County Superior Court
Plaintiff: Richard A. Pacia, Esq. Mark P. Gagliardi, Esq.
Defendant: George H. Rinaldi, Esq.
Arthur Abraham (Abraham or Petitioner) appeals the March 27,
2014 decision of the Personnel Appeals Board (PAB) denying
the application of Petitioner for a re-classification of his
position in the Department of Human Services (DHS).
Petitioner contends that he satisfied the requirements for
reclassification from a Chief Human Services Business Officer
(Pay Grade 33) to a Chief Long-Term Care Reimbursement (Pay
Grade 39) and that the PAB erred in finding that he failed to
do so. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
was first hired by the DHS in 2002 and, by 2009, had risen to
the position of Chief Human Services Business Officer (CHSBO)
(Pay Grade 33). After retirements caused the DHS to be
understaffed, Petitioner took on additional responsibilities
and believed he was performing the duties of a Chief
Long-Term Care Reimbursement (CLTCR) (Pay Grade 39). In July
2009, Petitioner filed a classification questionnaire
(questionnaire) (desk audit) with the Office of Personnel
Administration (OPA), by which he sought a reclassification
to the CLTCR position. The OPA denied Petitioner's claim
that he was performing the duties of the CLTCR position, but
it found he was performing the duties of a Chief Rate Setting
Analyst (CRSA) (Pay Grade 35). Pet'r's Compl. ¶
7; see also Def.'s Br. at 1.
filed an appeal with the Administrator of Adjudication (AA)
pursuant to G.L. 1956 § 36-4-40, which conducted a
hearing and subsequently upheld the finding of the OPA.
Def.'s Br. at 1; see also Pet'r's Mem.
at 5. Petitioner appealed this decision to the PAB pursuant
to § 36-4-40.2. Hearing on his appeal was held on April
10, 24, May 15, June 5 and 12, 2012. A summary of the
was hired by DHS in 2002 in the Rate Setting Unit (Unit) and,
beginning in early 2008, when he was working in the Hospital
Settlement Unit, he was trained by Greg Gongoleski, the
CLTCR, "to absorb the responsibilities and duties of
chief long-term care reimbursement." Hr'g Tr. 15,
Apr. 10, 2012. Gongoleski trained him from approximately
January through May of 2008, during which time Petitioner
also performed "various other tasks." Id.
at 18. According to Abraham, he was, during this time,
"doing everything that was performed by Mr. Gongoleski
at Grade 39, " in addition to other tasks he performed.
Id. at 19. When Gongoleski retired in June 2008,
Petitioner believed he was "performing all [his]
duties." Id. at 20. On his reclassification
questionnaire, Petitioner listed the functions he was
performing that he believed to be above his Pay Grade and
stated that Gongoleski trained him in some (not all) of these
tasks. Id. at 27-39. Petitioner explained how he was
performing the job functions of the CLTCR and submitted the
classification for that position as Exhibit 4C. Id.
at 41-42. 
testified he is in charge of Long-Term Care Reimbursement, a
portion of the State's Medicaid program, and other
administrators direct other aspects of Medicaid separate from
Long-Term Care Reimbursement. Hr'g Tr. 5-8, Apr. 24,
2012. At the time of the desk audit, he was supervising seven
employees for whom he signed time records and approved
requests for time off, and was performing duties outside the
Long-Term Care Reimbursement section. Id. at 12-15.
Petitioner assisted Administrator Ralph Racca (Racca) in
developing rules and regulations for the Unit and worked with
Racca on updates regarding "principles of reimbursement
for nursing facilities." Id. at 26-28.
Additionally, he was involved in planning the budget of the
Unit and met with administrators regarding the entirety of
the long-term care program. Id. at 62-66.
maintains that he has the skills and knowledge specified in
the CLTCR classification. Id. at 71. He acknowledged
"everything that I've done encompasses the functions
of [a] chief rate setting analyst"; however, he asserted
he has been performing duties and tasks "well beyond
those of the chief rate setting analyst [and] doing
everything on a statewide base." Id. at 77.
Petitioner confirmed Gongoleski trained him from January to
May 2008, during which time he was performing the CHSBO's
duties in addition to training. Id. at 79-90.
However, Racca was the administrator supervising Gongoleski,
and Petitioner acknowledged he did not meet with Racca
regarding Gongoleski's specific duties, and Gongoleski
did not have authority to appoint him to the CLTCR position.
Id. at 95-96. The record also reflects Petitioner
was not granted a Three Day Rule (TDR) appointment to the
CLTCR position or the CRSA position upon Gongoleski's
retirement.  Id. at 98.
paperwork completed in connection with the desk audit, Racca
asserted he (not Petitioner) had taken over the CLTCR's
supervisory duties. Id. at 117-18. However,
Petitioner believed Racca could not take over any CLTCR
duties because it is a union position and Racca is not a
member. Id. at 118. Abraham further testified Racca
"was fully aware, to my understanding, that I was
performing" the tasks of the CLTCR position, and Racca
agreed Petitioner was performing duties beyond his CHSBO
classification. Id. at 120-22. After the
reclassification, it was recommended Petitioner receive an
upgrade from a CHSBO to a CRSA, an upgrade he deemed
unsatisfactory, believing he was performing all of the duties
of the CLTCR. Id. at 129-30. After Gongoleski
retired, Petitioner assumed his role on a temporary basis and
began signing time records, but Racca told him to cease that
practice. Id. at 140-44. Petitioner testified
signing such time records was the only responsibility of
Gongoleski that Racca told Petitioner not to fulfill.
Id. at 149.
Berretto (Berretto) testified for Petitioner. He is employed
as a CHSBO with the Unit. (Pay Grade 33). He explained
Petitioner "assumed control" of the rate-setting
Unit following Gongoleski's retirement. Hr'g Tr. 5-7,
May 15, 2012. Maintaining and developing policies for the
setting of reimbursement rates are among the duties of the
CLTCR. Id. at 10. Berretto explained that the
Petitioner signed his time records following Gongoleski's
retirement until shortly following Petitioner's
reclassification request when Racca "took
exception" and "told him to stop." Going
forward, Racca would sign the time records of Berretto and
Petitioner, though at the time of the reclassification,
Petitioner was supervising the Unit and performed
disciplinary functions when necessary. Id. at 17-20.
Upon his retirement and that of Anthony Rego, the Unit's
Chief Rate Analyst, Gongoleski told Berretto he would
recommend that Petitioner take over his position and Berretto
take Rego's position. Id. at 25-26. Berretto
believed Gongoleski was training Petitioner so that following
his retirement he could take over the Unit. Since
Gongoleski's retirement, Petitioner has done
Gongoleski's job, and thus, Berretto supports
Petitioner's reclassification effort. Id. at 34.
Joseph (Joseph) testified that she works with the
Office of Health and Human Services (OHHS) agencies and is
very familiar with DHS. Hr'g Tr. 71, May 15, 2012. When
Petitioner submitted more documentation than is the norm for
a desk audit, she contacted her supervisor, Dr. Thomas
Mannock (Mannock), for assistance. Id. at 87-88. She
was concerned Petitioner was overly focused on the similarity
of his job duties to those of Gongoleski. Id. at 89.
Her determination, along with Mannock, was Petitioner should
be reclassified to a CRSA. Id. at 101. She concluded
Petitioner did not perform a significant role in the
departmental budget process-a function of a CLTCR.
Id. at 104.
testified that he was Petitioner's supervisor and an
Administrator of Medical Services, which directed the Unit.
Hr'g Tr. 92, June 05, 2012. Racca proposed that Berretto
would learn about hospital settlements, while Abraham learned
about rate setting. Following the announcement of changes to
the state retirement system, effective July 1, 2008,
Gongoleski and Rego decided to retire, and "the senior
staff in the rate setting unit evaporated essentially."
Id. at 102-03. As Administrator, Racca "had the
responsibility to keep the unit running . . . everyone was
asked to step up and take on additional
responsibilities." Id. at 103-05. Though
Gongoleski had been a CLTCR, there was no plan to fill the
position. Id. at 107. Significantly, Racca told them
he would assume responsibility for "certain
administrative responsibilities that [he] would have expected
the [CLTCR] to handle, including personnel matters, [and]
dealing with HR[.]" Id. at 107-08. Racca
testified he allowed Petitioner and Berretto to sign each
other's timesheets while he was on vacation, but, upon
returning, he told them to cease signing each other's
time sheets, and he signed them thereafter. Id. at
submitted a desk audit, believing himself to be
"deserving of the . . . chief long term care, grade 39,
position." Id. at 112-13.
Racca-Petitioner's immediate supervisor-who acted as
department head when the Medicare Director position was
vacant, did not believe Petitioner should be reclassified as
a CLTCR (Pay Grade 39) but rather as a CRSA (Pay Grade 35).
Id. at 116-19. Racca testified that Gongoleski,
prior to retirement, wrote requests for personnel when a
vacancy occurred and, following his retirement, Racca (not
Petitioner) would handle such requests. Id. at 121.
Racca testified he sought data and input from Petitioner, and
"that's what the chiefs are for, to provide that
kind of support[, ]" and that Petitioner did not plan
and administer a highly specialized program area of a
statewide medical care program, a requirement of the CLTCR
position. Id. at 123-24. Petitioner was not involved
in either planning or administration at the time of his desk
audit, and his role was to "provide data to support the
decisions that were being made at the administrative level
and above." Id. at 124-25. Racca testified that
determination of nursing home rates could not be changed
without his approval, and, if they were to be changed,
Petitioner's role would be to meet with Racca "and
discuss what we would have to do to change the State
plan." Id. at 127.
the Unit budget, Racca explained that Petitioner's role
was to "supply the data that would be necessary to
prepare that budget. How that budget was finalized would not
be within his purview." Id. at 130. Racca
testified Petitioner was not "assisting in the
preparation of the budget for the long term care area[,
]" did not participate in departmental budget hearings,
and did not testify before legislative committees.
Id. at 135-36. Racca believed both Petitioner and
Berretto should be reclassified to the CRSA position (Pay
Grade 35). Id. at 138.
Racca confirmed that following Gongoleski's retirement,
no one took over his role as CLTCR, and the position was not
filled. Id. at 147. Racca testified to his plan to
have the two chief "human service business officers
running the unit." Id. According to Racca,
following the retirement of Gongoleski, "[t]he
operational day-to-day was being done by the chief human
service business officers, some of it. One aspect that really
didn't get done and still isn't done is the appeals
made by the nursing homes." Id.
decided that following the retirements, Petitioner and
Berretto would perform additional duties to ensure the Unit
would continue running effectively, and he viewed this as
"a temporary arrangement." Hr'g Tr. 12, June
12, 2012. Racca took over Gongoleski's administrative and
supervisory responsibilities, including those regarding human
resources and budget initiatives. Id. at 19. Racca
submitted rate setting changes to those higher up in the
department. Id. at 34-37. Racca concluded that
though the organizational chart for the Unit showed the CLTCR
position was vacant, he did not plan to fill that position.
Id. at 57.
an OPA Human Resource Supervisor with over twenty years of
experience, most of which was in the OPA, supervises the
Human Resources Analysts who perform desk audits.
Id. at 61-63. In June 2009, Petitioner expressed
concern to Mannock that Racca "would not be supportive
of his bid for re-classification [to the CLTCR position . . .
[and] would be biased." Id. at 66-68. Thus,
Mannock took a more active role than usual in the desk audit.
Id. at 68-69. While Mannock and Joseph recommended
Petitioner be reclassified to a CRSA position, Mannock
explained the CLTCR classification was not appropriate
because "there were illustrative examples of duties that
the employee was not performing, that we couldn't
overlook"-the duties of planning and administration.
Id. at 77-82. Regarding the Unit's budget,
Mannock expressed that "assisting in [the] budget can
only be viewed within the context or through the lens of a
pay grade 39, chief long term care reimbursement."
Id. at 86-87.
testified the OPA, in performing the desk audit, sought
"to find the best fit . . . in terms of duties and
responsibilities." Id. at 93, 97. Mannock
explained the CRSA position was most appropriate because the
information Petitioner provided and that obtained from the
field study "matched up extremely well in terms of the
components of the rate setting analyst [position]. The
supervision was on target." Id. at 98. Mannock
approved of Joseph's conclusion that Petitioner should be
reclassified as a CRSA and acknowledged Petitioner performed
"technical operational supervision of the rate setting
unit, " and such duties "fall within the umbrella
of the planning function." Id. at 111, 114-15.
Petitioner sought both reclassification to Pay Grade 39 and
payment retroactive to when he initially filed for
reclassification. Id. at 119.
Bachus, Vice President of SEIU Local 580 (Local 580 or
Union), testified that persons who are not Union members may
not, pursuant to contract, perform Union jobs. She stated
that if she had known Gongoleski's supervisory duties
were taken over by ...