Opinion
19-P-1547
02-02-2021
JAMES FERMIN v. MAYOR OF THE CITY OF LAWRENCE & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal concerns the termination of James Fermin, who was appointed to the Lawrence Police Department (department) in April 2016. The facts are not in dispute. After completion of the police academy, Fermin was sworn in as a full-time police officer on October 14, 2016. Pursuant to G. L. c. 31, § 61, Fermin was on probationary status until October 14, 2017. Daniel Rivera, as the mayor and appointing authority for the city of Lawrence (city), gave Fermin a written notice of termination on August 2, 2017, as required under G. L. c. 31, § 34. The termination letter, which was effective immediately, stated, in relevant part, that "[a] number of issues have arisen during your field training concerning your judgment and conduct prompting the City to take this action."
General Laws c. 31, § 61, provides in pertinent part:
"Following his original appointment as a permanent full-time police officer . . ., a person shall 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, except as otherwise provided by civil service rule."
General Laws c. 31, § 34, provides in relevant part:
"If the conduct or capacity of a person serving a probationary period or the character or quality of the work performed by him is not satisfactory to the appointing authority, he may, . . . give such person a written notice to that effect, stating in detail the particulars wherein his conduct or capacity or the character or quality of his work is not satisfactory, whereupon his service shall terminate."G. L. c. 31, § 34, fifth par.
Fermin filed a complaint in the Superior Court claiming that the termination letter failed to include "in detail the particulars" of the reasons for his termination. In addition, Fermin claimed that the defendants failed to send a copy of the termination letter to the civil service administrator. The parties filed cross motions for judgment on the pleadings on Fermin's claims for relief pursuant to G. L. c. 31, § 34, and for declaratory judgment. The judge, in a thoughtful and well- reasoned decision, relying primarily on Costa v. Selectmen of Billerica, 377 Mass. 853 (1979), denied Fermin's motion and allowed the defendants' motion, finding that the termination letter was sufficiently detailed to satisfy the requirements of G. L. c. 31, § 34. He also found that even if the defendants failed to send the termination letter to the civil service administrator, this failure would not entitle Fermin to a judgment in his favor. We affirm.
Because Fermin did not have standing to bring contract based claims, a different judge dismissed two counts of the complaint alleging breach of contract and breach of the covenant of good faith and fair dealing. Fermin did not appeal from this dismissal.
Fermin sought reinstatement as a tenured employee, payment of back wages, loss of overtime and detail pay, loss of health, dental and retirement benefits, and interest, costs, and attorney's fees.
The parties dispute whether the termination letter was sent to the civil service administrator; however we need not resolve this issue as it does not alter the result.
We review the allowance of a motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), de novo. See Pacific Ins. Co. Ltd. v. Champion Steel, LLC, 97 Mass. App. Ct. 791, 794 (2020).
This case is controlled in all material respects by Costa, 377 Mass. 853. In holding that the termination notices for three probationary police officers were sufficient, the court reasoned that unlike a tenured employee with a property interest in their employment, "a person on probation understands that he is in 'a status of experimental testing' which 'implies no commitment for continuance of employment'" (citation omitted). Id. at 860. Indeed, when evaluating the sufficiency of a probationary employee's termination notice, "[w]e must remember . . . to take care not to hobble the employer unduly in the process of selection for tenure because dislodgment thereafter is notoriously difficult." Id. at 860-861.
When Costa was decided, the relevant provisions of G. L. c. 31, § 34, were codified under G. L. c. 31, § 20D, inserted by St. 1945, c. 703, § 2. The relevant language of G. L. c. 31, § 20D, is identical to the current relevant language of G. L. c. 31, § 34. Moreover, we have applied Costa's reasoning and analysis to G. L. c. 31, § 34. See, e.g., Duff v. School Comm. of Milton, 13 Mass. App. Ct. 957, 957 (1982) ("The case is controlled by Costa"). See also Leominster v. International Bhd. of Police Officers, Local 338, 33 Mass. App. Ct. 121, 126-127 (1992). Accordingly, Costa applies with equal force here.
The stated reasons were: (1) "your inability to handle routine calls and cooperate with and gain the cooperation of fellow officers"; (2) "your inability to answer calls and take proper police action and failure to follow lawful orders of commanding officers"; and (3) "inability to work in harmony with fellow police officers and lack of aggressiveness necessary to the performance of police functions." Costa, 377 Mass. at 855-856.
In addressing the requirement that a termination notice state "in detail the particulars wherein [the officer's] conduct or capacity or the character or quality of his work is not satisfactory," the court held that a notice "which merely recited . . . 'conduct unbecoming an officer' or 'for the good of the service'" would be insufficient. Id. at 856, 861. By contrast, where a probationary employee is terminated for actual misconduct, "a statement would be required of the incidents basing the charge." Id. at 861. However, as is the case here, "a notice [is] adequately particularized when it identifie[s] observed characteristics of the individual . . . to one or more of the elements of 'conduct,' 'capacity,' and so forth mentioned in the statute, which grounded the conclusion 'not satisfactory.'" Id. And, it bears noting that Costa declined to "add a requirement of describing incidents or events." Id.
In Duff v. School Comm. of Milton, 13 Mass. App. Ct. 957 (1982), we applied the holding in Costa and concluded that "[i]t is not required of employers that they describe incidents or events of unsatisfactory performance" in termination letters governed by G. L. c. 31, § 34. Id. Moreover, "while the language of the [appointing authority's] notice [was] lamentably bureaucratic in style and suffer[ed] from consequent opaqueness, the only plausible message [was] clear enough: the [probationary employees] didn't get as much done as they should have and what they did was not done well," thus the notice satisfied the requirements of G. L. c. 31, § 34. Id.
The termination was based "on grounds of insufficiencies in quality and quantity of work performance and attitudinal problems." Duff, 13 Mass. App. Ct. at 957.
Fermin's termination letter was not a formulaic recitation such as "conduct unbecoming an officer" or "for the good of the service." See Costa, 377 Mass. at 861. Rather, it informed him that issues had arisen during his field training concerning his judgment and conduct. The letter directed Fermin to "identified observed characteristics" concerning his judgment and conduct. See id. We note that we have not found and neither party identified any reported Massachusetts case holding a termination notice lacked the level of detail required by statute. On this record, we are satisfied that the termination letter sufficed under G. L. c. 31, § 34.
Fermin argues that the plain language of the statute requires us to interpret the plain meaning of "in detail" and "particulars." In support of this plain language argument, Fermin included an addendum with a host of internet dictionary definitions spanning more than one hundred pages. However, because Fermin failed to raise this issue in the Superior Court, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal" as "plaintiff[] never put the judge on notice that they opposed [an adverse ruling] on this theory" [citations omitted]). However, even if not waived, the result would be the same as the argument is belied by our case law.
Judgment affirmed.
By the Court (Blake, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 2, 2021.