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Defendant's Attorney: Leonard H. Kesten, with whom Deidre Brennan Regan, Michael
Stefanilo, Jr., and Brody, Hardoon, Perkins & Kesten, LLP

Description:

Boston, MA - Disability law lawyer represented Plaintiff alleging violations of the Americans with Disabilities Act (ADA).

We begin by reviewing the record in the light most
favorable to Melo. See Gillen v. Fallon Ambulance Serv., Inc.,
283 F.3d 11, 17 (1st Cir. 2002). Melo began working as a police
officer for the City in 1997. In 2002, he suffered an injury that
ultimately resulted in a loss of almost all vision in his left
eye. Not long after the injury, physicians from the Massachusetts
Ear and Eye Infirmary cleared him to return to duty without
restriction. In 2007, after serving several years as a patrol
officer without incident, he successfully bid for the position of
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station officer. He performed all essential functions asked of
him over the years.
During his tenure, Melo twice tested positive for
marijuana, requiring him to agree that he either would be or could
be fired if he tested positive again. At some point in 2015, one
of Melo's superiors reported that he believed Melo had reported to
work smelling of marijuana. Upon questioning by his captain, Melo
admitted that he sometimes smoked marijuana to alleviate migraines
that had resulted from his 2002 injury.1 He nonetheless contested
that the department had reasonable suspicion to order a drug test.
Melo eventually agreed to undergo a fitness-for-duty test in lieu
of submitting to a drug test. The doctor chosen by the City to
conduct the examination, Dr. Al Rielly, discovered that Melo has
very little vision in his left eye, and Melo was referred to an
ophthalmologist, who confirmed that Melo has essentially monocular
vision. Based on that finding, Rielly deemed Melo "unfit for duty"
because the impairment would, in Rielly's view, render Melo unable
to engage in high-speed pursuit driving.
Following Rielly's reports, the City placed Melo on
leave and unpaid suspension, revoked his firearm carry license,
sent a notice of potential termination, and initiated involuntary
1 Melo may have a valid Massachusetts medicinal marijuana
license, but this does not seem to have permitted him to use
marijuana under department policy.
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retirement proceedings with the Somerville Retirement Board ("the
Board"). The involuntary retirement proceedings require that a
panel of three doctors, appointed by the Public Employee Retirement
Administration Commission (PERAC), conduct assessments regarding
Melo's fitness to work as a police officer. Two of these doctors
concluded that Melo's monocular vision rendered him unable to
perform the essential duties of a police officer, noting that the
injury limited his depth perception, lowered his field of
peripheral vision, and could increase his risk of suffering a
debilitating injury, with one of the doctors, Dr. Seth Schonwald,
specifically noting the risk this might have on pursuit driving.
The third doctor, Dr. Ernest Sutcliffe, directly contradicted
those conclusions. He stated that individuals with monocular
vision frequently learn to compensate for their injuries. And he
cited Melo's regular use of a motorcycle, suggesting that Melo had
learned to compensate for his monocular vision in order to safely
operate the motorcycle and thus could pursuit drive safely. This
doctor nonetheless concluded that Melo was unfit for duty because
of his marijuana use, explicitly contradicting one of the other
panel doctors, who concluded that Melo's off-duty marijuana use
was no bar to his employment.
The panel doctors referred their reports to the Board,
which, on January 26, 2017, approved their recommendations that
Melo be involuntarily retired. Melo could have contested and/or
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appealed this decision but chose not to do so. PERAC then ratified
the Board's decision on March 1, 2017. Because the district court
was not asked to consider on summary judgment whether the Board's
ratified involuntary retirement determination, Melo's initial
seeming acceptance of disability retirement benefits, or Melo's
marijuana use defeats any of his claims, we do not address these
issues on appeal.
In the wake of the City's assertion, based on Rielly's
report, that he could not engage in pursuit driving, Melo requested
an accommodation of "light duty" work that would presumably exclude
pursuit driving, but the City never discussed the possibility of
such an accommodation, with Somerville's Chief of Police,
defendant David Fallon, later claiming there were no such permanent
positions within the department. After filing a charge with the
Massachusetts Commission Against Discrimination and the EEOC in
October 2017, Melo eventually withdrew those charges and filed
this lawsuit in April 2018, alleging violations of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the
Rehabilitation Act, 29 U.S.C. § 701 et seq., and Massachusetts
discrimination law.2
The City eventually moved for summary judgment. The
parties agreed that Massachusetts discrimination law, the
2 Melo also pleaded a Massachusetts common law claim, the
district court's dismissal of which he does not challenge.
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Rehabilitation Act, and the ADA all follow the same legal standards
relevant to the issues now on appeal. Applying those standards,
as framed in ADA cases, the district court granted the motion,
concluding that "Melo fail[ed] to make a prima facie showing that
he is otherwise qualified to be a police officer because his
monocular vision renders him incapable of performing the essential
functions of the job." Melo v. City of Somerville, No. CV
18-10786, 2019 WL 1230365, at *3 (D. Mass. Mar. 15, 2019). Melo
timely appealed the resulting judgment dismissing his suit.
II.
Summary judgment is appropriate when "there is no
genuine dispute as to any material fact and the [moving party] is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A genuine dispute of material fact exists when the nonmoving party
produces evidence "such that a reasonable jury could resolve the
point in [its] favor." Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1,
7 (1st Cir. 2018) (quoting Cherkaoui v. City of Quincy, 877 F.3d
14, 23–24 (1st Cir. 2017)). We review a grant of summary judgment
de novo. Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146
(1st Cir. 2013).
A successful claim under the ADA requires that an
individual prove by a preponderance of the evidence that the
individual (1) is disabled within the meaning of the ADA, (2) is
qualified to perform the job in question, and (3) had an adverse
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employment action taken against him or her based on that
disability. Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir.
1998). At issue here is only the second prong, whether Melo is a
qualified individual under the ADA, which means that "with or
without reasonable accommodation []he was able to perform the
'essential functions' of h[is] former position." Id. Melo
contends that a jury could reasonably find on this record, first,
that pursuit driving was not an essential job function and/or,
second, that he could perform that function. We address each
contention in turn.
A.
Somerville and the district court have relied for
purposes of summary judgment on a manual maintained by the
Massachusetts Division of Human Resources ("Mass HRD"). Entitled
"Initial-Hire Medical Standards," the manual ("HRD Manual") sets
forth medical standards for newly hired police officers in
Massachusetts. In relevant part, the manual identifies an
inability to see 20/100 or better in either eye as a medical
condition that precludes an applicant from satisfying the minimum
medical standards required for hire as a municipal police officer.
Massachusetts law requires that each municipality within the civil
service system adhere to these medical standards. Mass. Gen. Laws
ch. 31, § 61A; see Carleton v. Commonwealth, 858 N.E.2d 258, 261
(Mass. 2006).
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The manual also contains a list of "municipal police
officer essential functions," which includes operating a motor
vehicle at a high rate of speed. The City points us to no
Massachusetts law requiring that it structure any or all of its
municipal police officer job positions to incorporate all of these
essential functions listed in the HRD manual. Chief Fallon
testified at his deposition that Somerville nevertheless does "use
the HRD Civil Service Department . . . . list of essential
functions of a police officer."
Pointing to the manual, the district court ruled that no
jury could reasonably conclude that a person without sight in one
eye was qualified for the job of Somerville police officer. Its
basis for doing so was a Massachusetts Supreme Judicial Court
pronouncement that courts should defer to the Mass HRD
classification of disqualifying medical conditions in fields like
policing where "public safety [is] paramount." Melo, 2019 WL
1230365, at *3 (quoting Carleton, 858 N.E.2d at 271).
Notably, though, the Mass HRD Manual only claims to set
forth medical standards for initial hires. And while Massachusetts
law also calls for the Mass HRD to set medical standards for
retaining current officers, Mass. Gen. Laws ch. 31, § 61A,
Somerville does not point to any such standards or even claim that
they exist. There is good reason, too, to doubt that medical
standards for new hires must be applied to remove experienced
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officers from service.3 After all, why would the Massachusetts
legislature have called for the creation of two sets of standards
if it expected all officers at all times to satisfy a single set?
Officers foreseeably age, losing some physical prowess but
acquiring valuable experience and knowledge. See, e.g., id.
(noting that retention standards "shall take into account the age
of the police officer"). And while a police department might
prefer and expect new hires to be capable of assuming all entrylevel positions, experienced officers are much more likely to
acquire specific jobs, such as that of station officer. So Melo's
failure to meet the Mass HRD vision standards may not be enough
per se to disqualify him after many years of service.
The HRD medical standards thus leave room for the
possibility that seeing at least 20/100 in each eye is not a
requirement for continued service as a police officer in
Somerville. And this possibility finds proof of the pudding in
the eating: In nineteen years, there has apparently never been an
instance in which Melo's vision prevented him from successfully
performing his job. Nor does the City test the vision of its
incumbent officers. In short, there is some evidence in the record
3 The City does not argue that Melo failed to preserve this
argument in the district court. He clearly presents it on appeal,
and the City responds on the merits. We do the same.
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to allow a reasonable jury to find that seeing at least 20/100 in
each eye is not a requirement for Melo's job.
As for the "essential functions" list in the HRD Manual,
it is not clear whether it purports to describe functions for new
hires at the time of appointment or for all officers for the
duration of their service. What is clear, though, is that
Somerville points us to nothing in either the record or
Massachusetts law requiring that Somerville structure the
municipal officer positions within its department in accordance
with the list in the HRD Manual.
The record, in turn, would allow reasonable jurors to
conclude that Somerville has not in fact operated in a manner that
makes it essential for every officer to be able to engage in
pursuit driving. Discovery showed that Somerville had also created
its own list of "Duties and Responsibilities" of a patrol officer.
These forty-one listed duties and responsibilities do not include
"pursuit driving," although they do include "respond[ing] to
emergency situations such as fires, riots, and other
disturbances."4 Somerville similarly requires only rookie officers
to take a driver training course, does not otherwise test the high-
4 The record also contains unpublished lists from
Chief Fallon and Deputy Chief Stephen Carrabino of station officer
duties. Although these include, separately, some driving duties
and emergency response duties (like deescalating an incident in
the lobby), neither lists pursuit driving.
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speed driving skills of its incumbent officers, and actually
discourages pursuit driving due to risk of injury in the densely
populated Somerville community. When asked if he could recall a
specific instance of pursuit driving within the past five years,
Chief Fallon stated that he was "not sure it's done often," but he
was "sure narcotics ha[d] pursued somebody for a short distance at
a high speed," although he could not recall a specific incident.
Melo, for his part, has never had to perform pursuit driving in
his nineteen years on the force. And the record contains no other
evidence that any Somerville officer has ever had the need to
engage in pursuit driving, much less while serving as a station
officer.
The pertinent legal framework stresses the importance of
the foregoing facts: Nothing in the ADA or its implementing
regulations suggests that a written job description necessarily
controls the determination of what job functions are essential.
In fact, we have rejected the notion that such descriptions are
always dispositive, even in the emergency worker context. See,
e.g., Gillen, 283 F.3d at 25–28 (discussing an EMT's job duties).
Rather, the statute and regulations state only that written
descriptions are entitled to consideration. 42 U.S.C. § 12111(8);
29 C.F.R. § 1630.2(n).5 Thus, when a record contains conflicting
5 The other factors to consider are whether "the position
exists . . . to perform that function," "[a] limited number of
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evidence, resolution of what is an essential element of a job can
often be a "fact-intensive inquiry" that may not be appropriate
for summary judgment. See Ward v. Mass. Health Research Inst.,
Inc., 209 F.3d 29, 35 (1st Cir. 2000); cf. Gillen, 283 F.3d at 28.
The record as it now stands could therefore support a reasonable
finding of fact that binocular vision and ability to engage in
pursuit driving are not essential to every police officer job in
Somerville.6 See, e.g., Rorrer v. City of Stow, 743 F.3d 1025,
1041–42 (6th Cir. 2014) (finding a triable issue of fact where it
was unclear whether the City of Stow had adopted guidelines listing
driving a truck as an essential function of the job of firefighter
despite the City's assertions to the contrary).
B.
Even if a jury were to find pursuit driving an essential
function of policing in Somerville, Melo might still prevail if

employees [are] available among whom the performance of that job
function can be distributed," and "the incumbent in the position
is hired for his or her expertise or ability to perform the
particular function." 29 C.F.R. § 1630.2(n)(2). Evidence of these
factors include, among other things, "[t]he employer's judgment,"
"[w]ritten job descriptions," "[t]he amount of time spent on the
job performing the function," "[t]he consequences of not requiring
the incumbent to perform the function," "[t]he work experience of
past incumbents in the job," and "[t]he current work experience of
incumbents in similar jobs." Id. § 1630.2(n)(3).
6 The district court concluded that the City need not find
an accommodation because Melo was not qualified to be an officer.
It follows from the foregoing analysis that there is also a triable
issue as to whether pursuit driving, to the extent it is ever
required of some or many officers, need not be required of a
station officer.
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the jury also finds that he can perform that function. It is
Melo's burden to show that he satisfies the minimum job
requirements. See EEOC v. Amego, Inc., 110 F.3d 135, 142 (1st
Cir. 1997).
The district court relied on Rielly's and the PERAC
panel's reports to conclude that Melo's "monocular vision renders
him incapable of performing the essential functions of the job"
because "[a]ll three independent medical reports prepared for the
Somerville Retirement Board, which unanimously voted to approve
Melo’s involuntary accidental disability application for
retirement, similarly determined that Melo was permanently unable
to perform the essential functions of his position." Melo, 2019
WL 1230365, at *3. But this level of generality does not quite
capture the nature of the evidence. What in fact transpired is
that the three panel physicians addressed two different possible
reasons for Melo's disqualification: first, that his monocular
vision rendered him unable to perform his essential duties
(including pursuit driving), and second, that his use of marijuana
rendered him "physically incapable of performing the essential
tasks of his job." As to each possible reason, the doctors split,
with at least one physician saying Melo was disqualified for that
reason and another saying he was not, albeit all agreed that Melo
was not qualified for at least one of the two possible reasons.
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Given that neither party now questions the admissibility
of any of the three physicians' opinions, it follows that the
record contains conflicting competent medical evidence on the
questions of whether Melo's vision renders him unable to engage in
pursuit driving and whether his marijuana use renders him unfit
for duty. Cf. Diefenbach v. Sheridan Transp., 229 F.3d 27, 29
(1st Cir. 2000) (noting that an objection to an expert's testimony
under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
can be waived). There is no reason that a jury need resolve the
physicians' disagreement by deferring on either issue to the
majority vote, especially when the record contains at least some
corroborating evidence supporting the other conclusion. Cf.,
e.g., Snead v. Fla. Agric. & Mech. Univ. Bd. of Trs., 724 F. App'x
842, 846 (11th Cir. 2018); Qidwai v. Prudential Ins. Co. of Am.,
56 F. App'x 425, 425–26 (9th Cir. 2003).
This is especially relevant to the vision issue,
concerning which Sutcliffe was the only one of the three doctors
to consider evidence of Melo's current driving performance and
compensatory adaptations; the other physicians relied solely on
the results of their eye examinations to conclude that Melo was
not qualified. The trier of fact would have the benefit of
weighing the doctors' differing decisions based on credibility and
other factors that the district court could not weigh on summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
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(1986) (observing that "[c]redibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge"). So by presenting
Sutcliffe's report -- which accounts for the possibility of
individuals with monocular vision learning to compensate for
impairments and references Melo's regular use of a motorcycle --
bolstered by his own consistent passing marks in his firearm
qualifications and years of work without incident, Melo has
presented a triable issue of fact as to whether he can engage
safely in pursuit driving. Cf., e.g., Keith v. Cty. of Oakland,
703 F.3d 918, 926–27 (6th Cir. 2013) (finding a genuine issue of
fact as to a lifeguard's qualifications where evidence in the
record indicated he may have successfully been able to perform his
job even given his hearing loss).
None of this is to say that Melo's marijuana use does
not raise additional issues. But we need not now decide whether
that is so. The City does not argue on appeal -- and did not argue
on summary judgment below -- that Melo's marijuana use in fact
disqualified him. Indeed, the letter from Chief Fallon placing
Melo on leave and informing him that he cannot perform the
essential job functions lists only pursuit driving as a
disqualifying issue, as does the application to the Board
requesting involuntary retirement, which states that "Melo's
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visual impairment interferes with hi[s] safely performing job
duties."
C.
For the foregoing reasons, we vacate the entry of summary
judgment. In so doing, we do not hold that this case will
necessarily go to trial or that Melo will ultimately prevail. The
City claims to have defenses other than those argued to and
addressed by the district court on summary judgment, and nothing
in this opinion rejects or affirms any other defenses it may have.7
We rule only that the record as it stands would allow a jury to
find that pursuit driving is not an essential function of Melo's
job and/or that Melo can safely perform that function.

Outcome: The grant of summary judgment on the ADA, Rehabilitation
Act, and Massachusetts state discrimination claims is therefore
vacated, and we remand the case for further proceedings consistent
with this opinion. The district court will decide at the time of
final judgment whether costs of this appeal are to be shifted in
favor of a finally prevailing party under any applicable statute.

Plaintiff's Experts:

Defendant's Experts:

Comments: