MARC SAVAGE v. CITY OF SPRINGFIELD & Others.

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-426

MARC SAVAGE

vs.

CITY OF SPRINGFIELD & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff challenges the process by which the

defendants announced and administered a promotional examination.

The plaintiff was, until his retirement, a firefighter in the

city of Springfield; he retired at the rank of fire captain.

The Massachusetts Civil Service Commission (CSC or commission)

ruled against the plaintiff in his administrative action; a

judge of the Superior Court affirmed and we do the same.

The core facts are not disputed. On May 22, 2019, the

Springfield Fire Department (department), under responsibility

delegated by the Massachusetts Human Resource Division (HRD),

announced an upcoming examination for promotion to the position

of deputy fire chief. The examination was scheduled to take

1 Massachusetts Civil Service Commission and Massachusetts Human
Resource Division.
place on June 18, 2019; applications were due by June 4; and the

examination was open to current employees holding the title of

district fire chief. By June 4, only three employees had

registered to take the examination. On June 5, a new posting

expanded the eligibility to include fire captains (second

posting). The second posting listed the same "opening date,"

May 22, and the same examination date (June 18), but had an

extended application deadline of June 12. As a fire captain,

the plaintiff was then eligible to take the examination. The

plaintiff saw the second posting before June 12.2 He neither

applied for nor sat for the examination.

The plaintiff appealed on October 15, 2019, citing what he

claimed was the department's failure to follow the "statutory

posting requirements" for the examination by "not posting the AC

notice at least six weeks before the desired AC date" and by

then re-posting the notice, again less than six weeks in

advance. As we understand the claim, the plaintiff maintains

that both the initial May 22 posting and the second posting were

too late. He bases this on an HRD memorandum dated May 3, 2018,

entitled, "Examination Options." In his notice of appeal, the

plaintiff also drew a parallel to the 2014 administration of a

promotional examination; in that case, because too few

2 The plaintiff "knew of the exam before it was administered" and
saw the posting on June 10, 2019.

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applicants had registered, the examination was nullified and

rescheduled after it was administered. The plaintiff maintains

that he was improperly treated differently from another fire

department employee after each had pointed out an irregularity

in the administration of a promotional examination.

The CSC identified two threshold issues with the

plaintiff's appeal, timeliness and standing; only timeliness is

before us.3 The CSC concluded that, because the plaintiff's

appeal was filed more than thirty days after the date of the

examination, his appeal was not timely.

We begin with the standard of review.

"We may set aside the commission's decision only if '"the
substantial rights of any party may have been prejudiced"
[because the commission decision] is based on an error of
law, unsupported by substantial evidence, or otherwise not
in accordance with the law.' . . . The party appealing
bears a heavy burden because 'we give "due weight to the
experience, technical competence, and specialized
knowledge of the commission."'"

Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 215 (2018),

quoting Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 689

(2012) (quoting G. L. c. 30, § 14 [7]).

The CSC identified two statutory time limits that could

apply. The first, G. L. c. 31, § 22, sets a time limit (seven

3 The CSC did not decide whether the plaintiff was an "aggrieved
person" such that he could maintain the appeal, but rather based
its ruling on the timing of his filing. We assume without
deciding, as the CSC appears to have done, that the plaintiff
had standing to maintain his appeal.

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or seventeen days, depending on the nature of the objection) for

objecting to various aspects of an examination. The CSC appears

to have concluded that the seven-day limit most closely fits the

facts of the plaintiff's case; since his claim would be barred

under either rubric, we need not decide which may apply.

The second statutory limit appears in the Standard

Adjudicatory Rules of Practice and Procedure, found at 801 Code

Mass. Regs. § 1.01(6) (2020).4 Under the catchall provision in

this subsection, a notice of claim "must be filed within 30 days

from the date that the Agency notice of action is sent to" the

party. Id.

Neither provision is a natural fit for this case. The

plaintiff neither registered for nor took the examination, so

G. L. c. 31, § 22, does not obviously apply. He received no

"Agency notice of action," rendering application of 801 Code

Mass. Regs. § 1.01(6) awkward at best. Nonetheless, there is no

dispute that the plaintiff's appeal, filed some four months

after the date of the examination, was untimely under either of

these statutes, as the plaintiff appears to concede. Rather,

the plaintiff's main claim sounds in equity. He compares CSC's

response to his appeal to its response to the 2014 incident that

resulted in an examination's being canceled after it had been

4 The commission voluntarily adopted these standard rules.
Falmouth v. Civil Serv. Comm'n, 447 Mass. 814, 817 n.4 (2006).

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administered. Equity, the plaintiff maintains, requires that

his late appeal be treated similarly and allowed to proceed; the

CSC's failure to recognize this, in his view, amounts to

discrimination.

Analysis of this claim requires an understanding of the

facts of the 2014 situation, which we address in broad strokes,

as the parties are familiar with them. In 2014, a former fire

commissioner, Joseph Conant, reported by e-mail to the HRD some

three months after a promotional examination that the

examination had not complied with a statutory requirement. Only

two applicants had sat for the 2014 examination, and the statute

required at least four.5 As a result of the commissioner's

report, the HRD voided the results of the 2014 examination and

the examination was administered again. The plaintiff, who had

been one of the two applicants who took the original 2014

examination, appealed to the CSC, contesting this decision.

Ruling that "Chapter 31 Sec. 59 does not limit HRD from taking

retroactive measures to assure statutory compliance," the

5 Under G. L. c. 31, § 59, a promotional examination in the fire
department is open "only to permanent employees in the next
lower title in such force, except that if the number of such
employees, or the number of applicants eligible for the
examination is less than four, the examination shall be opened
to permanent employees in the next lower titles in succession in
such force until either four such eligible employees have
applied," or until all lower-level permanent employees are
eligible.

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commission left undisturbed HRD's decision to vacate and

readminister the 2014 examination.

The plaintiff maintains that the commission's different

treatment of the 2014 examination and his present claims amounts

to discrimination because the commission canceled an examination

after Conant's e-mail but did nothing in response to the

plaintiff's claim on appeal.6 We discern no error of law in the

commission's analysis of the timeliness of the plaintiff's

claim. See Spencer, 479 Mass. at 215. As noted above, the

plaintiff's claim was untimely under either applicable statute.

Because the plaintiff cites no authority that requires the

6 Although the matter is not before us -- the CSC did not rule on
this basis -- we do not see the disparity as the plaintiff does.
In the 2014 case, the law required four candidates, and there
were only two. G. L. c. 31, § 59. In this case, by contrast,
the plaintiff has identified no statutory or regulatory
requirement that the examination be rescheduled. In support of
his claim that the postings were untimely, he refers to a
memorandum that, as far as is obvious, neither has the force of
law nor mandates the posting requirements the plaintiff claims
it does. The situations are simply different.

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commission to consider his untimely claim, and because we are

aware of none, we affirm.

Judgment affirmed.

By the Court (Hand,
Hershfang & Brennan, JJ.7),

Assistant Clerk

Entered: March 19, 2024.

7 The panelists are listed in order of seniority.

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