Carleton v. Com.

• Decision Date: 07 December 2006
• Citation: 858 N.E.2d 258
• Parties: Christopher CARLETON v. COMMONWEALTH & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 258

858 N.E.2d 258

Christopher CARLETON v. COMMONWEALTH & others.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 2006.

Decided December 7, 2006.

Harold L. Lichten, Boston (Shannon Liss-Riordan with him) for the plaintiff.

Robert L. Quinan, Jr., Assistant Attorney General, for the Commonwealth & another.

Mary A. Maslowski for city of Marlborough.

The following submitted briefs for amici curiae:

Robert S. Mantell, Boston, for Massachusetts Employment Lawyers Association.

Michele E. Randazzo, Boston, for city of Everett & others.

Beverly I. Ward, Boston, & J. Lynn Milinazzo-Gaudet for Massachusetts Commission Against Discrimination.

Thomas J. Urbelis, Boston, Carol Hajjar McGravey, Lawrence, & Margaret J. Hurley, Worcester, for City Solicitors and Town Counsel Association.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.

CORDY, J.

Christopher Carleton is hearing impaired. He was denied employment as a fire fighter by the city of Marlborough (city) due to his inability to pass a hearing test based on standards promulgated by the Commonwealth's division of human resources (division) at the direction of, and later approved by, the Legislature. See G.L. c. 31, § 61A. As a result, he commenced this action against the Commonwealth, the personnel administrator of the division, and the city,² alleging handicap discrimination in violation of G.L. c. 151B, § 4(16); G.L. c. 93, § 103; and art. 114 of the Amendments to the Massachusetts Constitution.³ Carleton contends that the division should have allowed him to meet the hearing standards with the assistance of his hearing aids. He does not claim that he could perform the essential functions of the job of a fire fighter without the use of his hearing aids or that the level of hearing acuity set by the medical standards is unnecessary to the performance of those functions.

A judge in the Superior Court granted summary judgment in favor of the defendants, concluding that Carleton could not establish that he was capable of performing the essential functions of a municipal fire fighter with reasonable accommodation, a necessary element of his discrimination claims. In reaching this conclusion, the judge first accepted the division's determination that a certain level of unaided hearing (reflected in the hearing standard) was an essential function of the job of a fire fighter, and then found that the only accommodation that would enable Carleton to meet the hearing standard—the use of hearing aids—was not a reasonable accommodation because it would force the division and the city to waive or alter that essential function.⁴ The judge also concluded that Carleton's art. 114 claim, brought pursuant to G.L. c. 93, § 103, failed because the safety of fire fighters and those they are charged with protecting is an overriding State interest justifying the hearing standards.⁵ Carleton appealed, and we granted his application for direct appellate review.⁶ We affirm, although on different grounds.⁷

1. Facts. We recount the facts in their light most favorable to Carleton. See, e.g., Mammone v. President & Fellows of Harvard College, 446 Mass. 657, 659-660, 847 N.E.2d 276 (2006), and cases cited. Since childhood, Carleton has suffered "bilateral mild to moderately severe sensorineural hearing loss." He lacks the necessary amplification to hear within a normal decibel range.⁸ To correct this deficiency, Carleton has worn hearing aids in both ears from a very early age.

Carleton's first formal experience with fire fighting began in 1997, when, at age seventeen years, he participated in a volunteer program sponsored by the fire department of Northborough and the Boy Scouts. Carleton took part in "all aspects of firefighting, except those involving [entrance to `burning structures']." He "received regular on-the-job fire fighting training at weekly meetings." Carleton learned "to operate fire ladders, fire hoses, [and] water supply"; was taught proper "drafting" technique (how to find and use nonhydrant water supplies); and practiced "using hydrants, driving fire vehicles, setting up lighting and fans on fire grounds, assisting with the rehabilitation of fire fighters, and assisting with salvage operations." In 1998, Carleton became a licensed emergency medical technician (EMT). From August, 1998, to October, 1999, and from July, 2000, to October, 2003, Carleton had been employed by two private ambulance companies as an EMT. In October, 1999, the city also hired Carleton as a 911 emergency dispatcher, a position, it appears, that he continues to hold. In none of these activities was there ever a problem reported regarding Carleton's hearing or communicating with others.

In addition, Carleton served as a "call" fire fighter⁹ for the town of Stow from January, 2000, until 2002. As a call fire fighter, he successfully completed the "fire fighter I certification course." Aside from lectures, this course included three days of "structural fire fighting inside a burning structure and outside on the fireground adjacent thereto." During these exercises, Carleton wore his hearing aids as well as head coverings and other equipment. Although sweating, being sprayed intermittently with water, and being exposed to significantly loud background noise, Carleton had no problem hearing or communicating with others, and his hearing aids functioned properly at all times.¹⁰

On April 29, 2000, Carleton sat for the division's fire fighter civil service examination. He scored a ninety-nine out of a possible one hundred on the examination. Consequently, his name was placed close to the top of the civil service list from which participating governmental units or municipalities hired. In April, 2001, the division notified Carleton that the city would be hiring two fire fighters. Carleton immediately informed the city that he would like to be considered for the positions. Thereafter, the chief of the city's fire department contacted Carleton to explain that a preemployment medical examination had been scheduled for him on June 4, 2001.

The city is a municipality within the civil service system. This status requires it to adhere to the Statewide minimum health and fitness standards for police officers and fire fighters promulgated by the division pursuant to G.L. c. 31, § 61A, first, second & third pars., inserted by St.1987, c. 697, § 10 (division must devise "health and physical fitness standards which shall be applicable to all police officers and firefighters" [emphasis added] ).¹¹ One of these standards focuses on hearing ability. See Division of Human Resources, Medical Standards for Municipal Fire Fighters (Initial Hire), at 4-5. At the time Carleton applied for a fire fighting position with the city, the standard set a maximum hearing deficiency threshold. If the applicant's hearing deficiency exceeded this threshold, he was deemed to have a "Category A" medical condition. See id. A "Category A" medical condition is considered incompatible with the performance of the essential job functions of a municipal fire fighter and leads to the applicant's disqualification.¹²

Carleton underwent the preemployment medical examination conducted by the MedWorks, a department of Marlborough Hospital. Part of this examination required Carleton to use headphones to listen and identify different tones and different decibel levels. For the first iteration of the test, the examining nurse did not permit Carleton to use his hearing aids. The nurse then administered the test again, this time allowing Carleton to wear his hearing aids, even though their use was not permitted under the standard.

Three days later, on June 7, the supervising MedWorks physician notified Carleton that he had failed the hearing examination. On June 9, Carleton filed an appeal with the division, stating simply that he is "writing to appeal the failure of [his] Civil Service physical for the Marlborough Fire Department," and that he "[has] worn hearing aids for fifteen years, [is] currently a member of the Stow Fire Department and [has] never had a problem carrying out [his] duties as a firefighter/E.M.T." As a result of this appeal, the division asked Dr. James Ryan, the medical director of Boston Medical Center's occupational and environmental medicine department, to examine the test results.¹³

On June 29, 2001, Dr. Ryan reported to the division and to Carleton that his review of the MedWorks examination revealed that while the applicable medical standard allows a maximum "hearing deficit in the pure tone thresholds in the unaided worse ear of ... 40 dB," Carleton had a deficit "in the unaided left ear of 75 dB ..." (emphasis added). And, while the standards permitted a maximum "hearing deficit in the pure tone thresholds in the unaided [other] ear of ... 25 dB," Carleton had a deficit "in the right ear of 35 dB...." Dr. Ryan noted in his report that sometimes "a single test does not reflect a person's best hearing." He explained, however, that in his opinion the testing was accurate, based on the history of Carleton's disability and on the "wide margin" by which Carleton failed the test.

Dr. Ryan also reported that Carleton "wears hearing aids ... and has submitted the results of the audiogram performed while wearing hearing aids," but that "[h]earing aids are not permitted to be used ... in order to meet the requirements of the Medical Standards." He explained the reasons for this prohibition: "Hearing aids do not permit accurate localization of the direction of sounds; can be swamped by loud background noise; may be subject to failure due to electronic malfunction or weak batteries during an emergency situation; and may act as radio receivers, picking up interference from nearby radio transmitters." Dr. Ryan added that "[l]oss of effective hearing in such a situation ... would place the life and safety of the fire fighter and the public in danger." Finally, Dr. Ryan pointed out...