Civil Service Commission Orders Extraordinary Remedy in Promotion Bypass Case

The Massachusetts Civil Service Commission has ordered the promotion of a female firefighter who was bypassed for promotion to captain due to favoritism. In doing so, the Commission gave the Methuen Fire Department a rather unusual option: demote the captain who was promoted, or create a new captain’s position for the bypassed firefighter.

Tracy Blanchette is a Methuen firefighter who sought a promotion to captain in 2017. Following an assessment center process, she ranked second out of 13 for the promotion. Quoting from the Commission’s decision:

  • Approximately six weeks after the Captain’s assessment center exam, the promotional Eligible List issued; candidates Michael Fluet and Blanchette were ranked #1 and #2, respectively, and Tulley and Timothy Smith tied for the #3 slot.
  • Immediately after the assessment center rankings became known within the MFD, Blanchette began to hear unsupportive comments from her fellow firefighters, including supervisory personnel.
  • For example, one firefighter told her, in front of several others in the firehouse kitchen, “let’s be real, if we called every single other person into this kitchen, everyone would say they want to see Matt [Tulley] get appointed.” [
  • Appellant received a text message from another firefighter: [“Hey great job, too bad you’re not going to get the position. The chief wants Matt in the position. It’s his best friend. It’s going to be easier to promote Matt to Assistant Chief from Captain than from private.”
  • Appellant was told by a Fire Lieutenant that “as long as Matt made it into the top 3, he would be made because he is the Chief’s best friend,” and these appointments were “known” ahead of time
  • Appellant testified that it was widely rumored throughout the department that Tulley’s selection was predetermined.

Thereafter the city opted to send the top four candidates, Michael Fluet, Blanchette, Matthew Tulley, and Timothy Smith, to “an internal post-assessment center interview.” Following that post-assessment process, Blanchette ranked last. Fluet received the first promotional opening in 2017. When a second captain’s position became available in 2019, Tully was promoted prompting Blanchette’s complaint.

The decision is 58-pages long, and offers a great deal on insight into the reasoning behind the Commission’s decision. Quoting from the discussion portion of the decision:

  • In reviewing a bypass decision, “[t]he commission’s primary concern is to ensure that the appointing authority’s action comports with ‘basic merit principles,’ as defined in G.L. c.31, § 1.”
  • When there are overtones of political control or objectives unrelated to neutrally applied public policy, then the occasion is appropriate for intervention by the Commission.
  • Methuen has failed to establish by a preponderance of credible evidence that it had reasonable justification to promote a male MFD firefighter to Fire Captain from an eligible list created after a comprehensive Assessment Center in which he ranked below the Appellant, a female firefighter with greater experience.
  • Rather, the evidence shows that Methuen’s decision was based on the use of a highly subjective and flawed interview process intended to nullify the results of the Assessment Center in order to effectuate a predetermined decision to select a candidate favored by the Fire Chief as a matter of personal, not professional, preference, as well as to not disturb the MFD’s male-dominated culture.
  • This selection process was not conducted on a level playing field and violates basic merit principles of civil service law.
  • In the context of this civil service appeal, in which the City is obliged to show adherence to basic merit principles, the Commission must decide whether the bypass reason given by the City – that Firefighter Blanchette just gave a lousy interview – is both true and was the real motivation for the actions taken.
  • If this reason does not ring true, or is pretextual, then a finding that basic merit principles were violated may be warranted.
  • Personnel decisions that are marked by extraneous influences, favoritism, bias, or objectives unrelated to merit standards or neutrally applied public policy represent appropriate occasions for the Civil Service Commission to intervene.
  • Here, Methuen’s interview process woefully lacked the safeguards needed to ensure a “level playing field” with a reasonable degree of transparency and objectivity and to assure that the decision-making process was the product the legitimate professional judgment rather than an unduly subjective decision-making process that is so inadequately memorialized as to be incapable of objective de novo review on appeal to the Commission.
  • The internal interview process conducted at Methuen City Hall was poorly conceived, poorly performed, and poorly documented.
  • Given how dubious I am of much of Chief Sheehy’s testimony concerning the process, the City’s evidence is not credible and cannot be relied upon to sustain its burden of proof in this bypass appeal.
  • Due to the appearance of predisposed favoritism on Sheehy’s part (given his lengthy friendship and partnership with Tulley, which included some 8-10+ years of Sheehy being hired by Tulley to perform lucrative side work, plus troubling indicia of bias against Blanchette), I conclude that subjectively-determined interview scores from a 14-month-old, 20-minute interview cannot be used to substantiate the bypass of a quality candidate such as Blanchette, who then stood atop the eligible list as determined by independent professionals running a day-long, multi-faceted assessment center featuring a scored, structured interview component.
  • The evidence showed that Blanchette’s professional accomplishments took a back seat to a preference for Tulley formed from personal, not professional, experience.
  • Sheehy and Tulley knew each other long before they both joined the MFD, they served together on the same work group for almost ten years earlier in their careers and, most critically, Sheehy worked for about a decade under Tulley in his private business.
  • Moreover, Chief Sheehy exercised great influence over the other three interview panelists (two of whom had never worked in the fire service), going so far as to advise them at the start of the interview process of the answers he expected to hear based on the questions posed to the candidates.
  • The circumstances of the grievance process demonstrate further that Blanchette was subjected to arbitrary and unfair treatment by the City.
  • It is plainly evident to me that all the contractual and other internal processes normally in place to ensure fair treatment were, in fact, unavailable to her, and instead were actively or passively working against her.
  • Despite no clear right to do so, the City and the MFD firefighters’ union put Appellant’s grievance on ice.
  • The union acquiesced to what amounted to nearly a yearlong stay of the grievance; indeed, by the end of 2019, it had not even met with the City to discuss the matter, nor had it filed for arbitration.
  • The union president blamed the City – stating that Randazzo asked the union to agree to postpone the matter.
  • Ms. Randazzo said the opposite – she claimed that the union never pursued the matter, and that she did not know anything about it other than it was filed.
  • The City was ordered to produce to this Commissioner the email trail between itself and the union, or suffer adverse factual findings. It never complied with my order.
  • I have thus concluded that Randazzo did not testify forthrightly.
  • Moreover, the union never requested a single document from the City to investigate appellant’s grievance.
  • Likewise, the City Council never investigated Blanchette’s complaint. It approved the promotion of Tulley on February 4, 2019, after receiving Appellant’s detailed complaint of gender discrimination.
  • The Council never asked a single question of Chief Sheehy during its meeting and Councilor McCarty voted in favor of Tulley without even mentioning his family relationship with the Intervenor.
  • HR Director and Assistant Solicitor Anne Randazzo is the City official responsible for investigating complaints of discrimination.
  • She was directly involved in this case. She never even considered looking into the complaint, even though she received a copy from either Chief Sheehy or the Council shortly after it was filed.
  • Randazzo testified that she figured Blanchette could get her remedy from this Commission, or perhaps the MCAD or EEOC, and thus never looked into the matter. In fact, she claims, she never even thought to do so.
  • For that matter, neither did the Mayor, the Chief, the Council, or the Union.
  • The remedy typically ordered by the Commission when it has determined that a candidate for appointment or promotion has been unlawfully bypassed in violation of civil service law and rules is to require that the candidate be placed at the top of the current and all future certifications for the position so that the candidate receives at least one opportunity for future selection consistent with basic merit principles of civil service law.
  • In an extraordinary case, however, the Commission has broad discretion to fashion a unique remedy when necessary to ensure that the civil service rights of a tenured employee aggrieved by an unlawful bypass are fully restored.
  • This appeal is a case that calls for such extraordinary relief. The violation of civil service law in this appeal has been shown to be intolerable.
  • Because both Captain positions were filled from this eligible list and, in all likelihood, both Fluet and Tulley will not retire before Blanchette retires, it is unlikely that Appellant will have another opportunity to be promoted to Captain, impacting her retirement income for life.
  • As such, the Commission is constrained to consider, pursuant to the powers of relief inherent in Chapter 310 of the Acts of 1993, ordering the Appellant to be placed into the Captain position she should have secured in February of 2019.
  • However, the Commission will first offer the City an alternative, provided that it implements the following without appeal or undue delay.
  • The relief the Commission is prepared to order in this case is concededly out of the ordinary. But it is not unprecedented.
  • This Commission has, on occasion, exercised its authority to vacate a promotional process, or even an individual promotion, when significant evidence of bias and irregular interview processes appear in the record.

The parties have until January 18, 2022 to reach a resolution. Here is a copy of the decision:

Blanchette also has a $2.75 million suit against the city and Chief Sheehy for gender discrimination and retaliation. More on that lawsuit from earlier coverage.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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