Appeals Court Withholds Civil Service Rights From Returning Disability Retiree, Saying Retraining Is Prerequisite For Tenure

A recent Appeals Court decision gives employers another tool in keeping public employees from returning to work after disability retirement. In Facella v. City of Newton, 69 Mass. App. Ct. 459 (2007), the Court denied civil service rights to a police officer returning from retirement because her employer had fired her before she had completed a back-to-work retraining program. The case expands on the Supreme Judicial Court’s 2001 decision in Sullivan v. Town of Brookline.

The case arises from a complicated aspect of the public employee retirement laws. Individuals who are disabled from performing their duties because of an on-duty injury may retire with a benefit equal to 72% of their pay, tax free. Any retirees who subsequently become able-bodied had to return to work if a position was available and the employer chose to take them back. In 1996, after newspaper reports that disabled retirees were working in physically-demanding jobs while earning a state pension, the Legislature amended the law to eliminate the discretion of the employer. Now, the employer has to take back the employee if he or she is designated by the state as able to do the work. In two 1998 cases, White v. City of Boston, and O’Neill v. City of Cambridge, the SJC explained to reluctant employers that the law meant what it said and the returning retirees must be taken back, if a position was available. (To complicate matters further, if there is no position available, the returning retiree is given a preference for the next opening.)

At about this time, public employers whose employees were covered by civil service law pointed out that Section 39 of Chapter 31 of the Mass. General Laws required civil service employees who were returning to work after an absence of five years or more to successfully complete a retraining program designed by the employer and approved by the state Human Resources Division. A question arose: When does the right of reinstatement begin, before or after the retraining?

The SJC answered the question in Sullivan v. Town of Brookline, 435 Mass. 353 (2001), in favor of the employers, who generally wanted their obligation to reinstate the returning retiree to begin as late as possible. Sullivan, who was required to complete a retraining program, but had not yet completed it, had no right to reinstatement, the Court ruled. His right (and the town’s obligation) only began after he had successfully completed the retraining.

Facella v. City of Newton, decided in 2007, follows up on a question left unanswered by Sullivan: what are the rights of a returning retiree who has actually been reinstated, but has not completed retraining? The answer: few to none. In Facella, the Appeals Court strengthened the Sullivan court’s conclusion that successfully completing retraining is the key factor in determining the employment status of disability retirees who retired more than five years earlier. The state cleared Facella as physically fit to return to a police officer position after 19 years on disability retirement. The City reinstated her, relying on the law as it existed at the time. The City assigned her to a desk job for several months, and then sent her to the police academy for a 22-week retraining course. During the retraining course, health issues caused her to drop out of the academy and be placed on sick leave. When Facella had not completed the academy 18 months later, the City terminated her employment. Facella sought to appeal her termination using the legal protections for tenured employees under civil service law. Under that law, Facella would have the right to a hearing before the employer, and the right to appeal to the Civil Service Commission, which would order her reinstated unless the City could prove it had just cause to fire her. The Appeals Court backed the City, ruling that Facella had never finished the retraining program, so she had never been fully reinstated as a tenured officer. At best, she was “conditionally reinstated … subject to her completing a retraining program.” 69 Mass. App. Ct. at 464. In other words, a disability retiree cleared to return to work has no legal claim on the employment, and no right to just cause protection against termination, unless and until the retiree completes training.

Sullivan in 2001 and Facella in 2007 may represent a trend towards strengthening the rights of employers in the returning disability retiree arena, after the strong pro-retiree statements of White and O’Neill in 1998. On the other hand, they may be only the courts’ response to a specific problem: how do the right to reinstatement and the retraining obligation intersect? With Sullivan and Facella, we have the answer to that question. Until another case comes along.