United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE
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
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.
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.
following facts are as set forth in the record and are
undisputed except as noted.
Ballinger was hired as a patrolman in the Kingston Police
Department in 1998. (Defs. Ex. A (“Splaine Dep.”)
at 41:15-17). He was promoted to sergeant in 2004.
(Defs. Ex. D at 2).
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).
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)).
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).
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).
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).
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
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).
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).
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).
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).
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).
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).
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).
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).
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.).
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).
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
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).
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).
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
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).
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.).
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).
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
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).
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).
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.).
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).
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).
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).
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).
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).
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).