NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-983
ERIC MADONNA
vs.
MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Eric Madonna, filed a complaint with the
Massachusetts Commission Against Discrimination (MCAD or
commission), alleging that his former employer, the Fall River
Police Department (FRPD), unlawfully denied him certain
employment opportunities because of his posttraumatic stress
disorder (PTSD) diagnosis. MCAD dismissed the complaint, and
Madonna sought judicial review in Superior Court. A judge
dismissed that complaint, and Madonna now appeals. He argues
that MCAD erred in failing to apply the framework adopted in
Gannon v. Boston, 476 Mass. 786 (2017), when determining whether
the FRPD unlawfully denied him details and overtime shifts. We
conclude that MCAD's decision did not adequately address
1 Fall River Police Department. Madonna's arguments, and we vacate the judgment and remand the
matter to MCAD for reconsideration.
Factual background. We summarize the relevant portions of
the hearing officer's findings of fact.
Madonna started working as an officer for the FRPD in 1996
and typically worked night shifts "on the streets." Several
years later, he temporarily left his position to serve two tours
of duty with the Army in Iraq, but he returned full-time to his
job with the FRPD in June 2006. By 2008, Madonna's mental
health had declined severely, and he was eventually diagnosed
with PTSD. After completing a three-month residential treatment
program in November 2008, Madonna sought to return to work with
reasonable accommodations that would prevent his PTSD symptoms
from worsening. Madonna, his licensed therapist, and the FRPD
internal affairs officer agreed that Madonna should be limited
to daytime shifts to accommodate the sleep issues caused by his
PTSD.
In December 2008, Madonna returned to the FRPD in the
newly-created role of evidence custodian. In this position,
Madonna worked a regular daytime shift with no weekend or
holiday hours. At some point in the weeks following his return,
Madonna requested that he be allowed to work details and
overtime shifts again. On January 27, 2009, Madonna was
informed that he was not eligible for details or overtime shifts
2 due to a department policy making such assignments unavailable
to "light duty" officers.
On hearing the news that he would not be permitted to work
details, Madonna testified that he became "stressed out,"
feeling "physically shaken up inside" and like his head "was
going to explode." He left in the middle of his shift --
without his supervisor's permission -- to seek an emergency
appointment with his therapist. Madonna called in sick the next
day due to stress.
Concerned that Madonna might intentionally hurt himself,
FRPD Chief John Souza ordered Madonna to turn in his service
revolver, personal firearms, police badge, and other related
items. This escalated the situation; according to Madonna's
therapist, Madonna became "extremely distraught" at being
ordered to turn in his weapons. Nevertheless, the therapist
told the FRPD that Madonna was "not in danger of harming
[him]self or others" at that time. A doctor at a Veterans
Administration hospital agreed, after an evaluation on January
29, that Madonna was neither homicidal nor suicidal. Madonna
later testified that he was, in fact, suicidal that day, but
that he would "never do it [him]self." Madonna never returned
to work at the FRPD after the events of January 27 and 28, 2009.
3 Chief Souza banned Madonna from the police station entirely, and
Madonna was put on paid leave pending his expected retirement. 2
Procedural history. In September 2009, Madonna filed a
complaint with MCAD alleging that the FRPD had discriminated
against him due to his PTSD-related disability. Madonna argued,
among other things, that the FRPD unlawfully denied him overtime
shifts and details based on the stereotype that his PTSD made
him a danger to himself or others. He suggested that the FRPD
should be required to show, by a preponderance of the evidence,
that he was not qualified to perform these functions because he
posed a "direct threat," and that it reached this conclusion
based on "current medical knowledge and/or the best available
objective evidence." Chevron U.S.A. Inc. v. Echazabal, 536 U.S.
73, 85-86 (2002), quoting 29 C.F.R. § 1630.2(r) (2001).
Following a seven-day hearing, the MCAD hearing officer
dismissed the complaint. She found that, while Chief Souza
believed in good faith that the policy restricting light-duty
officers from working details and overtime shifts applied to
Madonna, the Chief was also partially motivated by his "concerns
2 Madonna was put on paid injury leave under G. L. c. 41, § 111F, for almost four years. FRPD policy prohibits employees on leave under this section from working for another employer without consent from the Chief, and even then, the employee may not work more than twenty hours per week. Despite the policy, while on leave, Madonna obtained full-time employment with the Navy, and later with the Department of Homeland Security, without informing or obtaining consent from the FRPD.
4 that paid details and overtime would place [Madonna] in contact
with the public and create potential safety issues" due to
Madonna's PTSD. Nevertheless, the hearing officer concluded
that Chief Souza's concerns were supported by record evidence
and were "not unreasonable."
In appealing the dismissal to the full commission, Madonna
made two main arguments related to the "direct threat" standard
that he articulated to the hearing officer. First, he asserted
that the hearing officer failed to assess whether the claimed
danger posed by Madonna's PTSD actually rose to the level of a
"direct threat" -- defined as a "significant risk of substantial
harm to the health or safety of the [employee] or others that
cannot be eliminated or reduced by reasonable accommodation."
29 C.F.R. § 1630.2(r) (2022). Second, Madonna argued that the
hearing officer improperly deferred to Chief Souza's assessment
of the risk, which Madonna asserted was informed by a
prejudicial stereotype, instead of requiring the FRPD to show
that it made an individualized assessment based on objective
medical evidence.
While Madonna's appeal to the commission was pending, the
Supreme Judicial Court decided Gannon v. Boston, 476 Mass. 786
(2017). The Gannon decision, in relevant part, confirmed that,
in what it termed a "qualified handicapped person" case --
wherein an employer claims that a safety risk stemming from an
5 employee's disability renders the employee unqualified to
perform an essential job function -- the employer must come
forward with "specific evidence showing that the employee would
pose an unacceptably significant risk of serious injury to the
employee or others." Id. at 799. The employer must also show
"that it has made 'an individualized factual inquiry' based on
substantial information regarding the employee's individual work
and medical history." Id. at 799-800. "At trial, the fact
finder must determine not whether the [employer] acted on a good
faith belief that [the employee] cannot capably perform [a
position's full] duties because of his handicap, but whether
[the employee] has proved by a preponderance of the evidence
that he can do so." Id. at 797.
The full commission affirmed the decision of the hearing
officer in April 2019, reiterating that "Chief Souza's concerns
about [Madonna] working with the public and possessing firearms
as a result of his PTSD symptoms were legitimate based upon the
evidence in the record," and concluding, with little further
analysis, that the FRPD's actions were not discriminatory.
Despite Madonna's "direct threat" argument, and although the
full commission's decision cited the "unacceptably significant
risk" standard from Gannon, 476 Mass. at 799, the commission's
decision did not apply either standard. Nor did it address
whether the FRPD's evidence was sufficiently objective and
6 reliable, or whether it sufficed to meet the employer's burden
of producing evidence showing that a PTSD-related safety risk
rendered Madonna unqualified to perform details and overtime
shifts. See Gannon, 476 Mass. at 799-800 (employer's burden of
production).
Madonna next sought judicial review of MCAD's decision in
Superior Court, where he essentially repeated the same arguments
he made before the full commission, this time using parts of the
framework provided in Gannon in addition to the "direct threat"
standard. The judge, however, did not address Madonna's
arguments. Instead, he granted summary judgment to MCAD based
on what he termed the hearing officer's "implicit[]" finding
that the denial of Madonna's request for details and overtime
shifts was not an adverse employment action. The judge, quoting
Ritchie v. Department of State Police, 60 Mass. App. Ct. 655,
665 (2004), reasoned that the denial did not constitute "a
change in working conditions that create[d] a material
disadvantage in the plaintiff's employment" (quotation and
citation omitted), because Madonna was a light-duty officer and
the FRPD's policy prohibited such officers from working overtime
shifts and details. 3
3 Although we consider the judge's reasoning, it carries no special weight on appeal; our review is de novo. See Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 224 (1978).
7 Discussion. On appeal, Madonna asserts that MCAD erred by
failing to apply the framework outlined in Gannon.
1. Waiver. As a preliminary matter, we reject MCAD's
contention that Madonna waived any arguments based on Gannon by
failing to raise them before the full commission or Superior
Court. Generally, "[a] party is not entitled to raise arguments
on appeal that he could have raised, but did not raise, before
the administrative agency . . . [nor] in the court below."
Albert v. Municipal Court of Boston, 388 Mass. 491, 493–494
(1983). "The inquiry into whether an issue has been raised is
fact specific." Boss v. Leverett, 484 Mass. 553, 563 (2020).
It requires us to determine whether the agency and Superior
Court were "fairly put on notice as to the substance of the
issue." Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 584
(2019), quoting Nelson v. Adams USA, Inc., 529 U.S. 460, 469
(2000).
As discussed above, Madonna raised two major arguments
before the full commission and Superior Court. We acknowledge
that, in his appellate brief, Madonna has reframed his previous
arguments about the "direct threat" standard to use the
framework provided in Gannon. First, instead of asserting that
MCAD erred by failing to apply the "direct threat" standard,
Madonna now argues that the hearing officer should have
considered whether he posed an "unacceptably significant risk."
8 The substance of this argument, however, remains the same: in
Madonna's view, MCAD should have assessed whether the evidence
showed that he posed a safety risk so significant as to render
him unqualified to perform details and overtime shifts. See
Gannon, 476 Mass. at 799-800.
Second, and similarly, Madonna now uses the language of
Gannon to clarify his earlier argument against the deferential
"reasonableness" standard applied by the hearing officer. He
now equates the "reasonableness" standard to the "good faith"
standard rejected in Gannon. The substance of his argument,
however, is still that the hearing officer should have
determined not merely whether the FRPD acted without animus or
pretext but whether the FRPD's risk assessment was informed and
supported by sufficient objective evidence. The employer's good
faith is not a defense. See Gannon, 476 Mass. at 796-797.
We also reject MCAD's assertion that Madonna was required
to update his briefing to the full commission after Gannon was
issued in 2017. 4 As explained, Madonna's brief to the commission
provided adequate notice of his arguments. Having cited Gannon
4 At the time MCAD issued its decision in this case, its regulations were silent about what, if any, actions a party should take when a relevant court decision is issued during the pendency of a full commission review. See 804 Code Mass. Regs. § 1.23 (2019). The regulations have since been updated to specify that parties may advise the commission by letter of any pertinent and significant authorities that come to their attention. See 804 Code Mass. Regs. § 1.23(4) (2020).
9 in its decision for the proposition that "the employer must make
an individualized factual inquiry into the employee's work and
medical history in order to determine whether the employee would
pose an unacceptably significant risk of serious injury to
himself or others," MCAD cannot now claim that it was unaware of
Gannon's potential relevance. 5
2. Applicability of Gannon. MCAD's main argument on
appeal is that Gannon is inapplicable here because Madonna did
not make a "qualified handicapped person" claim based on
disparate treatment, but instead, a "failure to accommodate"
claim. Accordingly, MCAD states that the focus of its inquiry
was not whether Madonna was qualified to perform details and
overtime shifts, but whether the FRPD negotiated in good faith
and provided Madonna with reasonable accommodations. MCAD urges
us to affirm on the ground that, despite the FRPD's attempts to
negotiate in good faith, Madonna abandoned the interactive
process required under MCAD guidelines when an employee seeks
accommodations for a disability. See generally Massachusetts
Commission Against Discrimination, Guidelines: Employment
5 We note, however, that MCAD's characterization of Gannon as requiring the employer to determine the unacceptably significant risk issue appears to conflict with language in Gannon requiring the finder of fact in the discrimination case to decide that issue. See Gannon, 476 Mass. at 797.
10 Discrimination on the Basis of Handicap, § VII (1998) ("MCAD
Guidelines"). We decline to do so for several reasons.
First, the record does not support MCAD's assertion that it
has always viewed this case exclusively through a failure to
accommodate lens. To the contrary, the hearing officer
explicitly considered whether the denial of details and overtime
shifts "constitute[d] disparate treatment based on handicap
discrimination." And, if MCAD considered Gannon inapplicable,
it is puzzling that MCAD did not say so when citing Gannon in
its decision.
More fundamentally, however, neither the hearing officer
nor MCAD articulated the good faith negotiation standard
anywhere in their respective decisions. Nor did the hearing
officer make any findings of fact about the parties' interactive
process, let alone any conclusions of law based on Madonna's
supposed abandonment of the process. Because MCAD did not rely
on the abandonment rationale below, neither may we rely on it to
affirm MCAD's decision. See Doe, Sex Offender Registry Bd. No.
58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 307, 313
(2020), quoting Department of Homeland Sec. v. Regents of the
Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) ("The basic rule
11 . . . is clear: An agency must defend its actions based on the
reasons it gave when it acted"). 6
Second, regardless of which framework MCAD applied to
Madonna's case, it has not sufficiently explained why it did not
apply the Gannon standard. In particular, having received
Madonna's appeal arguing that the hearing officer should have
applied the "direct threat" standard, and knowing that standard
had been superseded by Gannon, as evidenced by its citation to
the new standard in its decision, it was incumbent on the full
commission to explain what standard applied to Madonna's case
and then how it was applying that standard to the facts found by
the hearing officer. See Retirement Bd. of Somerville v.
Contributory Retirement Appeal Bd., 38 Mass. App. Ct. 673, 678
(1995), quoting G. L. c. 30A, § 11 (8) (agency decision "shall
be accompanied by a statement of reasons for the decision,
including determination of each issue of fact or law necessary
to the decision"). The commission seemed to acknowledge that
Gannon was relevant, yet it did not determine (1) whether the
FRPD actually conducted "an individualized factual inquiry based
6 For a related reason, we decline to affirm on the basis supplied by the judge. A reviewing court may "not 'supply a reasoned basis for the agency's action that the agency itself has not given'" (citation omitted). Costello v. Department of Pub. Utils., 391 Mass. 527, 536 (1984). As discussed supra, the judge ruled for MCAD based on the absence of any adverse employment action, yet neither the hearing officer nor MCAD had ruled on that basis.
12 on substantial information regarding the employee's individual
work and medical history" (quotation and citation omitted),
Gannon, 476 Mass. at 799-800; (2) whether the FRPD presented
sufficient evidence that Madonna "would pose an unacceptably
significant risk of serious injury to [himself] or others," id.
at 799; or (3) if the FRPD had done so, then whether Madonna
could in fact "safely perform" details and overtime shifts. Id.
We are left only with MCAD's conclusion that the FRPD's concerns
were "legitimate" and "justified," without any definite
statement of how that resolved Madonna's claim.
Third, we are unpersuaded by MCAD's assertion in its brief
that, viewing this as a failure to accommodate case, Gannon does
not apply. Under MCAD's own guidelines, a "reasonable
accommodation" is "any adjustment or modification to a job [or]
employment practice . . . that makes it possible for a
handicapped individual to perform the essential functions of the
position involved and to enjoy equal terms, conditions and
benefits of employment" (emphasis added). MCAD Guidelines,
§ II(C). The opportunity to earn extra compensation through
details and overtime shifts would appear to be a term,
condition, or benefit of employment as a police officer. Cf.
Yee v. Massachusetts State Police, 481 Mass. 290, 297 (2019)
(denial of desired opportunity to earn extra compensation can
constitute adverse employment action). Where, as here, the
13 employer defends its decision not to extend a term, condition,
or benefit to an employee based on the employee's disability
status and what the employer believes to be a resulting threat
to the safety of the employee or others, the principles
underlying Gannon would appear relevant in analyzing whether the
overall accommodation offered by the employer is "reasonable."
Although Madonna asks us to apply Gannon and order a
finding in his favor on liability, we think it preferable that
MCAD determine the issues presented by Madonna in the first
instance. See Doe, Sex Offender Registry Bd. No. 11204 v. Sex
Offender Registry Bd., 97 Mass. App. Ct. 564, 576 (2020). To
that end, we vacate the judgment and order the entry of a new
judgment remanding the matter to MCAD for reconsideration and
any necessary further proceedings, which may include the taking
of additional evidence before a hearing officer. 7
So ordered.
By the Court (Sacks, Grant & Smyth, JJ. 8),
Clerk
Entered: September 12, 2023.
7 As we do not rule in favor of Madonna on his underlying claim, we deny his request for attorney's fees under G. L. c. 151B, §§ 5 & 9. 8 The panelists are listed in order of seniority.