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13-P-1979                                             Appeals Court

    PAUL MENDONCA    vs.    CIVIL SERVICE COMMISSION & another.1


                             No. 13-P-1979.

        Suffolk.    September 15, 2014. - December 12, 2014.

               Present:    Berry, Kafker, & Carhart, JJ.


Veteran. Handicapped Persons. Public Employment, Provisional
     employee, Termination, Reinstatement of personnel. Civil
     Service, Termination of employment, Reinstatement of
     personnel. Employment, Termination. Administrative Law,
     Substantial evidence.



     Civil action commenced in the Superior Court Department on
January 13, 2012.

     The case was heard by Garry V. Inge, J., on a motion for
judgment on the pleadings.


     Richard L. Neumeier (Galen Gilbert with him) for the
plaintiff.
     Iraida J. Alvarez, Assistant Attorney General, for the
defendants.


    CARHART, J.     Paul Mendonca appeals from the entry of

judgment in favor of the defendants following a Superior Court


    1
        Executive Office of Labor and Workforce Development.
                                                                    2


judge's denial of his motion for judgment on the pleadings.

Mendonca had sought review pursuant to G. L. c. 31, § 44, of a

decision by the Civil Service Commission (commission) upholding

his layoff by the Executive Office of Labor and Workforce

Development (EOLWD).    Mendonca alleged that the layoff violated

his rights as a disabled veteran.    We agree and reverse.

    Background.      Mendonca is a disabled Vietnam War veteran.

He holds a bachelor of science degree in business management

from Suffolk University, and a master's degree in business

administration from the University of Massachusetts.     Mendonca's

extensive work history includes management, training, and

marketing in the human resources field.     He has negotiated and

managed labor agreements to ensure labor law compliance; he has

established and implemented human resources systems for various

companies; he has recruited and trained staff; and he has

secured competitive State abandoned property audit contracts for

private companies.

    On May 3, 1999, the Commonwealth hired Mendonca as a

provisional Administrator III.    A Management Questionnaire (MQ)

describing Mendonca's position shows that Mendonca was

responsible for administering the Commonwealth's federally

funded Job Search/Job Readiness Program (JS/JR).     Mendonca

worked closely with several State agencies, including the

Departments of Transitional Assistance (DTA), Unemployment
                                                                   3


Assistance (DUA), and Career Services (DCS), and ensured that

JS/JR "[wa]s operated according to Federal, State and

contractual requirements."     Mendonca's duties included

negotiating and drafting interdepartmental service agreements;

specifically, he "[r]ecommend[ed] amounts and conditions for

reimbursement, scope of services, program requirements, key

performance objectives, budget provisions and staffing

configurations to ensure contractual goals are achievable."

     On March 29, 2007, the human resources division of EOLWD

determined that the title Program Coordinator II more accurately

reflected Mendonca's duties.     However, Mendonca retained the

title Administrator III.     Mendonca was laid off on April 10,

2008, when his position was eliminated as a result of budget

cuts.   Four other Administrator III positions existed at that

time:   Web services manager, deputy director of contracts and

procurement (deputy director), Hurley Building superintendent

(superintendent), and manager of the office of multilingual

services.   The individuals holding these positions included one

veteran holding a permanent original appointment, and three

nonveterans.

     The MQ for each respective position lists its requirements.

The Web services manager must hold a "Bachelor's degree in Fine

Arts" and have five to ten years' experience developing and

managing Web sites.   The superintendent position "requires a
                                                                       4


high degree of technical knowledge in building systems including

fire detection/alarm systems; HVAC[2] systems; plumbing and

electrical systems; elevator systems; State and local building

codes; and [Americans with Disabilities Act] requirements."      The

superintendent "must be on call 24 hours a day, seven days a

week, and must be prepared to immediately bring resources to

bear to resolve emergency situations."    For example, the

superintendent must be able to resolve dangerous building

conditions and malfunctioning heating or air conditioning

systems.    The manager of the office of multilingual services

must be bilingual in English and Spanish, and the position

"requires mastery of several foreign languages" and a

"Linguistics degree."    Finally, the deputy director "advise[s]

agency personnel on procurement matters associated with the

Commonwealth's operations and policy to ensure . . . compliance

with all applicable state and federal laws, rules and

regulations."    The deputy director position entails managing and

training staff in matters "relating to procuring goods and

services; managing multi-year encumbrances of state and federal

funds for Federal/State programs, grants; Interdepartmental

Service Agreements and miscellaneous Agreements; writing

proposals . . . ; approving attorney fee requests; and contract

review."    The deputy director analyzes and recommends action on

     2
         Heating, ventilation, and air conditioning.
                                                                     5


issues relating to procurement and contracts with private

entities, "ensuring compliance with state and federal laws and

Executive Orders."   The position requires "a minimum of an

Associate[']s Degree in Accounting and or Business Management,"

along with five years' experience in accounting, finance, and

contract and procurement management.

    EOLWD determined that Mendonca could not be retained

because he was not qualified for any of the other Administrator

III positions.   Mendonca appealed EOLWD's decision to the

commission, which held a hearing on August 3, 2009.    David E.

Olsen, human resources director for EOLWD, testified that he was

responsible for laying off Mendonca.   He noted Mendonca's

veteran status and stated that he understood G. L. c. 31 to

require "[t]hat veterans shall be retained in title until all

other similarly situated offices are eliminated."   Olsen

therefore investigated the remaining Administrator III positions

to determine whether Mendonca could be retained.

    Olsen concluded that Mendonca could not be retained as an

Administrator III because the remaining positions were "very

different" from Mendonca's job, and "Mendonca's skill and his

personnel file, his resume, his background, had always been in

either human resources, job placement type of work."     Olsen did

not consider Mendonca for any positions outside of the

Administrator III title because the positions were "not
                                                                    6


similarly situated"; they either had different job

classifications or dealt with the public instead of staff.3

Olsen testified that, in evaluating Mendonca's case, he "was

operating within the scope of [his] interpretation of the law."

     Dana Johnson testified for Mendonca.    Johnson is a

rehabilitation counselor.    She evaluates individuals to

determine "if somebody's under employed or if somebody actually

is employable or what it would take to make somebody

employable."   She often provides expert testimony in insurance

and divorce cases.    Johnson testified that transferable skills

are those "that you can take from one job and bring them to

another."    Nontransferable skills are those limited to a

particular position or field.    In Johnson's opinion, Mendonca's

position as JS/JR coordinator required transferable skills

including:   evaluating a government program and determining what

training or further resources the employees may need to improve

performance; budgeting; handling State reimbursements;

coordinating services with other government agencies; and

     3
       Olsen testified that Administrator III was a "staff
oriented" position, meaning it dealt solely with a State agency
and its staff. A "line oriented" position deals directly with
the public. Mendonca was an Administrator III; however, Olsen
testified that Mendonca's duties more closely resembled those of
a "Program Manager." Olsen stated that he did not consider
Mendonca for any Program Manager positions because "[t]hose jobs
were line oriented as opposed to staff oriented," and it would
be very unlikely that a "staff oriented" manager would "cross
over" to become "line oriented" because it is rare that "[a]n
individual could possess both skills."
                                                                   7


assessing vendor contracts to ensure that the Commonwealth's

money is well spent.   Mendonca was required in his position to

read, analyze, and follow through on contracts, which Johnson

also considers to be transferable skills.

    On December 15, 2011, the hearing officer issued a written

decision which contained thirty-three findings of facts.   Of

particular relevance to our discussion is the following finding:

    "30. In regard to the position of Deputy Director of
    Contracts and Procurement, [Mendonca] has no experience in
    contract procurement activities and the laws regarding
    trade and procurement regulations. He has not reviewed
    procurement contracts, granted agreements or approved fee
    requests from attorneys representing [DUA], Unemployment
    Insurance clients. [Mendonca] does not possess knowledge
    of [EOLWD]'s Affirmative Market Program or of the laws and
    regulations on trade such as the North American Free Trade
    Agreement ('NAFTA') and the Trade Adjustment Assistance
    Act. Furthermore, [Mendonca] does not possess knowledge,
    skills or abilities relating to the MARS system (the
    state's accounting system), financial systems, or GAP
    (general accounting principles) policies and procedures
    specific to the comptroller's office."

    The hearing officer concluded, based on her findings, that

(1) Mendonca is not entitled to relief under the Veterans'

Tenure Act, G. L. c. 30, § 9A, because his position is

"classified"; (2) as a matter of law, Mendonca is not entitled

under the Disabled Veterans' Act, G. L. c. 31, § 26, to an

absolute preference in employment; (3) Mendonca is not entitled

to relief under G. L. c. 31, § 39, because he was a

"provisional" employee; and (4) EOLWD's decision that Mendonca

was not qualified for any of the other Administrator III
                                                                        8


positions was supported by substantial evidence.      Mendonca

sought Superior Court review pursuant to G. L. c. 31, § 44.        On

October 11, 2013, the Superior Court judge upheld the

commission's decision.

    Discussion.    1.    Standards of review.   The commission was

required "to determine, on the basis of the evidence before it,

whether [EOLWD] sustained its burden of proving, by a

preponderance of the evidence, that there was reasonable

justification for the action taken by [EOLWD]."      Brackett v.

Civil Serv. Commn., 447 Mass. 233, 241 (2006).     "Reasonable

justification in this context means 'done upon adequate reasons

sufficiently supported by credible evidence, when weighed by an

unprejudiced mind, guided by common sense and by correct rules

of law."   Ibid., quoting from Selectmen of Wakefield v. Judge of

First Dist. Ct. of E. Middlesex, 262 Mass. 477, 482 (1928).        The

judge was required to uphold the commission's decision if

supported by substantial evidence.    Ibid.

    "[W]e 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."      Plymouth v.

Civil Serv. Commn., 426 Mass. 1, 5 (1997).      While we are "bound

to accept the findings of fact of the commission's hearing

officer, if supported by substantial evidence," Leominster v.

Stratton, 58 Mass. App. Ct. 726, 728 (2003), "we are required to
                                                                       9


overturn commission decisions that are inconsistent with

governing law."    Plymouth, supra.     We review conclusions of law

de novo, Andrews v. Civil Serv. Commn., 446 Mass. 611, 615

(2006), and ask "whether, on the basis of the transcript of

evidence before the [hearing officer] and the [hearing

officer]'s findings and conclusions, the commission

substantially erred in a way that materially affected the rights

of the parties."     Gloucester v. Civil Serv. Commn., 408 Mass.

292, 297 (1990).     Mendonca bears the burden of proving the

invalidity of the commission's decision.       See Brackett, supra at

242.

       2.   Veterans' Tenure Act.    The hearing officer concluded

that Mendonca was not entitled to additional rights under the

Veterans' Tenure Act, G. L. c. 30, § 9A, because Administrator

III is a classified position.       Under that statute, veterans

holding positions not classified under the civil service laws

may not be laid off except in accordance with G. L. c. 31,

§§ 41-45.    G. L. c. 30, § 9A, as amended by St. 1978, c. 393,

§ 8.    General Laws c. 31, §§ 41-45, require that a layoff be for

"just cause," and that the employee have notice, a hearing, and

review of the decision.    If layoff of a veteran holding an

unclassified job "results from lack of work or lack of money,"

the Veterans' Tenure Act provides that such veteran "shall not

be separated     . . . while similar offices or positions in the
                                                                    10


same group or grade . . . exist unless all such offices or

positions are held by such veterans."    G. L. c. 30, § 9A.

     The Administrator III position is classified under the

civil service laws, see G. L. c. 31, § 45(1), and the Veterans'

Tenure Act applies, by its terms, to veterans holding positions

that are not classified.   See Aquino v. Civil Serv. Commn., 34

Mass. App. Ct. 538, 541 (1993) (applying the "well-known maxim"

that "expression of one thing is the exclusion of another").

Because Mendonca's position was "expressly exempted by the

language of [G. L. c. 31, § 9A,]" there was no error in the

hearing officer's conclusion.     Barkin v. Milk Control Commn., 8

Mass. App. Ct. 517, 520 (1979).

     Indeed, as a "provisional" employee, Mendonca could not

achieve tenure4 and could be terminated at any time.    See G. L.

c. 31, § 14; Sullivan v. Commissioner of Commerce & Dev., 351

Mass. 462, 465 (1966); Dallas v. Commissioner of Pub. Health, 1

Mass. App. Ct. 768, 771 (1974); Fall River v. AFSCME Council 93,

Local 3177, AFL-CIO, 61 Mass. App. Ct. 404, 408 n.4 (2004).

EOLWD did not need to show just cause for its action, Rafferty

v. Commissioner of Pub. Welfare, 20 Mass. App. Ct. 718, 723


     4
       "A tenured employee in the civil service system is one who
initially occupied a position by original appointment pursuant
to G. L. c. 31, § 6, and has completed the probationary period,
or one who has received a 'promotional appointment' on a
permanent basis as provided in G. L. c. 31, § 8." Andrews, 446
Mass. at 613.
                                                                    11


(1985), and Mendonca was not entitled to a hearing because he

was not "discharged as a result of allegations relative to his

personal character or work performance."    G. L. c. 31, § 41,

inserted by St. 1978, c. 393, § 11.

    3.   Disabled Veterans' Act.     Under the Disabled Veterans'

Act, "[a]n appointing authority shall appoint a veteran in

making a provisional appointment under section twelve," and "[a]

disabled veteran shall be retained in employment in preference

to all other persons, including veterans."    G. L. c. 31, § 26,

inserted by St. 1978, c. 393, § 11.     General Laws c. 31, § 26,

represents "a legislatively created mechanism under which

veterans receive a preference over non-veterans in certain types

of civil service employment."   Aquino, 34 Mass. App. Ct. at 539.

Because the statute requires that "disabled veterans be[] kept

on the payroll in preference to others," Provencal v. Police

Dept. of Worcester, 423 Mass. 626, 630 (1996), "all employees

having the same title in a particular departmental unit who are

not disabled veterans must be laid off first according to

seniority, followed by such employees who are disabled veterans

according to seniority."   1980 Op. Atty. Gen., Rep. A.G., Pub.

Doc. No. 12 at 98 (July 21, 1980).

    Here, EOLWD laid off Mendonca while retaining three

Administrator IIIs who are not veterans, and one Administrator

III who is not a disabled veteran.    The hearing officer
                                                                     12


concluded that EOLWD's actions did not violate G. L. c. 31,

§ 26, because "substantial evidence established that [Mendonca]

could not show that there were any other Administrator III

positions for which he was qualified within EOLWD into which he

could have been transferred."    Massachusetts courts have

recognized a "basic requirement that the veteran being preferred

be otherwise qualified to perform the duties of the office or

position to which he was appointed."    Hutcheson v. Director of

Civil Serv., 361 Mass. 480, 497-498 (1972) (Quirico, J.,

dissenting), and cases cited.   Mendonca offered his resume and

Johnson's testimony to demonstrate his qualification for two of

the remaining Administrator III positions -- Hurley Building

superintendent and deputy director of contracts and procurement.

The hearing officer relied on Olsen's testimony, the documentary

evidence, and Johnson's testimony regarding transferable skills

in concluding that Mendonca was not qualified for any other

Administrator III positions.    While the record supports the

hearing officer's findings concerning the Hurley Building

superintendent position, we cannot agree that it provides

substantial evidence that Mendonca was unqualified for the

deputy director position.

    "'Substantial evidence' means such evidence as a reasonable

mind might accept as adequate to support a conclusion."      G. L.

c. 30A, § 1(6).   While Olsen testified that Mendonca's job "was
                                                                  13


very different" from those performed by the other Administrator

IIIs, the title Administrator III is "applied to a position or

to a group of positions having similar duties and the same

general level of responsibility."   G. L. c. 31, § 1, inserted by

St. 1978, c. 393, § 11 (defining "Title").   To avoid this

reality, Olsen testified that Mendonca's duties more closely

resembled those of a program manager, which is a "line oriented"

position.   Olsen then stated that he did not consider Mendonca

for a program manager position because they were "line oriented"

as opposed to "staff oriented" and therefore not "similarly

situated" to Mendonca's Administrator III position.   Thus,

according to Olsen's testimony, Mendonca was not qualified for

the Administrator III positions because those are "staff

oriented" and Mendonca was a "line manager," and Olsen did not

need to consider Mendonca for a "line oriented" program manager

position because Administrator III is "staff oriented" and G. L.

c. 31, § 26, only requires Olsen to investigate "similarly

situated offices."

    In hiring Mendonca as a provisional employee, EOLWD was

required to substantiate that Mendonca "meets the proposed

requirements for appointment to the position [of Administrator

III] and possesses the knowledge, skills and abilities necessary

to perform such duties."   G. L. c. 31, § 13, amended by St.

1985, c. 257, § 4.   "A provisional appointment . . . shall be
                                                                   14


terminated" whenever it is determined "that the person appointed

does not, in fact, possess the approved qualifications or

satisfy the approved requirements for the position," G. L.

c. 31, § 14, inserted by St. 1978, c. 393, § 11; however,

Mendonca's provisional employment was not terminated when he was

reclassified as a "line oriented" Program Coordinator II.

Olsen's stated justification for not retaining Mendonca either

in his titled Administrator III position or in the Program

Coordinator II position was that an individual rarely possesses

the skills to work in both "staff oriented" and "line oriented"

positions.   Olsen also testified that Mendonca's experience was

in human resources (a "staff oriented" field), and that his

duties as JS/JR coordinator more closely resembled those of a

"line manager."   We do not think that "under the substantial

evidence test," Olsen's inconsistent testimony and circular

logic could "reasonably form the basis of impartial, reasoned

judgment."   Cobble v. Commissioner of the Dept. of Social

Servs., 430 Mass. 385, 393 n.8 (1999).

    The deputy director position requires an associate's degree

in business administration.   Mendonca has a bachelor's degree in

business management and a master's degree in business

administration.   While the hearing officer found that Mendonca

"does not possess knowledge, skills or abilities relating to

the" Commonwealth's accounting system, financial systems, and
                                                                  15


general accounting policies and procedures specific to the

comptroller's office, Mendonca's MQ shows that he was

responsible for "reconciling statewide claimed earnings,

invoicing, determining and accounting for specific Career Center

earnings," and working closely with other EOLWD departments "for

successful program outcomes and adherence to approved budgets."

Moreover, Johnson testified that Mendonca's experience "working

with the state reimbursement," "do[ing] some of the budgeting

work and work[ing] within the system" were transferable skills.

    The hearing officer found that Mendonca "has no experience

in contract procurement activities and the laws regarding trade

and procurement regulations" despite crediting Johnson's

testimony that Mendonca's transferable skills include "being

able to analyze contracts, being able to work with vendors,

. . . being able to work with other state agencies, [and] being

able to read and analyze the requirements for submitting . . .

requests."   Mendonca's position as JS/JR coordinator involved

reading, analyzing, and following through on contracts while

following State procedures.   Mendonca's experience in labor

relations undoubtedly involved reading, analyzing, and applying

Federal laws and regulations, and his resume demonstrates that

he has experience with cash management and audits in relation to

compensation and benefits.    As an Administrator III, Mendonca

"reconcile[d] performance earnings for the JS/JR program,"
                                                                    16


"[r]ecommend[ed] amounts and conditions for reimbursement," and

"[m]onitor[ed] the preparation of documents to validate DCS

compensation, resolve discrepancies and prepare invoice to DTA

to secure program funding."    Thus, contrary to the hearing

officer's finding, Mendonca does "possess knowledge, skills or

abilities" relating to financial systems and general accounting

policies and procedures specific to the Commonwealth.

    While "the substantial evidence test accords an appropriate

degree of judicial deference to administrative decisions,"

reversal by a reviewing court is required "if the cumulative

weight of the evidence tends substantially toward opposite

inferences."   Cobble, supra at 391.   The evidence in this case

demonstrates that Mendonca is a disabled veteran, that he is

qualified for the Administrator III position, and that EOLWD

laid him off while retaining four Administrator IIIs who are not

disabled veterans.    General Laws c. 31, § 26, mandates a

preference for disabled veterans in continuing the employer-

employee relationship, Provencal, 423 Mass. at 628, and applies

with respect to other employees in the same title.    Andrews, 446

Mass. at 616-617.    "Preference to veterans must be a reality[;]

[i]t cannot be made illusory or a mere gesture" by performing

only the most cursory consideration of a veteran's

qualifications for similarly situated positions.     Opinion of the

Justices, 324 Mass. 736, 744 (1949).   Olsen's stated reasons for
                                                                  17


not retaining Mendonca cannot be considered "sufficiently

supported by credible evidence" to overcome the preference which

the statute provides, Selectmen of Wakefield, 262 Mass. at 482;

nor does his testimony provide substantial evidence in support

of the hearing officer's findings.   The judge's decision

upholding the hearing officer's findings and conclusions is not

"legally tenable" in light of the statutory preference for

disabled veterans, School Comm. of Brockton v. Civil Serv.

Commn., 43 Mass. App. Ct. 486, 490 (1997), quoting from

Gloucester v. Civil Serv. Commn., 408 Mass. 292, 297 (1990).5

     Conclusion.   The judgment is reversed, and the case is

remanded to the Superior Court for the entry of a new judgment

ordering the commission to vacate its decision and enter a new

decision ordering the reinstatement of Mendonca to an

Administrative III position retroactive to April 10, 2008.

                                     So ordered.




     5
       The defendants argue that Mendonca has waived his right to
be reinstated as an Administrator III because the JS/JR program
has been eliminated and he only sought reinstatement to his "old
job" in Superior Court. However, Mendonca also sought from the
Superior Court "a Decision . . . finding that the lay off from
his position was not justified." Because Mendonca is entitled
to the veterans' preference, which applies to those holding the
same title, Andrews, supra, he has not waived his right to be
reinstated as an Administrator III.
