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Assigned to desk duty after multiple head injuries, officer can take bias claim to trial

By Kathleen Kapusta, J.D.

Finding fact issues as to whether an officer with a history of head injuries was 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 Massachusetts Supreme Judicial Court reversed summary judgment against his state-law handicap discrimination claim. Remanding the case for trial, the court found the lower court erred in analyzing the evidence as if it were a pretext case, when it should have been analyzed as a qualified handicapped person case (Gannon v. City of Boston, April 18, 2017, Gants, R.).

The officer, an avid practitioner of mixed martial arts, began working for the Boston police department in 1996. In 2002, he began fighting in MMA amateur bouts, making his professional debut two years later. During his professional fights, he suffered repeated head injuries, a broken eye socket, and concussions. He was diagnosed with obstructive sleep apnea and insomnia in 2005.

Confused. When he failed to show for a scheduled shift in February 2006, officers went to his home where they found him incoherent and confused. He was placed on administrative leave pending a fitness evaluation. A department psychiatrist stated that his “physical restlessness” could be associated with brain injury and a neuropsychologist determined that his “inability to process information quickly clearly reduce[d] his mental efficiency and his ability to react and respond appropriately.” In 2008, the psychiatrist determined that he had serious mental deficits that interfered with is ability to do the essential functions of an armed police officer.

Meanwhile, the employee’s doctors found that his condition began to improve around 2008 and that there were no “psychiatric or neurologic contraindications” to reinstatement him to full duty, although the department’s psychiatrist continued to disagree, opining that he had a serious chronic mental disorder as well as a history of repeated head trauma.

In March 2011, the department’s application to involuntarily retire the officer was rejected after three physicians concluded he was capable of performing the essential functions of his job. The officer, who continues to remain on desk duty, ultimately sued the department in 2012 alleging disability discrimination in violation of G. L. c. 151B, Sec. 4(16). Allowing the city’s motion for summary judgment, the trial court found the officer failed to prove pretext. The court framed the question of pretext as “whether the medical and psychological evidence is so thin that a reasonable jury may conclude that the [c]ity could not honestly have concerns about [the officer’s] abilities in critical areas, including reactions and decisions during crisis, possibly involving firearms.”

Two categories of cases. Allowing the officer’s application for direct appellate review, the state high court noted that there are two general categories of handicap discrimination cases, which differ according to the employer’s explanation for the adverse employment action. In the first category—pretext cases—the employer denies the employment action was motivated by the employee’s handicap, contending instead that it was based on other conduct by the employee unrelated to his handicap. In these cases, courts follow the McDonnell Douglas framework.

Qualified handicapped cases. In the second category of cases—the qualified handicapped person cases—the employer admits the adverse action was taken because of the employee’s handicap but contends that he is not protected under the statute because he was not capable of performing the job’s essential functions with reasonable accommodation, and therefore is not a qualified handicapped person. Here, observed the court, the crux of the case is not whether the employer’s explanation was a pretext but whether the employee was a qualified handicapped person.

Finding that the lower court erred in analyzing the evidence as if this were a pretext case, the court pointed out that where, as here, the city limited the officer’s duties because it considered him incapable of performing the essential duties of a patrol officer as a result of physical or mental limitations arising from his handicap, the adverse employment action is “because of his [or her] handicap.” It does not become a pretext case simply because the department contends that the adverse employment action was motivated solely by those limitations, and not by the handicap, where the limitations arise from the handicap, said the court, noting that by mischaracterizing this as a pretext case, the lower court determined that the officer could not prevail on his claim because he had failed to rebut the department’s contention that the real reason for its refusal to return him to full duty was that it “honestly” had concerns about his reaction time and his decision-making during crisis.

In a qualified handicapped person case, the employer does not prevail simply because it acted in good faith, the court explained. Rather, it can prevail only if the handicapped employee fails to prove he was able to perform the job’s essential functions. Here, said the court, because there was a fact dispute as to whether the officer could capably perform the essential duties of a full-duty police officer, the department’s motion for summary judgment should have been denied.

Which duties? Further, in order to rebut the officer’s prima facie case, the city must specify which essential duties he cannot perform because of his handicap, the court explained, noting that it appeared to contend that it is an essential duty of a patrol officer to respond to stressful situations and emergencies with reasonable judgment and speed.

While the handicapped employee ultimately must show he can safely perform the essential functions of a particular job, he need only confront this burden where the employer has produced specific evidence showing the employee would pose an unacceptably significant risk of serious injury to himself or others, the court observed, noting that the employer meets its burden of production where it offers evidence showing it has made “an individualized factual inquiry” based on substantial information regarding the employee’s individual work and medical history.

Where the employer has satisfied this burden of production, the employee must prove that he is capable of performing the job’s essential functions without posing an unacceptably significant risk of serious injury to himself or others. In making this determination, the fact finder must consider the potential severity of the feared injury and the probability that the employee in that position would cause such injury, the court reasoned, finding that an employee may be found incapable of safely performing the essential functions of a position, and therefore not qualified under the statute, without the risk rising to the standard of a “reasonable probability of substantial harm.”