PAUL DEFARIAS v. CIVIL SERVICE COMMISSION & Another.

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-1460

PAUL DEFARIAS

vs.

CIVIL SERVICE COMMISSION & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Paul DeFarias, appeals from a judgment of

the Superior Court affirming the decision of the Civil Service

Commission (commission) that the city of Gloucester (city) had

reasonable justification to bypass DeFarias for a firefighter

position. On appeal, DeFarias argues that because of flaws in

the city's background investigation, the commission erred by

finding that there was reasonable justification to bypass him.

We affirm.

Background. "We summarize the relevant facts found by the

commission and supported by substantial evidence, supplemented

with facts contained in the administrative record and consistent

1 City of Gloucester.
with the commission's findings."2 Boston Police Dep't v. Civil

Serv. Comm'n, 483 Mass. 461, 463 (2019).

In March 2022, the city posted four vacancies for

firefighter and paramedic positions in the city's fire

department. On March 30, 2022, the Commonwealth's human

resources division certified a ranked list of twenty-two

eligible applicants; DeFarias was ranked sixteenth. Five

eligible applicants, including DeFarias, visited the city's

offices, signed a copy of the candidate list, and collected the

application materials. At the time DeFarias applied for the

firefighter and paramedic position, he was approximately twenty-

four years old and was a licensed emergency medical technician

(EMT) and paramedic. He had also performed EMT or firefighting

work for several employers prior to applying to the city.

The city's mayor has the ultimate authority to appoint fire

department personnel, but it was the mayor's practice to adopt

the hiring recommendations of the city's fire chief, Eric Smith.

Smith in turn relied on the city's police department to conduct

background investigations of applicants for fire department

positions. Lieutenant Michael Williams and Detective Jonathan

Trefry conducted the background investigation of DeFarias.

2 Here, the commission adopted the findings of a magistrate
from the Division of Administrative Law Appeals, who had
conducted an evidentiary hearing after referral of DeFarias's
appeal by the commission.

2
Throughout the course of their investigation, the

detectives corresponded with eight other police departments to

collect police records relating to DeFarias, and they verified

his educational history through correspondence with two high

schools he had attended. The detectives also spoke by telephone

to six of DeFarias's prior employers and to three of his

personal references. The detectives did not run criminal

history and driving history checks as part of DeFarias's

background investigation, despite it being their normal practice

to conduct such checks.3

Much of the information the detectives collected was

positive. DeFarias's personal references praised him as a model

student, a "straight arrow," and a hard worker. His supervisor

at Zartech, where DeFarias is a fabrication shop technician,

stated that DeFarias is mature, honest, and generally an

"outstanding guy." In addition, the chief of the volunteer fire

department of Montverde, Florida, where DeFarias served as an

on-call volunteer firefighter in early 2017, reported that

DeFarias was well liked, exhibited good attendance, and had a

positive work ethic.

3 The magistrate found that the reason for this departure
was unknown. We note that DeFarias included a driving history
record in his application.

3
DeFarias has performed EMT or firefighting work for three

employers in Massachusetts: Cataldo Ambulance Service

(Cataldo), Beauport Ambulance Service (Beauport), and the

Lynnfield fire department (Lynnfield). Each of these employers

provided the detectives with "partly negative reviews" of

DeFarias. It is undisputed that Cataldo terminated DeFarias,

although the circumstances of the termination were "hazier."4

Beauport terminated DeFarias due to his "repeated clinical

errors" and "personality conflicts" between him and his

coworkers. Similarly, a captain at Lynnfield stated that he was

disinclined to hire DeFarias in the future because DeFarias had

"trouble catching on" and had "a few issues with peers."

Nonetheless, the captain liked DeFarias, praised his work ethic,

and suggested that the city should "give him a shot."

Members of the city's fire department interviewed the

candidates before the background investigations were complete;

DeFarias interviewed with Smith and two other officers. Smith

was not satisfied with DeFarias's account of the circumstances

surrounding his separation from employment with Cataldo. Smith

also told DeFarias that his background investigation was ongoing

4 DeFarias was suspended pending an investigation into a
complaint about an interaction with a patient. The magistrate
found that DeFarias was terminated because he did not leave the
premises promptly after being suspended and instead demanded
documentation about his suspension.

4
and invited DeFarias "to make any additional remarks that might

anticipate the investigation's findings."

Williams provided to Smith an investigation report dated

April 19, 2022, which only summarized the negative information

that Williams and Trefry had obtained regarding DeFarias's work

for Cataldo, Beauport, and Lynnfield. On the basis of that

information, Williams recommended against hiring DeFarias.

Smith reviewed Williams's investigation report and adopted

his recommendation not to hire DeFarias. The city ultimately

appointed three candidates, including one ranked lower than

DeFarias. The city sent a bypass letter to DeFarias, explaining

that he would not be hired because a reference check revealed

that he had been terminated or allowed to resign from positions

with prior employers due to "poor attendance; issues and poor

demeanor with coworkers; and the inability to learn quickly and

show progress."

Discussion. An appellate court "review[s] the commission's

decision under G. L. c. 31, § 44," Boston Police Dep't, 483

Mass. at 469, and it "will be upheld unless it is 'unsupported

by substantial evidence[,] . . . arbitrary or capricious, an

abuse of discretion, or otherwise not in accordance with the

law." Id., quoting G. L. c. 30A, § 14 (7). "Substantial

evidence is 'such evidence as a reasonable mind might accept as

adequate to support a conclusion.'" Boston Police Dep't, supra,

5
quoting G. L. c. 30A, § 1 (6). "The party appealing bears a

heavy burden because we give due weight to the experience,

technical competence, and specialized knowledge of the

commission" (quotations and citation omitted). Spencer v. Civil

Serv. Comm'n, 479 Mass. 210, 215 (2018). "This standard of

review is highly deferential to the agency on questions of fact

and reasonable inferences drawn therefrom." Brackett v. Civil

Serv. Comm'n, 447 Mass. 233, 242 (2006), quoting Flint v.

Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992).

DeFarias rightly highlights the significant problems with

the city's background investigation. Neither Williams nor

Trefry ever requested DeFarias's personnel files from any of his

prior employers. Moreover, both the investigation report and

the bypass letter claimed that DeFarias had poor attendance at a

former employer, which is inaccurate. Williams did not include

in his report the positive information that the detectives

collected. In other words, the investigation report presented

to the fire chief was not "reasonably thorough." Sherman v.

Randolph, 472 Mass. 802, 813 n.18 (2015). In addition, because

the interview took place while the background investigation was

ongoing, DeFarias did not have an opportunity to address the

negative findings. Equally troubling is the city's failure to

produce the detectives' investigation file until after the

6
evidentiary hearing before the magistrate, despite multiple

requests from DeFarias's attorney prior to that hearing.

In the future, we expect the city to conduct a thorough and

unbiased investigation and write a report that includes both

positive and negative findings before the interview to allow the

candidate to address negative findings during the interview.

But that is not the issue before us. Although the background

investigation was flawed, we must evaluate whether there was

substantial evidence that (1) "the appointing authority had a

reasonable justification on the merits for deciding to bypass"

DeFarias, and (2) "the flaws in the selection process are not so

severe that it is impossible to evaluate the merits from the

record." Sherman, 472 Mass. at 813. A bypass decision is

reasonably justified when it is made with "adequate reasons

sufficiently supported by credible evidence, when weighed by an

unprejudiced mind, guided by common sense and by correct rules

of law." Brackett, 447 Mass. at 241, quoting Selectmen of

Wakefield v. Judge of First Dist. Ct. of E. Middlesex, 262 Mass.

477, 482 (1928).

Here, under the Sherman framework, we are constrained to

conclude that -- despite the city's flawed investigation --

there was substantial evidence to justify the city's bypass of

7
DeFarias.5 We agree with the commission that the evidence of

concern by three of DeFarias's former employers at relevant work

experiences provided the city adequate reason not to hire him.6

Even if the city properly considered the positive aspects of

DeFarias's professional history, the negative aspects

nonetheless raised legitimate doubts about his suitability for a

firefighter position with the city. See Sherman, 472 Mass. at

813 n.18 ("appointing authority may rely upon credible anecdotal

evidence of job performance concerns to form the basis of a

5 Because the commission had access to the positive
information in the detectives' investigation file, along with
the investigation report and witness testimony, the flaws in the
background investigation did not make it "impossible to evaluate
the merits from the record." Sherman, 472 Mass. at 813.

6 To the extent DeFarias contends that the bypass decision
was unsupported by substantial evidence because the information
pertaining to his relevant work experience was based on
unreliable hearsay, we disagree. The commission credited the
testimony of Williams and Trefry, and their testimony is
generally supported by the administrative record. See Embers of
Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass.
526, 530 (1988) (hearsay may constitute substantial evidence in
administrative proceeding if it presents "indicia of reliability
and probative value").

8
reasonable justification for bypass, so long as its decision

satisfies basic merit principles").

Judgment affirmed.

By the Court (Blake, C.J.,
Henry & Hershfang, JJ.7),

Clerk

Entered: May 26, 2026.

7 The panelists are listed in order of seniority.

9