Opinion
11-P-780
06-04-2012
MIA FACELLA v. CITY OF NEWTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In June, 2000, return-to-service police officer Mia Facella withdrew from the Norwood police academy for medical reasons. See G. L. c. 32, § 8(2)(a). Facella never completed any mandatory retraining program as required by G. L. c. 31, § 39. On January 23, 2002, the Newton (city) police department terminated Facella's employment, informing her that she was free to seek reemployment if she recovered to the extent that she was able to perform the essential functions of a police officer, including the ability to complete mandatory retraining. Although she eventually was cleared medically to resume her retraining, she has not pursued reemployment. Answering special questions, a jury rejected Facella's disability discrimination claim. Based upon our review of the record, we see no reason for disturbing the judgment.
Between 1981 and 1999, Facella received an accidental disability retirement pension for a back injury sustained in the course of her duties as a Newton police officer. While retraining at the academy, Facella for the first time developed hypertension and severe, persistent migraine headaches.
Facella argued to the jury that the city should have let her stay on as a desk officer while she was seeking to get her migraines sufficiently under control to allow her to resume retraining. The case was put to the jury under two different theories: that Facella was a desk officer and that she was a police academy trainee. Addressing both theories, the jury specifically found that Facella was not a 'qualified handicapped person' capable of performing the essential functions of a desk officer or police academy trainee, with or without accommodation. That finding dooms Facella's case unless she can demonstrate substantial error in how the judge allowed the case to go to the jury. She raises two types of arguments, which we address in turn.
Answering as they did, the jury never reached the questions of whether Facella requested, and the city failed to provide, specific, reasonable accommodations that would have allowed her to perform these jobs.
That finding enjoys support in the testimony and documentary evidence, and Facella does not actually argue to the contrary. To the extent that she nevertheless argues that she was a qualified handicapped person as a matter of law, this argument evinces a fundamental misunderstanding of Massachusetts law. See G. L. c. 151B, §§ 1(16) and 1(17); Scott v. Encore Images, Inc., 80 Mass. App. Ct. 661, 666 (2011). Her quotation from G. L. c. 152, § 75B(1), to show qualified handicapped status, made without any argument or citation to authority, merits no further discussion. See Charara v. Yatim, 78 Mass. App. Ct. 325, 331 n.11 (2010). See also G. L. c. 152, § 69; Eyssi v. Lawrence, 416 Mass. 194, 197-198 (1993) (members of a police force are excluded from the scope of G. L. c. 152).
Jury instructions. To the extent that Facella seeks to challenge the judge's original instructions to the jury, such claims have been waived by Facella's failure to lodge any specific objections below. See Cormier v. Pezrow New England, Inc., 437 Mass. 302, 311 (2002); Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 560 (2005). The only live issue has to do with the judge's later response to a multipart question posed by the jury. Specifically, the jury asked: 'What does the word 'qualified' mean? Does it mean qualified handicapped? Does it mean qualified for the job except for the handicap? Does it mean qualified as in finished the academy? What is the definition of ' qualified' in this context?' The judge began his response by reinstructing the jury on the statutory definition of 'qualified handicapped person,' and Facella does not (and cannot) assert any error as to this. The judge then went on to allude to the fact that, pursuant to G. L. c. 31, § 39, Facella could not be reinstated to full status as a police officer until she completed retraining. Notably, Facella is unable to demonstrate that the judge erred in stating the law on this point. To the extent that the judge's full instruction caused Facella any prejudice, Facella's quarrel is with the Legislature, not the judge.
Although Facella's trial attorney did request an instruction 'as to what constitutes discrimination,' he did not object to, or even disagree with, the judge's statement that his instructions had adequately covered the subject.
This had been the subject of an earlier case in which Facella argued that the city's termination of her violated the civil service laws. We determined that because Facella never completed the retraining mandated by statute, she never was restored to police officer status entitled to the protections of the civil service laws. Facella v. Newton, 69 Mass. App. Ct. 459, 463-464 & n.4 (2007).
By virtue of G. L. c. 31, § 39, Facella's status was merely as a temporary, conditional employee. It is uncontested that at the time that Facella left the police academy, she was incapable of moving forward with fulfilling the condition on which her job depended. It is also plain that the city had no obligation to hold her position open indefinitely in the hope that she might get better. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 455-456 (2002). Finally, as noted, even after it terminated Facella, the city invited Facella to seek reemployment if she got better (an invitation that Facella never pursued). We need not resolve whether her case failed as a matter of law, because the judge let the case go to the jury, and the jury ruled in the city's favor.
Excluded evidence. There was no error in the allowance of the city's motion in limine to preclude evidence that Facella was a police officer. We appreciate Facella's desire that she be presented to the jury as a full-fledged police officer, but, as a matter of law, she did not enjoy that status. Facella v. Newton, 69 Mass. App. Ct. 459, 464 (2007) ('at best, Facella was conditionally reinstated by the city, subject to her completing a retraining program'). See Sullivan v. Brookline, 435 Mass. 353, 359-363 (2001). Nor do we believe that the judge confused the jury by precluding reference to her as a police officer. Both the judge and the attorneys properly referred to Facella during the trial as a conditional or provisional police officer and employee, the position she held pending completion of mandatory retraining. Ibid.
Facella also has not demonstrated any abuse of discretion in the judge's precluding evidence regarding Officer James Caira (the subject of a motion to quash trial subpoenas duces tecum and a motion in limine). See R.D. v. A.H., 454 Mass. 706, 719 (2009). The evidence was offered on the issue of the availability of light duty accommodations made for police officers. As the judge noted, Officer Caira's status distinguished his situation, in material respect, from that of Facella. The judge could properly have determined that the proposed evidence did not meet the test of relevancy. See Matter of Crossen, 450 Mass. 533, 571 (2008); McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 7-8 (1995).
The evidence established that the city provided light duty work to Caira for approximately four years after he suffered a stroke. However, at the time of his stroke, Caira was a full-duty sworn police officer who had successfully completed a police academy program. In contrast, at the time her debilitating migraines developed, Facella was a returning disability retiree and a conditional or provisional police officer who had last completed a police academy in 1975. Because she never completed the necessary retraining, she had not (re)attained full police officer status.
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Judgment affirmed.
By the Court (Cohen, Grainger & Milkey, JJ.),