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SUFFOLK, ss. One Ashburton Place - Room 503

Boston, MA 02108

(617) 727-2293


Appellant, CASE NO: D1-10-45




Appellant‟s Attorney: Jaime Kenny, Esq.

AFSCME Council 93 8 Beacon Street Boston, MA 02108 City of New Bedford Attorney: Jane Medeiros Friedman First Assistant City Solicitor City of New Bedford Law Department 133 William Street New Bedford, MA 02470 Commissioner: Paul M. Stein DECISION The Appellant, Benjamin Fuertes, appeals to the Civil Service Commission (Commission), pursuant to G.L.c.31,§§41-43, from a decision of the City of New Bedford (New Bedford), discharging him from employment as a New Bedford EMTParamedic. A full hearing was held at UMass School of Law at Dartmouth on October 27, 2010, October 29, 2010 and January 18, 2011. As no written notice was received from either party, the hearing was declared private. The hearing was digitally recorded.

Twenty-seven exhibits were received in evidence and two exhibits were marked for identification. New Bedford called four witnesses. The Appellant called two witnesses and testified on his own behalf. By Post-Hearing Procedural Order (marked P.H.Exh.30) the Commission took administrative notice of certain materials and requested additional documents which New Bedford submitted by letter dated January 31, 2011 (marked P.H.Exh.31) Both parties submitted proposed decisions on April 29, 2011.


Giving appropriate weight to all exhibits, testimony (of the Appellant, New Bedford Mayor Scott Lang, EMS Director Mark McGraw, EMT Jean Quintin, Police Sergeant Jill Simmons and Police Officers Antone Pauline and Caesar Rebelo) and inferences reasonably drawn from the credible evidence, I make the findings of fact set forth below.

Appellant‟s Employment History

1. The Appellant, Benjamin Fuertes, became employed with the New Bedford Emergency Medical Services Department (EMS) on January 15, 2003 in the civil service position of Intermittent EMT and reclassified as a Paramedic (a higher level of EMS certification) on December 6, 2004. He became a full-time EMT-Paramedic, effective April 25, 2005 and served in that position until his termination in February 2010. (Exh. 1;

Testimony of Appellant)

2. The New Bedford EMS is a separate departmental unit, managed by an EMS Director, who is the appointing authority for civil service employees in the department, and who reports directly to the Mayor of New Bedford. Mark McGraw has served as EMS Director since July 2009, after 20 years of continuous service at various levels within the department. For purposes of this appeal, EMS Director McGraw is the Appointing Authority. (Testimony of McGraw)

3. An EMT‟s core duties involve responding by ambulance to medical emergencies and administering medical care to the sick and injured on the scene. As a Paramedic, a higher level of EMS certification than EMT, the duties involve assessment and treatment at the Advanced Life Support (ALS) level, including intubations and administration of intravenous drugs and fluids, (Exhs. 2 & 3; Testimony of Appellant, McGraw, Quintin)

4. Mr. Fuertes performed his core duties as an EMT-Paramedic in a satisfactory manner throughout the period of his employment with New Bedford EMS. (Testimony of Appellant, McGraw, Quintin)

5. Mr. Fuertes‟s disciplinary history with New Bedford EMS consists of two written warnings issued within two weeks of each other in April 2006, one having to do with an altercation with a supervisor over “wearing of improper attire” and the second for going out on a call and leaving the EMS quarters unlocked. This discipline was the subject of an MCAD claim of harassment brought by Mr. Fuertes under G.L.c.151B that was still pending at the time of the Commission hearing. (Exhs. 20 & 21; P.H.Exh.30 [Procedural Order, Administrative Notice, Attchs.”E” & “F”];Testimony of Appellant, McGraw)

6. The job descriptions for a New Bedford EMT also includes, among other things, responsibility to “[r]espond to given address with lights and siren, driving in a defensive manner, obeying the rules of the road” and to perform “[m]inor vehicle maintenance, washing, checking oil, water, fuel, washing floor and cleaning windows”. (Exh. 2)

7. The job description for a New Bedford EMS Paramedic includes responsibility to “operate emergency medical service vehicles in a safe and accepted manner”, to “inspect ambulance and other emergency medical service vehicles” and to “drive ambulances and other emergency vehicles as needed to and from scene of emergency.” (Exh. 3)

8. Mr. Fuertes was never cited or disciplined for substandard work, carelessness misuse of city property, absenteeism or tardiness. He was never involved in any motor vehicle accidents while operating an EMS vehicle. EMS Director McGraw stated that he knew of no basis for concern about Mr. Fuertes‟s ability to safely drive a city-owned vehicle on duty. (Exhs. 20 & 21; Testimony of Appellant, McGraw & Quintin)

9. The evidence demonstrated, and I so find, that Mr. Fuertes was “very conscientious” about the care and maintenance of the ambulance to which he was assigned while on duty and “particularly careful” about keeping a clean windshield.

(Exhs. 22(ID) & 24; Testimony of Appellant, McGraw & Quintin)

10. Mr. Fuertes and his shift partner, EMT Jean Quintin, consistently followed the practice of washing the inside and outside of the ambulance when required at the beginning of their assigned day shifts (8:00 am to 6:00 pm), including cleaning off the windshield. They also checked the vehicle for any maintenance issues at the start of a shift as a regular and normal part of the job. (Testimony of Appellant & Quintin)

11. The EMS Department maintenance logs for the period from November 1, 2009 through February 4, 2010 confirm, and I so find, that Mr. Fuertes was considerably more diligent about his responsibility to clean the ambulance, and, in particular, in washing the exterior, than other members of the EMS staff. During this period, there were a total of 95 day shifts for EMS Ambulance Unit 2, on which Mr. Fuertes was the senior EMS person assigned on 25 shifts and other EMS personnel were assigned on 70 shifts. The

logs show the following data for when that ambulance was cleaned:

–  –  –

12. Although the EMS Department maintenance logs provide space for checking off fluid levels, including fuel, radiator, oil, brakes, power steering and windshield washer, fluid levels on most forms are not checked off. For the most part, these items were handled by the mechanics who performed regular, routine maintenance on the ambulance fleet. (Exhs 22 & 24; Testimony of Appellant & Quintin)

13. I also find significant the fact that Mr. Fuertes washed the inside and outside of Unit 2 on February 1, 2010, the last day he worked prior to the incident in question on February 4, 2010, and that Unit 2 was not washed again by any of the EMS personnel assigned to the next three day shifts, on February 2, 3 and 4, 2010. (Exhs. 22(ID) & 24) The February 4, 2010 Accident

14. Until the incident involved in this appeal, Mr. Fuertes had nearly a ten year clean driving record. He had never been involved in any at-fault accident. Since obtaining his Massachusetts driver‟s license in 1997, he was cited four times, once in 1998 for failure to wear a seat belt, twice in 2000 for speeding and once in 2000 for failure to stop. (Exh.

7; Testimony of Appellant)

15. At approximately 7:30 a.m. on February 4, 2010, Mr. Fuertes was involved in an off-duty motor vehicle accident while driving his personal vehicle, a 1999 Jeep Grand Cherokee. He had taken his sister to school. He turned from Rodney French Boulevard southeast onto Brock Avenue, approximately a block north of Harmony Street in New Bedford. As he turned, he encountered an intense, blinding sun glare which he sought to alleviate by slowing down and dropping his sun visor down. As he did this, he heard a sound and saw he had just struck a pedestrian in the street. (Exhs. 4,7, 8, 11; Testimony of Appellant, Simmons, Pauline)

16. The pedestrian was an elderly man who had just exited a convenience store and was walking slowly across Brock Avenue in the middle of the block, assisted by a cane.

This was not the first time this same pedestrian had been struck by a motor vehicle as he attempted to cross Brock Avenue, having been hit nine years earlier in this “exact same spot”. (Exhs 8, 12; P.H.Exh.30 [Procedural Order, Administrative Notice, Attch.”C”])

17. Mr. Fuertes immediately exited his Jeep. He yelled to someone to call 911 and proceeded to render emergency care on the injured pedestrian. (Testimony of Appellant)

18. New Bedford Police Officer Antone Pauline was first to arrive on scene. He, too, encountered sun glare that obscured his view of the accident scene as he approached.

When Officer Pauline “made the turn” onto, “it was very difficult [for him] to see due to solar glare.” (Exhs. 7 & 11; Testimony of Pauline, Simmons)

19. Mr. Fuertes gave Officer Pauline a statement on-scene. He acknowledged hitting the pedestrian. Two sergeants arrived on scene, Sergeants Stone and Conley, and, on their orders, Officer Pauline cited Mr. Fuertes for failing to slow for a pedestrian, a civil infraction. Mr. Fuertes left the scene shortly thereafter. (Exh. 12: Testimony of Pauline)

20. Meanwhile, the pedestrian was taken to a local hospital. He eventually died from his injuries at approximately 3:30 p.m. (Exhs.5 & 11)

21. At approximately 8:10 a.m., New Bedford Police Sergeant Jill Simmons and Officer Christen Gomes arrived on scene to conduct an accident reconstruction. Sgt.

Simmons inspected the Jeep which she said was “encrusted with road salt”. This observation caused her to order Officer Pauline to issue a second citation to Mr. Fuertes for negligent driving to endanger, which Officer Pauline hand-delivered to Mr. Fuertes late in the day. (Exhs. 5, 9d, 9e & 11: Testimony of Simmons, Pauline)

22. Officer Pauline did not believe that a citation for driving to endanger was warranted, but he issued it because his superior had ordered him to do so. He acknowledged, however, that he was not specifically assigned to inspect the Jeep at the scene and did not do so. (Testimony of Pauline)

23. Mr. Fuertes‟s Jeep was towed to a garage where it was thoroughly inspected and photographed. This inspection revealed that the accident had damaged the left front bumper, grille and hood area in front of the driver‟s position, and broke a headlight. The windshield washer reservoir was empty and the washer fluid line was broken. The inspection also revealed extensive tire wear, one mismatched tire, and some broken rear lights. (Exhs.4,5,9b, 9c, 9f, 9g, 10 & 12; Testimony of Simmons)

24. At approximately 4:00 p.m., after the pedestrian had died, Sgt. Simmons called the Bristol County District Attorney‟s office and, following a conversation with a prosecutor, she ordered a further citation be issued to Mr. Fuertes for vehicular homicide.

(Exh. 5 & 11; Testimony of Simmons, Pauline)

25. On February 4, 2010, as he was ordered, Officer Pauline filed an Application for Criminal Complaint against Mr. Fuertes for charges of driving to endanger and vehicular homicide (but not the failing to slow). (Exhs 11 & 25)

26. On March 31, 2010, after hearing, the Clerk-Magistrate of the Bristol County Third District Court entered a finding of “no probable cause” with respect to both charges. This finding was appealed to a District Court Justice, who upheld the magistrate‟s determination. (Exh.25; Testimony of Appellant, Pauline & McGraw) The Accident Scene

27. Brock Avenue is a mixed use area of businesses and multi-family homes, approximately 50 feet in width at the accident scene. There is a marked cross-walk and traffic lights across Brock Avenue at Harmony Street, a few hundred feet north-west of the accident scene. The speed limit is 30 MPH. (Exhs. 7, 8, 9a, 12 & 27; Testimony of Simmons, Pauline)

28. According to the accident reconstruction report eventually prepared by Sgt.

Simmons, and I so find, sunrise on February 4, 2010 occurred at 6:53 a.m. As a result, visibility “on the morning of the crash... would have been significantly compromised by the rising sun directly ahead at the end of the street” and “at 7:35 a.m. “[t]hat placed the sun just a few degrees above the horizon, directly in the eyes of anyone turning southbound on Brock Avenue. Sunrise at that time of year is somewhat south of east and

Brock Avenue at the point runs southeast.” Sgt. Simmons acknowledges, and I so find:

“There is no denying that there was an intense rising sun directly in the path of the operator, Mr. Fuertes.” (Exh.12; Testimony of Simmons)

29. Photographs taken the following day looking south-east from the cross-walk at Harmony Street, confirm the extreme degree of sun glare that would be experienced at approximately 7:30 a.m. by a vehicle as it approaches the block on Brock Avenue where the accident occurred. (Exhs. 8, 27, 28, 29; Testimony of Appellant)

30. Local residents in the section of Brock Avenue involved in this accident have called it “hazardous for pedestrians because of the heavy traffic.” A 19-year old woman also was seriously injured while crossing Brock Avenue in a cross walk on January 21, 2010, which prompted one city councilor to demand that the city‟s Department of Public Infrastructure repaint the cross-walks and consider adding more of them. Immediately after their relative had died on February 4, 2010, the family of the deceased pedestrian called for additional “safety measures – a crosswalk, flashing lights, a divider or stop lights” to reduce the chances of another similar accident. (P.H. Exh.30 [Procedural Order, Administrative Notice, Attch.“C”] ) Disciplinary Proceedings

31. On February 4, 2010, EMS Director McGraw placed Mr. Fuertes on paid administrative leave, pending the outcome of an investigation into the Brock Avenue incident. (Exh 6; Testimony of McGraw)

32. By one-page e-mail dated 4 Feb 2010 18:05:55, Sgt. Simmons reported to Deputy

Police Chief David Provencher:

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