Mass Firefighter’s Termination Upheld

A Cambridge firefighter who was suspended during his first-year probationary period and then fired after the one-year anniversary of his appointment to the department, has lost his appeal to Suffolk County Superior Court that claimed he was a tenured employee.

Joseph Andrade was hired by the Cambridge Fire Department on March 13, 2016. He was on probation for one year. Andrade was arrested on February 21, 2017 for domestic assault and battery, and suspended with pay from the department. While suspended he was arrested a second time on April 12, 2017 for witness intimidation, assault and battery of the same woman.

On April 19, 2017 the city suspended Andrade without pay and without a hearing. He eventually was granted a hearing on September 7, 2017 before the city personnel director, and terminated from the fire department on September 14, 2017.

Andrade appealed his termination to the Massachusetts Civil Service Commission, arguing that he became a tenured employee on March 13, 2017 and was therefore entitled to a formal administrative hearing before he could be terminated. The Commission dismissed his appeal finding that it lacked jurisdiction to hear the case because he was not tenured. The Commission ruled Andrade was still a probationary employee because he had not completed a full year of service. Only tenured employees could appeal their terminations to the Commission.

Andrade appealed the Commission’s decision to Suffolk County Superior Court. Superior Court Judge Paul Wilson rejected Andrade’s arguments, citing settled Massachusetts law that in order  to reach tenured employee status a firefighter must perform “the duties of a firefighter for twelve months”.  Quoting from the decision:

  • While a municipal employer must provide a tenured employee with an administrative hearing before terminating him, the civil service law provides no such right for a probationary employee.
  • A newly appointed firefighter remains a probationary employee for 12 months.
  • Specifically, the civil service law requires that he “actually perform the duties of such position on a full-time basis for a probationary period of twelve months before he shall be considered a full-time tenured employee in such position.” M. G .L. c. 31 § 61.
  • Andrade cannot argue that he actually performed the duties of a firefighter for 12 months, because it is undisputed that he was placed on administrative leave six weeks or so before-the first anniversary of his hiring.

Here is a copy of the decision. 2019 10 30 J. Andrade v CSC Memorandum of Decision

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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