United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Melo brought this lawsuit against his former employer, the
City of Somerville, and his erstwhile supervisor, Chief David
Fallon. Melo alleges that they discriminated against him
based on his disability by failing to accommodate him and
forcing him to retire. More specifically, the Complaint sets
out one claim against Chief Fallon for intentional infliction
of emotional distress (Count VII) and six claims against
Somerville for failure to accommodate his actual (Count I)
and perceived (Count II) disability under the Americans with
Disabilities Act (ADA), for violating § 504 of the
Rehabilitation Act (Count III), and for discrimination under
Mass. Gen. Laws ch. 151B, § 4(16) based on his actual
(Count IV), perceived (Count V), and record of (Count VI)
disability. Defendants now move for summary judgment on all
counts. For the reasons to be explained, defendants'
motion for summary judgment will be allowed.
facts, viewed in the light most favorable to Melo as the
nonmoving party, are as follows. In May of 1997, Melo began
working as a police officer for Somerville. In October of
2002, he injured his left eye while on duty. In 2003, after
multiple surgeries, he returned to work without
restrictions. In 2007, he became a station officer,
which required him to, among other responsibilities, answer
police calls, run criminal history checks, and monitor
prisoners. He was still required to be able to perform the
essential duties of a police officer.
August of 2015, Melo had twice tested positive for marijuana.
After entering into a rehabilitation agreement on the first
occasion and after being disciplined on the second, he was
informed that a third positive test would result in
termination. On August 25, 2015, Lieutenant William
Rymill reported to Deputy Chief Stephen Carrabino that Melo
had arrived at work smelling of marijuana. On September 22,
2015, Captain Michael Cabral spoke with Melo about the
report. Melo informed Captain Cabral that he had “lost
partial vision in his [left] eye” and that, as a
result, he sometimes smoked marijuana to relieve his
migraines and pain. SOF (Dkt # 16), Ex. I.
following day, Somerville ordered Melo to undergo a drug test
and placed him on paid administrative leave pending the
results. After Melo disputed Somerville's
“reasonable suspicion” for ordering the drug
test, id., Ex. E., Somerville agreed to hold an
appeal hearing on October 1, 2015. That morning, instead of
participating in the hearing, Melo entered into an agreement
with Somerville, requiring him to, among other things,
complete a drug rehabilitation program and pass a fitness for
duty test. The agreement also provided that failure
to abide by its terms would result in termination.
October 15, 2015, Dr. Albert Rielly performed an examination
and instructed that Melo follow up with an ophthalmologist.
On December 3, 2015, Dr. Steven Patalano performed an eye
examination and opined that Melo could “see
nothing” from his “aphakic” left eye. SOF
(Dkt # 16), Ex. H. After reviewing Dr. Patalano's report,
Dr. Rielly concluded that because Melo essentially has
monocular vision, he was unable to perform the essential
functions of a police officer, especially “pursuit
driving, ” and was therefore unfit for duty. SOF (Dkt #
21), Ex. CC. Chief Fallon agreed, and Somerville decided to
terminate Melo. In lieu of termination, Melo ultimately
agreed to involuntary accidental disability
retirement. On March 1, 2017, the Public Employee
Retirement Administration Commission (PERAC) officially
approved his retirement.
October 23, 2017, Melo filed a charge of discrimination with
the Massachusetts Commission Against Discrimination (MCAD)
and the Equal Employment Opportunity Commission (EEOC).
Compl. (Dkt # 1) ¶¶ 4-5. Melo then withdrew the
charge and initiated this lawsuit on April 23, 2018.
judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
material fact is one that has the “potential to affect
the outcome of the suit under applicable law.”
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701,
703 (1st Cir. 1993). For a dispute to be “genuine,
” the “evidence relevant to the issue, viewed in
the light most flattering to the party opposing the motion
must be sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either
side.” Nat'l Amusements v. Town of Dedham,
43 F.3d 731, 735 (1st Cir. 1995) (citation omitted).
out a prima facie case of disability discrimination under the
ADA, Chapter 151B,  and § 504 of the Rehabilitation Act,
Melo must show that: (1) he has a disability within the
meaning of the law; (2) he is nonetheless able to perform the
essential functions of his job, with or without reasonable
accommodation; (3) he suffered an adverse employment action;
and (4) his employer replaced him with a non-disabled person
or otherwise sought to fill the job. Jacques v. Clean-Up
Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996); Dartt
v. Browning-Ferris Indus., Inc., 427 Mass. 1, 3 (1998).
Somerville concedes that Melo has a disability (monocular
vision),  but maintains that he was not qualified to
perform the essential functions of his job as a police
officer. I agree.
bears the burden of showing that he is able to perform all
essential, as opposed to marginal, functions of the job.
Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001).
In assessing whether a function is essential, the court may
look to the employer's judgment, written job
descriptions, and the experience of past and present
incumbents in the same or similar jobs. Mulloy v.
Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006). The
court generally affords “substantial weight” to
an employer's determination that a job requirement is
essential. Ward v. Massachusetts Health Research Inst.,
Inc., 209 F.3d 29, 34 (1st Cir. 2000).
case that is instructive and on point is Carleton v.
Commonwealth, 447 Mass. 791 (2006). In
Carleton, the Supreme Judicial Court (SJC) held that
the plaintiff, a candidate for a municipal firefighter's
position, had “no reasonable expectation of proving
that he [was] a qualified handicapped person” because
he was unable to satisfy the hearing standard promulgated by
the Commonwealth's Human Resources Division (HRD).
Id. at 810. The SJC did not review the HRD's
determination that a hearing aid was an unreasonable
accommodation because it involved “an area where public
safety [was] paramount” and was “based on