of CO I, the Appellant must be able to perform seven essential functions. These functions are:
- Maintain custodial care and control of inmates by escorting or transporting them under restraints; patrolling facilities; making periodic rounds, head counts and security checks of building, grounds and inmates’ quarters; monitoring inmates’ movements and whereabouts and guarding and directing inmates during work assignments to maintain order and security in a correctional institution.
- Observes conduct and behavior of inmates, noting significant behavioral patterns, to prevent disturbances, violence, escapes or other crises such as suicides.
- Notes and investigates suspicious inmate activity relative to contraband by searching individuals, vehicles, packages, mail and inmate quarters for weapons or other forbidden devices/objects to maintain prison security.
- Develops working relationships with inmates by referring individuals to appropriate supportive services (e.g. medical, psychiatric, vocational, etc.), as needed to aid in rehabilitation and to foster an atmosphere for cooperation between inmates and staff.
- Prepares reports on such occurrences as fires, disturbances, accidents, security breaches, etc.; prepares monthly evaluation reports on inmates; makes entries into unit log of daily activities and reviews daily activity reports in order to have accurate and up-to-date information available for reference by authorized personnel.
- Responds to emergency situations such as threats, assaults, medical emergencies, fires, escapes, etc., by having the ability to properly use firearms, use force/restraints, CPR/First Aid, and fire safety techniques.
- Performs related duties such as screening visitors, operating two-way radios, carrying and operating firearms, inspecting fire extinguishers, sprinkler systems, alarms and other safety apparatus, serving food to inmates and assigning housing areas to inmates.
(JAUF 9; JE 12) (emphasis added)
14. Based upon the information provided by the Appellant’s doctor to DOC, on September 23, 2024, DOC provided notice to the Appellant that it intended to hold a hearing pursuant to G.L. c. 31, § 41 to determine whether he was physically able to perform the essential job functions of his position and able to return to full duty as a CO I . (JAUF11; JE3)
15. On October 15, 2024, DOC held a hearing to determine whether the Appellant was physically able to perform the essential functions of his position. At that hearing, the Appellant testified that he now needed to have surgery on his left knee but that he believed that he could rehab his right knee and return to work at some point. The Appellant acknowledged, however, that his doctor would not clear him to return to full duty. Moreover, the Appellant did not provide any medical evidence that he was or likely would be able to perform all the essential functions of his job in the future. The only medical evidence presented regarding the Appellant’s fitness for duty was from the Appointing Authority and it demonstrated that the Appellant was not fit for duty. (JAUF 12; JE 4)
16. An Independent Medical Examination (IME) conducted on October 28, 2024 by Dr. Robert L. Patz for the Massachusetts Department of Industrial Accidents (DIA) reported that the Appellant then suffered from a “temporary partial medical disability . . . . His limitations include no standing for greater than 2 hours at a time and no lifting greater than 20 pounds.” (JE 6)
17. On or about February 25, 2025, DOC filed an Involuntary Accidental Disability Retirement Application on behalf of the Appellant based on his inability to return to full duty due to the medical limitations associated with his right knee. (JE 7)
18. By notice dated February 28, 2025, DOC notified the Appellant that he was terminated from his employment. The reason for the termination was stated to be the Appellant’s inability to perform the essential functions of his job as a CO I, which meant he was unable to return to full duty and comply with DOC Rule 17(a) which states, in part: “Correctional Service demands that you be in fit physical and mental condition during the official performance of your duty.” (JAUF 13; JE 1 & JE 2)
19. The Appellant’s termination is based solely on the medical endpoint of his right knee rehabilitation from the October 2020 injury. The Appellant is currently in litigation regarding worker’s compensation benefits regarding an injury to his left knee. The Appellant was not terminated due to the left knee injury, and termination has no effect on his active worker’s compensation benefits. (JAUF 15)
20. On March 26, 2025, Dr. Ryan Friedberg, MD conducted an independent medical examination of the Appellant and reported:
Current Complaints: He [the Appellant] says he would not be able to do his job at this time. Specifically, he would not be able to crawl, kneel, bend, squat, or run up and down stairs.
Medical End Result: At this point I do feel he has reached a medical endpoint with regard to treatment for the right knee…
Disability/Work Capacity: I do feel that he would be able to do a modified job. I do feel he would have difficulty with repetitive climbing up and down stairs on a daily basis. I do feel that he would have difficulty running up and down stairs and that he would have difficulty squatting and crawling. With regard to protecting himself from combative individuals, I think it would be difficult for him to do this at this time.
I feel that the prognosis for his ability to work full duty without restriction is poor. These restrictions are due to condition of both knees.
(JE 9 ) (emphasis added)
21. On September 29, 2025, the Appellant was examined by Raymond Pavlovich, MD who reported:
[Appellant] continues to have bilateral knee symptomology predominantly in the anterior aspect of the knees with clicking and popping and limitations with certain activities particularly squatting and bending . . . . He has undergone lateral release of the right knee and remained symptomatic. I am concerned that similar surgery for the left knee may have the same result. He does appear to be at maximum medical improvement regarding both knees.(JE 10) (emphasis added)
Applicable Civil Service Law
A tenured civil service employee may be disciplined or discharged for “just cause” after due notice and hearing upon written decision “which shall state fully and specifically the reasons therefor.” G.L. c. 31, § 41. An employee aggrieved by the decision may appeal to the Commission. G.L. c. 31, § 43. Under section 43, the appointing authority carries the burden to prove “just cause” for the action taken by a “preponderance of the evidence.” Id. See, e.g., Falmouth v. Civ. 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). In performing its review, the Commission hears evidence and finds facts anew. Examining an earlier but substantially similar version of the same statute, the Appeals Court wrote:
We interpret this as providing for a hearing de novo upon all material evidence and a decision by the commission upon that evidence and not merely for a review of the previous hearing held before the appointing officer. There is no limitation of the evidence to that which was before the appointing officer.
Leominster v. Stratton, 58 Mass. App. Ct. 726, 727-28 (2003).
The Commission determines just cause for discipline and discharge 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. Civ. Serv. Comm’n, 43 Mass. App. Ct. 486, 488, rev. den., 426 Mass. 1104 (1997). See also Doherty v. Civil Serv. Comm’n, 486 Mass. 487, 493 (2020).
It is also a basic tenet of merit principles, which are the core protections of civil service law, that discipline must be remedial, not punitive, designed to “correct inadequate performance” and “[only] separating employees whose inadequate performance cannot be corrected.” G.L. c. 31, § 1. The Commission must take account of all credible evidence in the entire administrative record, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law, including whatever would fairly detract from the weight of any particular supporting evidence. See Comm’rs of Civ. Serv. v. Municipal Ct. of Boston, 359 Mass. 211, 214 (1971), citing Selectmen of Wakefield v. Judge of First Dist. Ct., 262 Mass. 477, 482 (1928); Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 264-65 (2001).
Standard for Summary Decision on Agreed Facts
An appeal before the Commission may be disposed of summarily, in whole or in part, pursuant to 801 C.M.R. 1.01(7)(g) and 801 C.M.R.1.01(7)(h) when, as a matter of law, the undisputed material facts affirmatively demonstrate that there is “no reasonable expectation” that a party can prevail 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 Board, 18 MCSR 216 (2005).
Analysis
This appeal presents two issues. First, as a matter of law, does DOC’s initiation of an application for the Appellant’s involuntary accidental disability retirement three days prior to his termination prohibit DOC from terminating the Appellant prior to the completion of the involuntary accidental disability retirement decision-making process? Second, if DOC is not so prohibited, do the undisputed facts establish that there was there just cause for the Appellant’s termination? The answer to the first question is “NO” and the answer to the second question is “YES”.
Involuntary Accidental Disability Retirement Application Pending
The DOC’s filing for involuntary accidental disability retirement for the Appellant did not legally bar DOC from thereafter terminating the Appellant without first waiting for the conclusion of the involuntary accidental disability retirement determination process. There is neither a statutory bar nor a public policy that leads to such a conclusion.
When interpreting a statute, Massachusetts courts focus first on the plain meaning of statutory language. Commonwealth v. Perella, 464 Mass. 274, 276 (2013). Neither G.L. c. 31 (the civil service statute) nor G.L. c. 32 (the retirement statute) contain any language which expressly or by implication demonstrates any legislative intent to preclude the Respondent from terminating the Appellant from a civil service position which he cannot perform while his involuntary accidental disability retirement application remained pending.
First, Section 41 of G.L. c. 31 states, in relevant part: “Except for just cause and except in accordance with the provisions of this paragraph, a tenured employee shall not be discharged . . . .” G.L. c. 31, § 41 (emphasis added). This statutory language, therefore, sets out a presumption that tenured civil service employees shall not be discharged, unless specific substantive and procedural conditions are met. The corollary to this plain meaning of G.L. c. 31, § 41, is that, if just cause (the substantive condition) is proved, and the requisite due process (procedural condition) is provided, the discharge of any tenured civil service employee IS NOT prohibited under the civil service law. Absent from this statute is any language that would restrict discharging an employee for just cause because his accidental disability retirement application (involuntary or voluntary) is pending. If the Legislature had intended to insulate from discharge such a subset of tenured civil service employees, it could have added additional “shall not” or another prohibitory proviso to G.L. c. 31, § 41. It did not do so.
Second, the plain meaning of G.L. c. 31, § 1 demonstrates that such a discharge is not prohibited. The Appellant argues that DOC’s discharge of the Appellant violated a basic merit principle of G.L. c. 31, § 1, alleging that it was “arbitrary and capricious” because he was removed from the payroll and then his employer-paid health insurance discontinued, all while an involuntary accidental disability application remained pending. To the contrary, G.L. c. 31, § 1 specifically identifies that, among the basic merit principles, is the responsibility for “separating employees whose inadequate performance cannot be corrected.” Thus, DOC’s termination of an employee who cannot perform the essential functions of his job and is not fit for duty cannot reasonably be interpreted as “arbitrary and capricious.” G.L. c. 31, § 1.
Third, the Commission has previously addressed the question as to whether G.L. c. 31 mandates that an appointing authority must permit an employee who is unable to fulfill the essential functions of a position due to injury to remain an employee with employer-sponsored health benefits. Morgan v. Town of Billerica, 28 MCSR 503 (2015) (upholding termination of employee injured on the job due to inability to perform essential functions, despite pendency of voluntary accidental disability retirement application at time of termination). The Commission declared that “while it can be argued that a more fair, equitable and compassionate outcome here would have been to allow [the employee] to maintain his active employment status and maintain his Town-sponsored family health insurance plan, such an outcome is not required by the civil service law and the Commission does not have the authority to substitute its judgment for that of the appointing authority in this regard.” Id.
Fourth, the Commonwealth’s public employee retirement statutes are equally plain. The title of G.L. c. 32, § 16 is: “Involuntary retirement; right to a hearing; right of review or appeal.” Contrary to the Appellant’s assertion, G.L. c. 32, § 16(3)(b) does not provide any substantive rights; it focuses solely on ensuring that the co-extensive procedural rights otherwise available to public employees are not abridged simply when the employee is faced with simultaneous disputes under the civil service law and the retirement law. Moreover, G.L. c. 32, § 16(3)(b), is likely an obsolescent provision. This statutory sub-section, first enacted in 1945, references sections of G.L. c. 31—§§ 42A and 42B (since repealed)—and appellate rights in District Court that no longer exist, and which were eliminated in 1978 when the Legislature substantially rewrote G.L. c. 31, §§ 41-45. See St. 1978, c.393, § 11. In other words, as a member of the retirement system whose employer had filed an involuntary accidental disability retirement application on his behalf, the Appellant has the due process rights provided by G.L. c. 32, § 16, while, at the same time, as a civil service employee, the Appellant enjoys the due process rights provided by G.L. c. 31, §§ 41-45. If G.L. c. 32, § 16(3)(b) continues to have any vitality, it simply serves to make clear that certain members of the public retirement system – those who are tenured civil service employees – if aggrieved by a decision of the retirement board under G.L. c. 32, “have and retain” their civil service due process rights, in addition to the involuntary retirement due process rights afforded them by G.L. c. 32, § 16.
The Commission’s decisions consistently recognize the above co-extensive procedural rights provided by the civil service and retirement laws. The Commission has uniformly held that it maintains jurisdiction over just cause appeals of retirees who were terminated before their retirement became effective, and these cases do not differentiate between involuntary disability retirement applications and disability retirement applications initiated by civil service employees. See, e.g., Abasciano v. Boston Police Dep’t, 37 MCSR 332 (2024) (involuntary disability retirement application filed prior to termination and approved after Commission Decision, retroactive to termination date); Coderre, Jr. v. City of New Bedford, 36 MCSR 401 (2023) (employee-initiated disability retirement approved retroactive to termination date; employee post-termination superannuation retirement); Swartz v. Bourne Fire Dep’t, 34 MCSR 251 (2021) (employee-initiated disability retirement and super-annuation retirement applications). See also, Morgan v. Town of Billerica, 28 MCSR 503 (2015) (termination of employee receiving worker’s compensation benefits who was unable to fulfill essential duties of position, even though he had a voluntary application for disability retirement pending at time of termination). The facts of this appeal are not materially distinguishable. The Appellant, as did the other appellants in the decisions cited, concurrently exercised his civil service due process rights in this matter while his involuntary disability retirement application remained pending. Moreover, here, both parties have agreed to the Commission’s jurisdiction to decide this appeal.
Fifth, as a matter of public policy, G.L. c. 31, § 41, and G.L. c. 32, § 16, are in pari materia, insofar as they relate to a common subject matter, purpose, or class of persons, and the statutes should be read harmoniously. See District Attorney for Northern Dist. v. School Committee of Wayland, 455 Mass. 561, 569 (2009), quoting Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587, 589 (1980) ("If reasonably practicable and there is no positive repugnancy, a rational and workable effect must be given to both statutes, to the end that there may be a harmonious and consistent body of legislation.") A construction of G.L. c. 31, § 41, and G.L. c. 32, § 16 as establishing co-existing due process rights for a tenured civil service employee whose employer elects to place them in involuntary retirement, but for different purposes — job security for those capable of performing the essential functions of the job held versus guaranteed retirement benefits for those who cannot due to a work-related disability — gives the required harmonious interpretation to both statutes.
Finally, public policy is served—not thwarted—by allowing appointing authorities to discharge tenured civil service employees, including those with any type of disability retirement application pending, when there is just cause and the requisite due process pursuant to G.L. c. 31, § 41, has been honored. Appointing and promoting qualified personnel—and separating from employment those employees whose “inadequate performance cannot be corrected,” regardless of the catalyst for the inadequacy—is central to state government’s mission of providing the public with quality services. Indeed, throughout the approximately one-year period that the Appellant remained an employee not actually working—from March 5, 2024 to February 28, 2025—his CO I position could not be permanently filled by DOC with another full-time employee. Instead, the Appellant’s shifts had to be covered through overtime assignments, which can include forced overtime. This scenario likely put a strain on existing staff, and by extension, the efficiency and efficacy of DOC’s operations. Further, during this lengthy timeframe, existing staff were barred from bidding on the Appellant’s shift and assignment and, therefore, could not advance into more desirable job positions. The key tenure protection statute, G.L. c. 31, § 41, establishes a reasonable balance between safeguarding a public entity’s ability to efficiently and effectively fulfill its public service mission and protecting individual employee interests.
In sum, provided that DOC has established just cause to terminate the Appellant’s employment after hearing in accordance with the due process rights provided by Chapter 31, a termination action is not precluded by the filing of an involuntary accidental disability retirement application initiated pursuant to Chapter 32 by DOC a few days prior to the notice of termination.
Just Cause
Having determined that DOC was not legally barred, during the pending involuntary accidental disability retirement application process, from terminating the Appellant, I must now decide whether the undisputed facts in this record establish that DOC had just cause for the Appellant’s termination. For the reasons discussed below, I conclude that the undisputed facts show that the Appellant was, for a period of indeterminable duration, unable to perform the essential duties that DOC required of him as a CO I, providing just cause for his termination.
“Prior decisions of the Civil Service Commission and judicial precedent establish that an employer has no obligation to keep a position open indefinitely while a worker is injured and unable to perform the duties of the position, and that a termination for such a reason constitutes ‘just cause’ under c. 31.” Wilson v. Civil Service Commission, et al., 1 Mass. L. Rptr. 526, 527 (Mass. Super Ct. 1993). The Commission has consistently found that “just cause” includes terminating a tenured civil service employee who is unable to perform the essential duties of their position, including when the inability is due to an on- the-job injury. McEachen v. Boston Housing Authority, 93 Mass. App. Ct. 1122 (2018) (Rule 1:28 Opinion) (affirming and quoting from the underlying decision of the Civil Service Commission: “[Although] an employee is not deemed unfit to perform the duties of the ‘position involved’ if the employee can perform those duties ‘with reasonable accommodation,’ this principle of reasonable accommodation does not require an employer to ‘fashion a new position’ for the employee nor does it require that the employee be allowed to remain on medical leave indefinitely.”). Accord Dooner v. Boston Housing Authority, 31 MCSR 351 (2018).
The Joint Agreed Upon Findings of Facts and the Joint Exhibits, which include opinions from the Appellant’s treating physician and three other IMEs, establishes that: (1) the Appellant was unable, due to injury, to fulfill the essential duties of a CO I on and after March 4, 2024, at the time of his appointing authority hearing on October 15, 2024, at the time of his termination on February 28, 2025, on March 26, 2025, and on September 29, 2025; and (2) on and after September 17, 2024, the Appellant had reached the point of “maximal medical improvement” and his prognosis for improvement was “poor”. (See Findings of Fact Nos.12 through 21).
In particular, the March 26, 2025 IME report from Dr. Friedberg states that the Appellant “would have difficulty with repetitive climbing up and down stairs on a daily basis[,] . . . that he would have difficulty running up and down stairs and that he would have difficulty squatting and crawling. With regard to protecting himself from combative individuals, I think it would be difficult for him to do this at this time. I feel that the prognosis for his ability to work full duty without restriction is poor.” (JE 9). The September 29, 2025 IME report from Dr. Pavlovich states that the Appellant “continues to have bilateral knee symptomology predominantly in the anterior aspect of the knees with clicking and popping and limitations with certain activities particularly squatting and bending. He has undergone lateral release of the right knee and remained symptomatic. . . . He does appear to be at maximum medical improvement regarding both knees.” (JE 10).
The CO I position includes seven essential functions, the majority of which involve maintaining order and security in a correctional institution. “Having the ability to use force/restraints” is one of those essential functions, so that the Correction Officer can properly respond to “emergency situations such as threats, assaults [or] . . . escapes.” Correction Officers must also “maintain custodial care and control of inmates by escorting or transporting them under restraints.” Being able to exert full physical capacities is essential to proper discharge of these duties.
Finally, I note that DOC was not required, as a reasonable accommodation, to create a full-time modified work position for the Appellant forever or to indefinitely excuse him from the physical requirements of the CO I position that he could not perform. See, e.g., Jones v. Walgreen Co., 765 F. Supp. 2d 100, 109 (D. Mass. 2011), aff'd, 679 F.3d 9 (1st Cir. 2012) (“the ADA does not require an employer to retain an employee whose limitations are the cause of her inability to perform the essential functions of her job, even where those limitations are disability-related”); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993) (reasonable accommodation does not require an employer to disregard or waive an employee's inability to perform an essential function of the job). In fact, the DOC did make an effort to provide the Appellant with reasonable accommodation by accepting him into the Temporary Modified Work Program (TMWP), and only terminated him from that program after he failed to show up for work even in that limited capacity and failed to furnish required documentation from time to time to update his medical status. The Respondent was not required to do more.
In sum, the DOC met its burden to prove just cause to terminate the Appellant on February 28, 2025, approximately a year after he last returned to work, based on undisputed medical evidence that he was then unable, and continued to be unable indefinitely, to demonstrate his ability to perform the essential duties of a Correction Officer I.
Conclusion
For the reasons stated above, DOC’s Motion for Summary Decision is allowed and the Appellant’s Motion for Summary decision is denied. The Appellant’s appeal under Docket No. D1-25-080 is hereby dismissed.
Civil Service Commission
/s/ Paul M. Stein
Paul M. Stein
Commissioner
By vote of the Civil Service Commission (Bowman, Chair; Dooley, Markey, McConney, and Stein Commissioners) on May 28, 2026.
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:
Joseph G. Donnellan, Esq. (for Appellant)
Julie E. Daniele, Esq. (for Respondent)
Joanne O’Brien, Esq. (for Respondent)
- The TMWP,103 DOC Policy 221, was promulgated pursuant to G.L. c. 124, § 1(c) and (q), and is reviewed annually. (Administrative Notice [103 DOC Policy 221])
- In the absence of any information in the record to the contrary, I infer that the September 17, 2024 medical letter was the first report received by the DOC since the Appellant had been placed in the TMWP program some nine months earlier.
- This appeal is distinguished from other appeals in which the Commission overturned a termination by an appointing authority due to the failure to conduct a proper fitness for duty examination or otherwise determine if and when the employee would be able to return to duty and perform the essential duties of the position. See Freitas v. New Bedford School Dep’t, 30 MCSR 1 (2017); Rivera v. Department of Correction, 26 MCSR 502 (2013), on further review, 28 MCSR 221 (2015).
- Although neither the March 26, 2025 (JE 9) nor the September 29, 2025 (JE 10) letters were before the appointing authority when it made its decision to terminate the Appellant, they have a sufficient nexus to his fitness at the time he was terminated and may be considered in a de novo proceeding. See Leominster v. Stratton, 58 Mass. App. Ct. 726 (2003). The fact that the parties jointly agreed to submit these exhibits further renders them worthy of consideration.
