When the Boston Police Department arrived at the door of fellow officer Sean Gannon on February 1, 2006, suspicions arose. Sean Gannon began working for the Boston police department in 1996. For the first ten years of his employment, Gannon dutifully worked as a patrol officer.

When Gannon was not on patrol, he was an avid practitioner of mixed martial arts (MMA). He had trained since his teenage years, in techniques including taekwondo, judo and aikido, Brazilian jujitsu, and Filipino stick and knife fighting. Gannon began fighting in MMA amateur bouts at night clubs on the South Shore of Massachusetts in 2002, before making his professional debut in August 2004.

During his fighting career, Gannon suffered repeated head injuries in professional fights. In his first fight, Gannon received a roundhouse kick to his head and afterwards began vomiting. Gannon’s next fight came two months later, when he faced off with a renowned fighter known by the stage-name “Kimbo Slice.” Gannon and Slice 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 spent several days in the hospital.

The end of Gannon’s professional career 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. During his fighting career, Gannon suffered multiple concussions. Notwithstanding these traumatic brain injuries, the Boston Police Department lifted the work-related restrictions on October 20, 2005.

Gannon continued to struggle in the aftermath of his fighting career. In December 2005, Gannon was diagnosed with obstructive sleep apnea and insomnia. On February 1, 2006, Gannon did not appear for his scheduled shift of police duty. Fellow officers later found him in an incoherent and confused state when they arrived at his home to check on him. Soon thereafter, Gannon was forced to surrender his service weapon, and assigned to desk duty at the East Boston barracks of the Boston Police Department.

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.

Realizing the gravity of Gannon’s illnesses – and the apparent implications within his line of work – 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. Consequently, Gannon remained on desk duty at the East Boston police station.

Following a battery of medical examinations, in 2012, Gannon brought a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging that the city acted in violation of G. L. c. 151B, § 4 (16), by refusing to return him to full duty. After the requisite ninety days, he filed a discrimination lawsuit against the city in Superior Court.

The city moved for summary judgment in August 2015, arguing that Gannon did not meet the statutory definition of a handicapped person; that he could not perform the essential functions of a full-duty police officer; that he had not suffered any adverse action; and that, even if he had, the adverse action was taken for a legitimate, nondiscriminatory reason.

The Judge concluded that Gannon had made the required prima facie showing of discrimination, and then found that “[t]he city [had] met its burden to articulate a non-discriminatory reason for its assignment of Gannon to desk duty, namely its concern that Gannon’s loss of cognitive function and memory impairs his ability to do essential tasks, such as responding in an emergency and exercising the necessary judgment in high stress situations, including those involving the use of firearms.”

The Judge allowed the City’s motion for summary judgment.

Gannon moved for reconsideration, claiming that “it is illegal disability discrimination for the [c]ity to place Gannon on desk duty because of his perceived handicap if he is in fact capable of performing the essential functions of a police officer.”

The judge denied the motion, declaring, inter alia, that “the question of whether the plaintiff was in fact a qualified handicapped individual is distinct from whether the [c]ity discriminated because of his perceived handicap.”

Gannon filed a notice of appeal, and the Supreme Judicial Court allowed his application for direct appellate review.
There are two general categories of handicap discrimination cases.

In the first, the employer denies that the employment action was motivated by the employee’s handicap, and contends that the action was based on other conduct by the employee, such as insubordination, poor job performance, or chronic tardiness, any of which are unrelated to the plaintiff’s handicap. This type of case is often labeled a “pretext case” because the employee may defeat an employer’s motion for summary judgment by showing that there are disputed issues of fact as to whether the employer’s alleged reason was not the true reason, which permit the inference that the employer offered a pre-textual reason because the true reason. Most all cases alleging discrimination on the basis of race, gender, and national origin fall into this first category, because an employer will rarely concede that the employer’s true motivation for the employment action was the employee’s race, gender, or national origin. Broadly stated, in pretext cases, the employer argues that the employee was not terminated because of a handicap, but rather because of poor performance.

In the second category of handicap discrimination cases, the employer admits that the adverse action was taken because of the employee’s handicap, but argues that the employee is not protected under the statute, because the employee was not capable of performing the essential functions of the job, even with reasonable accommodation. Consequently, the employee was not a “qualified handicapped person” within the meaning of the statute. Broadly, in these types of cases, the employer admits that the employee was terminated because of a handicap, but is not a “qualified handicap person”, and thus, the employer committed no wrong by terminating the employee.

After arriving at the Supreme Judicial Court, the high Court re-iterated the burdens of proof associated with each type of case. After an exhaustive legal analysis, the SJC began to identify the mistakes made by the lower-court Judge.

Mistake No. 1.
The judge erred in analyzing the case as if it were a pretext case, when it should have been analyzed as a qualified handicapped person case.

The Supreme Judicial Court noted:
“This analytical flaw transformed the plaintiff’s burden on summary judgment in this case. By mischaracterizing this as a pretext case, the judge determined that Gannon could not prevail on his claim of handicap discrimination 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 Gannon’s reaction time and his decision-making during crisis.”

Mistake No. 2
The Judge did correctly recognize that there was a genuine dispute of material fact on whether Gannon can perform the essential duties of a patrol officer. However, because there remained a factual dispute as to whether Gannon can capably perform the essential duties of a full-duty police officer, the department’s motion for summary judgment should have been denied [emphasis supplied].

Ultimately, the Supreme Judicial Court concluded that summary judgment is not appropriate where there are facts in dispute as to whether an employee is a qualified handicapped person capable of performing the full duties of his position.

It now appears that Gannon’s case will proceed to trial upon remand to the Superior Court.

SOURCE:
Sean Gannon v. City of Boston
SJC Docket No. SJC-12136
Date of Decision: April 18, 2017

This post was written by Anthony J. Low, Esq. who is a Partner at Shapiro Law Group, PC. He practices labor and employment litigation.