          United States Court of Appeals
                     For the First Circuit


No. 19-1337

                          CARLOS MELO,

                      Plaintiff, Appellant,

                               v.

   CITY OF SOMERVILLE; CHIEF DAVID FALLON, in his official and
                       individual capacity,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                   Kayatta, Selya, and Stahl,
                         Circuit Judges.


     Brian Rogal, with whom Rogal & Donnellan, P.C., Timothy M.
Burke, Jared Burke, and Law Offices of Timothy M. Burke were on
brief, for appellant.
     Leonard H. Kesten, with whom Deidre Brennan Regan, Michael
Stefanilo, Jr., and Brody, Hardoon, Perkins & Kesten, LLP were on
brief, for appellees.


                         March 24, 2020
              KAYATTA, Circuit Judge.          Carlos Melo served for nineteen

years    as     a    police     officer        in   Somerville,   Massachusetts

("Somerville" or "the City").         He claims that the City unlawfully

forced him to retire when it discovered that he had essentially no

vision in one eye.      The district court granted summary judgment to

the City, ruling in part that no reasonable jury could find that

Melo    could    perform      high-speed       "pursuit   driving,"    which   the

district court deemed to be an essential function of his job.                  For

the following reasons, we find that Melo has raised on this record

a triable issue of fact as to whether his monocular vision renders

him unqualified to perform the essential job functions of an

incumbent officer in Somerville's police department.                  We therefore

vacate the entry of summary judgment.

                                          I.

              We begin by reviewing the record in the light most

favorable to Melo.         See Gillen v. Fallon Ambulance Serv., Inc.,

283 F.3d 11, 17 (1st Cir. 2002).               Melo began working as a police

officer for the City in 1997.         In 2002, he suffered an injury that

ultimately resulted in a loss of almost all vision in his left

eye.    Not long after the injury, physicians from the Massachusetts

Ear and Eye Infirmary cleared him to return to duty without

restriction.        In 2007, after serving several years as a patrol

officer without incident, he successfully bid for the position of




                                      - 2 -
station officer.   He performed all essential functions asked of

him over the years.

          During   his   tenure,    Melo   twice   tested   positive   for

marijuana, requiring him to agree that he either would be or could

be fired if he tested positive again.       At some point in 2015, one

of Melo's superiors reported that he believed Melo had reported to

work smelling of marijuana.   Upon questioning by his captain, Melo

admitted that he sometimes smoked marijuana to alleviate migraines

that had resulted from his 2002 injury.1      He nonetheless contested

that the department had reasonable suspicion to order a drug test.

Melo eventually agreed to undergo a fitness-for-duty test in lieu

of submitting to a drug test.        The doctor chosen by the City to

conduct the examination, Dr. Al Rielly, discovered that Melo has

very little vision in his left eye, and Melo was referred to an

ophthalmologist, who confirmed that Melo has essentially monocular

vision. Based on that finding, Rielly deemed Melo "unfit for duty"

because the impairment would, in Rielly's view, render Melo unable

to engage in high-speed pursuit driving.

          Following Rielly's reports, the City placed Melo on

leave and unpaid suspension, revoked his firearm carry license,

sent a notice of potential termination, and initiated involuntary




     1  Melo may have a valid Massachusetts medicinal marijuana
license, but this does not seem to have permitted him to use
marijuana under department policy.


                                   - 3 -
retirement proceedings with the Somerville Retirement Board ("the

Board").   The involuntary retirement proceedings require that a

panel of three doctors, appointed by the Public Employee Retirement

Administration Commission (PERAC), conduct assessments regarding

Melo's fitness to work as a police officer.      Two of these doctors

concluded that Melo's monocular vision rendered him unable to

perform the essential duties of a police officer, noting that the

injury   limited   his   depth   perception,   lowered   his   field   of

peripheral vision, and could increase his risk of suffering a

debilitating injury, with one of the doctors, Dr. Seth Schonwald,

specifically noting the risk this might have on pursuit driving.

The third doctor, Dr. Ernest Sutcliffe, directly contradicted

those conclusions.       He stated that individuals with monocular

vision frequently learn to compensate for their injuries.        And he

cited Melo's regular use of a motorcycle, suggesting that Melo had

learned to compensate for his monocular vision in order to safely

operate the motorcycle and thus could pursuit drive safely.        This

doctor nonetheless concluded that Melo was unfit for duty because

of his marijuana use, explicitly contradicting one of the other

panel doctors, who concluded that Melo's off-duty marijuana use

was no bar to his employment.

           The panel doctors referred their reports to the Board,

which, on January 26, 2017, approved their recommendations that

Melo be involuntarily retired.      Melo could have contested and/or


                                  - 4 -
appealed this decision but chose not to do so. PERAC then ratified

the Board's decision on March 1, 2017.           Because the district court

was not asked to consider on summary judgment whether the Board's

ratified        involuntary     retirement   determination,   Melo's   initial

seeming acceptance of disability retirement benefits, or Melo's

marijuana use defeats any of his claims, we do not address these

issues on appeal.

                In the wake of the City's assertion, based on Rielly's

report, that he could not engage in pursuit driving, Melo requested

an accommodation of "light duty" work that would presumably exclude

pursuit driving, but the City never discussed the possibility of

such       an   accommodation,     with   Somerville's   Chief    of   Police,

defendant David Fallon, later claiming there were no such permanent

positions within the department.             After filing a charge with the

Massachusetts Commission Against Discrimination and the EEOC in

October 2017, Melo eventually withdrew those charges and filed

this lawsuit in April 2018, alleging violations of the Americans

with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the

Rehabilitation Act, 29 U.S.C. § 701 et seq., and Massachusetts

discrimination law.2

                The City eventually moved for summary judgment.            The

parties         agreed   that    Massachusetts   discrimination    law,    the


       2
       Melo also pleaded a Massachusetts common law claim, the
district court's dismissal of which he does not challenge.


                                       - 5 -
Rehabilitation Act, and the ADA all follow the same legal standards

relevant to the issues now on appeal.          Applying those standards,

as framed in ADA cases, the district court granted the motion,

concluding that "Melo fail[ed] to make a prima facie showing that

he is otherwise qualified to be a police officer because his

monocular vision renders him incapable of performing the essential

functions of the job."          Melo v. City of Somerville, No. CV

18-10786, 2019 WL 1230365, at *3 (D. Mass. Mar. 15, 2019).              Melo

timely appealed the resulting judgment dismissing his suit.

                                      II.

           Summary   judgment    is    appropriate    when   "there   is    no

genuine dispute as to any material fact and the [moving party] is

entitled to judgment as a matter of law."           Fed. R. Civ. P. 56(a).

A genuine dispute of material fact exists when the nonmoving party

produces evidence "such that a reasonable jury could resolve the

point in [its] favor."      Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1,

7 (1st Cir. 2018) (quoting Cherkaoui v. City of Quincy, 877 F.3d

14, 23–24 (1st Cir. 2017)).      We review a grant of summary judgment

de novo.   Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146

(1st Cir. 2013).

           A   successful   claim     under   the   ADA   requires   that   an

individual prove by a preponderance of the evidence that the

individual (1) is disabled within the meaning of the ADA, (2) is

qualified to perform the job in question, and (3) had an adverse


                                    - 6 -
employment      action    taken   against       him   or     her     based     on     that

disability.     Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir.

1998).    At issue here is only the second prong, whether Melo is a

qualified individual under the ADA, which means that "with or

without reasonable accommodation []he was able to perform the

'essential functions' of h[is] former position."                           Id.        Melo

contends that a jury could reasonably find on this record, first,

that pursuit driving was not an essential job function and/or,

second, that he could perform that function.                        We address each

contention in turn.

                                         A.

             Somerville    and    the    district         court    have    relied      for

purposes   of    summary    judgment      on    a   manual        maintained     by    the

Massachusetts Division of Human Resources ("Mass HRD").                        Entitled

"Initial-Hire Medical Standards," the manual ("HRD Manual") sets

forth    medical   standards      for    newly      hired    police       officers      in

Massachusetts.       In    relevant      part,      the    manual     identifies        an

inability to see 20/100 or better in either eye as a medical

condition that precludes an applicant from satisfying the minimum

medical standards required for hire as a municipal police officer.

Massachusetts law requires that each municipality within the civil

service system adhere to these medical standards.                    Mass. Gen. Laws

ch. 31, § 61A; see Carleton v. Commonwealth, 858 N.E.2d 258, 261

(Mass. 2006).


                                        - 7 -
            The manual also contains a list of "municipal police

officer essential functions," which includes operating a motor

vehicle at a high rate of speed.                The City points us to no

Massachusetts law requiring that it structure any or all of its

municipal police officer job positions to incorporate all of these

essential functions listed in the HRD manual.                     Chief Fallon

testified at his deposition that Somerville nevertheless does "use

the   HRD   Civil    Service     Department . . . .      list    of   essential

functions of a police officer."

            Pointing to the manual, the district court ruled that no

jury could reasonably conclude that a person without sight in one

eye was qualified for the job of Somerville police officer.                  Its

basis for doing so was a Massachusetts Supreme Judicial Court

pronouncement       that    courts     should   defer    to     the   Mass   HRD

classification of disqualifying medical conditions in fields like

policing where "public safety [is] paramount."                  Melo, 2019 WL

1230365, at *3 (quoting Carleton, 858 N.E.2d at 271).

            Notably, though, the Mass HRD Manual only claims to set

forth medical standards for initial hires. And while Massachusetts

law also calls for the Mass HRD to set medical standards for

retaining    current       officers,   Mass.    Gen.    Laws   ch. 31,   § 61A,

Somerville does not point to any such standards or even claim that

they exist.     There is good reason, too, to doubt that medical

standards for new hires must be applied to remove experienced


                                       - 8 -
officers from service.3        After all, why would the Massachusetts

legislature have called for the creation of two sets of standards

if it expected all officers at all times to satisfy a single set?

Officers   foreseeably      age,    losing     some   physical     prowess      but

acquiring valuable experience and knowledge.                  See, e.g., id.

(noting that retention standards "shall take into account the age

of the police officer").            And while a police department might

prefer and expect new hires to be capable of assuming all entry-

level positions, experienced officers are much more likely to

acquire specific jobs, such as that of station officer.                  So Melo's

failure to meet the Mass HRD vision standards may not be enough

per se to disqualify him after many years of service.

           The    HRD    medical    standards    thus     leave   room    for   the

possibility that seeing at least 20/100 in each eye is not a

requirement      for    continued    service    as    a   police    officer      in

Somerville.      And this possibility finds proof of the pudding in

the eating:   In nineteen years, there has apparently never been an

instance in which Melo's vision prevented him from successfully

performing his job.         Nor does the City test the vision of its

incumbent officers. In short, there is some evidence in the record




     3  The City does not argue that Melo failed to preserve this
argument in the district court. He clearly presents it on appeal,
and the City responds on the merits. We do the same.


                                     - 9 -
to allow a reasonable jury to find that seeing at least 20/100 in

each eye is not a requirement for Melo's job.

            As for the "essential functions" list in the HRD Manual,

it is not clear whether it purports to describe functions for new

hires at the time of appointment or for all officers for the

duration    of    their   service.      What    is    clear,     though,      is   that

Somerville       points   us   to    nothing    in     either     the   record       or

Massachusetts       law   requiring     that        Somerville     structure         the

municipal officer positions within its department in accordance

with the list in the HRD Manual.

            The record, in turn, would allow reasonable jurors to

conclude that Somerville has not in fact operated in a manner that

makes it essential for every officer to be able to engage in

pursuit driving. Discovery showed that Somerville had also created

its own list of "Duties and Responsibilities" of a patrol officer.

These forty-one listed duties and responsibilities do not include

"pursuit    driving,"     although    they     do    include    "respond[ing]        to

emergency        situations    such     as     fires,     riots,        and        other

disturbances."4 Somerville similarly requires only rookie officers

to take a driver training course, does not otherwise test the high-




     4  The   record  also   contains   unpublished   lists   from
Chief Fallon and Deputy Chief Stephen Carrabino of station officer
duties. Although these include, separately, some driving duties
and emergency response duties (like deescalating an incident in
the lobby), neither lists pursuit driving.


                                      - 10 -
speed driving skills of its incumbent officers, and actually

discourages pursuit driving due to risk of injury in the densely

populated Somerville community.        When asked if he could recall a

specific instance of pursuit driving within the past five years,

Chief Fallon stated that he was "not sure it's done often," but he

was "sure narcotics ha[d] pursued somebody for a short distance at

a high speed," although he could not recall a specific incident.

Melo, for his part, has never had to perform pursuit driving in

his nineteen years on the force.       And the record contains no other

evidence that any Somerville officer has ever had the need to

engage in pursuit driving, much less while serving as a station

officer.

            The pertinent legal framework stresses the importance of

the foregoing facts:        Nothing in the ADA or its implementing

regulations suggests that a written job description necessarily

controls the determination of what job functions are essential.

In fact, we have rejected the notion that such descriptions are

always dispositive, even in the emergency worker context.               See,

e.g., Gillen, 283 F.3d at 25–28 (discussing an EMT's job duties).

Rather,    the   statute   and   regulations   state   only   that   written

descriptions are entitled to consideration.        42 U.S.C. § 12111(8);

29 C.F.R. § 1630.2(n).5      Thus, when a record contains conflicting


     5  The other factors to consider are whether "the position
exists . . . to perform that function," "[a] limited number of


                                   - 11 -
evidence, resolution of what is an essential element of a job can

often be a "fact-intensive inquiry" that may not be appropriate

for summary judgment.   See Ward v. Mass. Health Research Inst.,

Inc., 209 F.3d 29, 35 (1st Cir. 2000); cf. Gillen, 283 F.3d at 28.

The record as it now stands could therefore support a reasonable

finding of fact that binocular vision and ability to engage in

pursuit driving are not essential to every police officer job in

Somerville.6   See, e.g., Rorrer v. City of Stow, 743 F.3d 1025,

1041–42 (6th Cir. 2014) (finding a triable issue of fact where it

was unclear whether the City of Stow had adopted guidelines listing

driving a truck as an essential function of the job of firefighter

despite the City's assertions to the contrary).

                                B.

          Even if a jury were to find pursuit driving an essential

function of policing in Somerville, Melo might still prevail if



employees [are] available among whom the performance of that job
function can be distributed," and "the incumbent in the position
is hired for his or her expertise or ability to perform the
particular function." 29 C.F.R. § 1630.2(n)(2). Evidence of these
factors include, among other things, "[t]he employer's judgment,"
"[w]ritten job descriptions," "[t]he amount of time spent on the
job performing the function," "[t]he consequences of not requiring
the incumbent to perform the function," "[t]he work experience of
past incumbents in the job," and "[t]he current work experience of
incumbents in similar jobs." Id. § 1630.2(n)(3).
     6  The district court concluded that the City need not find
an accommodation because Melo was not qualified to be an officer.
It follows from the foregoing analysis that there is also a triable
issue as to whether pursuit driving, to the extent it is ever
required of some or many officers, need not be required of a
station officer.


                              - 12 -
the jury also finds that he can perform that function.                      It is

Melo's   burden     to   show   that        he    satisfies   the   minimum   job

requirements.     See EEOC v. Amego, Inc., 110 F.3d 135, 142 (1st

Cir. 1997).

           The district court relied on Rielly's and the PERAC

panel's reports to conclude that Melo's "monocular vision renders

him incapable of performing the essential functions of the job"

because "[a]ll three independent medical reports prepared for the

Somerville Retirement Board, which unanimously voted to approve

Melo’s   involuntary        accidental           disability   application     for

retirement, similarly determined that Melo was permanently unable

to perform the essential functions of his position."                  Melo, 2019

WL 1230365, at *3.       But this level of generality does not quite

capture the nature of the evidence.                What in fact transpired is

that the three panel physicians addressed two different possible

reasons for Melo's disqualification:                first, that his monocular

vision   rendered    him    unable     to    perform    his   essential   duties

(including pursuit driving), and second, that his use of marijuana

rendered him "physically incapable of performing the essential

tasks of his job."       As to each possible reason, the doctors split,

with at least one physician saying Melo was disqualified for that

reason and another saying he was not, albeit all agreed that Melo

was not qualified for at least one of the two possible reasons.




                                     - 13 -
            Given that neither party now questions the admissibility

of any of the three physicians' opinions, it follows that the

record contains conflicting competent medical evidence on the

questions of whether Melo's vision renders him unable to engage in

pursuit driving and whether his marijuana use renders him unfit

for duty.    Cf. Diefenbach v. Sheridan Transp., 229 F.3d 27, 29

(1st Cir. 2000) (noting that an objection to an expert's testimony

under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),

can be waived).     There is no reason that a jury need resolve the

physicians' disagreement by deferring on either issue to the

majority vote, especially when the record contains at least some

corroborating evidence supporting the other conclusion.              Cf.,

e.g., Snead v. Fla. Agric. & Mech. Univ. Bd. of Trs., 724 F. App'x

842, 846 (11th Cir. 2018); Qidwai v. Prudential Ins. Co. of Am.,

56 F. App'x 425, 425–26 (9th Cir. 2003).

            This   is   especially   relevant   to   the   vision   issue,

concerning which Sutcliffe was the only one of the three doctors

to consider evidence of Melo's current driving performance and

compensatory adaptations; the other physicians relied solely on

the results of their eye examinations to conclude that Melo was

not qualified.      The trier of fact would have the benefit of

weighing the doctors' differing decisions based on credibility and

other factors that the district court could not weigh on summary

judgment.    See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255


                                 - 14 -
(1986) (observing that "[c]redibility determinations, the weighing

of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge"). So by presenting

Sutcliffe's    report      --    which     accounts       for    the   possibility         of

individuals    with    monocular       vision      learning       to   compensate         for

impairments and references Melo's regular use of a motorcycle --

bolstered by his own consistent passing marks in his firearm

qualifications      and    years     of    work    without       incident,       Melo     has

presented a triable issue of fact as to whether he can engage

safely in pursuit driving.            Cf., e.g., Keith v. Cty. of Oakland,

703 F.3d 918, 926–27 (6th Cir. 2013) (finding a genuine issue of

fact as to a lifeguard's qualifications where evidence in the

record indicated he may have successfully been able to perform his

job even given his hearing loss).

             None of this is to say that Melo's marijuana use does

not raise additional issues.              But we need not now decide whether

that is so.    The City does not argue on appeal -- and did not argue

on summary judgment below -- that Melo's marijuana use in fact

disqualified him.          Indeed, the letter from Chief Fallon placing

Melo   on   leave    and    informing       him    that    he    cannot       perform     the

essential     job    functions       lists        only    pursuit        driving     as     a

disqualifying       issue,      as   does    the    application          to    the   Board

requesting    involuntary        retirement,        which       states    that     "Melo's




                                          - 15 -
visual impairment interferes with hi[s] safely performing job

duties."

                                  C.

            For the foregoing reasons, we vacate the entry of summary

judgment.     In so doing, we do not hold that this case will

necessarily go to trial or that Melo will ultimately prevail.    The

City claims to have defenses other than those argued to and

addressed by the district court on summary judgment, and nothing

in this opinion rejects or affirms any other defenses it may have.7

We rule only that the record as it stands would allow a jury to

find that pursuit driving is not an essential function of Melo's

job and/or that Melo can safely perform that function.

                                 III.

            The grant of summary judgment on the ADA, Rehabilitation

Act, and Massachusetts state discrimination claims is therefore

vacated, and we remand the case for further proceedings consistent

with this opinion.    The district court will decide at the time of

final judgment whether costs of this appeal are to be shifted in

favor of a finally prevailing party under any applicable statute.


     7  For example, in its brief, the City raises arguments
regarding estoppel and timeliness.     The district court did not
pass upon these arguments in the summary judgment proceedings
below. More importantly, Melo had no reason to develop the summary
judgment record and submissions to parry such defenses.          We
therefore decline to address these arguments in the first instance.
Cf., e.g., Valiente v. Rivera, 966 F.2d 21, 24 n.2 (1st Cir. 1992)
(per curiam).


                                - 16 -
