Opinion
Civil Action No. 96-12269-DPW.
March 11, 2002.
MEMORANDUM AND ORDER
Plaintiff, a retired police lieutenant, claims that the defendant failed to accommodate his disability of hypertension in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The defendant moves for summary judgment on the sole issue remaining: whether Sheehan qualifies as "disabled" under the terms of the ADA. I find that the plaintiff does not meet that definition as it has evolved in Supreme Court jurisprudence, see generally Toyota Motor Manufacturing v. Williams, 122 S.Ct. 681 (2002), and consequently will grant the defendant's summary judgment motion.
I. BACKGROUND
A. The Parties
Plaintiff Arthur J. Sheehan is a citizen of the Commonwealth of Massachusetts residing in Gloucester, Massachusetts. Sheehan became a member of the defendant City of Gloucester's Police Department on August 16, 1965 and was promoted to lieutenant in December of 1981. Sheehan's primary responsibilities as lieutenant included supervising and assisting the officers, which primarily involved working inside the police station. He worked four days a week on the 8-to-4 day shift. He remained employed with the force until his involuntary retirement on August 17, 1994.
B. Procedural History
Sheehan filed his initial complaint on November 13, 1996 and an amended complaint on May 16, 1997, contending that the defendants, by denying his request for reasonable accommodation in his employment, namely a lighter assignment and scheduled breaks, violated his rights under the ADA. His amended complaint added a violation of the Age Discrimination in Employment Act (ADEA), based upon a statement made to Sheehan by then-defendant Chief James Marr during Sheehan's retirement hearing. Altogether, Sheehan sought reinstatement, back pay, attorney's fees, and costs.
I granted the motion for summary judgment filed by defendants Marr and the City of Gloucester on May 20, 1998. On March 27, 2000, the First Circuit remanded the case for further consideration of Sheehan's ADA claim against the City of Gloucester in light of the Supreme Court's intervening decision in Murphy v. United Parcel Services, Inc., 527 U.S. 516 (1999). On remand, my other rulings are not at issue. Sheehan did not appeal my dismissal of Marr from the case, as not a proper individual defendant, and the First Circuit affirmed my dismissal of Sheehan's ADEA claim. See Sheehan v. Marr, 207 F.3d 35, 42 (1st Cir. 2000). Thus, I will proceed to revisit only the issue of Sheehan's ADA claim against the City of Gloucester.
In supplemental briefing I solicited after remand, Sheehan suggested that a determination also should be made as to whether he satisfies the definition of "handicap[ped]" under Mass. Gen. Laws ch. 151B. At that time, Sheehan contended that if the Supreme Judicial Court determined, on a question certified to it by me in other litigation, that Massachusetts law does not require consideration of corrective devices and mitigating measures, he would be considered handicapped under Chapter 151B. The Supreme Judicial Court answered the question over six months ago, Dahill v. Boston Police Department, 438 Mass. 233 (2001) but Sheehan has not sought to bring a Chapter 151B claim in this case. Consequently, the SJC's interpretation of Massachusetts law is of no significance here.
C. Factual Background
Sheehan suffers from hypertension, a condition for which he first received treatment in 1984. In August of 1992, Sheehan developed chest pain while on duty and received treatment. After his second incident of chest pain, which occurred in October of 1992, Sheehan took injury leave from work until May of 1993. In August of 1993, Sheehan again experienced chest pain while on duty, and was taken to the emergency room of Gloucester Hospital where he was kept overnight for observation. Sheehan did not return to active duty after the 1993 hospitalization.
Several physicians concluded that Sheehan's hypertension and chest pain were the result of job-related stress. In October of 1993, Dr. Madhu Thakur examined Sheehan at the defendant's request, and determined that Sheehan suffered from hypertension and hypertensive heart disease. After reviewing the job description for a Gloucester police officer, Dr. Thakur concluded that Sheehan "should retire from the police force in Gloucester and this retirement should be permanent." However, Dr. Thakur also noted that Sheehan could "engage himself in nonstressful desk duties in the current state of his health."
Because of his condition, Sheehan requested regular breaks:
fifteen minutes in the morning, a half hour for lunch, and fifteen minutes in the afternoon. Sheehan contends that he did not request uninterrupted time or a specific scheduled time for these breaks. Chief Marr informed Sheehan that, due to the nature of police work, he could not guarantee regularly scheduled breaks. According to Sheehan, all other officers were allowed breaks and lunches and Chief Marr specifically instructed various police personnel not to relieve Sheehan.
Sheehan also asked Chief Marr about the possibility of "light duty or [a] modified position at the station," and alleges that he specifically requested the 4-to-12 watch. The City of Gloucester offered to transfer Sheehan to the 12-to-8 night shift, which he declined. Sheehan contends that this was not in fact a less stressful shift; he says it was more thinly staffed than the day shift despite having the additional responsibility of watching suicidal prisoners.
On November 4, 1993, Chief Marr filed an application for disability retirement on Sheehan's behalf with the Division of Public Employee Retirement Administration ("PERA"). A panel of three physicians found that Sheehan was physically incapacitated and substantially incapable of performing his particular job, and that his incapacity was likely to be permanent. PERA subsequently determined that Sheehan qualified for accidental disability under the "heart law," Mass. Gen. Laws ch. 32, § 94 and recommended that he be retired from the Gloucester police force.
This provision allows for a presumption that hypertension or heart disease is job-related, and provides for a different procedure for retirement based on a disability for heart disease.
On June 28, 1994, the Gloucester Contributory Retirement Board conducted a hearing, at which Sheehan was present and represented by counsel. At the hearing, the Board found that Sheehan was permanently incapacitated and unable to perform his job duties as a Gloucester police officer due to hypertension. The Board ordered Sheehan's retirement, and on August 10, 1994, the Commissioner of PERA approved the Board's decision granting Sheehan accidental disability retirement. Sheehan was retired on August 17, 1994.
II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it has the "potential to affect the outcome of the suit under applicable law." Sanchez v. Alvardo, 101 F.3d 223, 227 (1st Cir. 1996). A genuine issue is one that "may reasonably be resolved in favor of either party." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997).
B. Americans with Disabilities Act
The ADA prohibits an employer from "discriminat[ing] against a qualified individual with a disability because of [that] disability." 42 U.S.C. § 12112(a). Failure to provide reasonable accommodation — as Sheehan alleges occurred in this case — is one form of prohibited discrimination under the ADA. 42 U.S.C. § 12112(b)(5).
Specifically, the ADA provides that unlawful discrimination includes, among other things:
not making reasonable accommodations to a known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. . . .42 U.S.C. § 12112(b)(5)(A).
To survive the City of Gloucester's motion for summary judgment, therefore, Sheehan must show that (1) he is disabled within the meaning of the Act, (2) he is a "qualified individual" for the job of a Gloucester police officer, and (3) he was discharged in whole or in part because of his disability. See, e.g., Lemire v. Silva, 104 F. Supp.2d 80, 85-86 (D.Mass. 2000).
A "qualified individual" for a given job, for purposes of the ADA, is identified as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions" of that job. 42 U.S.C. § 12111(8).
For present purposes, I will focus on the first requirement for Sheehan's ADA claim: that he be "disabled" within the meaning of the Act. The ADA defines the term "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). I will consider the applicability of each of these scenarios to the facts of this case in turn.
1. Impairment that Substantially Limits a Major Life Activity
As an initial matter, I note that the Supreme Court has looked to two potential sources of guidance for interpreting the relevant terms: Department of Health, Education, and Welfare regulations interpreting the Rehabilitation Act of 1973 (the "HEW regulations"), and Equal Employment Opportunity Commission regulations interpreting the ADA itself (the "EEOC regulations"). Toyota Motor Manufacturing, 122 S.Ct. at 689. The Court has found the HEW regulations to be persuasive authority, insofar as the ADA definition of "disability" is taken almost verbatim from the Rehabilitation Act, and Congress may be presumed to have "intended the term to be construed in accordance with pre-existing regulatory interpretations." Id. at 689-90. The Court has deemed the EEOC regulations to be of more questionable authority — because no agency has been authorized to issue regulations further interpreting the term "disability" in the ADA but has cited these regulations as well in cases where both parties have accepted them as reasonable. See id. at 689; see also Sutton v. United Airlines, Inc., 527 U.S. 471, 480 (1999).
Looking to the Court's treatment of these sources of guidance, I will proceed to determine (i) whether Sheehan's hypertension constitutes a "physical impairment," (ii) if so, whether it interferes with one of his "major life activities," and (iii) more particularly, whether such interference is in the nature of a "substantial limit[ation]." 42 U.S.C. § 12102(2).
a. "physical impairment"
Under the HEW regulations — which appear without change in current regulations of the Department of Health and Human Services — a physical impairment is defined as "[a]ny physiological disorder, or condition . . . affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular. . . ." Toyota Motor Manufacturing, 122 S.Ct. at 690 (citing 45 C.F.R. § 84.3(j)(2)(i) (2001)). Hypertension clearly falls within the stated scope. Because Sheehan's history of such illness is well-documented and undisputed, I find that he suffers from a physical impairment for purposes of the ADA.
b. "major life activities"
The HEW regulations define "major life activities" to include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii) (2001). Sheehan's claim of disabled status, under the ADA, appears premised on the notion that his physical impairment interferes with the last function listed, his ability to work. He has not suggested that any other major life activities — and in particular, any specific tasks — are implicated.
I note that the Supreme Court has expressed some ambivalence as to whether "working" really does qualify as a major life activity for purposes of the ADA. In Sutton, the Court commented that the proposition raises certain "conceptual difficulty," and noted that the EEOC regulations, which also include working as a major life activity, apparently do so with some reluctance (insofar as, in the Court's view, these regulations reference working as a sort of "residual" life activity, to be considered only "as a last resort"). Sutton, 527 U.S. at 492 (citing 29 C.F.R. pt. 1630, App. § 1630.2(j) (1998)). The Court later repeated its discomfort in Toyota Motor Manufacturing. 122 S.Ct. at 692.
Still, the Court accepted the proposition in Sutton — "assuming without deciding" that working qualifies as a major life activity, for purposes of the ADA — where it was agreed to by the parties in that case. 527 U.S. at 492. The Court then had no need to revisit this "difficult" question in Toyota Motor Manufacturing, because it was not presented. 122 S.Ct. at 692. Given the absence of dispute on this point in the instant case, I too will presume that interference with the ability to work is potentially cognizable as defining a disability under the ADA.
c. "substantially limits"
Of course, in order to claim disabled status under the ADA, it remains for Sheehan to demonstrate that any interference, on account of his hypertension, with his ability to work is in the nature of a substantial limitation. The HEW regulations are silent on this point, but the EEOC regulations state that an impairment can be deemed substantially limiting where it renders the person:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(1) (2001).
The EEOC regulations add that the following factors are relevant to the analysis:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.29 C.F.R. § 1630.2(j)(2).
The Supreme Court, in its recent decisions, has further narrowed the range of circumstances which may present a substantial limitation of a major life activity, for purposes of the ADA. First, in Sutton, the Court held that the analysis of the degree of limitation posed by a person's physical or mental impairment upon a given major life activity must take into account any measures that person is taking to "correct for, or mitigate" their impairment. Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999). As expressly supported by the Court's decision in the companion Murphy case, this means that I must account for the degree to which the medication Sheehan takes for his hypertension may modify, for better or worse, the illness's effect upon his ability to work. See Murphy 527 U.S. at 521 (1999).
The evidence appears somewhat mixed on the factual question whether Sheehan's medication is sufficiently corrective as to render his hypertension no longer substantially limiting his ability to work as a Gloucester police officer. One doctor who examined Sheehan at the defendant's request, Dr. Madhu Tahkur, initially stated in his October 11, 1993 report that Sheehan's hypertension was "controlled with three drug combination therapy" that he deemed "satisfactory." Dr. Tahkur concluded, however, that in light of the job description of a Gloucester police officer, he was of the opinion "that Mr. Sheehan should retire from the police force in Gloucester, and this retirement should be permanent." Similarly mixed signals emerge from the deposition of Sheehan's personal physician, Dr. Robert Jedrey, who represented that he knew of no reason why, with treatment, Sheehan would be limited in his physical activities as police officer, but also that it remained necessary for "stress factors" to be reduced.
Such evidentiary ambiguity is of limited relevance to my analysis of the implications of Sheehan's (treated) hypertension upon his ability to work, however, because my inquiry ought not focus precisely on Sheehan's ability to work as a Gloucester police officer. The Supreme Court also has made clear, after all, that to demonstrate substantial limitation upon his ability to work, an ADA plaintiff must show that he is "unable to work in a broad class of jobs," not just "one type of job, a specialized job, or a particular job of choice." Sutton, 527 U.S. at 491-92. See also Toyota Motor Manufacturing, 122 S.Ct. at 692-93. On this terrain, Sheehan's claim quickly falters.
Even if I were to limit my range of inquiry to the "class" of jobs in the security field — a class narrower than what Sutton's language fairly contemplates — I would find it dispositive, for purposes of summary judgment, that after his retirement from the Gloucester police force, Sheehan continued to work as a security guard for 24-32 hours per week.
More generally, it is difficult to see how Sheehan would be unable to work in any reasonably broad range of jobs when he himself has testified that:
I'm in as good a shape as the average police officer on that force that was 56 years old or even 50 years old. . . . I know for a fact that I'm in better shape than some of the guys down there who are 35 or 50 . . . I don't think there's anybody down there [over 50] who can do the things I can do right now — swim, jog.
In sum, I find there to be no evidence that Sheehan's (treated) hypertension renders him unable to perform a sufficiently broad range of jobs. In these circumstances, I find as a matter of law that his ability to work is not substantially limited. Accordingly, I find that he fails — even under the most generous reading of recent Supreme Court caselaw — to satisfy the first prong of the ADA's definition of disability: he does not manifest a physical or mental impairment that substantially limits one or more of his major life activities.
2. Record of Impairment
To have a "record" of a physical or mental impairment that substantially limits one or more major life activities, under subpart (B) of 42 U.S.C. § 12102(2), an ADA plaintiff must adduce "a history of, or [having] been misclassified as having" such an impairment. Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 33 (1st Cir. 2000) (citing 29 C.F.R. § 1630.2(k)). On the same analysis as above, I find that Sheehan has evidenced no history of such an impairment. Neither does he suggest any sense in which he has been formally misclassified in such regard.
3. Regarded as Having an Impairment
It remains for me to consider whether the City of Gloucester has regarded Sheehan as having the sort of disability I have determined he does not in fact manifest, as contemplated under subpart (C) of 42 U.S.C. § 12102(2). To be precise, I must determine whether Sheehan qualifies as disabled under the ADA because the defendant (mistakenly) has regarded his hypertension as substantially limiting his ability to work. See Sutton, 527 U.S. at 489. Under the analysis set forth above, however, the defendant's putative misperceptions have to be considered as against a broad range of jobs, not merely the job of a Gloucester police officer. See id. at 491-92.
Sheehan argues that he ought to be considered disabled, for purposes of the ADA, at least under this subpart of 42 U.S.C. § 12102(2) because the record evidence "clearly sets forth the City's belief that [he] was incapable of working due to his hypertension and risk of heart attack." In support of his argument, Sheehan relies primarily upon the Gloucester Retirement Board's conclusion that Sheehan was permanently physically incapacitated and unable to perform his job duties as a Gloucester police officer on account of his hypertension. Sheehan also submits that Chief Marr expressed concerns over Sheehan's ability to perform his job duties on numerous occasions subsequent to a November 20, 1992 letter written by Dr. Jedrey stating that Sheehan in fact could "return to regular duty": (i) in a November 20, 1992 memorandum to the City of Gloucester's Personnel Director, Eileen Sullivan (expressing concern for Sheehan's "health, and welfare, recognizing the stressful occupation involved"); (ii) in a January 21, 1993 letter to Sheehan (juxtaposing Sheehan's requested accommodations with the unavailing "nature of police work"); and (iii) in an August 4, 1993 letter to the Gloucester Police Department's Personnel Director, Donna Leete (expressing concern over Sheehan's "physical condition, and capability to properly perform his police functions," and recommending that Sheehan should be "relieved from duty pending further medical [advice]").
I consider the recited evidence clearly to establish that the City of Gloucester has regarded Sheehan as unable to perform the job of a Gloucester police officer. As detailed above, however, this is not sufficient for Sheehan to be considered disabled for purposes of the ADA. Rather, that statutory classification, as construed by the Supreme Court, requires that the defendant have regarded Sheehan's hypertension as rendering him unable to perform a broad range of jobs (and thus substantially limiting his ability to work). See, e.g., Murphy, 527 U.S. at 521-23. Sheehan presents no evidence supporting this larger conclusion. In the absence of such evidence, there simply is no legal basis, grounded in the ADA, to fault the defendant for having relied upon established physical criteria for its police officers. See Sutton, 527 U.S. at 490-91.
III. CONCLUSION
I have found no basis for classifying Sheehan as disabled under the ADA: he does not manifest a physical or mental impairment that substantially limits one or more of his major life activities; he has no record of such an impairment; and the defendant did not mistakenly regard him as having one. The plaintiff having failed to raise a factual question regarding this necessary element of his ADA claim, for the reasons set forth more fully above, the defendant's motion for summary judgment is GRANTED.