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SJC-12136
SEAN GANNON vs. CITY OF BOSTON.
Suffolk. December 8, 2016. - April 18, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.1
Anti-Discrimination Law, Handicap, Employment, Burden of proof.
Employment, Discrimination. Handicapped Persons.
Municipal Corporations, Police. Public Employment, Police.
Practice, Civil, Summary judgment, Burden of proof.
Civil action commenced in the Superior Court Department on
September 27, 2012.
The case was heard by Douglas H. Wilkins, J., on a motion
for summary judgment, and a motion for reconsideration was
considered by him.
Harold L. Lichten (Adelaide H. Pagano also present) for the
plaintiff.
Nicole I. Taub, Senior Special Assistant Corporation
Counsel, for the defendant.
Simone R. Liebman & Constance M. McGrane, for the
Massachusetts Commission Against Discrimination, amicus curiae,
submitted a brief.
Robert S. Mantell, for Massachusetts Employment Lawyers
Association, amicus curiae, submitted a brief.
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
GANTS, C.J. The issue presented on appeal is whether a
city is entitled to summary judgment on a handicap
discrimination claim under G. L. c. 151B, § 4 (16), where the
police department limits an officer to desk duty based on an
informed, good faith belief that the officer can no longer
safely patrol the streets because of his perceived handicap. We
conclude that summary judgment is not appropriate where there
are facts in dispute as to whether the officer is a qualified
handicapped person capable of performing the full duties of a
patrol officer without posing an unacceptably significant risk
of serious injury to himself or others. The city at trial may
present the evidence that caused the department to believe that
the officer cannot safely assume the full duties of a police
officer, but that determination rests with the fact finder based
on the preponderance of the evidence, not with the department
based on its informed, good faith belief. Therefore, we vacate
the motion judge's entry of summary judgment in favor of the
city of Boston (city) and remand the case for a trial.2
Background. The plaintiff, Sean Gannon (Gannon or
plaintiff), began working for the Boston police department
(department) in 1996. For the first decade of his employment,
Gannon was a patrol officer performing the full range of patrol
2
We acknowledge the amicus briefs submitted by the
Massachusetts Commission Against Discrimination and the
Massachusetts Employment Lawyers Association.
3
officer duties. Gannon is an avid practitioner of mixed martial
arts (MMA) who has trained since his teenage years in techniques
including taekwondo, judo and aikido, Brazilian jujitsu, and
Filipino stick and knife fighting. He began fighting in MMA
amateur bouts at night clubs on the South Shore in 2002, before
making his professional debut in August, 2004.
Gannon suffered repeated head injuries in his professional
fights. In his first fight, Gannon received a roundhouse kick
to his head and afterwards began vomiting and did not feel well.
An ambulance transported him to a hospital, where he was
diagnosed with a concussion. Gannon's next fight came two
months later, in October, 2004, when he faced off with a widely
reputed fighter known by the moniker "Kimbo Slice." Gannon and
that opponent agreed to a bare-knuckle boxing match governed by
the traditional London Prize Rules, which permit a fight to
continue until a fighter is knocked down and cannot return to
his feet in thirty seconds. Gannon won the fight by knockout,
but afterwards he spent several days in the hospital and was
diagnosed with another concussion. Gannon's final professional
fight came on October 7, 2005, where he lost by a technical
knockout, and broke his right eye socket. He did not return to
work until October 14, 2005, and was then placed on restricted
duty, limited to "inside only" work, and barred from paid
details. The restrictions were lifted on October 20, 2005.
4
In December, 2005, Gannon was diagnosed with obstructive
sleep apnea and insomnia. He was treated for these conditions
with various medications and procedures. On February 1, 2006,
Gannon did not appear for his scheduled shift of police duty,
and officers went to his home to check on him. They found him
in an incoherent and confused state. Gannon explained that he
had overslept as a result of the treatment he was undergoing for
sleep apnea. After this incident, the department placed him on
administrative duty, pending a fitness evaluation by the
department's psychiatrist, Dr. Marcia Scott.
Based on her initial evaluation, Dr. Scott described Gannon
as "physically very restless" and opined that "[h]is
restlessness could be associated with brain injury from his
sport." Accordingly, Dr. Scott ordered additional
neuropsychological testing with Dr. Lucinda Doran, who
administered tests to assess Gannon's intellectual abilities.
She concluded that, while Gannon appeared to possess "solid
overall capabilities," his "inability to process information
quickly clearly reduce[d] his mental efficiency and his ability
to react and respond appropriately." Around the same time, Dr.
Scott reported from her ongoing interactions with Gannon that
his thinking was impaired, "he ha[d] difficulty focusing, his
speech [was] pressured and garbled, his face red and twisted."
Later in 2006, Dr. Scott noted that Gannon remained "on modified
5
duty due to significant mental impairments and reduction in
mental performance . . . [a]lthough there [had] been some
improvement over the intervening months." She continued to
recommend against Gannon's return to full-duty status,
explaining in a follow-up report in October, 2008, "Mr. Gannon
has serious mental deficits that interfere with his ability to
do the essential functions of an armed police officer."
Gannon sought treatment from his own doctors, including Dr.
Aaron Nelson, a neuropsychologist, and Dr. Tuesday Burns, a
psychiatrist. In a 2006 evaluation, Dr. Nelson's testing
revealed "baseline verbal intellectual ability in the superior
range and highly variable performance on measures of attention
and executive function, suggestive of frontal systems
compromise." Dr. Nelson opined that Gannon's issues "likely
related to his history of multiple concussive injuries" and that
Gannon's anxiety problems were exacerbating his difficulties.
Two years later, however, Dr. Nelson tested Gannon for a second
time and reported "stronger performance on a wide range of test
measures." Dr. Burns, who had been treating Gannon for anxiety
and attentional difficulties, subsequently informed the
department that Gannon had "improved significantly across all
areas" and that there were no "psychiatric or neurologic
contraindications to Mr. Gannon being re-instated to full duty
at the Boston Police Department."
6
Dr. Scott, the department's psychiatrist, disagreed with
Dr. Burns's assessment. "Mr. Gannon has a serious chronic
mental disorder as well as a history of repeated head trauma,"
she wrote in January, 2009. "These impairments interfere with
his ability to accurately assess situations, communicate
accurately, make accurate judgments, solve problems and manage
the stresses involved in the job of an armed police officer."
In 2010, the department retained neuropsychologist Dr.
Muriel Lezak to review Gannon's testing records. Dr. Lezak
evaluated the prior testing results against metanorms developed
from twenty-eight studies. She reported that Gannon's response
or reaction times fell below the fifth percentile for persons
his age, in the borderline-defective to defective range.
"[W]hat he appears to be unable to do, when thought or
concentration is required, is maintain accuracy and respond at a
normal rate of speed," Dr. Lezak wrote. Dr. Lezak later tested
Gannon herself. Her new results supported her earlier
evaluation, and led her to conclude, "[I]t is unlikely that an
intensive remediation program could improve [Gannon's] response
speed to near normal levels or enable him to develop consistent
memory recall, both to a level that would allow him to
perform . . . police functions requiring response speed and
reliable memory recall."
7
In March, 2011, the department filed an application with
the Public Employee Retirement Administration Commission (PERAC)
to involuntarily retire Gannon. PERAC rejected the application
after three physicians performed independent evaluations of
Gannon and all concluded that he was capable of performing the
essential functions of his job as a police officer. Gannon
remained (and continues to remain) on desk duty, where he serves
as the booking officer and works at the front desk of the East
Boston police station. Gannon is not currently permitted to
carry a service weapon, which prevents him from obtaining detail
work and certain overtime opportunities.
In September, 2009, the Boston Patrolmen's Association
filed a grievance on Gannon's behalf demanding that he be
permitted to resume the full duties of a patrol officer. In
advance of the arbitration proceeding, Gannon solicited an
assessment from an additional neuropsychologist, Dr. Neal
McGrath. Dr. McGrath concluded that Gannon was fit to return to
full patrol duty, stating that "any cognitive deficits that
Officer Gannon may have demonstrated in past evaluations ha[d]
cleared and were therefore more likely related to treatable
medical conditions such as sleep disorder or mood disorder."
But Dr. McGrath changed his opinion after reviewing Dr. Lezak's
testing, recommending "further confirmation of . . . Gannon's
ability to respond to emergency decisions as a police officer
8
under conditions more closely resembling actual emergencies."
Consequently, the union hired a police consultant, who performed
live simulation testing on Gannon. This testing included a
"Shoot/Don't Shoot" target drill, and other role-playing
scenarios. Gannon performed well, and Dr. McGrath reaffirmed
his position that Gannon was "fit for full duty as a Boston
[p]olice officer." Dr. Lezak stood by her opinion and rejected
Dr. McGrath's reliance on the simulations, saying that "no
matter how real you try to make [them]," the simulations were
not sufficient. She added, "[Gannon] is not responding while
running, he's not responding while he is sensing danger for
himself, he's not responding while there's a whole bunch of
stuff going on, sirens, and other cars pulling up. This is
where my concern is." In May, 2014, the arbitrator found that
the union had not "undercut the force of Dr. Lezak's medical
opinion," and concluded that the department did not act
unreasonably in placing Gannon on administrative duty because of
his "neuropsychological problem of speed and accuracy."
In 2012, Gannon brought a complaint with the Massachusetts
Commission Against Discrimination (MCAD), alleging that the city
acted in violation of G. L. c. 151B, § 4 (16), by refusing to
return him to full duty. After the requisite ninety days, he
filed a discrimination lawsuit against the city in Superior
Court. The city moved for summary judgment in August, 2015,
9
arguing that Gannon did not meet the statutory definition of a
handicapped person; that he could not perform the essential
functions of a full-duty police officer; that he had not
suffered any adverse action; and that, even if he had, the
adverse action was taken for a legitimate, nondiscriminatory
reason. In ruling on the city's motion, the judge, viewing the
evidence in the light most favorable to Gannon, determined that
Gannon had met his burden of showing a prima facie case of
handicap discrimination. He found that "the evidence . . .
obviously supports a fact-finder in concluding . . . that the
[c]ity regards Gannon as having physical impairments . . . that
curtail[] a 'major' life activity, including brain functions
such as memory, ability to recall and follow directions, and
[]ability to make split second decisions," thus satisfying the
requirement that Gannon prove he has a "handicap" within the
meaning of G. L. c. 151B, § 1 (17). The judge also noted, "The
evidence could hardly be more in conflict on the facts bearing
on the medical aspects" of the case. He concluded that, because
he cannot resolve factual disputes in a motion for summary
judgment, he must accept as true the reports, testimony, and
affidavits from Gannon's doctors and other experts that state
that Gannon can perform the essential duties of a full-duty
Boston police officer. The judge also assumed for purposes of
the motion that the city had taken an adverse employment action
10
against Gannon by assigning him to desk duty rather than full
duty.
After he concluded that Gannon had made the required prima
facie showing of discrimination, the judge found that "[t]he
city [had] met its burden to articulate a non-discriminatory
reason for its assignment of Gannon to desk duty, namely its
concern that Gannon's loss of cognitive function and memory
impairs his ability to do essential tasks, such as responding in
an emergency and exercising the necessary judgment in high
stress situations, including those involving the use of
firearms."
The judge then determined that, even viewing the evidence
in the light most favorable to Gannon, he had failed to sustain
his burden of proving "that the [c]ity's articulated reason is a
pretext for discrimination." The judge framed the question of
pretext as "whether the medical and psychological evidence is so
thin that a reasonable jury may conclude that the [c]ity could
not honestly have concerns about Gannon's abilities in critical
areas, including reactions and decisions during crisis, possibly
involving firearms." Finding that "[t]he answer, compelled by
the record, is 'no,'" the judge allowed the city's motion for
summary judgment.
The plaintiff moved for reconsideration, claiming that "it
is illegal disability discrimination for the [c]ity to place
11
Gannon on desk duty because of his perceived handicap if he is
in fact capable of performing the essential functions of a
police officer." The judge denied the motion, declaring that
"the question of whether the plaintiff was in fact a qualified
handicapped individual is distinct from whether the [c]ity
discriminated because of his perceived handicap." The judge
found that, where the city had concluded, "with ample expert
support," that Gannon could not perform the duties of a patrol
officer, "[t]he stated reason for its action was non-
discriminatory -- the plaintiff's inability to do the job. It
did not matter why the plaintiff lacked that ability."
Gannon filed a notice of appeal, and we allowed his
application for direct appellate review.
Discussion. Under G. L. c. 151B, § 4 (16), it is an
"unlawful practice . . . [f]or any employer . . . to . . .
refuse to . . . advance in employment or otherwise discriminate
against, because of his handicap, any person alleging to be a
qualified handicapped person, capable of performing the
essential functions of the position involved with reasonable
accommodation, unless the employer can demonstrate that the
accommodation required to be made to the physical or mental
limitations of the person would impose an undue hardship to the
12
employer's business."3 In interpreting the meaning of these
provisions, we give "substantial deference" to the guidelines
interpreting G. L. c. 151B promulgated by the MCAD, although we
recognize that the guidelines do not carry the force of law.
Dahill v. Police Dep't of Boston, 434 Mass. 233, 239 (2001),
citing Massachusetts Commission Against Discrimination,
Guidelines: Employment Discrimination on the Basis of Handicap
Chapter 151B § II.A.7 (1998) (MCAD Guidelines). We remain
mindful that the Legislature instructed that G. L. c. 151B
"shall be construed liberally for the accomplishment of its
purposes." G. L. c. 151B, § 9.4
There are two general categories of handicap discrimination
cases, which differ according to the explanation given for the
adverse employment action by the employer. In the first, the
employer denies that the employment action was motivated by the
plaintiff employee's handicap, and contends that the action was
3
The law defines the term "handicap" to mean "(a) a
physical or mental impairment which substantially limits one or
more major life activities of a person; (b) a record of having
such impairment; or (c) being regarded as having such
impairment." G. L. c. 151B, § 1 (17). "[H]andicapped person"
means any person who has a handicap. G. L. c. 151B, § 1 (19).
4
Because the language of G. L. c. 151B resembles language
used in Federal statutes prohibiting discrimination, we also
look to Federal case law for guidance in our interpretations of
the scope of our antidiscrimination law. See, e.g., Russell v.
Cooley Dickinson Hosp., Inc., 437 Mass. 443, 451 n.6 (2002); Cox
v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993);
Wheelock College v. Massachusetts Comm'n Against Discrimination,
371 Mass. 130, 137-138 (1976).
13
based on other conduct by the employee, such as insubordination,
poor job performance, or chronic tardiness, or resulted from a
reduction in force, that is unrelated to the plaintiff's
handicap. See Tate v. Department of Mental Health, 419 Mass
356, 361 (1995). In these cases, we follow the framework,
patterned on that set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), in which the plaintiff employee bears
the burden of making a prima facie showing of handicap
discrimination by offering evidence that (1) the employee is a
"handicapped person" because he or she has "a physical or mental
impairment which substantially limits one or more major life
activities" (or a record thereof) or because the employee is
"regarded [by his or her employer] as having such an
impairment," G. L. c. 151B, § 1 (17), (19) (defining "handicap"
and "handicapped person"); (2) he or she is a "qualified
handicapped person" who "is capable of performing the essential
functions of a particular job, or who would be capable of" doing
so with reasonable accommodation, G. L. c. 151B, § 1 (16)
(defining "qualified handicapped person"); (3) he or she was
terminated or otherwise subject to an adverse action by his or
her employer; and (4) where, as here, the adverse action is
prohibiting the plaintiff from assuming the duties of a
position, the position otherwise remained open to him or her.5
5
Where the adverse action is termination of the plaintiff
14
See MCAD Guidelines, supra at § IX.A.2.6 Where the plaintiff
employee makes this prima facie showing, the burden shifts to
the employer to show with credible evidence that the real reason
for the adverse employment action was not the employee's
handicap but a lawful reason that was unrelated to the
employee's handicap. See id. See also Abramian v. President &
Fellows of Harvard College, 432 Mass. 107, 116 (2000); Blare v.
Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-
442 (1995). Where the employer meets this burden, the burden
shifts back to the plaintiff employee to prove that the adverse
action was taken "because of his [or her] handicap," G. L.
c. 151B, § 4 (16), and not for the reason proffered by the
employer. See MCAD Guidelines, supra. See also Bulwer v. Mount
Auburn Hosp., 473 Mass. 672, 681 (2016); Abramian, 432 Mass. at
117; Blare, 419 Mass. at 442-443. This type of case is often
labeled a "pretext case" because the plaintiff employee may
defeat an employer's motion for summary judgment by showing that
employee, the fourth element requires the employee to show that
"the position he [or she] had occupied remained open and the
employer sought to fill it." See Dartt v. Browning-Ferris
Indus., Inc. (Mass.), 427 Mass. 1, 3 (1998); Beal v. Selectmen
of Hingham, 419 Mass. 535, 541 (1995).
6
This standard reflects our recognition that proof of an
employer's true motive can be elusive. See Wheelock College,
371 Mass. at 137-138. We have noted in reference to the final
element that the necessary showing may vary depending on the
specific circumstances of each case. See Beal, 419 Mass. at
541.
15
there are disputed issues of fact as to whether the employer's
proffered reason was not the true reason, which permit the
inference that the employer offered a pretextual reason because
the true reason was discrimination on the basis of handicap.
See Bulwer, supra at 681-682; Blare, supra at 444-445.7
Virtually all cases alleging discrimination on the basis of
race, gender, and national origin fall into this first category,
because an employer will rarely concede that the employer's true
motivation for the employment action was the employee's race,
gender, or national origin.
In the second category of handicap discrimination cases,
the employer admits that the adverse action was taken because of
the plaintiff employee's handicap but contends that the employee
is not protected under the statute because the employee was not
capable of performing the essential functions of the job even
with reasonable accommodation, and therefore is not a qualified
handicapped person. In this type of case, the plaintiff
7
Although a showing of pretext permits a finding of
discriminatory intent at trial, it does not require such a
finding. "The employer may counter the effect of this evidence
by showing that, even if his articulated reason for the adverse
action is untrue, he had no discriminatory intent, or that his
action was based on a different, nondiscriminatory reason."
Abramian v. President & Fellows of Harvard College, 432 Mass.
107, 118 (2000). See Lipchitz v. Raytheon Co., 434 Mass. 493,
508 (2001) (burden-shifting rules and pretext inquiry involve
questions of law more appropriately left to trial judge; jury
instructions should focus on ultimate issues of harm,
discriminatory animus, and causation).
16
employee's burden to make a prima facie showing is
straightforward: the plaintiff employee must show that he or
she suffered an adverse employment action, that he or she has a
"handicap," as defined in G. L. c. 151B, § 1, that he or she is
a "qualified handicapped person," as defined in § 1, and that
the adverse action was taken because of his or her handicap.
See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 450
(2002). Accord Ward v. Massachusetts Health Research Inst.,
Inc., 209 F.3d 29, 32-33 (1st Cir. 2000). The plaintiff
employee need not prove that the employer's stated reason was
not the true reason for the adverse action, but instead must
prove that he or she indeed was capable of performing the
essential functions of the job and therefore was a qualified
handicapped person. See Russell, supra; Ward, supra.
Accordingly, this type of case is best described as a qualified
handicapped person case, because the crux of the case is not
whether the employer's explanation was a pretext but whether the
plaintiff employee was a qualified handicapped person.8
8
We have at times referred to pretext cases as "indirect
evidence" cases, and qualified handicapped person cases as
"direct evidence" cases. See Lipchitz, 434 Mass. at 501; Wynn &
Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431
Mass. 655, 664-665 (2000). We find this focus on the nature of
the evidence unhelpful and a potential source of confusion in
distinguishing these cases. In a pretext case, where the
plaintiff employee must generally rely on circumstantial
evidence, the plaintiff may still offer in evidence specific
statements by supervisors reflecting discriminatory animus
17
The judge erred in analyzing the evidence in this case as
if it were a pretext case when it should have been analyzed as a
qualified handicapped person case. Where, as here, the city has
limited the duties of a police officer because it considers him
or her incapable of performing the essential duties of a patrol
officer as a result of physical or mental limitations arising
from the officer's handicap, the adverse employment action is
"because of his [or her] handicap." G. L. c. 151B, § 4 (16).
See MCAD Guidelines, supra at IX.A; Labonte v. Hutchins &
Wheeler, 424 Mass. 813, 821-822 (1997). See also Ward, 209 F.3d
at 37-38. It does not become a pretext case simply because the
department contends that the adverse employment action was
motivated solely by those physical or mental limitations, and
not by the handicap, where those limitations arise from the
handicap. See Rizzo v. Children's World Learning Ctrs., Inc.,
84 F.3d 758, 762-763 (5th Cir. 1996) (judge erred by applying
pretext analysis to school's claim that it demoted hearing-
(which the employer will seek to characterize as "stray
comments") that might be described as direct evidence. See
Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 684-687 (2016)
(discussing five different kinds of evidence jury might have
relied on in determining employer's real reasons for
termination). See also Johansen v. NCR Comten, Inc., 30 Mass.
App. Ct. 294, 302 (1991). Similarly, in a qualified handicapped
person case, there may be so-called indirect evidence that the
employer's belief that the employee is incapable of performing
the essential duties of the job is based on stereotypes and
assumptions rather than hard facts. See Labonte v. Hutchins &
Wheeler, 424 Mass. 813, 815 (1997).
18
impaired bus driver out of fear that she would not be able to
hear if student in her bus was choking; relevant question was
whether plaintiff actually presented safety threat). For
instance, where a police department terminates an officer's
employment because of his or her failing eyesight, it cannot
defeat a discrimination claim by arguing that it did not fire
the officer because of the handicap but because he or she could
not see clearly enough to perform the position's essential
duties.
This analytical flaw transformed the plaintiff's burden on
summary judgment in this case. By mischaracterizing this as a
pretext case, the judge determined that Gannon could not prevail
on his claim of handicap discrimination because he had failed to
rebut the department's contention that the real reason for its
refusal to return him to full duty was that it "honestly" had
concerns about Gannon's reaction time and his decision-making
during crisis. But where these concerns arose from Gannon's
handicap, this analysis essentially meant that the department
prevailed because Gannon failed to present evidence to show that
the department did not act in good faith in concluding that
Gannon could not perform the essential duties of his job. In a
qualified handicapped person case, however, the employer does
not prevail simply because it indisputably acted in good faith;
it can prevail only if the handicapped employee fails to prove
19
by a preponderance of the evidence that he or she was able to
perform the essential duties of the position with reasonable
accommodation. See Dartt v. Browning-Ferris Indus., Inc.
(Mass.), 427 Mass. 1, 3 (1998). See also Pushkin v. Regents of
the Univ. of Colo., 658 F.2d 1372, 1385 (10th Cir. 1981) ("It
would be a rare case indeed in which a hostile discriminatory
purpose or subjective intent to discriminate solely on the basis
of handicap could be shown. Discrimination on the basis of
handicap usually results from more invidious causative elements
and often occurs under the guise of extending a helping hand or
a mistaken, restrictive belief as to the limitations of
handicapped persons").
As to the issue whether Gannon was capable of performing
the essential duties of a patrol officer, the judge recognized
that there was a genuine dispute of material fact, and that
Gannon had offered substantial evidence from medical and police
experts indicating that he can perform the essential, full
duties of a Boston police officer. Because there remains a
factual dispute as to whether Gannon can capably perform the
essential duties of a full-duty police officer, the department's
motion for summary judgment should have been denied. At trial,
the fact finder must determine, not whether the department acted
on a good faith belief that Gannon cannot capably perform these
duties because of his handicap, but whether Gannon has proved by
20
a preponderance of the evidence that he can do so. See Labonte,
424 Mass. at 822-823. See also Gates v. Flood, 57 Mass. App.
Ct. 739, 745 (2003) (it is no defense that employer mistakenly
judged employee's qualification). Cf. Bragdon v. Abbott, 524
U.S. 624, 628-629, 649 (1998) (where patient infected with human
immunodeficiency virus alleged that dentist discriminated
against her in violation of Americans with Disabilities Act, 42
U.S.C. § 12182[a], by refusing to fill her cavities in his
dental office because he feared for his safety, "[h]is belief
that a significant risk existed, even if maintained in good
faith, would not relieve him from liability"). The department
may offer in evidence all of the tests and expert opinions that
caused it to conclude that Gannon cannot perform the essential
duties of a patrol officer, but our law of handicapped
discrimination grants this determination to the fact finder
based on the preponderance of the evidence, not to the employer
based on its good faith belief. See Cox v. New England Tel. &
Tel. Co., 414 Mass. 375, 383 (1993).
In order to rebut Gannon's prima facie case, the city bears
the burden of specifying which essential duty or duties Gannon
is incapable of performing because of his handicap. See, e.g.,
Carleton v. Commonwealth, 447 Mass. 791, 810 (2006). The
department appears to contend that it is an essential duty of a
patrol officer to respond to stressful situations and
21
emergencies with reasonable judgment and speed, and that Gannon
is not capable of performing these duties because of his
cognitive limitations and slow reaction time. Implicit in this
contention is that, if Gannon were allowed to become a patrol
officer, he would put the safety of the public, his fellow
officers, and himself at risk.
Where an employer defends a decision to terminate or not
hire a handicapped individual (or, as here, to not allow the
individual to resume being a full-duty patrol officer) because
"there is a risk of future injury to the employee or others,"
the MCAD Guidelines deem this an affirmative defense for which
the employer bears the burden of proving "that there is a
'reasonable probability of substantial harm' to the employee or
others." MCAD Guidelines, supra at IX.B.3, quoting Ryan v.
Lunenberg, 11 M.D.L.R. 1215, 1241-1242 (1989). Placing this
burden of proof on the employer is improper for two reasons.
First, it is contrary to our case law holding that the
burden of proving unlawful discrimination remains with the
plaintiff "at all times." See Abramian, 432 Mass. at 118,
quoting Wheelock College v. Massachusetts Comm'n Against
Discrimination, 370 Mass. 130, 139 (1976). See also Cox, 414
Mass. at 386 (plaintiff had burden to "persuade the judge that
22
he was capable of climbing poles safely" or prove that climbing
was not essential function of position).9
Second, where, as with a patrol officer, the nature of the
job will at times place the employee in harm's way, it is
impossible to divorce the question whether the employee is
capable of performing the essential functions of the position
from the question whether the employee can perform those
functions safely.10 General Laws c. 151B, § 1, defines various
9
The defendant employer bears the burden of proof only
where it claims that the reasonable accommodation that might
enable the employee capably to perform the essential functions
of the position would impose an undue hardship on the conduct of
the employer's business. See Godfrey v. Globe Newspaper Co.,
457 Mass. 113, 120 (2010) ("Once an employee 'make[s] at least a
facial showing that reasonable accommodation is possible,' the
burden of proof [of both production and persuasion] shifts to
the employer to establish that a suggested accommodation would
impose an undue hardship" [citations omitted]). See also
Massachusetts Commission Against Discrimination, Guidelines:
Employment Discrimination on the Basis of Handicap Chapter 151B
§ II.D (1998). The employer's burden as to this issue is
imposed by the plain meaning of the language of G. L. c. 151B,
§ 4 (16), which prohibits discrimination against qualified
handicapped individuals "unless the employer can demonstrate
that the accommodation required to be made . . . would impose an
undue hardship to the employer's business."
10
Surveying the Federal decisions in this area, one
treatise remarks that while "[o]rdinarily a party asserting an
affirmative defense bears the burden of proof, . . . many courts
have been reluctant to require the employer to prove [a] direct
[safety] threat. Their reasoning is that Congress placed
burdens on both parties, because the plaintiff must prove that
he or she is 'otherwise qualified' for the job. The plaintiff's
showing of being 'otherwise qualified' encompasses or subsumes
the issue of direct threat, the argument goes, because a person
who is a direct threat would not be qualified for the job; being
qualified implies not being a direct threat." 9 L.K. Larson,
23
terms in c. 151B, but it does not define "capable of performing
the essential functions of a particular job." Section 4 (16),
however, recognizes that the safe performance of a job is part
of its capable performance, because it requires that a physical
or mental job qualification requirement "shall be functionally
related to the specific job or jobs for which the individual is
being considered and shall be consistent with the safe and
lawful performance of the job." See Dahill, 434 Mass. at 240,
quoting Cox, 414 Mass. at 383-384 ("The public policies
underlying G. L. c. 151B, § 4 [16], are clear: to protect
'handicapped individuals from deprivations based on prejudice,
stereotypes, or unfounded fear, while giving appropriate weight
to such legitimate concerns of [employers] as avoiding exposing
Employment Discrimination § 156.03[4][c] (2d ed. 2016) (Larson).
See Equal Employment Opportunity Comm'n v. Amego, Inc., 110 F.3d
135, 143 (1st Cir. 1997) ("Under § 504 [of the Rehabilitation
Act], it is clear that the question of whether the employment of
the plaintiff poses risks to the health of others is analyzed as
a matter of whether the person is "otherwise qualified").
Those Federal courts that take the opposite view and place
the burden of proof on the employer have emphasized that the
Americans with Disabilities Act, 42 U.S.C. § 12113(a), (b),
provides a defense to a charge of disability discrimination
where the individual poses "a 'direct threat' to the health or
safety of him or herself or to others in the workplace."
Larson, supra, citing Equal Employment Opportunity Comm'n v.
Wal-Mart Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007); Nunes
v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999);
U.S. Equal Employment Opportunity Comm'n v. AIC Sec.
Investigations, 55 F.3d 1276, 1283-1284 (7th Cir. 1995).
General Laws c. 151B, § 4 (16), does not set forth a "direct
threat" defense; it simply places on the employee the burden of
proving that he or she is a "qualified handicapped person."
24
others to significant health and safety risks'"). Section
4 (16) does not recognize a separate affirmative defense of
"reasonable probability of substantial harm" to the employee or
others. See MCAD Guidelines, supra at IX.B.3.
While the handicapped employee ultimately bears the burden
of proving that he or she can safely perform the essential
functions of a particular job, the employee need only confront
this burden where the employer has met its burden of producing
specific evidence showing that the employee would pose an
unacceptably significant risk of serious injury to the employee
or others.11 The employer meets its burden of production where
it offers evidence showing that it has made "an individualized
factual inquiry" based on substantial information regarding the
employee's individual work and medical history. See MCAD
Guidelines, supra at § IX.B.3. See also Knapp v. Northwestern
Univ., 101 F.3d 473, 484-486 (7th Cir. 1996), cert. denied, 520
U.S. 1274 (1997). It may not meet its burden based upon pure
speculation as to the likely risk of injury. See MCAD
Guidelines, supra. Nor is it sufficient to show simply an
increased risk of injury. See id. See also Mantolete v.
Bolger, 767 F.2d 1416, 1422 (9th Cir. 1985), quoting S. Rep. No.
11
We choose the standard of an "unacceptably significant
risk of serious injury to the employee or others" because we
recognize that the performance of some inherently dangerous jobs
might always involve a significant risk of serious injury to the
employee or others.
25
48, 93rd Cong., 1st Sess., at 16 (1974) ("A mere 'elevated risk'
standard is not sufficient to insure handicapped people's 'right
to employment which complements their abilities'"). The
employer must offer evidence showing an increased risk of
serious injury that is so significant that it cannot reasonably
be deemed acceptable by an employer. See Beal v. Selectmen of
Hingham, 419 Mass. 535, 543 (1995) (concluding that plaintiff
who was discharged as police officer has no reasonable
expectation of demonstrating that she is "qualified handicapped
person" under G. L. c. 151B "[b]ecause police officers are
responsible for public safety, and the plaintiff's handicap
severely compromises her capability to ensure the general safety
of the public"). See also Burton v. Metropolitan Transp. Auth.,
244 F. Supp. 2d 252, 262 (S.D.N.Y. 2003) (plaintiff not
qualified to perform essential functions of his bus driver
position where his health condition posed "unacceptable" risk to
public).
Where the employer has satisfied this burden of production,
the plaintiff employee must prove that he or she is capable of
performing the essential functions of the job without posing an
unacceptably significant risk of serious injury to the employee
or others. In making this determination, the fact finder must
consider the potential severity of the feared injury and the
probability that the employee in that position would cause such
26
injury. An employee may be found incapable of safely performing
the essential functions of a position, and therefore not
qualified under the statute, without the risk rising to the
standard of a "reasonable probability of substantial harm."
Contrast MCAD Guidelines, supra at § IX.B.3, quoting Ryan, 11
M.D.L.R. at 1242.
Conclusion. We reverse the allowance of the defendant's
motion for summary judgment, and remand the case for a trial.
So ordered.