The Massachusetts Civil Service Commission delivered a stunning rebuke to the City of Westfield criticizing the handling of a disciplinary investigation against three firefighters who were involved in reporting concerns about sexual harassment. In doing so the Commission ordered the reinstatement of Captain Rebecca Boutin, Firefighter Kyle Miltimore, and Firefighter David Kennedy.
The facts of the case are complicated, and date back to St. Patrick’s Day, 2016 when then-Deputy Chief Patrick Egloff was alleged to have inappropriately touched a nurse identified in the proceedings as “Ms. N.” at an after-the-parade celebration. In January, 2018, firefighters became aware of similar allegations made by another woman, Ms. S.
After a third woman complained, Boutin, Miltimore, Kennedy and others discussed the allegations, and it was agreed that Miltimore would reach out to a friend who was a Massachusetts State Trooper for guidance. Upon being advised of the allegations, the Trooper told Miltimore he had a duty to report the matter, prompting a state police investigation.
The state police investigation closed on February 28, 2018 without charges being preferred. The city then initiated an investigation of their own by hiring a private attorney, Dawn McDonald, to conduct it. The investigation was to have looked at Chief Egloff’s conduct, but also at those who made the allegations, including trying to identify who submitted an anonymous letter outlining the allegations against Chief Egloff.
After interviewing all parties, McDonald recommended firing Boutin, Miltimore, and Kennedy, concluding they “put Egloff and his family through hell.” The city did exactly that, and the trio appealed to the Civil Service Commission. Chief Egloff was subsequently promoted to Fire Chief.
The Commission’s decision is 69 pages long, and while an interesting read it would be impossible to summarize it here in a way that does justice to all the facts. My advice is to read the entire decision. However, here is the Commission’s own explanation for reinstating Boutin, Miltimore, and Kennedy in the summary statement:
- The investigative report [by McDonald] is riddled with examples of unsubstantiated “beliefs” instead of establishing “facts” along with inappropriate disparaging personality assessments which show that the investigation was tainted with bias and personal animus against the Appellants that discredit the conclusions of the investigator as they relate to the Appellants;
- A fair and impartial review of the facts, together with the totality of the credible evidence, exonerate the Appellants of any wrongdoing, with the exception of one charge against the Fire Captain for making a false and damaging statement regarding the then-Deputy Fire Chief, which warrants a thirty-day suspension;
- Undisputed acts of misconduct, along with allegations of other serious misconduct by the then-Deputy Fire Chief, have been largely ignored, glossed over or sanctioned by the Westfield Fire Commissioners, who voted to promote the Deputy Fire Chief to Fire Chief shortly after the termination of the Appellants, reinforcing the appropriateness of modifying the penalty of the Fire Captain and warranting the initiation of an investigation under Section 72 of the civil service law.
- In sum, and for the reasons detailed in this decision, the appeals of Firefighters Kennedy and Miltimore are allowed and the decision of the Fire Commission is vacated; the appeal of Captain Boutin is allowed in part and the decision of the Westfield Fire Commission is modified from termination to a 30-day suspension; and, pursuant to Section 72 of the civil service law, the Westfield Fire Commission is ordered to conduct an independent review regarding the allegations of misconduct regarding the incumbent Fire Chief.
Here is a copy of the decision:
By the way, those who have been through the Advanced Disciplinary Issues: Credibility Determinations program should review the Civil Service Commission’s criticisms of the city’s investigation. This is a good example of why making credibility determinations is critical, and the reversal of the terminations shows the consequences of not addressing witness credibility in the manner recommended by the EEOC, the CDFEH, and the courts. Compare the quoted sections of the investigative report (in the Civil Service decision) to the samples provided in class, particularly the Civil Service Commission ruling that was in the course handouts. For those who have been through Managing Disciplinary Challenges in the Fire Service – we touch briefly on credibility determinations when discussing how to draft the investigative report, and how to draft the adjudication decision. If you are available, the next session of the Credibility Determination class is June 2, 2021, at 1:00 PM Eastern.