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SJC-12136

                SEAN GANNON   vs.   CITY OF BOSTON.



         Suffolk.     December 8, 2016. - April 18, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                            Budd, JJ.1


Anti-Discrimination Law, Handicap, Employment, Burden of proof.
     Employment, Discrimination. Handicapped Persons.
     Municipal Corporations, Police. Public Employment, Police.
     Practice, Civil, Summary judgment, Burden of proof.



     Civil action commenced in the Superior Court Department on
September 27, 2012.

     The case was heard by Douglas H. Wilkins, J., on a motion
for summary judgment, and a motion for reconsideration was
considered by him.


     Harold L. Lichten (Adelaide H. Pagano also present) for the
plaintiff.
     Nicole I. Taub, Senior Special Assistant Corporation
Counsel, for the defendant.
     Simone R. Liebman & Constance M. McGrane, for the
Massachusetts Commission Against Discrimination, amicus curiae,
submitted a brief.
     Robert S. Mantell, for Massachusetts Employment Lawyers
Association, amicus curiae, submitted a brief.

     1
       Justice Botsford participated in the deliberation on this
case prior to her retirement.
                                                                   2


     GANTS, C.J.   The issue presented on appeal is whether a

city is entitled to summary judgment on a handicap

discrimination claim under G. L. c. 151B, § 4 (16), where the

police department limits an officer to desk duty based on an

informed, good faith belief that the officer can no longer

safely patrol the streets because of his perceived handicap.      We

conclude that summary judgment is not appropriate where there

are facts in dispute as to whether the officer is a qualified

handicapped person capable of performing the full duties of a

patrol officer without posing an unacceptably significant risk

of serious injury to himself or others.   The city at trial may

present the evidence that caused the department to believe that

the officer cannot safely assume the full duties of a police

officer, but that determination rests with the fact finder based

on the preponderance of the evidence, not with the department

based on its informed, good faith belief.   Therefore, we vacate

the motion judge's entry of summary judgment in favor of the

city of Boston (city) and remand the case for a trial.2

     Background.   The plaintiff, Sean Gannon (Gannon or

plaintiff), began working for the Boston police department

(department) in 1996.   For the first decade of his employment,

Gannon was a patrol officer performing the full range of patrol

     2
       We acknowledge the amicus briefs submitted by the
Massachusetts Commission Against Discrimination and the
Massachusetts Employment Lawyers Association.
                                                                    3


officer duties.   Gannon is an avid practitioner of mixed martial

arts (MMA) who has trained since his teenage years in techniques

including taekwondo, judo and aikido, Brazilian jujitsu, and

Filipino stick and knife fighting.    He began fighting in MMA

amateur bouts at night clubs on the South Shore in 2002, before

making his professional debut in August, 2004.

    Gannon suffered repeated head injuries in his professional

fights.    In his first fight, Gannon received a roundhouse kick

to his head and afterwards began vomiting and did not feel well.

An ambulance transported him to a hospital, where he was

diagnosed with a concussion.    Gannon's next fight came two

months later, in October, 2004, when he faced off with a widely

reputed fighter known by the moniker "Kimbo Slice."    Gannon and

that opponent 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 he spent several days in the hospital and was

diagnosed with another concussion.    Gannon's final professional

fight 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, limited to "inside only" work, and barred from paid

details.    The restrictions were lifted on October 20, 2005.
                                                                   4


    In December, 2005, Gannon was diagnosed with obstructive

sleep apnea and insomnia.   He was treated for these conditions

with various medications and procedures.   On February 1, 2006,

Gannon did not appear for his scheduled shift of police duty,

and officers went to his home to check on him.   They found him

in an incoherent and confused state.   Gannon explained that he

had overslept as a result of the treatment he was undergoing for

sleep apnea.   After this incident, the department placed him on

administrative duty, pending a fitness evaluation by the

department's psychiatrist, Dr. Marcia Scott.

    Based on her initial evaluation, Dr. Scott described Gannon

as "physically very restless" and opined that "[h]is

restlessness could be associated with brain injury from his

sport."   Accordingly, Dr. Scott ordered additional

neuropsychological testing with Dr. Lucinda Doran, who

administered tests to assess Gannon's intellectual abilities.

She concluded that, while Gannon appeared to possess "solid

overall capabilities," his "inability to process information

quickly clearly reduce[d] his mental efficiency and his ability

to react and respond appropriately."   Around the same time, Dr.

Scott reported from her ongoing interactions with Gannon that

his thinking was impaired, "he ha[d] difficulty focusing, his

speech [was] pressured and garbled, his face red and twisted."

Later in 2006, Dr. Scott noted that Gannon remained "on modified
                                                                   5


duty due to significant mental impairments and reduction in

mental performance . . . [a]lthough there [had] been some

improvement over the intervening months."    She continued to

recommend against Gannon's return to full-duty status,

explaining in a follow-up report in October, 2008, "Mr. Gannon

has serious mental deficits that interfere with his ability to

do the essential functions of an armed police officer."

    Gannon sought treatment from his own doctors, including Dr.

Aaron Nelson, a neuropsychologist, and Dr. Tuesday Burns, a

psychiatrist.   In a 2006 evaluation, Dr. Nelson's testing

revealed "baseline verbal intellectual ability in the superior

range and highly variable performance on measures of attention

and executive function, suggestive of frontal systems

compromise."    Dr. Nelson opined that Gannon's issues "likely

related to his history of multiple concussive injuries" and that

Gannon's anxiety problems were exacerbating his difficulties.

Two years later, however, Dr. Nelson tested Gannon for a second

time and reported "stronger performance on a wide range of test

measures."   Dr. Burns, who had been treating Gannon for anxiety

and attentional difficulties, subsequently informed the

department that Gannon had "improved significantly across all

areas" and that there were no "psychiatric or neurologic

contraindications to Mr. Gannon being re-instated to full duty

at the Boston Police Department."
                                                                    6


    Dr. Scott, the department's psychiatrist, disagreed with

Dr. Burns's assessment.    "Mr. Gannon has a serious chronic

mental disorder as well as a history of repeated head trauma,"

she wrote in January, 2009.    "These impairments interfere with

his ability to accurately assess situations, communicate

accurately, make accurate judgments, solve problems and manage

the stresses involved in the job of an armed police officer."

    In 2010, the department retained neuropsychologist Dr.

Muriel Lezak to review Gannon's testing records.   Dr. Lezak

evaluated the prior testing results against metanorms developed

from twenty-eight studies.    She reported that Gannon's response

or reaction times fell below the fifth percentile for persons

his age, in the borderline-defective to defective range.

"[W]hat he appears to be unable to do, when thought or

concentration is required, is maintain accuracy and respond at a

normal rate of speed," Dr. Lezak wrote.   Dr. Lezak later tested

Gannon herself.   Her new results supported her earlier

evaluation, and led her to conclude, "[I]t is unlikely that an

intensive remediation program could improve [Gannon's] response

speed to near normal levels or enable him to develop consistent

memory recall, both to a level that would allow him to

perform . . . police functions requiring response speed and

reliable memory recall."
                                                                    7


    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.   Gannon

remained (and continues to remain) on desk duty, where he serves

as the booking officer and works at the front desk of the East

Boston police station.   Gannon is not currently permitted to

carry a service weapon, which prevents him from obtaining detail

work and certain overtime opportunities.

    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.     In

advance of the arbitration proceeding, Gannon solicited an

assessment from an additional neuropsychologist, Dr. Neal

McGrath.   Dr. McGrath concluded that Gannon was fit to return to

full patrol duty, stating that "any cognitive deficits that

Officer Gannon may have demonstrated in past evaluations ha[d]

cleared and were therefore more likely related to treatable

medical conditions such as sleep disorder or mood disorder."

But Dr. McGrath changed his opinion after reviewing Dr. Lezak's

testing, recommending "further confirmation of . . . Gannon's

ability to respond to emergency decisions as a police officer
                                                                   8


under conditions more closely resembling actual emergencies."

Consequently, the union hired a police consultant, who performed

live simulation testing on Gannon.   This testing included a

"Shoot/Don't Shoot" target drill, and other role-playing

scenarios.   Gannon performed well, and Dr. McGrath reaffirmed

his position that Gannon was "fit for full duty as a Boston

[p]olice officer."   Dr. Lezak stood by her opinion and rejected

Dr. McGrath's reliance on the simulations, saying that "no

matter how real you try to make [them]," the simulations were

not sufficient.   She added, "[Gannon] is not responding while

running, he's not responding while he is sensing danger for

himself, he's not responding while there's a whole bunch of

stuff going on, sirens, and other cars pulling up.   This is

where my concern is."   In May, 2014, the arbitrator found that

the union had not "undercut the force of Dr. Lezak's medical

opinion," and concluded that the department did not act

unreasonably in placing Gannon on administrative duty because of

his "neuropsychological problem of speed and accuracy."

    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,
                                                                     9


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.   In ruling on the city's motion, the judge, viewing the

evidence in the light most favorable to Gannon, determined that

Gannon had met his burden of showing a prima facie case of

handicap discrimination.    He found that "the evidence . . .

obviously supports a fact-finder in concluding . . . that the

[c]ity regards Gannon as having physical impairments . . . that

curtail[] a 'major' life activity, including brain functions

such as memory, ability to recall and follow directions, and

[]ability to make split second decisions," thus satisfying the

requirement that Gannon prove he has a "handicap" within the

meaning of G. L. c. 151B, § 1 (17).     The judge also noted, "The

evidence could hardly be more in conflict on the facts bearing

on the medical aspects" of the case.    He concluded that, because

he cannot resolve factual disputes in a motion for summary

judgment, he must accept as true the reports, testimony, and

affidavits from Gannon's doctors and other experts that state

that Gannon can perform the essential duties of a full-duty

Boston police officer.     The judge also assumed for purposes of

the motion that the city had taken an adverse employment action
                                                                  10


against Gannon by assigning him to desk duty rather than full

duty.

     After he concluded that Gannon had made the required prima

facie showing of discrimination, the judge 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 then determined that, even viewing the evidence

in the light most favorable to Gannon, he had failed to sustain

his burden of proving "that the [c]ity's articulated reason is a

pretext for discrimination."   The judge framed the question of

pretext as "whether the medical and psychological evidence is so

thin that a reasonable jury may conclude that the [c]ity could

not honestly have concerns about Gannon's abilities in critical

areas, including reactions and decisions during crisis, possibly

involving firearms."   Finding that "[t]he answer, compelled by

the record, is 'no,'" the judge allowed the city's motion for

summary judgment.

     The plaintiff moved for reconsideration, claiming that "it

is illegal disability discrimination for the [c]ity to place
                                                                     11


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 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."   The judge

found that, where the city had concluded, "with ample expert

support," that Gannon could not perform the duties of a patrol

officer, "[t]he stated reason for its action was non-

discriminatory -- the plaintiff's inability to do the job.      It

did not matter why the plaintiff lacked that ability."

    Gannon filed a notice of appeal, and we allowed his

application for direct appellate review.

    Discussion.    Under G. L. c. 151B, § 4 (16), it is an

"unlawful practice . . . [f]or any employer . . . to . . .

refuse to . . . advance in employment or otherwise discriminate

against, because of his handicap, any person alleging to be a

qualified handicapped person, capable of performing the

essential functions of the position involved with reasonable

accommodation, unless the employer can demonstrate that the

accommodation required to be made to the physical or mental

limitations of the person would impose an undue hardship to the
                                                                    12


employer's business."3   In interpreting the meaning of these

provisions, we give "substantial deference" to the guidelines

interpreting G. L. c. 151B promulgated by the MCAD, although we

recognize that the guidelines do not carry the force of law.

Dahill v. Police Dep't of Boston, 434 Mass. 233, 239 (2001),

citing Massachusetts Commission Against Discrimination,

Guidelines:    Employment Discrimination on the Basis of Handicap

Chapter 151B § II.A.7 (1998) (MCAD Guidelines).    We remain

mindful that the Legislature instructed that G. L. c. 151B

"shall be construed liberally for the accomplishment of its

purposes."    G. L. c. 151B, § 9.4

     There are two general categories of handicap discrimination

cases, which differ according to the explanation given for the

adverse employment action by the employer.   In the first, the

employer denies that the employment action was motivated by the

plaintiff employee's handicap, and contends that the action was

     3
       The law defines the term "handicap" to mean "(a) a
physical or mental impairment which substantially limits one or
more major life activities of a person; (b) a record of having
such impairment; or (c) being regarded as having such
impairment." G. L. c. 151B, § 1 (17). "[H]andicapped person"
means any person who has a handicap. G. L. c. 151B, § 1 (19).
     4
       Because the language of G. L. c. 151B resembles language
used in Federal statutes prohibiting discrimination, we also
look to Federal case law for guidance in our interpretations of
the scope of our antidiscrimination law. See, e.g., Russell v.
Cooley Dickinson Hosp., Inc., 437 Mass. 443, 451 n.6 (2002); Cox
v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993);
Wheelock College v. Massachusetts Comm'n Against Discrimination,
371 Mass. 130, 137-138 (1976).
                                                                    13


based on other conduct by the employee, such as insubordination,

poor job performance, or chronic tardiness, or resulted from a

reduction in force, that is unrelated to the plaintiff's

handicap.    See Tate v. Department of Mental Health, 419 Mass

356, 361 (1995).    In these cases, we follow the framework,

patterned on that set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973), in which the plaintiff employee bears

the burden of making a prima facie showing of handicap

discrimination by offering evidence that (1) the employee is a

"handicapped person" because he or she has "a physical or mental

impairment which substantially limits one or more major life

activities" (or a record thereof) or because the employee is

"regarded [by his or her employer] as having such an

impairment," G. L. c. 151B, § 1 (17), (19) (defining "handicap"

and "handicapped person"); (2) he or she is a "qualified

handicapped person" who "is capable of performing the essential

functions of a particular job, or who would be capable of" doing

so with reasonable accommodation, G. L. c. 151B, § 1 (16)

(defining "qualified handicapped person"); (3) he or she was

terminated or otherwise subject to an adverse action by his or

her employer; and (4) where, as here, the adverse action is

prohibiting the plaintiff from assuming the duties of a

position, the position otherwise remained open to him or her.5

     5
         Where the adverse action is termination of the plaintiff
                                                                    14


See MCAD Guidelines, supra at § IX.A.2.6    Where the plaintiff

employee makes this prima facie showing, the burden shifts to

the employer to show with credible evidence that the real reason

for the adverse employment action was not the employee's

handicap but a lawful reason that was unrelated to the

employee's handicap.   See id.   See also Abramian v. President &

Fellows of Harvard College, 432 Mass. 107, 116 (2000); Blare v.

Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-

442 (1995).   Where the employer meets this burden, the burden

shifts back to the plaintiff employee to prove that the adverse

action was taken "because of his [or her] handicap," G. L.

c. 151B, § 4 (16), and not for the reason proffered by the

employer.   See MCAD Guidelines, supra.    See also Bulwer v. Mount

Auburn Hosp., 473 Mass. 672, 681 (2016); Abramian, 432 Mass. at

117; Blare, 419 Mass. at 442-443.   This type of case is often

labeled a "pretext case" because the plaintiff employee may

defeat an employer's motion for summary judgment by showing that



employee, the fourth element requires the employee to show that
"the position he [or she] had occupied remained open and the
employer sought to fill it." See Dartt v. Browning-Ferris
Indus., Inc. (Mass.), 427 Mass. 1, 3 (1998); Beal v. Selectmen
of Hingham, 419 Mass. 535, 541 (1995).
     6
       This standard reflects our recognition that proof of an
employer's true motive can be elusive. See Wheelock College,
371 Mass. at 137-138. We have noted in reference to the final
element that the necessary showing may vary depending on the
specific circumstances of each case. See Beal, 419 Mass. at
541.
                                                                  15


there are disputed issues of fact as to whether the employer's

proffered reason was not the true reason, which permit the

inference that the employer offered a pretextual reason because

the true reason was discrimination on the basis of handicap.

See Bulwer, supra at 681-682; Blare, supra at 444-445.7

Virtually 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.

     In the second category of handicap discrimination cases,

the employer admits that the adverse action was taken because of

the plaintiff employee's handicap but contends 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, and therefore is not a qualified

handicapped person.   In this type of case, the plaintiff


     7
       Although a showing of pretext permits a finding of
discriminatory intent at trial, it does not require such a
finding. "The employer may counter the effect of this evidence
by showing that, even if his articulated reason for the adverse
action is untrue, he had no discriminatory intent, or that his
action was based on a different, nondiscriminatory reason."
Abramian v. President & Fellows of Harvard College, 432 Mass.
107, 118 (2000). See Lipchitz v. Raytheon Co., 434 Mass. 493,
508 (2001) (burden-shifting rules and pretext inquiry involve
questions of law more appropriately left to trial judge; jury
instructions should focus on ultimate issues of harm,
discriminatory animus, and causation).
                                                                  16


employee's burden to make a prima facie showing is

straightforward:   the plaintiff employee must show that he or

she suffered an adverse employment action, that he or she has a

"handicap," as defined in G. L. c. 151B, § 1, that he or she is

a "qualified handicapped person," as defined in § 1, and that

the adverse action was taken because of his or her handicap.

See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 450

(2002).   Accord Ward v. Massachusetts Health Research Inst.,

Inc., 209 F.3d 29, 32-33 (1st Cir. 2000).   The plaintiff

employee need not prove that the employer's stated reason was

not the true reason for the adverse action, but instead must

prove that he or she indeed was capable of performing the

essential functions of the job and therefore was a qualified

handicapped person.   See Russell, supra; Ward, supra.

Accordingly, this type of case is best described as a qualified

handicapped person case, because the crux of the case is not

whether the employer's explanation was a pretext but whether the

plaintiff employee was a qualified handicapped person.8


     8
       We have at times referred to pretext cases as "indirect
evidence" cases, and qualified handicapped person cases as
"direct evidence" cases. See Lipchitz, 434 Mass. at 501; Wynn &
Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431
Mass. 655, 664-665 (2000). We find this focus on the nature of
the evidence unhelpful and a potential source of confusion in
distinguishing these cases. In a pretext case, where the
plaintiff employee must generally rely on circumstantial
evidence, the plaintiff may still offer in evidence specific
statements by supervisors reflecting discriminatory animus
                                                                   17


    The judge erred in analyzing the evidence in this case as

if it were a pretext case when it should have been analyzed as a

qualified handicapped person case.    Where, as here, the city has

limited the duties of a police officer because it considers him

or her incapable of performing the essential duties of a patrol

officer as a result of physical or mental limitations arising

from the officer's handicap, the adverse employment action is

"because of his [or her] handicap."    G. L. c. 151B, § 4 (16).

See MCAD Guidelines, supra at IX.A; Labonte v. Hutchins &

Wheeler, 424 Mass. 813, 821-822 (1997).    See also Ward, 209 F.3d

at 37-38.   It does not become a pretext case simply because the

department contends that the adverse employment action was

motivated solely by those physical or mental limitations, and

not by the handicap, where those limitations arise from the

handicap.   See Rizzo v. Children's World Learning Ctrs., Inc.,

84 F.3d 758, 762-763 (5th Cir. 1996) (judge erred by applying

pretext analysis to school's claim that it demoted hearing-



(which the employer will seek to characterize as "stray
comments") that might be described as direct evidence. See
Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 684-687 (2016)
(discussing five different kinds of evidence jury might have
relied on in determining employer's real reasons for
termination). See also Johansen v. NCR Comten, Inc., 30 Mass.
App. Ct. 294, 302 (1991). Similarly, in a qualified handicapped
person case, there may be so-called indirect evidence that the
employer's belief that the employee is incapable of performing
the essential duties of the job is based on stereotypes and
assumptions rather than hard facts. See Labonte v. Hutchins &
Wheeler, 424 Mass. 813, 815 (1997).
                                                                    18


impaired bus driver out of fear that she would not be able to

hear if student in her bus was choking; relevant question was

whether plaintiff actually presented safety threat).   For

instance, where a police department terminates an officer's

employment because of his or her failing eyesight, it cannot

defeat a discrimination claim by arguing that it did not fire

the officer because of the handicap but because he or she could

not see clearly enough to perform the position's essential

duties.

    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.   But where these concerns arose from Gannon's

handicap, this analysis essentially meant that the department

prevailed because Gannon failed to present evidence to show that

the department did not act in good faith in concluding that

Gannon could not perform the essential duties of his job.    In a

qualified handicapped person case, however, the employer does

not prevail simply because it indisputably acted in good faith;

it can prevail only if the handicapped employee fails to prove
                                                                   19


by a preponderance of the evidence that he or she was able to

perform the essential duties of the position with reasonable

accommodation.   See Dartt v. Browning-Ferris Indus., Inc.

(Mass.), 427 Mass. 1, 3 (1998).   See also Pushkin v. Regents of

the Univ. of Colo., 658 F.2d 1372, 1385 (10th Cir. 1981) ("It

would be a rare case indeed in which a hostile discriminatory

purpose or subjective intent to discriminate solely on the basis

of handicap could be shown.   Discrimination on the basis of

handicap usually results from more invidious causative elements

and often occurs under the guise of extending a helping hand or

a mistaken, restrictive belief as to the limitations of

handicapped persons").

    As to the issue whether Gannon was capable of performing

the essential duties of a patrol officer, the judge recognized

that there was a genuine dispute of material fact, and that

Gannon had offered substantial evidence from medical and police

experts indicating that he can perform the essential, full

duties of a Boston police officer.   Because there remains 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.   At trial,

the fact finder must determine, not whether the department acted

on a good faith belief that Gannon cannot capably perform these

duties because of his handicap, but whether Gannon has proved by
                                                                    20


a preponderance of the evidence that he can do so.     See Labonte,

424 Mass. at 822-823.   See also Gates v. Flood, 57 Mass. App.

Ct. 739, 745 (2003) (it is no defense that employer mistakenly

judged employee's qualification).    Cf. Bragdon v. Abbott, 524

U.S. 624, 628-629, 649 (1998) (where patient infected with human

immunodeficiency virus alleged that dentist discriminated

against her in violation of Americans with Disabilities Act, 42

U.S.C. § 12182[a], by refusing to fill her cavities in his

dental office because he feared for his safety, "[h]is belief

that a significant risk existed, even if maintained in good

faith, would not relieve him from liability").     The department

may offer in evidence all of the tests and expert opinions that

caused it to conclude that Gannon cannot perform the essential

duties of a patrol officer, but our law of handicapped

discrimination grants this determination to the fact finder

based on the preponderance of the evidence, not to the employer

based on its good faith belief.     See Cox v. New England Tel. &

Tel. Co., 414 Mass. 375, 383 (1993).

    In order to rebut Gannon's prima facie case, the city bears

the burden of specifying which essential duty or duties Gannon

is incapable of performing because of his handicap.     See, e.g.,

Carleton v. Commonwealth, 447 Mass. 791, 810 (2006).     The

department appears to contend that it is an essential duty of a

patrol officer to respond to stressful situations and
                                                                    21


emergencies with reasonable judgment and speed, and that Gannon

is not capable of performing these duties because of his

cognitive limitations and slow reaction time.    Implicit in this

contention is that, if Gannon were allowed to become a patrol

officer, he would put the safety of the public, his fellow

officers, and himself at risk.

    Where an employer defends a decision to terminate or not

hire a handicapped individual (or, as here, to not allow the

individual to resume being a full-duty patrol officer) because

"there is a risk of future injury to the employee or others,"

the MCAD Guidelines deem this an affirmative defense for which

the employer bears the burden of proving "that there is a

'reasonable probability of substantial harm' to the employee or

others."   MCAD Guidelines, supra at IX.B.3, quoting Ryan v.

Lunenberg, 11 M.D.L.R. 1215, 1241-1242 (1989).    Placing this

burden of proof on the employer is improper for two reasons.

    First, it is contrary to our case law holding that the

burden of proving unlawful discrimination remains with the

plaintiff "at all times."   See Abramian, 432 Mass. at 118,

quoting Wheelock College v. Massachusetts Comm'n Against

Discrimination, 370 Mass. 130, 139 (1976).   See also Cox, 414

Mass. at 386 (plaintiff had burden to "persuade the judge that
                                                                   22


he was capable of climbing poles safely" or prove that climbing

was not essential function of position).9

     Second, where, as with a patrol officer, the nature of the

job will at times place the employee in harm's way, it is

impossible to divorce the question whether the employee is

capable of performing the essential functions of the position

from the question whether the employee can perform those

functions safely.10   General Laws c. 151B, § 1, defines various


     9
       The defendant employer bears the burden of proof only
where it claims that the reasonable accommodation that might
enable the employee capably to perform the essential functions
of the position would impose an undue hardship on the conduct of
the employer's business. See Godfrey v. Globe Newspaper Co.,
457 Mass. 113, 120 (2010) ("Once an employee 'make[s] at least a
facial showing that reasonable accommodation is possible,' the
burden of proof [of both production and persuasion] shifts to
the employer to establish that a suggested accommodation would
impose an undue hardship" [citations omitted]). See also
Massachusetts Commission Against Discrimination, Guidelines:
Employment Discrimination on the Basis of Handicap Chapter 151B
§ II.D (1998). The employer's burden as to this issue is
imposed by the plain meaning of the language of G. L. c. 151B,
§ 4 (16), which prohibits discrimination against qualified
handicapped individuals "unless the employer can demonstrate
that the accommodation required to be made . . . would impose an
undue hardship to the employer's business."
     10
       Surveying the Federal decisions in this area, one
treatise remarks that while "[o]rdinarily a party asserting an
affirmative defense bears the burden of proof, . . . many courts
have been reluctant to require the employer to prove [a] direct
[safety] threat. Their reasoning is that Congress placed
burdens on both parties, because the plaintiff must prove that
he or she is 'otherwise qualified' for the job. The plaintiff's
showing of being 'otherwise qualified' encompasses or subsumes
the issue of direct threat, the argument goes, because a person
who is a direct threat would not be qualified for the job; being
qualified implies not being a direct threat." 9 L.K. Larson,
                                                                   23


terms in c. 151B, but it does not define "capable of performing

the essential functions of a particular job."    Section 4 (16),

however, recognizes that the safe performance of a job is part

of its capable performance, because it requires that a physical

or mental job qualification requirement "shall be functionally

related to the specific job or jobs for which the individual is

being considered and shall be consistent with the safe and

lawful performance of the job."   See Dahill, 434 Mass. at 240,

quoting Cox, 414 Mass. at 383-384 ("The public policies

underlying G. L. c. 151B, § 4 [16], are clear:   to protect

'handicapped individuals from deprivations based on prejudice,

stereotypes, or unfounded fear, while giving appropriate weight

to such legitimate concerns of [employers] as avoiding exposing


Employment Discrimination § 156.03[4][c] (2d ed. 2016) (Larson).
See Equal Employment Opportunity Comm'n v. Amego, Inc., 110 F.3d
135, 143 (1st Cir. 1997) ("Under § 504 [of the Rehabilitation
Act], it is clear that the question of whether the employment of
the plaintiff poses risks to the health of others is analyzed as
a matter of whether the person is "otherwise qualified").

     Those Federal courts that take the opposite view and place
the burden of proof on the employer have emphasized that the
Americans with Disabilities Act, 42 U.S.C. § 12113(a), (b),
provides a defense to a charge of disability discrimination
where the individual poses "a 'direct threat' to the health or
safety of him or herself or to others in the workplace."
Larson, supra, citing Equal Employment Opportunity Comm'n v.
Wal-Mart Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007); Nunes
v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999);
U.S. Equal Employment Opportunity Comm'n v. AIC Sec.
Investigations, 55 F.3d 1276, 1283-1284 (7th Cir. 1995).
General Laws c. 151B, § 4 (16), does not set forth a "direct
threat" defense; it simply places on the employee the burden of
proving that he or she is a "qualified handicapped person."
                                                                   24


others to significant health and safety risks'").    Section

4 (16) does not recognize a separate affirmative defense of

"reasonable probability of substantial harm" to the employee or

others.   See MCAD Guidelines, supra at IX.B.3.

     While the handicapped employee ultimately bears the burden

of proving that he or she can safely perform the essential

functions of a particular job, the employee need only confront

this burden where the employer has met its burden of producing

specific evidence showing that the employee would pose an

unacceptably significant risk of serious injury to the employee

or others.11   The employer meets its burden of production where

it offers evidence showing that it has made "an individualized

factual inquiry" based on substantial information regarding the

employee's individual work and medical history.    See MCAD

Guidelines, supra at § IX.B.3.    See also Knapp v. Northwestern

Univ., 101 F.3d 473, 484-486 (7th Cir. 1996), cert. denied, 520

U.S. 1274 (1997).    It may not meet its burden based upon pure

speculation as to the likely risk of injury.    See MCAD

Guidelines, supra.    Nor is it sufficient to show simply an

increased risk of injury.    See id.   See also Mantolete v.

Bolger, 767 F.2d 1416, 1422 (9th Cir. 1985), quoting S. Rep. No.

     11
       We choose the standard of an "unacceptably significant
risk of serious injury to the employee or others" because we
recognize that the performance of some inherently dangerous jobs
might always involve a significant risk of serious injury to the
employee or others.
                                                                  25


48, 93rd Cong., 1st Sess., at 16 (1974) ("A mere 'elevated risk'

standard is not sufficient to insure handicapped people's 'right

to employment which complements their abilities'").   The

employer must offer evidence showing an increased risk of

serious injury that is so significant that it cannot reasonably

be deemed acceptable by an employer.   See Beal v. Selectmen of

Hingham, 419 Mass. 535, 543 (1995) (concluding that plaintiff

who was discharged as police officer has no reasonable

expectation of demonstrating that she is "qualified handicapped

person" under G. L. c. 151B "[b]ecause police officers are

responsible for public safety, and the plaintiff's handicap

severely compromises her capability to ensure the general safety

of the public").   See also Burton v. Metropolitan Transp. Auth.,

244 F. Supp. 2d 252, 262 (S.D.N.Y. 2003) (plaintiff not

qualified to perform essential functions of his bus driver

position where his health condition posed "unacceptable" risk to

public).

    Where the employer has satisfied this burden of production,

the plaintiff employee must prove that he or she is capable of

performing the essential functions of the job without posing an

unacceptably significant risk of serious injury to the employee

or others.   In making this determination, the fact finder must

consider the potential severity of the feared injury and the

probability that the employee in that position would cause such
                                                                  26


injury.   An employee may be found incapable of safely performing

the essential functions of a position, and therefore not

qualified under the statute, without the risk rising to the

standard of a "reasonable probability of substantial harm."

Contrast MCAD Guidelines, supra at § IX.B.3, quoting Ryan, 11

M.D.L.R. at 1242.

    Conclusion.     We reverse the allowance of the defendant's

motion for summary judgment, and remand the case for a trial.

                                     So ordered.
