Gannon v. City of Bos.

• Decision Date: 18 April 2017
• Docket Number: SJC-12136
• Citation: 476 Mass. 786,73 N.E.3d 748
• Parties: Sean GANNON v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 786

73 N.E.3d 748

Sean GANNON

v.CITY OF BOSTON.

SJC-12136

Supreme Judicial Court of Massachusetts, Suffolk..

Submitted December 8, 2016.

Decided April 18, 2017.

Harold L. Lichten ( Adelaide H. Pagano , Boston, also present) for the plaintiff.

Nicole I. Taub , Senior Special Assistant Corporation Counsel, for the defendant.

Simone R. Liebman & Constance M. McGrane , Boston, for the Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief.

Robert S. Mantell , Boston, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.¹

GANTS, C.J.

The issue presented on appeal is whether a city is entitled to summary judgment on a handicap discrimination claim under G. L. c. 151B, § 4 (16), where the police department limits an officer to desk duty based on an informed, good faith belief that the officer can no longer safely patrol the streets because of his perceived handicap. We conclude that summary judgment is not appropriate where there are facts in dispute as to whether the officer is a qualified handicapped person capable of performing the full duties of a patrol officer without posing an unacceptably significant risk of serious injury to himself or others. The city at trial may present the evidence that caused the department to believe that the officer cannot safely assume the full duties of a police officer, but that determination rests with the fact finder based on the preponderance of the evidence, not with the department based on its informed, good faith belief. Therefore, we vacate the motion judge's entry of summary judgment in favor of the city of Boston (city) and remand the case for a trial.²

Background . The plaintiff, Sean Gannon (Gannon or plaintiff), began working for the Boston police department (department) in 1996. For the first decade of his employment, Gannon was a patrol officer performing the full range of patrol officer duties. Gannon is an avid practitioner of mixed martial arts (MMA) who has trained since his teenage years in techniques including taekwondo, judo and aikido, Brazilian jujitsu, and Filipino stick and knife fighting. He began fighting in MMA amateur bouts at night clubs on the South Shore in 2002, before making his professional debut in August, 2004.

Gannon suffered repeated head injuries

in his professional fights. In his first fight, Gannon received a roundhouse kick to his head and afterwards began vomiting and did not feel well. An ambulance transported him to a hospital, where he was diagnosed with a concussion. Gannon's next fight came two months later, in October, 2004, when he faced off with a widely reputed fighter known by the moniker "Kimbo Slice." Gannon and that opponent agreed to a bare-knuckle boxing match governed by the traditional London Prize Rules, which permit a fight to continue until a fighter is knocked down and cannot return to his feet in thirty seconds. Gannon won the fight by knockout, but afterwards he spent several days in the hospital and was diagnosed with another concussion. Gannon's final professional fight came on October 7, 2005, where he lost by a technical knockout, and broke his right eye socket. He did not return to work until October 14, 2005, and was then placed on restricted duty, limited to "inside only" work, and barred from paid details. The restrictions were lifted on October 20, 2005.

In December, 2005, Gannon was diagnosed with obstructive sleep apnea

and insomnia. He was treated for these conditions with various medications and procedures. On February 1, 2006, Gannon did not appear for his scheduled shift of police duty, and officers went to his home to check on him. They found him in an incoherent and confused state. Gannon explained that he had overslept as a result of the treatment he was undergoing for sleep apnea. After this incident, the department placed him on administrative duty, pending a fitness evaluation by the department's psychiatrist, Dr. Marcia Scott.

Based on her initial evaluation, Dr. Scott described Gannon as "physically very restless" and opined that "[h]is restlessness could be associated with brain injury

from his sport." Accordingly, Dr. Scott ordered additional neuropsychological testing with Dr. Lucinda Doran, who administered tests to assess Gannon's intellectual abilities. She concluded that, while Gannon appeared to possess "solid overall capabilities," his "inability to process information quickly clearly reduce[d] his mental efficiency and his ability to react and respond appropriately." Around the same time, Dr. Scott reported from her ongoing interactions with Gannon that his thinking was impaired, "he ha[d] difficulty focusing, his speech [was] pressured and garbled, his face red and twisted." Later in 2006, Dr. Scott noted that Gannon remained "on modified duty due to significant mental impairments

and reduction in mental performance ... [a]lthough there [had] been some improvement over the intervening months." She continued to recommend against Gannon's return to full-duty status, explaining in a follow-up report in October, 2008, "Mr. Gannon has serious mental deficits that interfere with his ability to do the essential functions of an armed police officer."

Gannon sought treatment from his own doctors, including Dr. Aaron Nelson, a neuropsychologist, and Dr. Tuesday Burns, a psychiatrist. In a 2006 evaluation, Dr. Nelson's testing revealed "baseline verbal intellectual ability in the superior range and highly variable performance on measures of attention and executive function, suggestive of frontal systems compromise." Dr. Nelson opined that Gannon's issues "likely related to his history of multiple concussive injuries" and that Gannon's anxiety problems were exacerbating his difficulties. Two years later, however, Dr. Nelson tested Gannon for a second time and reported "stronger performance on a wide range of test measures." Dr. Burns, who had been treating Gannon for anxiety and attentional difficulties, subsequently informed the department that Gannon had "improved significantly across all areas" and that there were no "psychiatric or neurologic contraindications to Mr. Gannon being re-instated to full duty at the Boston Police Department."

Dr. Scott, the department's psychiatrist, disagreed with Dr. Burns's assessment. "Mr. Gannon has a serious chronic mental disorder as well as a history of repeated head trauma

," she wrote in January, 2009. "These impairments interfere with his ability to accurately assess situations, communicate accurately, make accurate judgments, solve problems and manage the stresses involved in the job of an armed police officer."

In 2010, the department retained neuropsychologist Dr. Muriel Lezak to review Gannon's testing records. Dr. Lezak evaluated the prior testing results against metanorms developed from twenty-eight studies. She reported that Gannon's response or reaction times fell below the fifth percentile for persons his age, in the borderline-defective to defective range. "[W]hat he appears to be unable to do, when thought or concentration is required, is maintain accuracy and respond at a normal rate of speed," Dr. Lezak wrote. Dr. Lezak later tested Gannon herself. Her new results supported her earlier evaluation, and led her to conclude, "[I]t is unlikely that an intensive remediation program could improve [Gannon's] response speed to near normal levels or enable him to develop consistent memory recall, both to a level that would allow him to perform ... police functions requiring response speed and reliable memory recall."

In March, 2011, the department filed an application with the Public Employee Retirement Administration Commission (PERAC) to involuntarily retire Gannon. PERAC rejected the application after three physicians performed independent evaluations of Gannon and all concluded that he was capable of performing the essential functions of his job as a police officer. Gannon remained (and continues to remain) on desk duty, where he serves as the booking officer and works at the front desk of the East Boston police station. Gannon is not currently permitted to carry a service weapon, which prevents him from obtaining detail work and certain overtime opportunities.

In September, 2009, the Boston Patrolmen's Association filed a grievance on Gannon's behalf demanding that he be permitted to resume the full duties of a patrol officer. In advance of the arbitration proceeding, Gannon solicited an assessment from an additional neuropsychologist, Dr. Neal McGrath. Dr. McGrath concluded that Gannon was fit to return to full patrol duty, stating that "any cognitive deficits

that Officer Gannon may have demonstrated in past evaluations ha[d] cleared and were therefore more likely related to treatable medical conditions such as sleep disorder or mood disorder." But Dr. McGrath changed his opinion after reviewing Dr. Lezak's testing, recommending "further confirmation of ... Gannon's ability to respond to emergency decisions as a police officer under conditions more closely resembling actual emergencies." Consequently, the union hired a police consultant, who performed live simulation testing on Gannon. This testing included a "Shoot/Don't Shoot" target drill, and other role-playing scenarios. Gannon performed well, and Dr. McGrath reaffirmed his position that Gannon was "fit for full duty as a Boston [p]olice officer." Dr. Lezak stood by her opinion and rejected Dr. McGrath's reliance on the simulations, saying that "no matter how real you try to make [them]," the simulations were not sufficient. She added, "[Gannon] is not responding while running, he's not responding while he is sensing danger for himself, he's not responding while there's a whole bunch of stuff going on, sirens, and other cars pulling up. This is where my concern is." In May, 2014, the arbitrator found that the union had not "undercut the force of Dr. Lezak's...