Rodrigues v. Pub. Emp. Ret. Admin. Comm'n

98 Mass.App.Ct. 514

158 N.E.3d 53

John RODRIGUES

v.PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION.

No. 19-P-676

Appeals Court of Massachusetts, Suffolk..

Argued March 11, 2020.

Decided September 29, 2020

Harold L. Lichten for the plaintiff.

Erica Morin, Assistant Attorney General, for the defendant.

Present: Meade, Sacks, & Englander, JJ.

ENGLANDER, J.

The plaintiff, John Rodrigues, appeals from a judgment dismissing his claims against the Public Employee Retirement Administration Commission (PERAC). Rodrigues sued PERAC seeking, fundamentally, reinstatement to his former position as a firefighter in the Fall River fire department. Rodrigues had held that position for eighteen years, until he became retired due to a disability -- a heart condition -- in 2010. In 2012, Rodrigues sought reinstatement pursuant to G. L. c. 32, § 8. He was denied reinstatement because he failed to meet the hearing acuity requirements of the "initial" health and physical fitness standards for firefighters, as promulgated by the Commonwealth's human resources division (HRD) pursuant to G. L. c. 31, § 61A. Under those standards, Rodrigues could not use a hearing aid when taking the hearing test. In 2015, Rodrigues again sought reinstatement and was again denied, this time for two reasons: (1) failure to meet the hearing requirements, and (2) a "small but significant" heart issue.

Rodrigues initiated this action after the 2012 denial, and amended his complaint after the 2015 denial. The amended complaint asserts three basic claims, in nine counts: (1) that PERAC improperly administered the reinstatement process of G. L. c. 32, § 8, (2) unlawful handicap discrimination, and (3) unlawful age discrimination. As to the first claim, the gist of Rodrigues's argument is that under c. 32, § 8, he is "able to perform the essential duties of the position from which he retired," and that PERAC's decision to apply HRD's "initial" standards (applicable to entry-level firefighters) to his reinstatement request was wrong as a matter of law. Rodrigues's discrimination claims similarly challenge that part of the HRD initial standard that prohibits the use of hearing aids.

We conclude that seven of Rodrigues's counts -- in particular, those seeking reinstatement or damages relief -- were properly dismissed, given that the c. 32, § 8, regional medical panel determined in 2015 that Rodrigues was ineligible for reinstatement not only because of his hearing, but also because of his heart condition. We also conclude, however, that Rodrigues's claims for declaratory relief should not have been dismissed, as they raise significant questions of law as to whether PERAC should be applying HRD's initial fitness standards in a return to service context. We accordingly remand for further proceedings the claims for a declaratory judgment concerning PERAC's compliance with c. 32, § 8, and c. 31, § 61A. Background.¹ 1. Rodrigues's return to service denials. Rodrigues began as a firefighter with the Fall River fire department in 1993. Rodrigues was compelled to retire due to disability in March of 2010, after receiving a diagnosis of a congenital heart condition. Thereafter, Rodrigues began receiving a disability retirement allowance. Apparently, the heart condition did not substantially alter Rodrigues's lifestyle; he has maintained a vigorous exercise regimen during retirement.

Two years after his disability retirement, Rodrigues sought reinstatement through the c. 32, § 8, "reexamination" and "restoration to service" (return to service) process. That statute requires all members of public employee retirement systems on disability retirement to undergo periodic medical evaluations to determine whether they are "able to perform the essential duties" of their prior position. G. L. c. 32, § 8 (1) (a ), (2) (a ). The process works as follows:² the retiree undergoes an initial evaluation, which may be conducted by a single physician appointed by PERAC; if the retiree is found able to perform the essential duties of his former position, he is then separately evaluated by three physicians comprising a "regional medical panel," appointed by PERAC. If all members of that panel also find that the retiree is able to perform the essential duties, then the retiree must be reinstated. See G. L. c. 32, § 8 (2) (a ) ; 840 Code Mass. Regs. § 10.13(2) (2000); 840 Code Mass. Regs. § 10.15(2) (2004). One important component of this process is the standards applied to determine whether a disability retiree is able to perform those essential duties; for firefighters like Rodrigues, PERAC instructs the physician evaluators to apply HRD's initial health and fitness standards promulgated pursuant to c. 31, § 61A, applicable to persons first being appointed as firefighters.

a. The 2012 evaluation. The physician who conducted the initial evaluation of Rodrigues in 2012 (2012 evaluation) concluded that his hearing loss exceeded the amount permitted by the initial HRD health and fitness standards in effect at the time. Under those standards, Rodrigues was not allowed to wear a hearing aid during the test, and he could not have hearing loss of an average of thirty-five decibels (dB) or more in either ear. The test results showed an average of 60 dB hearing loss in Rodrigues's left ear, and an average of 62.5 dB hearing loss in his right. The physician concluded that Rodrigues was ineligible for reinstatement, and PERAC so notified Rodrigues in March of 2012. In December of 2012, Rodrigues sought reconsideration, which was denied in January of 2013.³

b. The 2015 evaluation. In 2015, Rodrigues underwent a second round of return to service evaluations. This time he passed the initial evaluation, and was thereafter evaluated by a regional medical panel (medical panel or panel) composed of two cardiologists and one otolaryngologist (an ear, nose, and throat physician). One of the cardiologists found that Rodrigues was able to perform the job's essential duties.

A second cardiologist, however, found a "small but significant risk for [a] cardiac event to occur with strenuous exercise," and that "severe emotional or physical stress" -- which is expected for firefighters -- posed a "risk of sudden cardiac death or myocardial infarction." Accordingly, the second cardiologist concluded that Rodrigues was ineligible to return to service. The third physician, the otolaryngologist, determined that Rodrigues's hearing loss in his left ear exceeded the HRD standard then in effect.

2. Rodrigues's lawsuit. Rodrigues filed his initial complaint against PERAC in the Superior Court in February of 2013. In June of 2013, Rodrigues filed a charge against PERAC with the Massachusetts Commission Against Discrimination (MCAD), and Rodrigues subsequently amended his complaint to include multiple antidiscrimination claims arising under G. L. c. 151B, § 4. After he was denied reinstatement in 2015, Rodrigues filed another MCAD charge, and again amended the Superior Court complaint. As noted, the final version of the complaint, filed on March 3, 2016, asserted three basic claims -- handicap discrimination, age discrimination, and failure to comply with G. L. c. 32, § 8.⁴

PERAC eventually moved for summary judgment on all counts, and initially the judge granted summary judgment for PERAC on seven of the nine. Thereafter, PERAC moved to dismiss both remaining counts for lack of subject matter jurisdiction. With respect to count one, PERAC invoked a sovereign immunity defense -- it argued that the claim was not a proper claim for a declaratory judgment, because it sought a declaration regarding "individual, personal rights," rather than the legality of PERAC's "practices and procedures." The judge dismissed the two remaining counts, and final judgment entered. Rodrigues appealed.

Discussion. 1. The discrimination claims. We first address Rodrigues's claims that he was discriminated against based upon handicap and age, as a result of the application of the HRD standards for hearing.⁵ To succeed on an individual claim of handicap or age discrimination, Rodrigues would need to prove, among other things, (1) that the application of the HRD hearing standards constituted age or handicap discrimination, and (2) that he was qualified for the position. See, e.g., Gannon v. Boston, 476 Mass. 786, 793-795, 73 N.E.3d 748 (2017) (identifying elements of handicap discrimination, and describing burden-shifting framework for proving handicap discrimination claim); Somers v. Converged Access, Inc., 454 Mass. 582, 595-599, 911 N.E.2d 739 (2009) (same for age discrimination).

Here Rodrigues's claims founder on the second of these requirements -- he cannot show that he was otherwise qualified for the position. With respect to the 2015 decision, even if Rodrigues could succeed in challenging the hearing standards, the adverse finding regarding his heart condition by itself disqualified him from reinstatement. As noted, one of the cardiologists on the 2015 medical panel found a "small but significant risk for [a] cardiac event," including "sudden cardiac death." Under c. 32, § 8 (2) (a ) and PERAC's regulations, the cardiologist's conclusion meant that Rodrigues had to be denied reinstatement. The regulations state that all three members of the panel must agree that reinstatement is appropriate, and we have upheld the validity of this requirement. See 840 Code Mass. Regs. § 10.13(2) ; Pulsone v. Public Employee Retirement Admin. Comm'n, 60 Mass. App. Ct. 791, 796, 806 N.E.2d 121 (2004). Moreover, the panel's decision is controlling -- we have said that the panel has "exclusive authority to determine whether a disability retiree is qualified for and able to perform a position's essential duties." McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 65, 992 N.E.2d 1036 (2013).

Rodrigues argues that his discrimination claims as to the 2015 denial should nevertheless be allowed to go forward. Citing Gannon, Rodrigues essentially contends that a court could reject...