The Sergeant With Nine Sick Calls and a Pending IOD Claim
You are the newly appointed lieutenant in a 62-sworn Massachusetts department. Sergeant D., a 14-year veteran, has nine sick occurrences in six months, seven on Friday or Saturday night shifts. He has three use-of-force complaints in two years; one was sustained for discourtesy and resulted in a written reprimand. He now claims an on-duty back injury from a fall in the station locker room; there were no witnesses and no report until 40 hours later. The chief wants termination and tells you to 'build the case.' The sergeant is civil service and the CBA requires 48-hour notice and union representation at any investigatory interview. He has also applied for promotion. You must decide what to investigate, what to recommend, and how to handle the injury claim.
1. What due-process and fact-finding steps must you take before recommending discipline?
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Treat the chief's instruction as a desired outcome, not a finding. Open three separate tracks: attendance, force history, and the IOD claim. For discipline, review the actual attendance records, shift schedules, any approved FMLA or medical leave, and comparator cases. Preserve radio, CAD, and video. Interview Sergeant D. with written 48-hour notice and union representation; give him the allegations and an opportunity to respond. Do not use the promotion application as evidence of motive. For the force complaints, confirm which were sustained and whether discipline was already imposed; do not re-punish the same conduct. Under G.L. c. 31, §§ 41–45 and the CBA, a removal or suspension over five days requires just cause and specified procedure. Your recommendation should be based on a written finding: pattern of unscheduled absences, whether leave was protected, and whether the conduct impaired operations. If the record is thin, recommend documented counseling and attendance monitoring, not termination. This preserves the case and avoids a civil-service reversal.
2. Is termination legally and practically defensible? What alternative or hybrid outcome would you recommend and why?
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Termination is defensible only if you can prove a just-cause pattern and show the absence was not protected. Nine occurrences in six months, concentrated on weekends, plus a sustained discourtesy, may support discipline, but a single sustained complaint and an unverified IOD claim do not automatically justify firing a 14-year veteran. A civil service hearing officer will ask: Was the rule clear? Was it applied consistently? Did the department investigate? Was the penalty proportionate? Was there progressive discipline? I would recommend a suspension without pay plus a last-chance attendance agreement, fitness-for-duty evaluation, and referral to an employee assistance program. If the IOD claim is fraudulent, handle it through the insurer and a separate investigation; do not mix it with attendance discipline. The chief should be told in writing why termination now risks reversal and a retaliation claim. If the sergeant repeats the conduct, the record supports removal.
3. How should the IOD claim and fitness-for-duty question be handled?
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Under G.L. c. 41, § 111F, an officer injured in the performance of duty may be entitled to leave without loss of pay, but the claim must be documented and causally connected to duty. Obtain the late report, locker-room access records, any medical records the sergeant authorizes, and witness statements. You may require a job-related fitness-for-duty examination if the department has a written policy and the request is narrowly tailored; do not demand his entire medical history. If light-duty work exists, offer it consistent with the CBA and medical restrictions. If he refuses a lawful examination or light duty, document that before taking action. If you suspect fraud, refer the matter to the town's workers' compensation insurer and, if warranted, to the district attorney; do not accuse him at the disciplinary hearing without evidence. Keep the IOD file confidential and separate from the attendance file. The goal is to protect the town's funds and the sergeant's rights while getting a reliable answer about fitness.