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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-457
PIERRE GRENIER
vs.
CIVIL SERVICE COMMISSION & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Pierre Grenier, appeals from an order of a
judge of the Superior Court granting judgment in favor of the
defendants, the Civil Service Commission (commission) and the
city of Springfield (city). The judge affirmed the decision of
the commission that the city had reasonable justification to
bypass Grenier for a promotion to district fire chief. We
affirm.
1City of Springfield. The complaint also names the Fire Department of Springfield, but the city's brief asserts that it has responded for the Fire Department as it is not an independent entity capable of suit. Background.2 In August 2018, the Massachusetts Human
Resources Division (HRD) established a list of eligible
candidates to fill positions of district fire chief in the city,3
ranked in order based on the candidates' scores on the civil
service examination and veteran status. Six candidates were on
the list; Grenier's rank was third.4
Grenier is a tenured member of the Springfield Fire
Department, where he has worked for over twenty-three years.
Throughout his career, Grenier has held leadership positions
including fire captain, acting district chief, and district
chief's aide. He has a clean disciplinary record with the SFD
and is close to completing an associate's degree in Fire
Science. In addition to his work as a firefighter, Grenier is a
licensed journeyman electrician. Grenier is a veteran of the
U.S. Marine Corps, where he served as a squad commander and was
2 The facts are drawn from the findings of the commission and other documents of record.
3 A district fire chief is a senior command position. There are eleven such positions, reporting to two deputies as well as the head of the SFD and appointing authority, Fire Commissioner Bernard Calvi.
4 On the list, two names appeared before Grenier's name and three names appeared after his. For ease of understanding, we refer to the two candidates ranked above Grenier as candidates "A" and "B" and the lower-ranked candidates as "C," "D," and "E."
2 deployed during Operation Desert Storm and Operation Desert
Shield.
In December 2019, the HRD issued a certification
authorizing the Springfield Fire Department (SFD) to fill five
vacancies for district fire chief from the eligible list. As
part of that process, SFD formed a selection board including
Fire Commissioner Bernard Calvi, an SFD Deputy Chief, two
outside fire chiefs, the Springfield Director of Finance and
Administration, the Springfield Chief Diversity and Inclusion
Officer, and the Springfield Assistant Human Resources Director.
While the appointment decision ultimately resided solely with
Calvi, the selection board interviewed all the candidates. They
used a semi-structured process during which each candidate was
asked the same ten questions. Each board member scored each
answer based on a scale of one to five, with one being a low
score.
One of the interview questions asked the candidates to
describe how they would respond to a hypothetical fire scenario
in which there was a "fire-consumed" two-story house and
potential that someone was trapped inside. Grenier stated that
he would respond to the scenario by streaming water from the
outside into the building to quell the fire. At the same time,
he would send in firefighters to search for anyone trapped
inside. While testifying before the commission, Calvi described
3 Grenier's stated strategy as one of "opposing attacks," which
would be "very dangerous" for firefighters. Calvi additionally
noted that the scenario mirrored a real-life event -- the
"Crystal Street fire" -- in which Grenier had been involved. In
the Crystal Street fire, Calvi responded to a fire where Grenier
was serving as acting district chief and the commander on scene.
Grenier had taken command from a different commander who had
ordered firefighters to enter the building with water while
water streams were still attacking the fire from outside.5 Calvi
interceded and explained the importance of ensuring that the
exterior water streams were not operating while firefighters
were entering the building. Calvi was particularly troubled
that Grenier failed to apply his real-life experience and
coaching to the interview hypothetical, which affected Grenier's
score on that question.
A second interview question asked the candidates to discuss
their ideas for improving the SFD. Candidate C suggested
developing training to increase skills for new firefighters and
to close gaps in knowledge and expertise. Candidate D
encouraged increasing community outreach and service, such as
5 Calvi testified that Grenier had made the order, however, the commission found that the evidence established that it was Grenier's predecessor in command who ordered the opposing strategies. The commission also found that Grenier was "uncertain whether to countermand the order on his own," at which point Calvi took control of the situation.
4 through public events. Candidate E stated that there was a lack
of accountability and encouraged broader communication in the
department around training gaps. Grenier answered the question
by stating that he felt the department was going in the right
direction and should maintain that path. This response earned
Grenier comparatively low scores across the interviewers.
In addition to the interview scores, Calvi considered the
candidates' scores on the civil service examination,6 their level
of education, and other relevant professional experience. Based
on his review, Calvi appointed five of the candidates to the
position of district fire chief, excluding Grenier. In
accordance with G. L. c. 31, § 27, Calvi issued a letter to
Grenier, stating three reasons for the bypass. First, as
compared to the other candidates, Grenier had pursued less
continuing education in the field of fire science and his focus
was on his "side job as an electrician." Second, Grenier's
response to an actual fire scene "put lives at risk" and his
answer to the hypothetical fire scenario demonstrated an
inability to learn from his experience during the Crystal Street
fire. Third, Calvi cited Grenier's lack of vision for improving
6 Calvi testified that he considered the examination scores only to the extent that they got the candidate "in the door" of the interview.
5 the department, which was disappointing given his years of
experience, especially in leadership.
Grenier appealed to the commission, which found that the
interview process was unbiased and reasonable justification
existed to support the bypass of Grenier. A judge of the
Superior Court affirmed the commission's decision and Grenier
now appeals.
Discussion. "Pursuant to G. L. c. 31, § 44, we review the
commission's decision to determine if it violates any of the
standards set forth in G. L. c. 30A, § 14(7), and cases
construing those standards" (quotation and citation omitted).
Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 242 (2006). "We
generally accord considerable deference to the commission's
disposition of a charge . . . . [unless] the commission commits
an error of law." Boston Police Superior Officers Fed'n v.
Labor Relations Comm'n, 410 Mass. 890, 892 (1991). The
commission must determine "whether the appointing authority
sustained its burden of proving, by a preponderance of the
evidence, that there was reasonable justification for the action
taken." Brackett, supra at 241. A bypass decision is
reasonably justified when it is made with "adequate reasons
sufficiently supported by credible evidence, when weighed by an
unprejudiced mind guided by common sense and by correct rules of
6 law." Id., quoting Selectmen of Wakefield v. Judge of First
Dist. Ct. of E. Middlesex, 262 Mass. 477, 482 (1928).
Grenier challenges the commission's finding of reasonable
justification for the bypass on a number of grounds.
1. The interview process. Grenier contends that it was
improper for the appointing authority to rely solely on the
interview process in making its bypass determination and
challenges certain aspects of the structure of the process.
Section 7 of Chapter 31 of our General Laws mandates that
all "promotional appointment[s] within the official service
shall be made . . . after certification from an eligible list."
In assessing eligible candidates from that list, "[a]n
appointing authority may use any information it has obtained
through an independent, impartial, and reasonably thorough
review." Sherman v. Randolph, 472 Mass. 802, 813 n.18 (2015).
This includes "oral interviews of candidates who have been
certified to it from the eligible appointment list." Id. at
811. In keeping with the "fundamental purpose of the civil
service system [which] is to guard against political
considerations, favoritism, and bias in governmental hiring and
promotion," Massachusetts Ass'n of Minority Law Enforcement
Officers v. Abban, 434 Mass. 256, 259 (2001), interviews should
be "structured in an attempt to protect candidates from
7 arbitrary action and undue subjectivity." Flynn v. Civil Serv.
Comm'n, 15 Mass. App. Ct. 206, 208 (1983).
Here, the commission concluded that the interview process
used by the city was "reasonably fair and not overly subjective
or arbitrary." We agree. The selection board included four
senior-level public safety officials from within and outside the
department as well as city human resources officials. Each
interviewee was asked the same set of standard questions, which
appropriately inquired into qualities that would be important in
a district fire chief. The interviewers scored those responses
with a numerical system. See Flynn, 15 Mass. App. Ct. at 208
(numerical system is preferable in interview process because it
reduces arbitrary action and bias). The interviewers also took
notes, which the commission reviewed and found to be "remarkably
consistent."7 The interview process used by the city was
therefore appropriate. Contrast Sherman, 472 Mass. at 811
(interview process flawed where assessment criteria were not
agreed upon by interviewers in advance and candidates were
scored on vague "totality" of performance standard).
Additionally, while Grenier's responses to two of the
interview questions were ultimately decisive in Calvi's choice
7 The commission indicated that it would have preferred to have recordings of the interviews, but the robust and consistent notes ameliorated that deficiency. We agree.
8 to promote the lower-ranked candidates, the interview was not
the sole criterion used in the selection process. Rather, the
city appropriately looked at the candidates' examination scores,
education and experience, and relevant professional qualities as
demonstrated through the candidates' responses to interview
questions.
2. Bias of the appointing authority. Grenier broadly
contends that Calvi was biased against him and this bias
infected the entirety of the appointment process. Grenier
argues that this bias is demonstrated by the fact that Calvi
discredited Grenier's educational experiences relative to those
of the lower-ranked candidates, judged Grenier's interview
answers overly harshly, and over-emphasized the Crystal Street
fire incident as compared to the rest of Grenier's work history.8
The commission determined that any negative opinions Calvi
held about Grenier were "all based on [Calvi's] percipient
knowledge and perception derived from Capt. Grenier's on-the-job
performance and did not come from an unlawful bias or undue
political or personal favoritism toward any of the other
candidates." We agree. Calvi articulated that he was most
8 Grenier also suggests that one of the higher-ranked candidates was not interviewed, demonstrating that he was treated differently during the appointment process. Grenier does not point to, and we have not found, anything in the record to support this contention.
9 troubled by Grenier's failure to learn from on-the-job
experience and by his lack of a vision for improvement of the
department. These are legitimate employment considerations and
do not demonstrate a personal or political bias against Grenier
as an individual. While the commission concluded that Calvi's
reliance on Grenier's education and employment history as a
reason for the bypass was not justified,9 this alone is not
sufficient to demonstrate bias. It is true that Calvi was less
generous in his assessment of Grenier's educational history,
however, Calvi's concerns remained appropriately aimed at
whether Grenier had displayed growth and development in the
field of fire science as compared to the other candidates.
3. Whether the commission's decision was based on an error
of law. Grenier further contends that the commission's decision
was based on multiple errors of law. We address each argument
briefly in turn.
First, Grenier argues that the commission applied an
inappropriate "deference" standard in reviewing the appointing
authority's decision. The commission's role is to review "the
legitimacy and reasonableness of the appointing authority's
9 The commission took careful note of the fact that in some ways Grenier's relative experience -- such as his time serving as acting district chief -- worked against him in that he was held to a higher standard than other candidates. Consideration of experience does not show personal or political bias or animus.
10 actions." Beverly v. Civil Serv. Comm'n, 78 Mass. App. Ct. 182,
187 (2010). It "owes substantial deference to the appointing
authority's exercise of judgment in determining whether there
was reasonable justification shown" for the bypass (quotation
and citation omitted). Id. at 188. In assessing the three
reasons Calvi articulated to support the bypass of Grenier, the
commission appropriately considered whether the city had shown
that Calvi's decision was "reasonably justified." Indeed, the
commission found that there was not reasonable justification to
bypass Grenier based on a comparison of his continuing education
experience alone. However, the commission appropriately
credited Calvi's testimony that Grenier's responses to the
interview questions raised concerns about his qualifications for
the position, despite his relative seniority.
Second, Grenier argues that where the commission referred
to the position of deputy chief as opposed to district chief,
this demonstrated that the commission applied the wrong standard
of review. It is true that the commission did refer to the
position of "deputy fire chief" or "deputy chief" in its opinion
and as part of its assessment of the appointment process.10
However, the commission also demonstrated knowledge of the SFD
10The commission refers to the position of "deputy fire chief" four times and to "district fire chief" or "district chief" approximately thirteen times.
11 structure, including that there were only two deputy chief
positions and eleven district chief positions. At the hearing,
testimony and evidence described the structure of SFD and the
particular responsibilities of the district chief. Looking to
the record as a whole, we are convinced that the commission's
references to "deputy" chief were mere scrivener's errors and
the commission appropriately assessed the appointment process to
determine whether Calvi had based his decision on factors
relevant to promoting a candidate to the position of district
chief.
Third, Grenier argues that the commission did not
appropriately consider whether the appointing authority's
decision was in accord with "basic merit principles," as defined
in the civil service statute. See G. L. c. 31, § 1 ("basic
merit principles" mean "recruiting, selecting and advancing of
employees on the basis of their relative ability, knowledge and
skills"). This argument largely repeats Grenier's contention
that the interview alone cannot support a bypass decision. As
discussed supra, Calvi appropriately considered Grenier's
responses to the interview questions and weighed them in
conjunction with his work history, educational development, and
examination score. Calvi was particularly concerned that
Grenier failed to demonstrate that he had learned from the
Crystal Street fire incident. Further, Grenier gave an
12 unsatisfactory response when asked about his future vision for
the department. Candidates C, D, and E each gave concrete and
specific examples of how the department could be improved which
demonstrated that they were engaged and forward-thinking,
important qualities in a leadership position. The commission
found that Calvi's assessment of those answers was credible and
unbiased and that Grenier's interview performance "raised a
legitimate concern about his readiness to assume an elevated
level of responsibility on a permanent basis." We agree.
Fourth, Grenier contends that the commission's decision was
not supported by 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). Based on
testimonial and documentary evidence presented at the hearing,
the commission determined that Grenier's poor performance on two
important interview questions involving executive decision-
making and firefighter safety were the basis for the bypass. As
discussed, this determination is fully supported by the record
before us.11
11Grenier argues that the commission mischaracterized his score on the fire scenario question as the lowest of all the candidates. The commission, however, noted the lower score of at least one of the other candidates. But, even if true, the commission acknowledged that Grenier "was not the only candidate who furnished a problematic answer to the fire scenario question." The commission further explained that Grenier's lowest scoring answer to the question regarding improving the
13 Fifth, Grenier argues that the commission substituted its
judgment for that of the authority. Grenier points to the fact
that the commission found that when Calvi arrived on scene to
the Crystal Street fire, Grenier had not ordered the problematic
"opposing attack," but was instead hesitating to make a
decision. This discrepancy between Calvi's understanding of the
Crystal Street fire and the facts found by the commission does
not mean that the commission substituted its opinion for that of
the appointing authority. In the same paragraph, the commission
credited Calvi's testimony that Grenier was unsure what action
to take at the scene. And, even according to Grenier's version,
Calvi told him to shut off the deck gun. In light of those
facts and Grenier's poor performance on the other interview
question, the commission appropriately concluded that Calvi had
reasonable justification for the bypass. Contrast Cambridge v.
Civil Serv. Comm'n, 43 Mass. App. Ct. 300, 305 (1997)
(commission impermissibly substituted its judgment over
appointing authority's where commission agreed with relevance of
factors but weighted them differently).
4. Failure to provide individual letter/justification for
each of three bypasses. Lastly, Grenier contends that he was
department separated him from the other candidates and taken together with the poor answer on the fire scenario question justified the decision to bypass him.
14 entitled to an individualized letter supporting each bypass of
candidates C, D, and E. Grenier fails to cite to any legal
authority that supports this contention; accordingly, this does
not rise to the level of appellate argument. See Mass. R. A. P.
16(9)(A); Kellogg v. Board of Registration in Med., 461 Mass.
1001, 1003 (2011) ("Briefs that limit themselves to 'bald
assertions of error' that 'lack[] legal argument . . . [do not]
rise[] to the level of appellate argument" [citations omitted]).
In any event, G. L. c. 31, § 27, mandates that where a lower-
ranked eligible candidate is selected for appointment, the
appointing authority "shall immediately file . . . a written
statement of his reasons for appointing" the lower-ranked
candidate. Here, Calvi issued a letter which compared Grenier
to candidates C, D, and E and explained how Grenier's candidacy
was deficient as compared to the lower-ranked individuals.
Accordingly, Grenier was provided the reasons underlying the
bypass and was able to meaningfully appeal the bypass. Contrast
Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 691 (2012)
(commission erred in failing to alert department that it would
15 be using certain expert evidence, impinging on ability of the
department to contest and respond to the evidence).
Judgment affirmed.
By the Court (Henry, Hershfang & Smyth, JJ.12),
Clerk
Entered: October 11, 2024.
12 The panelists are listed in order of seniority.