Fire Captain Files Appeal In Wrong Place, Loses Challenge To Suspension

On March 12, 2007, James Berlo, a captain in the Boston Fire Department, tested positive for a narcotic when administered a random drug test by the Department. The Department’s Hearing Board imposed a one-month unpaid suspension. The Board’s decision informed Berlo of his right to appeal to the Boston Civil Service Commission.

Bypassing the Commission, Berlo challenged his suspension in court. When his lawsuit was dismissed, he appealed to the Massachusetts Appeals Court.

The Court upheld the dismissal of Berlo’s lawsuit. The Court found that the law required Berlo to exhaust his Civil Service remedies before appealing to court: “Berlo is a person aggrieved by a decision of an appointing authority, and he must therefore appeal in writing to the commission. The law specifically refers to the commission’s need to determine whether there was ‘just cause for an action taken against such person’ in resolving an appeal under that provision. Berlo was required to appeal the decision ‘within 10 days after receiving written notice of such decision.’ He failed to do so even though the decision itself informed him of this requirement.”

Berlo v. City of Boston, 935 N.E.2d 358 (Mass. App. 2010).

This article appears in the February 2011 issue