Five Days, For Purposes of Firefighter’s Suspension, Means Five Calendar Days

Barry Thornton is a lieutenant with the Andover, Massachusetts Fire Department. The Department has a requirement that individuals who are evaluated by rescue personnel and not transported to a medical facility should have a medical release signed by the patient. A memorandum from the Fire Chief made clear that the purpose of the policy was to obtain reimbursement from insurance companies for all emergency medical services and to generate additional revenue, including calls where a citizen is not transported to a hospital.

On May 3, 2008, Thornton and his crew responded to a report of an elderly man having fallen down on the sidewalk. Thornton’s crew cleaned and bandaged the cuts on the man’s hand and nose. Because the man refused transport to the hospital, Thornton canceled an ambulance. Shortly after the incident, the Fire Chief received a telephone call from a relative of the man to thank the responding crew for their kindness to him.

However, Thornton did not comply with the Department’s rule requiring that the citizen sign a release. Thornton later testified before the Civil Service Commission that he did not think the elderly man should be charged a fee for “sterile water and gauze pads.” After an investigation, the Department suspended Thornton for four shifts, covering the period between June 22, 2008 and July 7, 2008.

Under Massachusetts’ civil service laws, a fire department must grant a firefighter a hearing before imposing a suspension of “more than five days.” Since the Department did not grant Thornton a pre-suspension hearing, the question for the Massachusetts Court of Appeals was whether the phrase “five days” in the statute referred to calendar days or working days.

The Town argued that the civil service statute should be interpreted to allow suspension of an employee without a hearing for up to five “calendar workdays.” The Town contended that because of the firefighters’ unusual schedule, this would be the only way to ensure that such a suspension fell on five workdays, not including several days off.

The Court was unconvinced, finding that “to begin with, the plain language of the statute will not bear this reading. The statute only allows suspensions without a hearing that are for a ‘period’ of five days or less, which is most naturally read as a continuous interval of time. Moreover, the statute does not refer to ‘workdays,’ but to ‘days.’ Whether a day is a calendar day or a 24-hour day, unless modified by the word ‘work,’ is not a ‘workday’ (or a calendar workday). Finally, the exclusion of weekends and holidays would be incomprehensible if the “period” covered only calendar workdays.”

A dissenting judge argued that under a “calendar day” interpretation of the statute, “a firefighter suspended for two days might not be suspended for any workdays at all given a firefighter’s work schedule.” The Court disagreed, noting that nothing in the civil service statute “prohibits a Fire Chief from initiating a suspension on the day of his or her choosing, in order to ensure that a firefighter is not able, because of his or her particular work schedule, to avoid the effects of the suspension.”

Thornton v. Civil Service Commission, 80 Mass. App. 441 (Mass. App. 2011).

This article appears in the December 2011 issue.