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Ballinger v. Town of Kingston

United States District Court, D. Massachusetts

December 10, 2019




         This is a lawsuit for disability discrimination and retaliation. Plaintiff Tim Ballinger was a sergeant with the Kingston Police Department, eventually becoming a “court prosecutor, ” assisting in various court matters on behalf of the department. For several years, he did not engage in any of the physical duties typically required of police officers, including making arrests, restraining suspects, investigating crimes, or responding to emergency calls.

         In February 2017, Sgt. Ballinger testified in support of another officer, Sgt. Susan Munford, at her termination hearing. During the hearing, he disclosed that he suffered from post-traumatic stress disorder, or PTSD. He had not previously advised the police department of that fact. Several weeks after the hearing, he was interviewed by his superior officer about his PTSD. He was later placed on administrative leave on the ground that he was unable to perform the essential functions of a police officer, and eventually was required to retire involuntarily.

         Sgt. Ballinger then filed this suit, asserting claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Massachusetts Antidiscrimination Statute, Mass. Gen. Laws ch. 151B, various common-law claims, and 42 U.S.C. § 1983. Defendants have moved for summary judgment. For the following reasons, the motion will be granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are as set forth in the record and are undisputed except as noted.

         Tim Ballinger was hired as a patrolman in the Kingston Police Department in 1998. (Defs. Ex. A (“Splaine Dep.”) at 41:15-17).[1] He was promoted to sergeant in 2004. (Defs. Ex. D at 2).

         Maurice Splaine is the current chief of the Kingston Police Department. (Splaine Dep. at 18:5-7). Robert Fennessy is the Town Administrator in Kingston. (Pl. Ex. 5).

         At all relevant times, Kingston hired its police officers pursuant to the Civil Service Law codified in Mass. Gen. Laws chapter 31. (Defs. SMF ¶ 1). All police officers are expected to perform the duties and responsibilities of an officer as set forth in the Personnel Administration Rules administered by the Massachusetts Human Resources Division (“HRD”). (Splaine Dep. at 35:9-13; see also Def. Ex. B (list of duties)).

         On August 21, 2006, Sgt. Ballinger received a severe electric shock at a construction worksite while working a detail. The shock caused a variety of injuries and required him to take medical leave. (Defs. Ex. T (“Ballinger Dep.” at 14:8-16:22); Defs. Ex. F at 1).

         On March 3, 2007, his neurologist, Dr. Douglas Katz, noted that he suffered from “mild PTSD symptoms” but that his recovery was otherwise proceeding well and that a “medical endpoint” would be reached in five to six months. (Defs. Ex. E).

         Sgt. Ballinger initially returned to service on April 15, 2007. (Id.). It appears that he required another leave of absence shortly thereafter and was unable to return to work permanently until early 2008. (Ballinger Dep. at 18:19-22).

         In April 2008, Sgt. Ballinger was assigned to work as a detective sergeant. (Splaine Dep. at 50:23-51:11; Ballinger Dep. at 27:23-28:10). Three months later, he went on a “uniform patrol assignment.” (Id. at 51:2-3). He worked a “four and two” rotation, where he would work four days and then take two days off. (Id. at 40:17-19). He worked two days in uniform and two days in plainclothes per rotation. (Ballinger Dep. at 28:2-7). He testified that he could not perform details every day because he “had a lot of pain in [his] feet” and “couldn't stand up.” (Id. at 118:14-18).

         After returning to work in 2008, Sgt. Ballinger made three requests for accommodation, all of which were granted. He asked for lights for his cruiser, a heater for his office, and a lamp with a magnifying glass to assist him in reading. (Id. at 34:20-35:16). He made no further accommodation requests. (Id. at 35:10-22).

         The Kingston Police Department employs a court prosecutor. The court prosecutor is a police-department employee who prosecutes misdemeanors, serves as a liaison between the clerk's office and the District Attorney's Office, and represents the Town in court in clerk's hearings, civil motor-vehicle hearings, and domestic-violence cases. (Ballinger Dep. at 57:18-58:1). The position typically does not involve making arrests, subduing or restraining individuals, or other tasks involving significant physical activity. (See Splaine Dep. at 97:5-23).

         The Kingston police court prosecutor works a “five and two” rotation, meaning he or she works five days and then takes two days off. (Id. at 58:2-4). Court prosecutor is a specialty assignment within the department for which officers could apply. (Id. at 38:6-12). According to Chief Splaine, before an officer could take on a specialty assignment, he had to “be able to do the essential functions of [his existing position].” (Id. at 98:3-6).

         Sometime in 2009 or 2010, while serving as a detective, Sgt. Ballinger became the backup court prosecutor. (Ballinger Dep. at 31:2-16). Since returning to work, and during his time as a court prosecutor, he continued to perform some limited detail work, including evening and weekend details and patrolling a mall. (See Ballinger Dep. at 118:19-119:5).

         On February 29, 2012, Sgt. Ballinger was again seen by Dr. Katz, who noted that he suffered from reduced hearing function. (Defs. Ex. F). Dr. Katz further wrote that his “[PTSD] symptoms are relatively minor at this time, though still some present.” (Id. at 2). Otherwise, however, Dr. Katz concluded that “no psychotherapy” and “no specific work restrictions” were needed at that time. (Id. at 3).

         In 2015, the incumbent court prosecutor retired, and Sgt. Ballinger succeeded him. (Ballinger Dep. at 38:11-13; Splaine Dep. at 57:6-21). There were no complaints about his ability to perform his duties as a court prosecutor, either while he served as a backup or after he took over the position full-time. (Pl. Ex. 2 at 6).

         In June 2016, a disciplinary matter arose involving another officer, Sgt. Susan Munford. (Defs. Ex. I at 4). Sgt. Munford was also a member of the town's Board of Selectmen. (Pl. Ex. 3 (“Munford Dep.” at 5:21-6:5)). At the time, Sgt. Ballinger was the president of the Kingston Police Officers' union. (Defs. Ex. I at 3).

         Sgt. Ballinger testified in support of Sgt. Munford at a disciplinary hearing on June 28, 2016. (Id. at 5). That same evening, he was scheduled to work a midnight-to-8:00 a.m. overtime shift. (Defs. Ex. I at 4). According to Sgt. Ballinger, he mistakenly thought that he was scheduled to work another day and went to sleep at 10:00 p.m. (Id.). A patrolman, Thomas Mori, called and woke him. He arrived at the police station at 12:39 a.m. (Id. at 4-5).

         Upon arriving, Sgt. Ballinger allegedly shouted at the commanding officer of the previous shift, Sgt. Zachary Potrykus, for having Officer Mori make the phone call. (Id.). Sgt. Potrykus had testified adversely to Sgt. Munford five days earlier in the disciplinary hearing. (Id. at 5). After Sgt. Potrykus turned away to leave, Sgt. Ballinger yelled, “[y]ou going to fucking lie about this too?” (Id. at 4). That was an apparent reference to Sgt. Potrykus's earlier testimony. (Id. at 4-5). Sgt. Potrykus reported the incident to his superior officer, Lt. Thomas Kelley. (Id.).

         On June 29, 2016, Chief Splaine notified Sgt. Ballinger that he was the subject of an internal-affairs investigation concerning the previous evening's argument. (Id.). The investigating officer, Lt. Robert Wells, interviewed the involved parties and an eyewitness, dispatcher Gail Fallon. (Id. at 6).

         On July 7, 2016, Lt. Wells sent Chief Splaine a summary of his investigation, which concluded that Sgt. Ballinger had failed to report for duty on time and that he had engaged in disrespectful treatment of another officer. (Id. at 7).

         On July 28, 2016, Chief Splaine issued a Notice of Disciplinary Action suspending Sgt. Ballinger for three days. (Id. at 8). Pursuant to the governing collective bargaining agreement, Sgt. Ballinger appealed the decision to an arbitrator, who vacated it. (Id. at 22-23).

         On February 17, 2017, Sgt. Ballinger testified on behalf of Sgt. Munford at her termination hearing. (Pl. Ex. 4 at 3). The proceeding was public, and Sgt. Munford had it broadcast on Facebook Live. (Splaine Dep. at 78:22-24; Pl. Ex. 8 at 1). Because the hearing was overseen by a hearing officer, not by the Board of Selectmen, citizens were not permitted to speak. (Pl. Ex. 8).

         In his deposition, Chief Splaine characterized Sgt. Ballinger's testimony at the hearing as “blanket allegations” and “disparaging remarks against the whole [police department].” (Splaine Dep. at 80:1-3). Specifically, Chief Splaine testified that Sgt. Ballinger “was alleging that nobody follow[ed] policies and procedures; that nobody . . . properly catalog[u]ed evidence; [and] that he saw evidence laying around the station.” (Id. at 80:10-13). Chief Splaine testified that he believed Sgt. Ballinger was offering “scorch-and-burn testimony [to try] to protect Sergeant Munford.” (Id. at 81:8-9).

         During the hearing, Sgt. Ballinger disclosed that he had PTSD and some memory issues. (Splaine Dep. at 87:13-23). He also recounted an earlier conversation with Lt. Kelley concerning a decision to suspend Sgt. Munford's license to carry a firearm. (Defs. Ex. J at 165:2-6). He had mentioned to Lt. Kelley that he, like Sgt. Munford, had PTSD but that his license to carry had not been suspended. (Id.). Lt. Kelley purportedly replied, “be careful what you wish for.” (Id. at 166:5-6).[2]

         On March 8, 2017, Lt. Kelley sent a letter to Sgt. Ballinger requiring him to attend an interview the following day. (Pl. Ex. 9). The interview's stated purpose was “to discover facts and offer [him] an opportunity to explain and clarify statements” he had made at the hearing on February 17. (Id.).

         The interview on March 9 focused on Sgt. Ballinger's claim that he had been diagnosed with PTSD. (Pl. Ex. 10 (“Kelley Dep.”) at 111:2-5). According to Sgt. Ballinger, he had assumed the department was aware of his PTSD because of various medical forms he had submitted referring to PTSD symptoms. (Defs. Ex. L at 3).

         After the interview, Chief Splaine concluded that Sgt. Ballinger's ability to perform the essential functions of the job of a police sergeant was in question. (Defs. Ex. D at 3-4). Accordingly, on March 14, 2017, he sent a memorandum to Sgt. Ballinger placing him on administrative leave through March 24, 2017. (Pl. Ex. 11). The memorandum further required him to provide a physician's note addressing the following five questions:

1. Does Sergeant Ballinger have Post Traumatic Stress Disorder (PTSD) or a related condition?
2. If so, does this condition prevent Sergeant Ballinger from performing the essential functions of his job? (A copy of the essential duties of a police officer is included with this notice, for reference.)
3. Is this condition related to Sergeant Ballinger's position as a police officer?
4. Are issues with short or long-term memory a symptom of this condition?
5. Is Sergeant Ballinger subject to unprovoked attacks of anger or similar behavior as a result of this condition?

(Id.). As indicated, Chief Splaine attached a copy of the essential duties of a police officer. (Splaine Dep. at 96:15-17). He did not, however, attach any description of the court prosecutor position, because no such written description exists. (Id. at 98:3-6).

         On March 21, 2017, Dr. Russell Fry, a psychiatrist, responded to Chief Splaine's questions. As relevant here, Dr. Fry concluded that Sgt. Ballinger suffered from PTSD and that he was unable to “function with the full capacity as a police officer.” (Defs. Ex. O). On March 24, 2017, Chief Splaine placed Sgt. Ballinger on sick leave effective March 27, 2017. (Pl. Ex. 12).

         On March 27, 2017, Sgt. Ballinger was seen again by Dr. Katz. (Defs. Ex. P). Dr. Katz wrote that he had “several ongoing neurologic problems, ” including “ongoing hearing loss and tinnitus, ” “memory retrieval, ” and “anxiety as well as nightmares that are consistent with symptoms of [PTSD].” (Id.). Dr. Katz concluded that he was able to “continue to carry out the duties of a police officer and detective, ” but cautioned that a stressful situation could trigger a severe anxiety episode. (Id.).

         Chief Splaine then directed Sgt. Ballinger to undergo an independent medical examination with Dr. Judy Edelstein, a neurologist. (Pl. SMF ¶ 20). On June 22, 2017, Dr. Edelstein issued an initial report assessing that Sgt. Ballinger did suffer from anxiety, depression, and PTSD, but that he was largely able to handle those issues. (Defs. Ex. Q at 4). Dr. Edelstein continued, however, that he had balancing issues, difficulty sleeping, anxiety, and some psychological difficulties. (Id.). She concluded that he had “mild cognitive dysfunction” and PTSD, “which would make it difficult and prevent him from possibly producing accurate police reports.” (Id. at 5). After Chief Splaine asked Dr. Edelstein several follow-up questions, she added that Sgt. Ballinger's memory and cognitive issues were likely permanently impaired and that he should not serve as a SWAT team commander, which was one of his assignments. (Defs. Ex. Q at 7-8).

         Around the same time, the police department underwent a semiannual bidding process for shift assignments for the second half of 2017. (Pl. SMF ¶ 21). For the first time in several years, the role of court prosecutor was not available for bidding by sergeants. (Splaine Dep. at 159:3-6). Chief Splaine testified that he removed that position from the bidding process because of budget concerns and because he intended Sgt. Ballinger to work the shift that had been handled by Sgt. Munford. (Id. at 159:7-12). As police chief, Chief Splaine had discretion under the collective bargaining agreement to decide whether to fill the position of court prosecutor in the first instance, and whether the position should be filled by a patrolman or sergeant. (Id. at 160:3-5). Currently, three people are jointly assigned to the position of court prosecutor on a part-time basis. (Splaine Dep. at 111:12-14).

         On October 2, 2017, the Town of Kingston made an application to the Plymouth County Retirement Board that Sgt. Ballinger be subjected to involuntary disability retirement. (Defs. Ex. C at 4). Attached to the application was an affidavit from Chief Splaine stating that in reliance on Dr. Edelstein's evaluation, he was of the opinion that Sgt. Ballinger was “not able to perform the essential job functions of a Kingston police officer.” (Id. at 3). The application itself stated that Sgt. Ballinger's current position required certain physical capacities, including the abilities to “separate individuals in a fight or disturbance, ” “erect physical barriers, ” “bodily serve as a barrier, ” and “physically restrain or subdue a violent or resisting individual or arrestee to protect [one's] self, the person being restrained[, ] and the public.” (Id. at 7).

         As noted, Robert Fennessy is the Town Administrator in Kingston. (Defs. Ex. S (“Fennessy Dep.”) at 16:2-16). He was appointed by, and reports to, the Board of Selectmen. (Id. at 16:13-16). All town department heads, including the Chief of Police, report to Fennessy. (Id. at 17:9-22). As Town Manager, Fennessy had no role in the process for involuntary-disability retirement except to notify the Board of Selectmen and to apprise the board of facts relevant to the involuntary retirement procedure. (Id. at 27:16-20, 28:20-30:5).

         The town's counsel, John Clifford, advised Fennessy to e-mail Sgt. Ballinger's involuntary-disability retirement packet to the Board of Selectmen. (Id. at 30:6-20). The packet was marked “confidential” and mentioned that Sgt. Ballinger had PTSD. (Id. at 33:20-24; Pl. SMF ¶ 26). Sgt. Munford, who was still a member of the Board, received the e-mail. (Pl. Ex. 3 (“Munford Dep.”) at 62:21-24). She testified that she had never received a similar involuntary- retirement application while serving on the Board. (Id. at 65:10-14).

         Three independent physicians ultimately agreed that Sgt. Ballinger was incapable of performing the essential duties of a police sergeant and that his incapacity was likely to be permanent. (Defs. Ex. R). Accordingly, the Plymouth County Retirement Association voted unanimously to require Sgt. Ballinger to retire involuntarily. (Defs. SMF ¶ 28).

         B. Procedu ...

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