McLaughlin v. City of Lowell

• Decision Date: 25 July 2013
• Docket Number: No. 11–P–2072.,11–P–2072.
• Citation: 992 N.E.2d 1036,84 Mass.App.Ct. 45
• Parties: James McLAUGHLIN v. CITY OF LOWELL.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 45

992 N.E.2d 1036

James McLAUGHLIN

v.CITY OF LOWELL.

No. 11–P–2072.

Appeals Court of Massachusetts,

Middlesex.

Argued Feb. 7, 2013.

Decided July 25, 2013.

Betsy L. Ehrenberg (Alfred Gordon with her), Boston, for the plaintiff.

Kimberley A. McMahon, Assistant City Solicitor, for the defendant.

Present: CYPHER, KANTROWITZ, & FECTEAU, JJ.

FECTEAU, J.

The plaintiff, James McLaughlin, and the defendant, city of Lowell (city), each appeal from orders and judgments of a judge of the Superior Court. McLaughlin, a former fire department captain retired on a disability pension, sought restoration to service. He appeals the entry of summary judgment in favor of the city with respect to his reinstatement claim under G.L. c. 32, § 8(2). Having successfully brought handicap discrimination and interference claims, however, which resulted in jury verdicts in his favor, McLaughlin avers that the trial judge improperly eviscerated the remedial scheme of G.L. c. 151B and arbitrarily reduced the amount of his attorney's fees and costs.¹

On the other hand, the city contends that the Superior Court lacked jurisdiction over McLaughlin's discrimination claims and erroneously allowed McLaughlin to relitigate matters already decided before the Division of Administrative Law Appeals (DALA) and the Contributory Retirement Appeal Board (CRAB). The city additionally argues that McLaughlin did not prove a prima facie case of handicap discrimination or interference, and further, that the judge erred in giving certain jury instructions.² We affirm in part and reverse in part.

1. Background. McLaughlin began working as a firefighter with the Lowell fire department (LFD) in 1974, ultimately attaining the rank of captain. On July 8, 1996, McLaughlin sufferedan asthma attack after responding to a small outdoor mulch fire without wearing protective gear. Thereafter, McLaughlin applied for and was granted accidental disability retirement under G.L. c. 32, § 7, effective February 1, 1997. Since retiring, McLaughlin has not suffered another asthma attack, despite regular exercise and his ceasing the use of any asthma medication. In late 2000, with the support of his pulmonologist, Dr. Joseph Walek, McLaughlin sought reinstatement to his former position as captain with the LFD, pursuant to G.L. c. 32, § 8.³

2. Procedural history. In connection with McLaughlin's application for reinstatement, a three-member medical panel was designated and convened under the authority of the Public Employee Retirement Administration Commission (PERAC) pursuant to G.L. c. 32, § 8(1)( b ). The medical panel, consisting of Dr. Dean Hashimoto, Dr. Ronald Dorris, and Dr. Donald Kaplan, examined McLaughlin separately on dates in September and December of 2001. Thereafter, each physician certified that McLaughlin could perform the essential functions of the position. By notice dated December 4, 2001, PERAC then instructed the Lowell retirement board (LRB) to advise the city to reinstate McLaughlin to service. However, on review of the narratives of the medical panelists, the LRB forwarded to PERAC a request for clarification by letter dated January 2, 2002, indicating that it was unclear whether the medical panelists properly reviewed the job descriptions for a fire fighter and captain, as opposed to a fire chief, and whether “the use of inhalers in any way limit[ed McLaughlin's] functions as a fire fighter.” See 840 Code Mass. Regs. § 10.11(2) (2008).⁴ All three physicians reaffirmed their opinions (second medical panel). On January 17, 2002, PERAC so notified the LRB, and accordingly, on January 25, 2002, the LRB directed the city to reinstate McLaughlin as captain. At that time, there were no immediate vacancies for that position.⁵

Thereafter, the city obtained and reviewed McLaughlin's PERAC file, apparently with McLaughlin's permission. On May 14, 2002, the city petitioned PERAC to seek further clarification from the medical panel, opining “that the doctors d[id] not fully understand the job duties of a fire fighter, or the hazards that Mr. McLaughlin will encounter when fighting fires.” ⁶ In connection with its request, the city enumerated seven concerns, including the permanence of McLaughlin's asthma diagnosis and that McLaughlin is absolutely prohibited from using an inhaler or taking any medication while fighting a fire.⁷ On June 7, 2002, PERAC denied the city's request for further clarification, and the city sought administrative review of the denial with DALA in accordance with G.L. c. 32, § 16(4). Following a hearing, in a decision dated July 22, 2003, the DALA magistrate ordered PERAC to remand the matter to the medical panel “for clarification concerning both Mr. McLaughlin's duties as a Fire Captain as well as the impact, if any, the departmental prohibition against the use of inhalers at fire scenes has on his ability to perform the essential duties of his position.” ⁸ PERAC appealed DALA's decision to CRAB pursuant to G.L. c. 32, § 16(4). CRAB, by a decision dated March 31, 2004, adopted the DALA magistrate's twenty-two findings of fact and affirmed the DALA magistrate's decision; CRAB similarly ordered “PERAC to request clarification from the medical panel as to whether” each panelist's decision regarding McLaughlin's ability to perform the essential duties of his position would change in light of the following facts: (1) “a Fire Captainis required to report to all working fires and to assist in all aspects of fire suppression”; and (2) “the use of inhalers at a fire scene is strictly prohibited.” ⁹

Pursuant to the orders of the administrative tribunals, PERAC requested clarification from the medical panel on June 8, 2004.¹⁰ Upon reconsideration, neither Dr. Hashimoto nor Dr. Dorris changed their opinions; however, Dr. Kaplan concluded to the contrary, specifically stating: “McLaughlin may very well suffer from bronchospasm when exposed to fumes at a fire and would require the use of an inhaler. Accordingly, he must be considered unable to fulfill the essential duties of his position.” Thus, the third medical panel's decision was not unanimous. See 840 Code Mass. Regs. § 10.13(2)(b) (2002).¹¹

On May 24, 2004, McLaughlin filed suit against the city in Superior Court. McLaughlin amended his complaint on February 9, 2006, to include the third medical panel's decision, which had been pending at the time the original complaint was filed. After the trial judge disposed of numerous motions in limine, the parties filed cross-motions for summary judgment with respect to McLaughlin's claims under G.L. c. 32, § 8, which alleged that the city failed to reinstate him as captain and that the city imposed an unlawful retraining program as a condition of reinstatement. On November 29, 2010, the trial judge allowed the city's motion for summary judgment, concluding that Dr. Kaplan's assessment that McLaughlin was unable to perform the duties of captain was “valid, supported by the record, and not based on any unlawful or discriminatory considerations.” ¹² Consequently, the trial judge concluded, McLaughlin had no right to reinstatement because the third medical panel's decision lacked the unanimity required by 840 Code Mass. Regs. § 10.13(2)(b).¹³

McLaughlin's claims under G.L. c. 151B proceeded to trial by jury in December, 2010. On December 13, 2010, the jury found for McLaughlin on all remaining counts, including that McLaughlin was a handicapped person qualified to perform the essential duties of a captain and that the city intentionally interfered with McLaughlin's protected rights, and awarded $350,000 in damages. The trial judge entered judgment on the jury verdict on December 15, 2010, ordering that McLaughlin recover $350,000 plus interest, together with costs. On April 28, 2011, the trial judge allowed McLaughlin's posttrial motion for reasonable attorney's fees and costs and the city's motion for a remittitur of the damages award, which McLaughlin accepted. The trial judge denied the city's motions for judgment notwithstanding the verdict and for a new trial. On April 29, 2011, the trial judge issued an amended judgment, ordering that McLaughlin recover $200,000 plus interest, together with costs of $15,000 and attorney's fees of $235,000. The city filed its notice of appeal on May 27, 2011, and McLaughlin filed his notice of cross-appeal on June 8, 2011.

3. Discussion. a. Reinstatement claims. McLaughlin avers that the trial judge erred in granting summary judgment for the city by engaging in fact-finding on issues that McLaughlin had disputed at that juncture. Specifically, McLaughlin contends that record evidence, including admissions by the city, demonstrated that the use of an inhaler at a fire scene was neither impossible nor impermissible and as such, the trial judge's findings to the contrary were improper. McLaughlin further argues that the trial judge erred in denying his motion for summary judgment based on the first medical panel's December, 2001, unanimous determination that he was able to perform the duties of a captain.

i. Standard of review. “On appellate review of a judge's decision on cross motions for summary judgment, we view the record in the light most favorable to the party against whom the judge allowed summary judgment, here [McLaughlin],” Marhefkav. Zoning Bd. of Appeals of Sutton, 79 Mass.App.Ct. 515, 516, 947 N.E.2d 1090 (2011), to determine whether “all material facts have been established and [the city] is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “When reviewing a grant of summary judgment we consider the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Mass.R.Civ.P. 36, 365 Mass. 795 (1974), together with the affidavits, and ask if there is any genuine issue as to any material fact.” Federal Natl. Mort....