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Melo v. City of Somerville

United States District Court, D. Massachusetts

March 15, 2019

CITY OF SOMERVILLE and CHIEF DAVID FALLON, in his official and individual capacity



         Carlos 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.


         The 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.[1] 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.

         By 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.[2] 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.[3] SOF (Dkt # 16), Ex. I.

         The 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.[4] The agreement also provided that failure to abide by its terms would result in termination.

         On 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.[5] On March 1, 2017, the Public Employee Retirement Administration Commission (PERAC) officially approved his retirement.

         On 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.


         Summary 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).

         Disability Discrimination

         To make out a prima facie case of disability discrimination under the ADA, Chapter 151B, [6] and § 504 of the Rehabilitation Act, [7] 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), [8] but maintains that he was not qualified to perform the essential functions of his job as a police officer. I agree.

         Melo 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).

         One 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 consultations ...

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