Lacroix v. Boston Police Department

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

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JAMES LACROIX, et al., )

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Plaintiffs, ) Civil Action No. 19-cv-11463-DJC

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v. )

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THE BOSTON POLICE DEPARTMENT, )

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Defendant. )

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. April 15, 2020

I. Introduction

James LaCroix (“LaCroix”), Renee Payne-Callender (“Payne-Callender”), the Boston

Police Patrolmen’s Association (“BPPA”), the Boston Police Detectives Benevolent Society

(“BPDBS”) and the Boston Police Superior Officers Federation (“BPSOF”) (collectively,

“Plaintiffs”) have filed this lawsuit against the Boston Police Department (“BPD”) alleging

disability discrimination under the Americans with Disabilities Act (“ADA”) and handicap and

genetic information discrimination under Mass. Gen. L. c. 151B. D. 1. Specifically, Plaintiffs

challenge BPD’s policy requiring all officers who return from extended leave, regardless of the

nature of their leave, to undergo medical and psychological examinations before returning to

service. Id. ¶ 1. Plaintiffs seek declaratory and injunctive relief as well as monetary damages. Id.

at 8. BPD has moved to dismiss. D. 10. For the reasons set forth below, the Court DENIES BPD’s

motion.

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II. Standard of Review

Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss an action for lack

of subject matter jurisdiction. “[T]he party invoking the jurisdiction of a federal court carries the

burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir.

1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). To

determine if the burden has been met, the Court “take[s] as true all well-pleaded facts in the

plaintiffs’ complaints, scrutinize[s] them in the light most hospitable to the plaintiffs’ theory of

liability, and draw[s] all reasonable inferences therefrom in the plaintiffs’ favor.” Fothergill v.

United States, 566 F.3d 248, 251 (1st Cir. 2009).

A defendant may also move to dismiss for a plaintiff's “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a

complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 559 (2007). Although detailed factual allegations are not necessary to survive a motion to

dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. at 555. “The relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff is asking the court to draw from the

facts alleged in the complaint.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir.

2011).In evaluating a motion to dismiss under Rule 12(b)(6), the court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s

favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

III. Factual Background

The following facts are drawn from the complaint, D. 1, and are accepted as true for the

consideration of the pending motion. LaCroix is a BPD patrol officer. D. 1 ¶ 4. Payne-Callender

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has been a police officer employed by BPD for thirty-three years and has been a BPD detective

for the last twenty-one years. D. 1 ¶¶ 5, 15. The BPPA is the collective bargaining agent for all

BPD patrol officers, including LaCroix. D. 1 ¶ 6. BPDBS is the collective bargaining agent for

all BPD detectives, including Payne-Callender. D. 1 ¶ 7. BPSOF is the collective bargaining agent

for all BPD uniformed sergeants, lieutenants and captains. D. 1 ¶ 8.

In March 2016, LaCroix injured his back and right hip while on duty. D. 1 ¶ 10. LaCroix

was placed on leave due to his injuries and remained out of work until he was cleared to return by

his doctors in December 2018. Id. While he was recovering, LaCroix met with the BPD’s

occupational physician, Dr. Deiter Affeln (“Dr. Affeln”). D. 1 ¶ 11. The examinations by Dr.

Affeln focused on LaCroix’s leg and back injuries and he cleared LaCroix to return to light duty

work with restrictions on December 4, 2018. Id. Around that time, LaCroix was informed that he

would also need to be evaluated by the BPD’s psychiatrist, Dr. Brown, before returning to work

because he had been on leave for more than six months. D. 1 ¶ 12. LaCroix complied and met

with Dr. Brown on December 13, 2018. D. 1 ¶ 13. Dr. Brown approved LaCroix’s return to work.

Id. LaCroix informed his union, BPPA, of the requirement to meet with Dr. Brown and BPPA

questioned BPD about the policy. D. 1 ¶¶ 13, 14. The BPD responded that its “consistent practice

is that, prior to returning to full duty, [o]fficers must meet with Dr. Affeln if they have been absent

[from] duty for three or more months, and both Dr. Brown and Dr. Affeln if they have been absent

for six or more months.” Id.

In February 2018, Payne-Callender broke her foot while working and was placed on injury

leave. D. 1 ¶ 15. Payne-Callender was eventually cleared to return to work by her doctor on

January 11, 2019. Id. While recovering, Payne-Callender occasionally met with BPD’s Medically

Incapacitated Section regarding her injury. D. 1 ¶ 16. Zelma Greenstein, R.N., cleared Payne-

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Callender to return to work in a light duty role on January 18, 2019. Id. After being cleared for

light duty work, BPD informed Payne-Callender that she would not be fully cleared to return to

work without an evaluation by Dr. Brown. D. 1 ¶ 17. Payne-Callender complied and met with

Dr. Brown on January 31, 2019. D. 1 ¶ 19. Dr. Brown cleared Payne-Callender to return to work.

Id. During the meeting with Dr. Brown, Payne-Callender questioned whether anyone at the BPD

had raised concerns regarding her mental health and Dr. Brown informed her that they had not.

Id.

IV. Procedural History

On July 3, 2019, Plaintiffs instituted this action against BPD. D. 1. BPD has now moved

to dismiss. D. 10. The Court heard the parties on the pending motion and took the matter under

advisement. D. 18.

V. Discussion

A. ADA Claim

BPD argues that Plaintiffs lack standing to pursue the ADA claim because the individual

plaintiffs, LaCroix and Payne-Callender, have not articulated any injury suffered and the collective

bargaining agents, BPPA, BPDBS and BPSOF, have not sufficiently established associational

standing. D. 11 at 4-10. BPD further claims that the complaint must be dismissed because

Plaintiffs have failed to establish that they are qualified individuals with a disability under the

ADA. Id. at 10-13. Additionally, BPD argues that Plaintiffs bear the burden of establishing that

the medical and psychological examinations are not job-related and consistent with business

necessity and that Plaintiffs have failed to meet this burden. Id. at 13-14. The Court discusses

each argument in turn.

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1. Standing

“If a party lacks standing to bring a matter before the court, the court lacks jurisdiction to

decide the merits of the underlying case.” United States v. AVX Corp., 962 F.2d 108, 113 (1st

Cir. 1992). “The Constitution limits the judicial power of the federal courts to actual cases and

controversies.” Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (citing U.S. Const. art. III,

§ 2, cl. 1). “A case or controversy exists only when the party soliciting federal court jurisdiction

. . . demonstrates ‘such a personal stake in the outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of issues upon which the court so largely depends.’”

Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). To establish standing, a plaintiff must show:

(1) that they suffered a concrete injury that is actual or imminent; (2) that there is a causal

connection between the injury and the conduct alleged; and (3) that the injury can be redressed

through a favorable ruling. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs

bear the burden to establish standing and “must plead ‘sufficient factual matter to plausibly

demonstrate [] standing to bring the action[.]” Perez-Kudzma v. United States, 940 F.3d 142, 145

(1st Cir. 2019) (quoting Gustavsen v. Alcon Labs., Inc., 903 F.3d 1, 7 (1st Cir. 2018) (first

alteration in original)). To establish associational standing to sue on behalf of their members, the

plaintiff unions are required to show that (1) their members would have standing to sue; (2) the

interests the suit seeks to protect are “pertinent to the objectives for which the organization[s were]

formed” and (3) neither the claim nor the relief requested requires the unions’ members to

participate in the suit. AVX Corp., 962 F.2d at 116.

As to the individual plaintiffs, BPD argues that they have failed to allege that they have

suffered any injury because, despite being required to undergo both physical and psychological

examinations, LaCroix and Payne-Callender passed those examinations and were permitted to

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return to work and the unions have not otherwise alleged that there are any other individual

members who have suffered an injury that would confer standing. D. 11 at 6. BPD cites multiple

cases in which individuals seeking employment were subjected to pre-employment medical

examinations and inquiries. See id. at 6-9. In these cases, job applicants were subjected to various

medical inquiries during the hiring process and were eventually denied employment. See, e.g.

Chicago Reg’l Council of Carpenters v. Thorne Assocs., 893 F. Supp. 2d 952 (N.D. Ill. 2012);

Martino v. Forward Air, Inc., 609 F.3d 1 (1st Cir. 2010); Armstrong v. Turner Indus., 141 F.3d

554 (5th Cir. 1998). Notably, each of these cases was brought under 42 U.S.C. §§ 12112(d)(2)-

(3), the provisions of the ADA governing pre-employment examinations and inquiries and

employment entrance examinations. Chicago Reg’l Council of Carpenters, 893 F. Supp. 2d at

957; Martino, 609 F.3d at 3; Armstrong, 141 F.3d at 558; see 42 U.S.C. § 12112(d)(2)-(3). Here,

Plaintiffs’ action is brought under a separate ADA provision related to prohibited examinations

and inquiries of current employees. See D. 1 ¶ 24 (citing 42 U.S.C. § 12112(d)(4)).

Despite BPD’s contention, the pre-employment cases are not analogous to the present case

as, in those cases, the plaintiffs failed to prove that they had suffered an injury due to the alleged

illegal inquiries, Chicago Reg’l Council of Carpenters, 893 F. Supp. 2d at 957; Martino, 609 F.3d

at 4-5; Armstrong, 141 F.3d at 558, and there was no imminent possibility of further harm. In

contrast, courts analyzing claims brought by current employees have held that employees who had

not suffered adverse employment actions nevertheless had standing to challenge policies that they

alleged violated the ADA’s prohibition on medical examinations and inquiries of current

employees. See, e.g., Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003)

(“agreeing with our sister circuits that a plaintiff need not prove that he or she has a disability

unknown to his or her employer in order to challenge a medical inquiry or examination under 42

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U.S.C. § 12112(d)(4)(a)”) and cases cited); Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221,

1229 (10th Cir. 1997) (noting that 42 U.S.C. § 12112(d)(4)(a) applies to all employees, not just

qualified individuals with disabilities, and concluding that employee had standing to challenge

drug-testing policy even though employer had voluntarily suspended the policy because plaintiff

was “threatened with injury in fact”). Here, among other things, Plaintiffs claim that both LaCroix

and Payne-Callender lost earning potential as they were required to wait to return to work after

being medically cleared so that they could undergo psychological examinations. D. 14 at 13.

Further, as current employees still subject to the policy, there is an ongoing possibility that LaCroix

and Payne-Callender could again be subjected to post-leave examinations. These alleged injuries

are sufficient to establish standing for the individual plaintiffs to challenge the BPD’s policy.

The unions have similarly established associational standing to bring the claims in this

action. BPD only addresses the first element of associational standing, arguing that, because

Lacroix and Payne-Callender have not suffered an injury, the unions cannot establish that their

members have standing to sue. D. 11 at 6. Because this Court has determined that LaCroix and

Payne-Callender have standing to sue, it follows that the unions have satisfied the requirement that

their members have standing to sue. Further, each of the unions have alleged that “[a] number of

[their] members have been subject to physical and psychological examinations unrelated to their

leaves.” D. 1 ¶ 6. If taken as true, which this Court must do regarding a motion to dismiss, those

members would also have standing to sue under the ADA’s prohibition of medical examinations

and inquiries unrelated to business necessity. See 42 U.S.C. § 12112(d)(4).

The unions have also satisfied the second and third elements of associational standing

because, as unions representing the interests of employees of BPD, BPD’s employment policies

are directly related to the purposes for which the unions were established and the claim and relief

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requested do not require participation of the associations’ members. See Transp. Workers Union,

Local 100 v. N.Y. City Transit Auth., 342 F. Supp. 2d 160, 168 (S.D.N.Y 2004) (ruling that unions

had standing to challenge employer’s sick leave policy where “the interests that the Unions

[sought] to protect . . . the quality of working conditions and conditions of employment – [were]

obviously germane to the Unions’ purpose”). Consequently, BPPA, BPDBS and BPSOF have

standing to bring challenges to BPD’s policy requiring medical and psychological examinations

of all employees who have been on leave for longer than six months. See Port Auth. Police

Benevolent Ass’n v. Port Auth. of N.Y. & N.J., 283 F. Supp. 3d 72, 78-80 (involving police union’s

lawsuit against the Port Authority of New York and New Jersey alleging violations of the ADA

based on the Port Authority’s requirement that police officers undergo annual medical

examinations and fitness-for-duty examinations).

2. Disability Requirement

BPD argues that, even assuming that Plaintiffs establish standing, they have failed to allege

that they are “qualified individuals with disabilities” and, therefore, cannot bring their claim under

the ADA. D. 11 at 10. BPD cites to a case that references the general anti-disability language of

the ADA in 42 U.S.C. § 12112(a), which states that “[n]o covered entity shall discriminate against

a qualified individual on the basis of disability.” Id. (citing O'Neal v. City of New Albany, 293

F.3d 998, 1007 (7th Cir. 2002)). Notably, the court in O’Neal considered a claim brought pursuant

to 42 U.S.C. § 12112(d)(3), which applies to examinations that an employer required after an offer

of employment, but prior to an applicant commencing work for the employer. O’Neal, 293 F.3d

at 1008. Further, the court in O’Neal did not determine that the plaintiff was required to show that

he had a disability to bring a claim under the ADA, noting that, although the Seventh Circuit had

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not yet considered the issue, “several of [its] sister circuits . . . have held that in general a plaintiff

need not show disability to sue for medical testing violations under § 12112(d).”

Here, Plaintiffs claim is brought pursuant to 42 U.S.C. § 12112(d)(4), which prohibits, in

part, “inquiries of an employee as to whether such employee is an individual with a disability.”

D. 1 ¶ 24. Although it appears that the First Circuit has not specifically addressed this issue, other

Circuits have concluded that a plaintiff bringing a case pursuant to 42 U.S.C. § 12112(d)(4) is not

required to establish that they have a disability.1 See Roe, 124 F. 3d 1221, 1229; Cossette v. Minn.

Power & Light, 188 F. 3d 964, 969 (8th Cir. 1999); Fredenburg v. Contra Costa Cty. Dept. of

Health Serv., 172 F.3d 1176, 1182 (9th Cir. 1999); see also Karraker v. Rent-A-Center, Inc., 239

F. Supp. 2d 828, 834 (C.D. Ill. 2003) (discussing circuit cases that have determined that plaintiffs

need not be disabled to challenge the employee medical examination provisions of the ADA).

These courts have observed that the language in 42 U.S.C. § 12112(d)(2-4) is broader than that in

the general provision under § 12112(a), referring to all job applicants and employees rather than

just qualified individuals with disabilities. See Karraker, 239 F. Supp. 2d at 835. Further, these

1Neither Armstrong v. Turner Indus., 950 F.Supp. 162 (M. D. La. 1996) nor Varnagis v. City of

Chicago, No. 96 C 6304, 1997 WL 361150 (N.D. Ill. June 20, 1997), both cited by BPD to support

its argument that Plaintiffs must establish that they have a disability, D. 11 at 12-13, warrant a

different conclusion. In Armstrong, the court analyzed a claim brought by a job applicant under a

different subsection of the ADA and determined that the job applicant was required to establish

that he had a disability to defeat summary judgment. Armstrong, 950 F.Supp. at 165-66. On

appeal, the Fifth Circuit did not discuss this issue and affirmed the decision based on plaintiff’s

failure to establish that he had suffered an injury. Armstrong v. Turner Indus., 141 F.3d 554, 560

(5th Cir. 1998), but distinguished the case from Roe, where a current employee had standing to

challenge her employer’s policy because she faced imminent injury if she refused to comply with

the policy. Id. at 558 n.10, 564 n.26 (citing Roe, 124 F.3d at 1229). In Varnagis, the court analyzed

the ADA claims of job applicants seeking positions as Chicago police officers and required a

showing of disability to bring an ADA claim. Varnagis, 1997 WL 361150 at *3. Neither case

involved current employees challenging employment policies that they still remain subject to as

Plaintiffs do in this case.

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courts have noted that it would be inconsistent with the purpose of the medical examination and

inquiry prohibitions to require that an employee demonstrate that he or she has a disability before

challenging an employer’s inquiry into whether the individual has a disability. See id. (noting that

circuit courts have stated that “it makes little sense to require an employee to demonstrate that he

has a disability to prevent his employer from inquiring as to whether or not he has a disability”)

(quoting Roe, 124 F.3d 1229). This Court agrees that this reasoning is consistent with the language

and purpose of 42 U.S.C. § 12112(d)(4). Accordingly, Plaintiffs are not required to establish that

they have a disability to challenge BPD’s medical and psychological examination policy under 42

U.S.C. § 12112(d).

3. Business Necessity

BPD also argues that Plaintiffs’ ADA claim fails because Plaintiffs have not alleged that

the medical and psychological examinations are not job-related and that they are not consistent

with business necessity. D. 11 at 13-14 (citing 29 C.F.R. § 1630.14(c), which provides that “[a]

covered entity may require a medical examination (and/or inquiry) of an employee that is job-

related and consistent with business necessity”). Plaintiffs, however, do not bear the burden to

establish that the examinations are job-related and consistent with business necessity. Rather, BPD

bears the burden of proving that the challenged examinations do not violate the ADA because they

are sufficiently job-related and consistent with business necessity. E.g., Painter v. Ill. DOT, 715

Fed. Appx. 538, 540 (7th Cir. 2017) (noting that “[e]mployers bear the ‘quite high’ burden of

establishing that compelled medical examinations are consistent with business necessity”)

(quoting Wright v. Ill. Dep’t of Children & Family Servs., 798 F.3d 513, 523 (7th Cir. 2015));

Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 581 (6th Cir. 2014) (stating that “[t]he employer

shoulders the burden of proving the job relatedness and business necessity justifying a medical

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examination or disability-related inquiry”) (citing Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.

2007)); Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010) (stating that “[t]he

employer bears the burden of demonstrating business necessity”).

Even if Plaintiffs bore the burden, the complaint sufficiently alleges that the examinations

were not job-related and were not consistent with business necessity. Plaintiffs allege that BPD

requires physical and psychological examinations of all individuals who have been on leave for

over six months “regardless of the reason for the officer’s absence.” D. 1 ¶ 20. Plaintiffs further

allege that, because both LaCroix and Payne-Callender were on leave as the result of physical

injuries, the psychological examinations that they were required to undergo prior to returning to

work “did not relate to their recovery or their ability to perform job-relation functions.” D. 1 ¶ 25.

Plaintiffs have sufficiently alleged their ADA claim and, therefore, the Court denies BPD’s motion

to dismiss as to Claim I.

B. State Law Claims

Plaintiffs bring two claims under Mass. Gen L. c. 151B, § 4. In Count II, Plaintiffs allege

that BPD’s examination policy has violated Mass. Gen. L. c. 151B, § 4(16), which prohibits

employers from “dismiss[ing] from employment or refus[ing] to hire, rehire or advance in

employment or otherwise discriminate against, because of his handicap, any person alleging to be

a qualified handicapped person.” D. 1 ¶¶ 27-29. In Count III, Plaintiffs allege that the

examinations also violate Mass. Gen. L. c. 151B, § 4(19), which prohibits an employer from

“question[ing] a person about their genetic information or genetic information concerning their

family members.” D. 1 ¶¶ 30, 31. As both parties acknowledge, “Chapter 151B is considered the

‘Massachusetts analogue’ to the [ADA].” D. 11 at 16 (citing Sensing v. Outback Steakhouse of

Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009); D. 14 at 18-19. As such, “[t]he Supreme Judicial

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Court of Massachusetts . . . has indicated that federal case law construing the ADA should be

followed in interpreting the Massachusetts disability law.” Sensing, 575 F. 3d at 153-54 (citing

Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 32 n.1 (1st Cir. 2001)); see

also Audette v. Town of Plymouth, 858 F.3d 13, 20 n.8 (1st Cir. 2017) (stating that

“Massachusetts’s handicap discrimination statute, Massachusetts General Laws chapter 151B, § 4,

is ‘nearly identical’ to the ADA” and thus “we analyze the statute in exactly the same manner as

the ADA”) (quoting Mulloy v. Acushnet Co., 460 F.3d 141, 154 (1st Cir. 2006)).

Noting this, BPD states that its argument regarding Plaintiffs’ requirement to show

disability under the ADA applies to warrant dismissal of Plaintiffs’ claim pursuant to Mass. Gen.

L. c. 151B, § 4(16). Having found BPD’s arguments for dismissal of the federal ADA claim

unpersuasive, this Court declines to apply those arguments to dismissal of Plaintiffs’ analogous

state law claim. BPD further claims that its argument regarding lack of injury under the ADA

applies in equal force to require dismissal of Plaintiffs’ genetic information claim under Mass.

Gen. L. c. 151B, § 4(19). D. 11 at 16. For the same reasons related to the ADA claim, this

argument is unavailing. Plaintiffs, as current employees of BPD and unions representing current

employees of BPD, continue to be subject to the BPD examination policy that they challenge here.

As such, there is an ongoing possibility that they will be required to undergo similar examinations

in the future. Further, Plaintiffs have alleged that the required psychological examinations may

require current employees to disclose genetic information in violation of Mass. Gen. L. c. 151B,

§ 4(19). D. 1 ¶ 31. Accordingly, Plaintiffs have sufficiently stated a claim pursuant to Mass. Gen

L. c. 151B, § 4(19) and the Court denies BPD’s motion to dismiss as to Plaintiffs’ state law claims

(Counts II and III).

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VI. Conclusion

For the foregoing reasons, the Court DENIES BPD’s motion to dismiss, D. 10.

So Ordered.

/s/ Denise J. Casper

United States District Judge

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