No. 06-2048-E.Commonwealth of Massachusetts Superior Court. SUFFOLK, SS.
May 22, 2007.

[1] Massachusetts Department of Correction


MEMORANDUM AND ORDER ON THE PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND THE DEFENDANTS’ CROSS-MOTION FOR THE SAME Before the Court is the plaintiff William Dapkas’s (“Dapkas’s”) motion for judgment on the pleadings and the defendants’ cross-motion for the same. The plaintiff’s appeal, pursuant to G.L. c. 30A, § 14 and G.L. c. 31, § 44, challenges the decision of the Civil Service Commission (“the Commission”) upholding the Department of Correction’s (“DOC’s”) action to terminate him.
Prior to the incident underlying the present case, Dapkas had been suspended on fifteen separate occasions by the DOC for misconduct on the job. In its decision below the Commission found that Dapkas had falsified a report prepared in connection with an industrial accident claim. For the reasons discussed below, the plaintiff’s motion is DENIED and the defendants’ cross-motion is ALLOWED.

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BACKGROUND The Administrative Record
Dapkas became a corrections officer with the DOC in 1983. In February and March 2002, he was assigned to the Boston Pre-Release Center. He testified that he re-injured his right shoulder on February 27, 2002, at approximately 9:30 a.m., while working in the control room. He alleged that his injury was caused by his having to reach repeatedly overhead to press buttons that controlled people’s access to and from the facility.

During the hearing before the Commission, Dapkas testified that after the injury he was in extreme pain and his arm was “frozen.” He stated that he had to use his left arm to continue to operate the buttons while waiting for a relief officer to arrive. However, the shift supervisor log shows that Dapkas worked his entire shift. Further, the industrial accident incident form which Dapkas completed in March 2002 states that he did not leave work following the injury.

Dapkas testified that he completed an Incident Report form on February 27, 2002, immediately after the accident and that he attempted to hand the report to Lt. Nona Little-Joseph (“Little-Joseph”), the shift commander, but she refused to accept it. Dapkas testified that he then called Deputy Superintendent James Saba (“Saba”) at home to report Little-Joseph’s refusal and that Saba advised him that he would take care of the matter when he returned to the office on March 1, 2002.

Dapkas also testified that he discussed the incident with Saba for over two hours on March 1, 2002, at which time he gave Saba a doctor’s note. Dapkas further said that he gave Little-Joseph a second incident report and a doctor’s note on March 1, 2002

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and thought that she would file them with the proper administrative offices.

At the hearing Saba testified that none of these conversations occurred and that he was unaware of the incident until March 14, 2002, when he returned from a vacation. When he reviewed Dapkas’s claim, he recommended that it be denied.

Superintendent Linda Bartee (“Bartee”) testified that she interviewed Little-Joseph, who denied any conversation with Dapkas regarding an injury on February 27, 2002, and she also denied receiving a doctor’s note or incident report from Dapkas on March 1, 2002.

On February 28, 2002, the day after the accident, Dapkas was examined at the New England Baptist Hospital Occupational Medicine Center (the “Baptist”). The resulting clinical report from the Baptist stated that Dapkas had a right shoulder sprain but that he could return to work with no restrictions.

On March 1, 2002, Dapkas worked a double shift — his regular day shift as a corrections officer and the evening shift as the shift commander. Dapkas then went out on sick leave from March 2, 2002 until August 2002.

The report at issue was dated March 1, 2002 at 2:30 p.m. In it Dapkas stated:

On 3-1-02 at approximately 9:30 a.m. I c/o Bill Dapkas Gave Deputy Saba a Doctors note, and informed him that this injury is Related to an accident Dated 2-14-99 at BPRC in which I’d suffered injury to my right shoulder. prior To this I did call pera and Gave them information And they said they will send a form out right Away Dr. Note was given to Lt. Littles. [spelling and punctuation as in original]

The Shift Commander Reports for February 27, 2002 at the Boston Pre-Release Center contain no mention of Dapkas’s injury or the communication with Little-Joseph.

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The Shift Commander Report for the day shift on March 1, 2002, during which Little-Joseph was shift commander, contains no mention of the March 1, 2002 incident report.

The March 1, 2002 evening Shift Commander Report, signed by Dapkas as acting shift commander, contains no mention of the incident report.

On March 12, 2002, Dapkas went to the administrative center in Pondville and filed an industrial accident package (“IA package”). The staff were not able to locate an incident report form dated March 1, 2002. Dapkas was required to complete another incident report form. This form, dated March 12, 2002 was filed with Dapkas’s IA package.

Saba testified that he received the IA package on March 14, 2002, when he returned to work from vacation, as noted above. After reviewing the package, he filed a Workers Compensation Litigation Issues Report. In it Saba stated that the “employee is claiming that the injury was as a result of him `Pushing Alarm Buttons at the front Control Desk.’ It should be noted that the injury was not reported until 3/12/02 when he filed the I.A. Package.”

DOC policy requires that an injury be reported on an incident report within 24 hours of the incident giving rise to the claim.

The record also includes another incident report, unrelated to Dapkas, that has the same incident report number as Dapkas’s.

At the hearing Dabkas’s counsel introduced into the record six other unrelated incident reports. These reports, all dated in 2002, contain three sets of reports with duplicate report numbers, but involve five unrelated incidents. Dapkas’s counsel offered these reports at the Commission hearing to show that duplication of report numbers was an ongoing problem at the Boston Pre-Release Center.

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In September 2002, after conducting her investigation pursuant to Saba’s industrial accident investigation request, Bartee requested that the DOC Commissioner convene a disciplinary hearing on account of Dapkas’s suspected falsification of the incident report.

On September 6, 2002 the DOC Commissioner wrote to Dapkas, notifying him that a disciplinary hearing would be held before Deputy Director of Employee Relations Dennis Cullen (“Cullen”). The letter states that Bartee recommended a hearing to “consider appropriate disciplinary action against you. This recommendation was made as a result of your actions at Boston Pre-Release Center in March 2002. It is alleged that you falsified an incident report and submitted it as part of an Industrial Accident claim. Your alleged actions are in violation of the Rules and Regulations, specifically, The General Policy and Rules 1, 18 and 19.”

Cullen conducted the hearing, submitted his report of it to the DOC Commissioner, and on September 27, 2002, DOC Commissioner notified Dapkas that he was terminated. The termination letter stated:

After reviewing the hearing officer’s report and the documentation provided, I find that you did falsify an incident report and you submitted this false report as part of an industrial accident claim. Your actions were dishonest, fraudulent and in violation of the Rules and Regulations as cited.
In view of this and taking into consideration the fact that you have previously been suspended more than fifteen times, many of those actions involving dishonesty, I am terminating you effective immediately.

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Dapkas’s disciplinary record shows twenty-nine entries dating from 1987 through the time of his termination, including at least fifteen suspensions lasting from one to twenty days. The suspensions were for conduct that included unexcused absences, failure to provide satisfactory medical evidence for use of sick days, sleeping on the job, leaving his post without authorization and unprofessional behavior when interacting with inmates. He was also disciplined for excessive use of force, improper behavior toward an inmate during a urinalysis examination and defacing property. In 1987, he was suspended for twenty days for hosing an inmate after a fire in the inmate’s cell was extinguished. That same year Dapkas’s was terminated for filing a false industrial accident claim, allegedly to avoid a disciplinary action. However, as to that incident, he was reinstated with back pay on December 3, 1989, under the terms of a settlement agreement. In the year 2000 Dapkas was suspended seven times for periods varying from one to ten days. In October and December 2000 Dapkas received warning letters advising him that further infractions would result in more severe penalties, up to and including termination.

The Commission’s Decision
Dapkas timely appealed the DOC’s decision to the Commission. Commissioner Donald R. Marquis (“Marguis”) thereafter held a hearing on the appeal.

Marquis (and thus the Commission) denied the appeal, finding that the DOC was justified in its decision to terminate Dapkas.

Marquis found that “Dapkas’s version of events?is not plausible. His testimony is not credible and is given no weight.” Marquis determined that Dapkas’s account that he had discussed the injury with Saba on February 27, 2002 and that he had given Saba a “doctor’s note” on March 1, 2002 was “completely false.” He also found that Dapkas’s testimony about Little-Joseph’s actions was false and that Dapkas had not submitted an incident report or doctor’s note to Little-Joseph.

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Marquis found that the industrial accident claim was submitted on March 12, 2002 and that the only issue before him was whether or not the March 1, 2002 incident report, attached to the industrial accident claim, was authentic and submitted in good faith. Marquis found that it was not. Marquis found that Dapkas deliberately backdated the report in an “effort to bolster his workers’ compensation claim.” Marquis also noted that without the incident report, Dapkas was “fully aware that he had no documentation to support his injury, because his own doctor claimed he could `return to work on February 28, 2002 without restrictions.'”

Marquis found that Saba’s and Bartee’s testimony was credible and was supported by other documentation in the record.

Marquis found that the separate question of whether or not Dapkis actually sustained an injury on February 27, 2002 was not material to his decision since Dapkas had falsified the March 1, 2002 injury report, in any event.

DISCUSSION Standard of Review

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Under G.L. c. 30A, § 14, the court’s review of an administrative agency appeal is limited to the administrative record. G. L. c. 30A, § 14(4), 14(5); Cohen v. Bd. of Registration in Pharmacy, 350 Mass. 246, 253
(1966). The party appealing an administrative decision bears the burden of demonstrating that the decision is invalid. Merisme v. Board ofAppeals on Motor Vehicle Liab. Policies and Bonds, 27 Mass. App. Ct. 470, 474 (1989). “A state administrative agency in Massachusetts has considerable leeway in interpreting a statute it is charged with enforcing” and “all rational presumptions” must be made in favor of the validity of regulations promulgated by that agency. Berrios v. Dept. ofPub. Welfare, 411 Mass. 587, 595 (1992). In reviewing an administrative agency’s decision under G L. c. 30A, § 14, the court does not substitute its judgment for that of the agency. An “agency’s interpretation of its own regulation and statutory mandate will be disturbed on review only if the interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.” Brookline v. Comm’r of the Dept. ofEnvironmental Quality Eng’g., 398 Mass. 404, 410 (1986).
Under G.L. c. 30A, this court must give due weight to the agency’s experience, technical competence, specialized knowledge, and statutorily conferred discretion. Flint v. Comm’r of Pub. Welfare, 412 Mass. 416, 420
(1992). Nonetheless, this court cannot allow an erroneous statutory interpretation or application of statutory requirements to stand.Zavaglia v. Contributory Retirement Appeal Board, 345 Mass. 483, 485
(1963); McDonough v. Contributory Ret. Appeal Bd., 15 Mass. App. Ct 14, 15 (1982). Conclusions of law to be drawn from an agency’s findings of fact are subject to independent judicial review. Capezzuto v. StateBallot Law Comm’n, 407 Mass. 949, 952 (1990). This court may set aside an agency decision “if it determines that the substantial rights of any party may have been prejudiced because the agency decision is made upon unlawful procedure,” or “arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” G.L. c. 30A, §§ 14(7)(d), 14(7)(g); Bagley v. Contributory Ret. Appeal Bd, 397 Mass. 255, 258 (1986).

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Grounds for Appeal
Dapkas alleges that the Commission’s decision was not supported by substantial evidence.

He also claims that the Commission’s action was an error of law, because the Commission upheld the DOC’s decision to terminate Dapkas on grounds which were not explicitly stated in his termination letter. He contends that under G.L. c. 31, § 42, the DOC hearing was limited to an inquiry regarding whether there was “proper cause” to support the “reasons specifically given” in the hearing notice. He claims that the Commission’s decision, citing Saba’s opinion that Dapkas was committing fraud because he believed that the injury never occurred, was beyond the scope of what was alleged in the initial hearing notice.

The hearing notice alleged that Dapkas “falsified an incident report and submitted it as part of an industrial accident claim.”

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Dapkas further asserts that the Commission’s decision to uphold the DOC’s decision is arbitrary, capricious and an abuse of discretion, because the DOC took disciplinary action against him for obtaining an incident report number without requesting one from the shift commander, whereas other employees had not been disciplined for the same infraction.

Substantial Evidence
Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G.L. c. 30A, § 1(6);New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 466 (1981). The substantial evidence standard is a “test of rational probability.” Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 390 (1999).

In determining whether an agency’s decision is supported by substantial evidence, this court must take into account the entire administrative record, and also take into account “whatever in the record fairly detracts from the weight of the evidence.” New Boston Garden Corp., 383 Mass. at 466; Pyfrom v. Commissioner of Pub. Welfare, 39 Mass. App. Ct. 621, 624-625 (1996).

Under substantial evidence review, this Court must uphold the Commission’s conclusion unless “the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.” Cobble, 430 Mass. at 390-391.

The Merits
Here, the record is replete with evidence to support both the DOC’s and the Commission’s findings that Dapkas did not file the incident report dated March 1, 2002 until March 12, 2002 and thus that the report so filed was false.

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The shift commanders’ reports showing no injury on February 27, 2002 and no report filed on March 1, 2002, the testimony of witnesses contradicting Dapkas’s claim to have spoken with them and the dates of February 27, 2002 on a number of the industrial accident forms, prior to the date on which Dapkas first sought medical treatment, and prior to the date he allegedly submitted the March 1, 2002 report, amply support the Commission’s conclusion that the report was back-dated.

Saba testified that an employee injured on duty should have reported the incident to the shift commander so that appropriate action could be taken. One of the unrelated incident reports in the record, introduced by Dapkas’s counsel to support his claims that other employees obtained their own incident report numbers, also shows the ordinary process which the Pre-Release Center followed when an employee reported an injury.

The Commission found that Dapkas’s testimony that he notified shift commander Little-Joseph of his injury and that Little-Joseph refused to accept the report was not credible. The Commission also found that Dapkas’s testimony that he notified Saba of the injury on February 27, 2002, or spoke with him about the injury on March 1, 2002, was false.

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This Court does not disturb the credibility findings of an agency. “It is for the agency to weigh the credibility of witnesses and resolve factual disputes involving contradictory testimony.” Cobble, 430 Mass. at 393. “Nevertheless, under the substantial evidence test, we may disregard supporting testimony that cannot reasonably form the basis of impartial, reasoned judgment.” Cobble, 430 Mass. at 393.

The Court finds nothing in the record to question the reasonableness of the Commission’s conclusions. Dapkas testified at various times that after the injury he worked the remainder of his shift, that he left early and that Little-John, while refusing to accept the incident report, did promise to obtain a relief officer. The February 27, 2002 shift commander report is silent as to a relief officer being assigned, although the location and activities of each officer on duty is recorded. At hearing, Dapkas was unable to remember if another officer in fact did relieve him from duty. Despite his assertions of searing pain, Dapkas’s own doctor’s note states that he was able to return to work on February 28, 2002, the same day he was treated. Moreover, Dapkas worked a double shift, sixteen hours, on March 1, 2002, with no problems reported in the shift commander’s log.

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On this record, the Commission’s factual findings and credibility determinations are amply supported by substantial evidence.

Dapkas contends that the Commission should not have upheld his termination because other employees were not disciplined for obtaining their own incident report numbers rather than following the established procedure of being assigned an incident report number by the shift commander. This contention is without merit. Although the record establishes that duplicate report numbers for otherwise legitimate incidents do exist, nothing in the DOC’s actions or the Commission’s findings suggests that Dapkas was fired because he assigned himself a report number.

Further, Dapkas argues that the real reason for his termination was the conclusion by the DOC that he was not in fact injured on the day in question and that that particular allegation was not part of the notice of charges. However, the Commission’s decision accurately noted that the DOC’s notice of hearing, the DOC hearing itself and the DOC’s decision to terminate Dapkas’s employment all centered on the issue of whether or not Dapkas falsified his March 1, 2002 report.

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Contrary to the argument of Dapkas’s counsel, the circumstance that Dapkas obtained his own incident report number and that the number was the same as another, but unrelated, report filed with the DOC around that time was not material to either the DOC’s or the Commission’s decisions.

Dapkas was terminated by the Department of Correction because of the falsified report and because of his aggravated record of prior disciplinary infractions. Having independently found such facts, the Commission appropriately affirmed the Department’s decision to terminate Dapkas. The record demonstrates that “there was reasonable justification for the action taken by the appointing authority in the circumstances found by the commission to have existed when the appointing authority made its decision”. Town of Falmouth v. Civil Service Commission, 61 Mass. App. Ct. 796, 800 (2004).

As accurately noted by counsel for the DOC in her brief, by Dapkas having filed a false report, he was subject to possible criminal prosecution for violating G.L. c. 268, § 6A. On a review of the complete record before the Court, it can be said that Dapkas is fortunate that he was not so prosecuted.

For all of the foregoing reasons, the plaintiff’s motion for judgment on the pleadings is DENIED and the defendants’ cross-motion for the same is ALLOWED.

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