Susan Ledoux v. Bristol Community College.

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

24-P-1277

SUSAN LEDOUX

vs.

BRISTOL COMMUNITY COLLEGE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After the plaintiff, Susan Ledoux, prevailed on certain

employment-related claims against the defendant, Bristol

Community College (BCC), a judge of the Superior Court ordered

BCC to hire her in a specific position. BCC appealed from the

judgment1 and petitioned a single justice of this court for a

stay of the judgment pending the appeal. The single justice

denied the motion and BCC now appeals from the ruling of the

single justice, pursuant to Mass. R. A. P. 6, as appearing in

494 Mass. 1601 (2024). We affirm.

Background. We briefly summarize the procedural history of

the case and the facts as the jury could have found them,

1 The appeal from the judgment is not before this panel.
reserving certain facts for later discussion. The plaintiff was

employed by BCC from 1990 to 2010. From 1990 to 1997, she

worked as a security officer. In 1997, she was promoted to

campus police officer (CPO). In 2006, she was promoted to

sergeant. In January 2010, the plaintiff filed a complaint with

the Massachusetts Commission Against Discrimination charging BCC

with sexual harassment and unlawful gender discrimination.

Following a threat by a human resources employee to fire her

unless she rescinded her complaint, the plaintiff suffered a

stress-induced seizure and took medical leave.

In August 2010, the plaintiff attempted to return to work.

The defendant terminated her employment on the ground that she

had failed to provide proper medical documentation of her

recovery. In 2014, an arbitrator upheld that termination under

the collective bargaining agreement (CBA) governing the

plaintiff's employment.2

In August 2012, the plaintiff brought an action against BCC

alleging gender discrimination and sexual harassment under the

2 The arbitration award was confirmed by a judge of the
Superior Court, and subsequently that judgment was affirmed by a
panel of this court. American Fed'n of State, County & Mun.
Employees, Council 93 v. Board of Higher Educ., 89 Mass. App.
Ct. 1134 (2016).

2
Massachusetts antidiscrimination statute, G. L. c. 151B. A jury

found for the plaintiff on both claims and awarded damages.3

In January 2016, the plaintiff applied for a position at

BCC as a CPO. She was the only applicant who had previously

worked for BCC. Her application was rejected at the screening

stage for the purported reason that she lied on her resume, and

another applicant was hired instead.4 The plaintiff brought this

action against BCC alleging that it had violated the hiring

preference required by the workers' compensation act, G. L.

c. 152, § 75A, and had retaliated against her in violation of

G. L. c. 151B, § 4. A jury, finding that the reason given for

rejecting the plaintiff's application was pretextual, found for

the plaintiff on both claims.

On May 16, 2024, a judgment for equitable relief entered

ordering the defendant to offer the plaintiff a "suitable job"

as required by G. L. c. 152, § 75A, and to submit a status

report within thirty days specifying how it proposed to comply

with the judgment. On June 17, 2024, BCC submitted a status

3 The defendant appealed from the ensuing judgment. A panel
of this court affirmed the judgment awarding punitive and
compensatory damages, but vacated the award of front and back
pay. Ledoux, v. Bristol Community College, 96 Mass. App. Ct.
1108 (2019).

4 A jury later found that the plaintiff was at least as
qualified for the position as any other candidate.

3
report requesting a stay pending appeal of the judgment ordering

it to provide the plaintiff with a "suitable job."

On July 31, 2024, finding that BCC had failed to specify

how it proposed to comply with the order, the judge denied the

motion for a stay and ordered a hearing to review BCC's

compliance with his order. At that hearing in August 2024, the

judge found that the job of "campus police officer" (with some

modifications) was the most suitable for the plaintiff.

On September 3, 2024, an amended judgment for equitable

relief (judgment) entered ordering BCC to grant the plaintiff a

job as a CPO within thirty days. The judgment entitled the

plaintiff to the usual pay and benefits accompanying a "CPO-1"

position. However, until the plaintiff obtained the required

certifications imposed by the Massachusetts Peace Officer

Standards and Training (POST) Commission, G. L. c. 6E, § 2, and

the Massachusetts Municipal Police Training Committee, G. L.

c. 6, § 116, the judgment limited the plaintiff's employment

duties to those of a civilian employee of a police department of

a public university or college and withheld the power to make

arrests or carry a firearm. The judgment required the plaintiff

to exercise reasonable efforts and good faith in obtaining these

certifications. For purposes other than damages for lost wages

and employment benefits, the judgment established the

plaintiff's date of rehire nunc pro tunc as February 29, 2016,

4
the date on which BCC should have rehired the plaintiff. The

judgment operates as a permanent injunction and requires court

approval of any adverse alterations to the plaintiff's position,

including termination, suspension, or pay reduction.

On September 13, 2024, BCC filed a motion on an emergency

basis to alter or amend the judgment's deadline for compliance

and a notice of intent to file a motion to alter or amend the

judgment. One week later, the judge stayed the judgment pending

resolution of the substantive motion to alter or amend. On

October 8, 2024, BCC filed its motion and on October 15, the

judge denied the motion but stayed the deadline for compliance

until October 28, to give BCC an opportunity to seek relief from

a single justice of the Appeals Court. On October 24, 2024, the

defendant filed a motion to stay pending appeal with a single

justice of this court, pursuant to Mass. R. A. P. 6 (a).5 On

October 28, 2024, the single justice denied BCC's motion on the

grounds that BCC had not demonstrated a likelihood of success on

the merits. BCC appealed.

Discussion. 1. Standard of review. An appellant seeking

a stay pending appeal ordinarily must demonstrate "(1) the

likelihood of appellant's success on the merits; (2) the

5 The defendant filed a full appeal on the merits, including
an appeal of the judgment at issue in this case, on September
30, 2024. That appeal is not before us.

5
likelihood of irreparable harm to appellant if the court denies

the stay; (3) the absence of substantial harm to other parties

if the stay issues; and (4) the absence of harm to the public

interest from granting the stay" (citation omitted). C.E. v.

J.E., 472 Mass. 1016, 1017 (2015). The first factor requires

the appellant to "show that there is at least one appellate

issue of sufficient heft that would give an appellate court

pause." Commonwealth v. Nash, 486 Mass. 394, 404 (2020).

Failure to make that showing is fatal to a motion to stay. See

C.E., supra.

"The appellate court's role is to review the single

justice's ruling [on a motion to stay] for error of law or abuse

of discretion. The appellate court does not exercise its own

independent discretion to evaluate the request for a stay."

(Citation omitted.) Nash, 486 Mass. at 412. However, because

the determination of likelihood of success on the merits

"involves a 'pure question of law or legal judgment,' the single

justice's decision on this factor receives no deference from a

reviewing court." Commonwealth v. Kalila, 493 Mass. 636, 642

(2024), quoting Commonwealth v. Allen, 378 Mass. 489, 498

(1979).

2. Likelihood of success on merits. a. General Laws

c. 6E, § 4 (g). The defendant argues that the plaintiff cannot

be appointed as a CPO because G. L. c. 6E, § 4 (g), enacted

6
while this litigation was pending, prohibits an "agency [from]

appoint[ing] or employ[ing] a person as a law enforcement

officer unless the person is certified by the [POST]

commission." See St. 2020, c. 253, § 30. Since the plaintiff

has not completed the steps for POST certification, BCC contends

that it is legally prohibited from hiring her. See 550 Code

Mass. Regs. §§ 3.00 (2025); 555 Code Mass. Regs. §§ 9.00 (2025).6

We do not read the judge's order as a substitute for POST

certification.

The POST commission has issued guidance on the construction

of G. L. c. 6E, clarifying its understanding that the term "law

enforcement officer," as defined in G. L. c. 6E, § 1, is limited

to full-fledged police officers and other officers who carry

weapons or have the power to make arrests. See Massachusetts

Peace Officer Standards and Training Commission, Construction of

Scope of Chapter 6E of the Massachusetts General Laws (Apr. 4,

2022).

Although the judgment facially requires BCC to grant the

plaintiff a job as a "campus police officer," in substance it

initially requires only that BCC grant her a job as an

institutional security officer (ISO) with special pay and

6 We cite to the version of the regulations currently in
effect.

7
status.7 Until the plaintiff receives the necessary

certifications to exercise police powers, the judgment expressly

withholds from her the power to make arrests or carry a firearm

on duty. The plaintiff's employment as a "law enforcement

officer" is thereby conditioned on her becoming certified by

POST. The judgment does not run afoul of the prohibition

contained in G. L. c. 6E, § 4 (g).

b. Workers' compensation hiring preference statute. i.

Order's consistency with CBA. The defendant contends that the

judgment is inconsistent with the applicable CBA because it

requires BCC to obtain approval from the court before taking

adverse employment actions against the plaintiff and to

compensate the plaintiff at the pay grade for a CPO while she

performs the lesser duties of an ISO, whereas the CBA contains

its own provisions governing dispute resolution procedures and

pay scale. The defendant argues that the workers' compensation

hiring preference statute, G. L. c. 152, § 75A, "prohibits the

court from issuing an order inconsistent with an applicable

CBA." This argument lacks merit because it is not plausibly

grounded in the statute. Section 75A provides that

"Any person who has lost a job as a result of an injury
compensable under this chapter shall be given preference in

7 The defendant apparently concedes that an ISO would not be
subject to POST requirements when it argues that "[t]he order
could be modified to avoid these statutory violations by
requiring BCC to hire Ledoux as an ISO."

8
hiring by the employer for whom he worked at the time of
compensable injury over any persons not at the time of
application for reemployment employed by such employer;
provided, however, that a suitable job is available. . . .
An employer found to have violated this section shall be
exclusively liable to pay to the employee lost wages, shall
grant the employee a suitable job, and shall reimburse
. . . reasonable attorney fees incurred in the protection
of rights granted by this section . . . .

"In the event that any right set forth in this section is
inconsistent with an applicable collective bargaining
agreement . . . , the collective bargaining agreement . . .
shall prevail."

Section 75A "define[s] the rights of an employee such as the

plaintiff and the relief available when those rights are

violated." Federici v. Mansfield Credit Union, 399 Mass. 592,

597 (1987). Here, the judge's order sought to secure the

plaintiff's "rights" under the statute (hiring preference) by

providing relief in the form of lost wages, suitable job, and

attorney's fees. When the applicable CBA does not conflict with

the statutory right to a hiring preference, nothing in the

statute constrains the court's equitable power to provide a

plaintiff relief in the form of a suitable job. See Judge

Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of

Mental Retardation (No. 1), 424 Mass. 430, 463 (1997) ("A court

with equity jurisdiction has broad and flexible powers to

fashion remedies").

For similar reasons, we disagree with the defendant's

public policy argument. The defendant contends that the

9
judgment contravenes public policy favoring arbitration and

collective bargaining. While arbitration has been considered an

"appropriate and effective means to resolve labor disputes,"

School Comm. of Pittsfield v. United Educators of Pittsfield,

438 Mass. 753, 758 (2003), the defendant's own actions --

discriminating against the plaintiff, violating the hiring

preference, and failing to comply with the initial order to

propose a suitable job -- contravened public policy and

necessitated the court's equitable intervention in the first

place.

ii. Additional challenges. The defendant makes three

additional arguments that it is likely to succeed on the merits

in challenging the judgment on the workers' compensation hiring

preference claim underlying the judgment. None of these

arguments bear the requisite likelihood of success.

First, BCC contends that the court erred in denying BCC's

motion for judgment notwithstanding the verdict (judgment

n.o.v.) because the CBA sets forth specific hiring criteria that

are allegedly inconsistent with the hiring preference in G. L.

c. 152, § 75A, such that the plaintiff was not entitled to the

latter.

However, article 9 of the CBA provides that the CBA shall

not be construed to restrict the rights of employees under the

Massachusetts General Laws. The only way to reconcile that CBA

10
provision with the right to a hiring preference set forth in

§ 75A is to read the five criteria for candidate selection

contained in article 19 of the CBA as a nonexhaustive list that

incorporates § 75A's preference. As the judge detailed in his

order denying BCC's motion for judgment n.o.v., this can be

accomplished in a manner that is faithful to both the CBA and

§ 75A. Therefore, the CBA did not override the plaintiff's

right to a hiring preference under § 75A.

Second, BCC argues that the judge erred in ruling that the

plaintiff lost her job "as a result of a compensable injury,"

within the meaning of § 75A, despite "instructing the jury on

the arbitrator's express finding to the contrary."

In fact, the arbitrator's finding that BCC lawfully

terminated the plaintiff's employment for failure to demonstrate

that she had recovered sufficiently such that she was able to

return to work supports the judge's ruling. Since BCC knew that

the plaintiff was receiving workers' compensation for her injury

and terminated her for failing to prove she recovered from that

same compensable injury, the plaintiff was terminated "as a

result of [the] compensable injury." See, e.g., Barbuto v.

Advantage Sales & Mktg., LLC, 477 Mass. 456, 462-463 (2017)

(employee terminated for failing drug test, where failure is due

11
to medical marijuana prescribed for recognized disability, is

terminated "because of" her disability).8

Finally, BCC contends that the judge erred by ordering the

date of hire for the plaintiff nunc pro tunc to 2016, because

§ 75A "does not give the court the authority to require BCC to

grant a suitable job retroactive to any past date." BCC

provides no authority for its assertion that the court's

equitable power to order a suitable job can never apply

retroactively, notwithstanding the court's "broad and flexible

powers to fashion [equitable] remedies." Judge Rotenberg Educ.

Ctr., Inc., 424 Mass. at 463. Instead, BCC asserts that the

retroactive order would unfairly exempt the plaintiff from

certain training requirements contained in 550 Code Mass. Regs.

§§ 3.03, and 3.04. We disagree.

The only relevant provisions in the cited sections that

could depend on the plaintiff's date of rehire are the training

requirements following interruptions in service, which vary

based on how recently an officer has "actively performed police

8 The only published decision cited by BCC in support of its
position is Tunnicliff v. Department of Employment & Training,
35 Mass. App. Ct. 945 (1994). However, that case is inapposite
because there, the plaintiff resigned shortly after receiving
workers' compensation.

12
duties and functions."9 550 Code Mass. Regs. § 3.04. Since the

plaintiff, pursuant to the judgment, will not be able to perform

"police duties and functions" for BCC until she is POST-

certified, the formal backdating of her rehire date cannot

affect these provisions.

Conclusion. For the foregoing reasons, we determine that

none of the issues presented by BCC are likely to succeed on the

9 "Police Duties and Functions" include, among other things,
"suppressing and preventing disturbances and disorder; . . .
entering private premises to suppress breaches of the peace;
stopping, arresting, processing, and confining suspects;
searching individuals, and seizing evidence and contraband;
[and] carrying a weapon." 550 Code Mass. Regs. § 3.02.

13
merits. Accordingly, the single justice did not err in denying

the defendant's motion to stay.10,11

Order of single justice
denying motion to stay
affirmed.

By the Court (Hand, Hodgens &
Tan, JJ.12),

Clerk

Entered: January 23, 2026.

10In light of this conclusion, we need not address any of
BCC's arguments concerning the other three factors.

11The plaintiff's request for attorney's fees in connection
with this appeal is allowed. See G. L. c. 152, § 75A. In
accordance with the procedure set forth in Fabre v. Walton, 441
Mass. 9, 10-11 (2004), the plaintiff may file an application for
appellate attorney's fees within fourteen days of this decision,
along with supporting documentation, after which BCC shall have
fourteen days within which to respond.

12 The panelists are listed in order of seniority.

14