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Gannon v. City of Boston

Supreme Judicial Court of Massachusetts, Suffolk

April 18, 2017


          Heard: December 8, 2016.

         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.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

          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]


         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 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.

         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 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 ...

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