Heard: December 8, 2016.
action commenced in the Superior Court Department on
September 27, 2012.
case was heard by Douglas H. Wilkins, J., on a motion for
summary judgment, and a motion for reconsideration was
considered by him.
L. Lichten (Adelaide H. Pagano also present) for the
I. Taub, Senior Special Assistant Corporation Counsel, for
R. Liebman & Constance M. McGrane, for the Massachusetts
Commission Against Discrimination, amicus curiae, submitted a
S. Mantell, for Massachusetts Employment Lawyers Association,
amicus curiae, submitted a brief.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
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.
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 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.
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.
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.
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 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."
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 ...