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19-P-676 Appeals Court
JOHN RODRIGUES vs. PUBLIC EMPLOYEE RETIREMENT
ADMINISTRATION COMMISSION.
No. 19-P-676.
Suffolk. March 11, 2020. - September 29, 2020.
Present: Meade, Sacks, & Englander, JJ.
Public Employee Retirement Administration Commission. Public
Employment, Reinstatement of personnel, Retirement. Labor,
Fire fighters, Public employment. Fire Fighter, Hiring,
Incapacity, Retirement. Anti-Discrimination Law, Handicap,
Age, Offer of reinstatement, Employment. Hearing-Impaired
Person. Handicapped Persons. Employment, Discrimination.
Declaratory Relief.
Civil action commenced in the Superior Court Department on
February 13, 2013.
The case was heard by Karen F. Green, J., on a motion for
summary judgment, and following the grant of summary judgment, a
motion to dismiss the remaining claims was heard by her.
Harold L. Lichten for the plaintiff.
Erica Morin, Assistant Attorney General, for the defendant.
ENGLANDER, J. The plaintiff, John Rodrigues, appeals from
a judgment dismissing his claims against the Public Employee
2
Retirement Administration Commission (PERAC). Rodrigues sued
PERAC seeking, fundamentally, reinstatement to his former
position as a firefighter in the Fall River fire department.
Rodrigues had held that position for eighteen years, until he
became retired due to a disability -- a heart condition -- in
2010. In 2012, Rodrigues sought reinstatement pursuant to G. L.
c. 32, § 8. He was denied reinstatement because he failed to
meet the hearing acuity requirements of the "initial" health and
physical fitness standards for firefighters, as promulgated by
the Commonwealth's human resources division (HRD) pursuant to
G. L. c. 31, § 61A. Under those standards, Rodrigues could not
use a hearing aid when taking the hearing test. In 2015,
Rodrigues again sought reinstatement and was again denied, this
time for two reasons: (1) failure to meet the hearing
requirements, and (2) a "small but significant" heart issue.
Rodrigues initiated this action after the 2012 denial, and
amended his complaint after the 2015 denial. The amended
complaint asserts three basic claims, in nine counts: (1) that
PERAC improperly administered the reinstatement process of G. L.
c. 32, § 8, (2) unlawful handicap discrimination, and (3)
unlawful age discrimination. As to the first claim, the gist of
Rodrigues's argument is that under c. 32, § 8, he is "able to
perform the essential duties of the position from which he
retired," and that PERAC's decision to apply HRD's "initial"
3
standards (applicable to entry-level firefighters) to his
reinstatement request was wrong as a matter of law. Rodrigues's
discrimination claims similarly challenge that part of the HRD
initial standard that prohibits the use of hearing aids.
We conclude that seven of Rodrigues's counts -- in
particular, those seeking reinstatement or damages relief --
were properly dismissed, given that the c. 32, § 8, regional
medical panel determined in 2015 that Rodrigues was ineligible
for reinstatement not only because of his hearing, but also
because of his heart condition. We also conclude, however, that
Rodrigues's claims for declaratory relief should not have been
dismissed, as they raise significant questions of law as to
whether PERAC should be applying HRD's initial fitness standards
in a return to service context. We accordingly remand for
further proceedings the claims for a declaratory judgment
concerning PERAC's compliance with c. 32, § 8, and c. 31, § 61A.
Background.1 1. Rodrigues's return to service denials.
Rodrigues began as a firefighter with the Fall River fire
department in 1993. Rodrigues was compelled to retire due to
disability in March of 2010, after receiving a diagnosis of a
congenital heart condition. Thereafter, Rodrigues began
1 We recount the facts in the light most favorable to
Rodrigues. See Carleton v. Commonwealth, 447 Mass. 791, 793
(2006).
4
receiving a disability retirement allowance. Apparently, the
heart condition did not substantially alter Rodrigues's
lifestyle; he has maintained a vigorous exercise regimen during
retirement.
Two years after his disability retirement, Rodrigues sought
reinstatement through the c. 32, § 8, "reexamination" and
"restoration to service" (return to service) process. That
statute requires all members of public employee retirement
systems on disability retirement to undergo periodic medical
evaluations to determine whether they are "able to perform the
essential duties" of their prior position. G. L. c. 32, § 8 (1)
(a), (2) (a). The process works as follows:2 the retiree
undergoes an initial evaluation, which may be conducted by a
single physician appointed by PERAC; if the retiree is found
able to perform the essential duties of his former position, he
is then separately evaluated by three physicians comprising a
"regional medical panel," appointed by PERAC. If all members of
that panel also find that the retiree is able to perform the
essential duties, then the retiree must be reinstated. See
G. L. c. 32, § 8 (2) (a); 840 Code Mass. Regs. § 10.13(2)
2 We draw from the PERAC regulations, as well as from the
deposition transcript of Patrice Looby, a PERAC employee, who
testified to PERAC's practice and procedure. We apply the
version of the regulations in effect during the relevant time
period.
5
(2000); 840 Code Mass. Regs. § 10.15(2) (2004). One important
component of this process is the standards applied to determine
whether a disability retiree is able to perform those essential
duties; for firefighters like Rodrigues, PERAC instructs the
physician evaluators to apply HRD's initial health and fitness
standards promulgated pursuant to c. 31, § 61A, applicable to
persons first being appointed as firefighters.
a. The 2012 evaluation. The physician who conducted the
initial evaluation of Rodrigues in 2012 (2012 evaluation)
concluded that his hearing loss exceeded the amount permitted by
the initial HRD health and fitness standards in effect at the
time. Under those standards, Rodrigues was not allowed to wear
a hearing aid during the test, and he could not have hearing
loss of an average of thirty-five decibels (dB) or more in
either ear. The test results showed an average of 60 dB hearing
loss in Rodrigues's left ear, and an average of 62.5 dB hearing
loss in his right. The physician concluded that Rodrigues was
ineligible for reinstatement, and PERAC so notified Rodrigues in
March of 2012. In December of 2012, Rodrigues sought
reconsideration, which was denied in January of 2013.3
3 Rodrigues submitted results from a hearing test performed
by a physician that he had retained, sometime after the 2012
evaluation. Those results were better than Rodrigues's 2012
evaluation tests, but still showed thirty-five dB average
hearing loss in both ears.
6
b. The 2015 evaluation. In 2015, Rodrigues underwent a
second round of return to service evaluations. This time he
passed the initial evaluation, and was thereafter evaluated by a
regional medical panel (medical panel or panel) composed of two
cardiologists and one otolaryngologist (an ear, nose, and throat
physician). One of the cardiologists found that Rodrigues was
able to perform the job's essential duties. A second
cardiologist, however, found a "small but significant risk for
[a] cardiac event to occur with strenuous exercise," and that
"severe emotional or physical stress" -- which is expected for
firefighters -- posed a "risk of sudden cardiac death or
myocardial infarction." Accordingly, the second cardiologist
concluded that Rodrigues was ineligible to return to service.
The third physician, the otolaryngologist, determined that
Rodrigues's hearing loss in his left ear exceeded the HRD
standard then in effect.
2. Rodrigues's lawsuit. Rodrigues filed his initial
complaint against PERAC in the Superior Court in February of
2013. In June of 2013, Rodrigues filed a charge against PERAC
with the Massachusetts Commission Against Discrimination (MCAD),
and Rodrigues subsequently amended his complaint to include
multiple antidiscrimination claims arising under G. L. c. 151B,
§ 4. After he was denied reinstatement in 2015, Rodrigues filed
another MCAD charge, and again amended the Superior Court
7
complaint. As noted, the final version of the complaint, filed
on March 3, 2016, asserted three basic claims -- handicap
discrimination, age discrimination, and failure to comply with
G. L. c. 32, § 8.4
PERAC eventually moved for summary judgment on all counts,
and initially the judge granted summary judgment for PERAC on
seven of the nine. Thereafter, PERAC moved to dismiss both
remaining counts for lack of subject matter jurisdiction. With
respect to count one, PERAC invoked a sovereign immunity defense
-- it argued that the claim was not a proper claim for a
declaratory judgment, because it sought a declaration regarding
"individual, personal rights," rather than the legality of
PERAC's "practices and procedures." The judge dismissed the two
remaining counts, and final judgment entered. Rodrigues
appealed.
4 The nine counts are: (1) a challenge to PERAC's
application of c. 32, § 8; (2) a request for declaratory and
injunctive relief regarding PERAC's failure to require the use
of "age-adjusted hearing standards," in violation of c. 31, §
61A; (3-4) age and handicap discrimination, in violation of G.
L. c. 93, §§ 102-103, and art. 114 of the Amendments to the
Massachusetts Constitution; (5-6) handicap discrimination and
failure to provide reasonable accommodation, in violation of c.
151B, § 4 (16); (7-8) age discrimination and disparate impact,
in violation of c. 151B, § 4 (1C); and (9) age and handicap
discrimination constituting interference with c. 151B rights,
and having a disparate impact, in violation of c. 151B, § 4
(4A).
8
Discussion. 1. The discrimination claims. We first
address Rodrigues's claims that he was discriminated against
based upon handicap and age, as a result of the application of
the HRD standards for hearing.5 To succeed on an individual
claim of handicap or age discrimination, Rodrigues would need to
prove, among other things, (1) that the application of the HRD
hearing standards constituted age or handicap discrimination,
and (2) that he was qualified for the position. See, e.g.,
Gannon v. Boston, 476 Mass. 786, 793-795 (2017) (identifying
elements of handicap discrimination, and describing burden-
shifting framework for proving handicap discrimination claim);
Somers v. Converged Access, Inc., 454 Mass. 582, 595-599 (2009)
(same for age discrimination).
Here Rodrigues's claims founder on the second of these
requirements -- he cannot show that he was otherwise qualified
for the position. With respect to the 2015 decision, even if
Rodrigues could succeed in challenging the hearing standards,
the adverse finding regarding his heart condition by itself
disqualified him from reinstatement. As noted, one of the
5 The Supreme Judicial Court in Carleton, 447 Mass. at 805-
807, discussed the bases for the HRD rule that a firefighter
applicant could not use a hearing aid while taking a hearing
test. In short, the court noted that as of the time of its
opinion there were significant public safety concerns with
having firefighters wearing hearing aids while fighting a fire,
including in particular the risks of malfunction from exposure
to water. Id. at 806.
9
cardiologists on the 2015 medical panel found a "small but
significant risk for [a] cardiac event," including "sudden
cardiac death." Under c. 32, § 8 (2) (a) and PERAC's
regulations, the cardiologist's conclusion meant that Rodrigues
had to be denied reinstatement. The regulations state that all
three members of the panel must agree that reinstatement is
appropriate, and we have upheld the validity of this
requirement. See 840 Code Mass. Regs. § 10.13(2); Pulsone v.
Public Employee Retirement Admin. Comm'n, 60 Mass. App. Ct. 791,
796 (2004). Moreover, the panel's decision is controlling -- we
have said that the panel has "exclusive authority to determine
whether a disability retiree is qualified for and able to
perform a position's essential duties." McLaughlin v. Lowell,
84 Mass. App. Ct. 45, 65 (2013).
Rodrigues argues that his discrimination claims as to the
2015 denial should nevertheless be allowed to go forward.
Citing Gannon, Rodrigues essentially contends that a court could
reject the panel's medical determination regarding his heart
condition, and instead conclude that, for the purposes of
c. 151B, § 4 (16), he was "capable of performing the essential
functions of the position" without posing "an unacceptably
significant risk of serious injury" to himself or others.
Gannon, 476 Mass. at 799. The argument is unavailing. The
cardiologist's findings mean that Rodrigues was not qualified --
10
he was not able to perform the essential functions of the job,
as determined under the HRD health and fitness standards for
firefighters.
Those findings of the medical panel cannot be overturned or
disregarded in this lawsuit, as Rodrigues would have us do.
McLaughlin is controlling on this point. There the plaintiff
firefighter (McLaughlin) had been denied reinstatement under
c. 32, § 8, by a medical panel, but his handicap discrimination
claim was nevertheless allowed to go to a jury, on the theory
that the job requirement at issue -- that he not use an inhaler
at fire scenes -- had been imposed for discriminatory purposes.
McLaughlin, 84 Mass. App. Ct. at 49-50. McLaughlin was
asthmatic, so the prohibition on inhalers rendered him unable to
perform some of his essential duties. Id. at 48, 53-54.
The jury returned a verdict for McLaughlin on the handicap
discrimination claim, but this court reversed. McLaughlin, 84
Mass. App. Ct. at 50, 74. We held that McLaughlin could not
make out such a claim as a matter of law, because the panel's
determination established conclusively that he was not qualified
for his former position. Id. at 69-70. The medical
determination that McLaughlin was unfit could not be overridden
in court: "[W]e are aware of no situation in which a judge or a
jury may properly substitute its decision for one within the
11
authority of the regional medical panel." Id. at 70-71.6 See
Carleton, 447 Mass. at 807-810 (holding that firefighter's
handicap discrimination claim was foreclosed by application of
HRD's initial standards for firefighters).7 Similarly here,
because the panel determined Rodrigues to be unqualified under
the HRD health and fitness standards due to his cardiac health,
he did not have viable claims under c. 151B.8
6 We noted in McLaughlin, 84 Mass. App. Ct. at 51-52, that
there were other remedial avenues for addressing legal issues
raised during the reinstatement process, such as the
administrative appeal process. And, as we hold infra, a
declaratory judgment action will lie in some circumstances to
test the legality of agency actions. Beyond that, the panel's
determination would not be wholly insulated from judicial review
-- if, for example, the panel engaged in "impropriety" or
violated applicable constitutional norms. Id. at 70.
7 While Rodrigues challenges the panel's factual
determination regarding his cardiac health, he does not
challenge the appropriateness of the cardiac standards applied
to him, or claim that those cardiac standards could somehow be
overridden in connection with a claim brought under c. 151B,
§ 4, based upon handicap or age discrimination. Nor did
Rodrigues request any reasonable accommodation with respect to
his heart condition. In any event, the Supreme Judicial Court
in Carleton addressed the related issue of whether c. 151B's
antidiscrimination provisions could override a determination
that a firefighter is medically unfit based upon HRD's
legislatively-ratified initial standards for firefighters, and
held that they could not. See Carleton, 447 Mass. at 807-810.
While Carleton was not a return to service case and thus the
issue before the court was somewhat different, the reasoning of
Carleton is instructive here. Among other things, the court
noted that "public safety is paramount" in the determination of
a firefighter's qualifications. Id. at 809.
8 The decision in Gannon is not applicable because Gannon
did not involve a restoration to service under G. L. c. 32, § 8,
12
Rodrigues also cannot prevail on the c. 151B claims based
upon the earlier denial of reinstatement, in 2012. In
particular, as to the March 2012 denial Rodrigues did not file
his MCAD charge until June of 2013, and so failed to meet the
300-day requirement of G. L. c. 151B, § 5 (charge must be "filed
within 300 days after the alleged act of discrimination"). We
reject Rodrigues's argument that his filing was nevertheless
timely because it was made within 300 days of the January 2013
denial of his request for reconsideration. Rodrigues cannot
extend the 300-day period by the simple expedient of a request
to reconsider, at least where the request did not show any
material changed circumstances. Here reconsideration was denied
on the same basis as the March 2012 denial. Moreover, inasmuch
as c. 32, § 8 (1) (a), specifically provides that an evaluation
"shall occur not more frequently than once in any twelve month
period," the request for reconsideration cannot be treated as an
independent application.9,10
and thus there was no finding of a medical panel. See Gannon,
476 Mass. at 786-792.
9 In light of our conclusion that summary judgment was
properly granted on this ground, we need not address PERAC's
argument that it is not an "employer" of firefighters within the
meaning of c. 151B.
10The judge also correctly dismissed claims brought under
G. L. c. 93, § 103 (§ 103), which creates a cause of action to
enforce rights against handicap discrimination under art. 114 of
the Amendments to the Massachusetts Constitution, as well as
13
2. Declaratory relief claims. In addition to his claims
for reinstatement or damages, Rodrigues also brought claims
seeking declaratory relief -- in particular, count one seeks,
among other things, a determination that PERAC should apply age-
adjusted, in-service health and fitness standards in determining
restoration to service under c. 32, § 8, and count two
specifically seeks a declaration that PERAC violated G. L.
c. 31, § 61A, by failing to employ such age-adjusted hearing
standards.
These claims should not have been dismissed. They raise
primarily questions of law that could well arise in any of
Rodrigues's future reinstatement evaluations (which under G. L.
c. 32, § 8 [1] [a], are to occur at least every three years),
not to mention those of other firefighters and police officers
on disability retirement. The legal questions implicate the
requirements of the two above-mentioned statutes, and how those
statutes interrelate. Answering them also will require analysis
against age discrimination. See Carleton, 447 Mass. at 812.
Carleton states that art. 114's prohibition on employment
discrimination based on handicap is not broader than c. 151B's
prohibition, and a § 103 claim to enforce art. 114 will not lie
where a c. 151B claim is or was available. Id. at 812-813. As
with the plaintiff in Carleton, because Rodrigues's handicap
discrimination claim brought under c. 151B, § 4 (16), fails as a
matter of law, he does not have a viable § 103 handicap
discrimination claim. The same rationale disposes of
Rodrigues's § 103 age discrimination claim, because a c. 151B
claim for such discrimination was available to Rodrigues.
14
of a 2016 regulation issued by PERAC, discussed infra. The
issue is appropriate for declaratory relief. See Nordberg v.
Commonwealth, 96 Mass. App. Ct. 237, 241 (2019) ("the [Supreme
Judicial Court] has reiterated that a dispute over an official
interpretation of a statute constitutes a justiciable
controversy for purposes of declaratory relief" [quotation
omitted]). See Villages Dev. Co. v. Secretary of the Executive
Office of Envtl. Affairs, 410 Mass. 100, 106 (1991) (stating
requirements for obtaining declaratory relief with regard to
administrative action).11
PERAC argues that count one was properly dismissed
nonetheless, for two reasons. First, PERAC contends that it is
the wrong defendant in this declaratory judgment action, because
PERAC neither establishes the health and fitness standards (HRD
does) nor makes factual findings regarding those standards (the
medical panels do). We disagree. PERAC administers the c. 32,
§ 8, return to service process, and as part of that process
PERAC directs the physicians to apply HRD health and fitness
standards. PERAC is, accordingly, responsible for choosing a
legally appropriate set of standards. It is undisputed that in
11To the extent that Rodrigues's claim brought under c. 32,
§ 8, also seeks individual retrospective relief in addition to a
declaratory judgment, that claim also fails. Assuming (without
deciding) that there is an independent claim for such relief,
Rodrigues cannot prevail given the lawful denial based on his
heart condition, as discussed supra.
15
the context of firefighters seeking to return to service, PERAC
directed the use of the "initial" standards.
PERAC next contends that Rodrigues did not properly state a
claim for a declaratory judgment, reiterating its argument that
Rodrigues is seeking relief for himself as an individual, and
that individual relief is not available against the Commonwealth
under the declaratory judgment act, G. L. c. 231A, §§ 1-9. See
c. 231A, § 2 (authorizing "procedure . . . to obtain a
determination of the legality of the administrative practices
and procedures of any . . . state agency" which have been
"consistently repeated" [emphasis added]). PERAC's argument
relies on too narrow a reading of Rodrigues's complaint. While
count one does not explicitly request declaratory relief, the
complaint's final, concluding paragraph does. It is appropriate
to review the complaint as a whole in determining the relief
sought for each alleged violation of law -- especially on review
of a dismissal under Mass. R. Civ. P. 12 (b), 365 Mass. 754
(1974). See Ritchie v. Department of State Police, 60 Mass.
App. Ct. 655, 659 (2004). Here counts one and two challenge not
only the denial of reinstatement, but also PERAC's failure to
use age-adjusted standards. The complaint thus challenges
16
PERAC's "practices and procedures," and does not merely seek an
individual adjudication, as PERAC contends.12
Turning to the merits of the question presented, we view
that question as what standards should the medical reviewers
apply, in the return to service context, in determining whether
a "retired member" is "qualified for and able to perform the
essential duties of the position from which he retired." G. L.
c. 32, § 8 (2) (a). The plaintiff argues that PERAC erroneously
decided to apply HRD's initial health and fitness standards, and
that instead, PERAC should apply "in-service" standards that
"take into account . . . age," as required by c. 31, § 61A,
fourth par. PERAC, on the other hand, contends that it is
required by c. 32, § 8, to apply HRD's standards, that it has no
discretion in the matter, and that the initial standards are the
applicable standards.13
Because she dismissed the complaint on other grounds, the
judge did not address the question of what health and fitness
standards apply, or the appropriateness of those standards. The
issues are only partially briefed in this court, and we decline
12Resolving this issue as we do, we need not address the
parties' dispute as to whether Rodrigues could seek judicial
review of his denial of reinstatement by bringing an action in
the nature of certiorari. See G. L. c. 249, § 4.
13It is undisputed that HRD has never actually promulgated
a set of in-service standards.
17
to decide them on the record before us. On remand, the judge
and the parties should focus on the structure of the relevant
statutory schemes. Under c. 31, § 61A, initial fitness
standards apply to firefighters "when they are appointed to
permanent, temporary, intermittent, or reserve positions." On
the other hand, the "restoration to service" provisions of
c. 32, § 8, apply to persons, such as Rodrigues, who have
previously been active public employees, who are being paid a
disability pension, and who are required by statute to return to
service if they are fit to do so. We note, however, that in
2016 PERAC amended its regulations regarding disability
retirement, and specifically provided that in determining
whether a retiree is "unable to perform the essential duties of
the position," PERAC will use HRD's initial standards. 840 Code
Mass. Regs. § 10.14 (2016).14 In contending that PERAC must
apply other standards -- that is, age-adjusted, in-service
standards -- Rodrigues will have to address the effect of the
2016 regulation. In any event, all of these various provisions
can be considered on remand; also to be considered is the
significance of the fact that HRD has not yet promulgated in-
service standards for firefighters.
14Whether this regulation was filed with and approved by
the Legislature may be explored on remand. See G. L. c. 7,
§ 50; Pulsone, 60 Mass. App. Ct. at 796-797.
18
Conclusion. We affirm the dismissal of counts three
through nine of Rodrigues's March 3, 2016 complaint. We reverse
the dismissal of counts one and two, and remand the case to the
Superior Court for further proceedings consistent with this
opinion.
So ordered.
Rodrigues v. Public Employee Retirement Administration Commission
Combined Opinion