NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-983

ERIC MADONNA

vs.

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Eric Madonna, filed a complaint with the 

Massachusetts Commission Against Discrimination (MCAD or 

commission), alleging that his former employer, the Fall River 

Police Department (FRPD), unlawfully denied him certain 

employment opportunities because of his posttraumatic stress 

disorder (PTSD) diagnosis. MCAD dismissed the complaint, and 

Madonna sought judicial review in Superior Court. A judge 

dismissed that complaint, and Madonna now appeals. He argues 

that MCAD erred in failing to apply the framework adopted in 

Gannon v. Boston, 476 Mass. 786 (2017), when determining whether 

the FRPD unlawfully denied him details and overtime shifts. We 

conclude that MCAD's decision did not adequately address

1 Fall River Police Department.
2

Madonna's arguments, and we vacate the judgment and remand the 

matter to MCAD for reconsideration.

Factual background. We summarize the relevant portions of 

the hearing officer's findings of fact.

Madonna started working as an officer for the FRPD in 1996 

and typically worked night shifts "on the streets." Several 

years later, he temporarily left his position to serve two tours 

of duty with the Army in Iraq, but he returned full-time to his 

job with the FRPD in June 2006. By 2008, Madonna's mental 

health had declined severely, and he was eventually diagnosed 

with PTSD. After completing a three-month residential treatment 

program in November 2008, Madonna sought to return to work with 

reasonable accommodations that would prevent his PTSD symptoms 

from worsening. Madonna, his licensed therapist, and the FRPD 

internal affairs officer agreed that Madonna should be limited 

to daytime shifts to accommodate the sleep issues caused by his 

PTSD.

In December 2008, Madonna returned to the FRPD in the 

newly-created role of evidence custodian. In this position, 

Madonna worked a regular daytime shift with no weekend or 

holiday hours. At some point in the weeks following his return, 

Madonna requested that he be allowed to work details and 

overtime shifts again. On January 27, 2009, Madonna was 

informed that he was not eligible for details or overtime shifts 
3

due to a department policy making such assignments unavailable 

to "light duty" officers.

On hearing the news that he would not be permitted to work 

details, Madonna testified that he became "stressed out," 

feeling "physically shaken up inside" and like his head "was 

going to explode." He left in the middle of his shift --

without his supervisor's permission -- to seek an emergency 

appointment with his therapist. Madonna called in sick the next 

day due to stress.

Concerned that Madonna might intentionally hurt himself, 

FRPD Chief John Souza ordered Madonna to turn in his service 

revolver, personal firearms, police badge, and other related 

items. This escalated the situation; according to Madonna's 

therapist, Madonna became "extremely distraught" at being 

ordered to turn in his weapons. Nevertheless, the therapist

told the FRPD that Madonna was "not in danger of harming 

[him]self or others" at that time. A doctor at a Veterans 

Administration hospital agreed, after an evaluation on January 

29, that Madonna was neither homicidal nor suicidal. Madonna 

later testified that he was, in fact, suicidal that day, but 

that he would "never do it [him]self." Madonna never returned 

to work at the FRPD after the events of January 27 and 28, 2009. 
4

Chief Souza banned Madonna from the police station entirely, and 

Madonna was put on paid leave pending his expected retirement.2

Procedural history. In September 2009, Madonna filed a 

complaint with MCAD alleging that the FRPD had discriminated 

against him due to his PTSD-related disability. Madonna argued, 

among other things, that the FRPD unlawfully denied him overtime 

shifts and details based on the stereotype that his PTSD made 

him a danger to himself or others. He suggested that the FRPD 

should be required to show, by a preponderance of the evidence,

that he was not qualified to perform these functions because he

posed a "direct threat," and that it reached this conclusion

based on "current medical knowledge and/or the best available 

objective evidence." Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 

73, 85-86 (2002), quoting 29 C.F.R. § 1630.2(r) (2001).

Following a seven-day hearing, the MCAD hearing officer 

dismissed the complaint. She found that, while Chief Souza 

believed in good faith that the policy restricting light-duty 

officers from working details and overtime shifts applied to 

Madonna, the Chief was also partially motivated by his "concerns 

2 Madonna was put on paid injury leave under G. L. c. 41, § 111F,

for almost four years. FRPD policy prohibits employees on leave 

under this section from working for another employer without 

consent from the Chief, and even then, the employee may not work 

more than twenty hours per week. Despite the policy, while on 

leave, Madonna obtained full-time employment with the Navy, and 

later with the Department of Homeland Security, without 

informing or obtaining consent from the FRPD.
5

that paid details and overtime would place [Madonna] in contact 

with the public and create potential safety issues" due to 

Madonna's PTSD. Nevertheless, the hearing officer concluded 

that Chief Souza's concerns were supported by record evidence

and were "not unreasonable."

In appealing the dismissal to the full commission, Madonna 

made two main arguments related to the "direct threat" standard

that he articulated to the hearing officer. First, he asserted 

that the hearing officer failed to assess whether the claimed 

danger posed by Madonna's PTSD actually rose to the level of a

"direct threat" -- defined as a "significant risk of substantial 

harm to the health or safety of the [employee] or others that 

cannot be eliminated or reduced by reasonable accommodation." 

29 C.F.R. § 1630.2(r) (2022). Second, Madonna argued that the 

hearing officer improperly deferred to Chief Souza's assessment 

of the risk, which Madonna asserted was informed by a 

prejudicial stereotype, instead of requiring the FRPD to show 

that it made an individualized assessment based on objective 

medical evidence.

While Madonna's appeal to the commission was pending, the 

Supreme Judicial Court decided Gannon v. Boston, 476 Mass. 786 

(2017). The Gannon decision, in relevant part, confirmed that,

in what it termed a "qualified handicapped person" case --

wherein an employer claims that a safety risk stemming from an 
6

employee's disability renders the employee unqualified to 

perform an essential job function -- the employer must come 

forward with "specific evidence showing that the employee would 

pose an unacceptably significant risk of serious injury to the 

employee or others." Id. at 799. The employer must also show 

"that it has made 'an individualized factual inquiry' based on 

substantial information regarding the employee's individual work 

and medical history." Id. at 799-800. "At trial, the fact 

finder must determine not whether the [employer] acted on a good 

faith belief that [the employee] cannot capably perform [a 

position's full] duties because of his handicap, but whether 

[the employee] has proved by a preponderance of the evidence 

that he can do so." Id. at 797.

The full commission affirmed the decision of the hearing 

officer in April 2019, reiterating that "Chief Souza's concerns 

about [Madonna] working with the public and possessing firearms 

as a result of his PTSD symptoms were legitimate based upon the 

evidence in the record," and concluding, with little further 

analysis, that the FRPD's actions were not discriminatory. 

Despite Madonna's "direct threat" argument, and although the 

full commission's decision cited the "unacceptably significant 

risk" standard from Gannon, 476 Mass. at 799, the commission's

decision did not apply either standard. Nor did it address 

whether the FRPD's evidence was sufficiently objective and 
7

reliable, or whether it sufficed to meet the employer's burden 

of producing evidence showing that a PTSD-related safety risk

rendered Madonna unqualified to perform details and overtime

shifts. See Gannon, 476 Mass. at 799-800 (employer's burden of 

production).

Madonna next sought judicial review of MCAD's decision in 

Superior Court, where he essentially repeated the same arguments 

he made before the full commission, this time using parts of the 

framework provided in Gannon in addition to the "direct threat" 

standard. The judge, however, did not address Madonna's 

arguments. Instead, he granted summary judgment to MCAD based 

on what he termed the hearing officer's "implicit[]" finding 

that the denial of Madonna's request for details and overtime 

shifts was not an adverse employment action. The judge, quoting 

Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 

665 (2004), reasoned that the denial did not constitute "a 

change in working conditions that create[d] a material 

disadvantage in the plaintiff's employment" (quotation and 

citation omitted), because Madonna was a light-duty officer and 

the FRPD's policy prohibited such officers from working overtime 

shifts and details.3

3 Although we consider the judge's reasoning, it carries no 

special weight on appeal; our review is de novo. See Smith 

College v. Massachusetts Comm'n Against Discrimination, 376 

Mass. 221, 224 (1978).
8

Discussion. On appeal, Madonna asserts that MCAD erred by 

failing to apply the framework outlined in Gannon.

1. Waiver. As a preliminary matter, we reject MCAD's

contention that Madonna waived any arguments based on Gannon by 

failing to raise them before the full commission or Superior 

Court. Generally, "[a] party is not entitled to raise arguments 

on appeal that he could have raised, but did not raise, before 

the administrative agency . . . [nor] in the court below." 

Albert v. Municipal Court of Boston, 388 Mass. 491, 493–494 

(1983). "The inquiry into whether an issue has been raised is 

fact specific." Boss v. Leverett, 484 Mass. 553, 563 (2020). 

It requires us to determine whether the agency and Superior 

Court were "fairly put on notice as to the substance of the 

issue." Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 584 

(2019), quoting Nelson v. Adams USA, Inc., 529 U.S. 460, 469 

(2000).

As discussed above, Madonna raised two major arguments 

before the full commission and Superior Court. We acknowledge 

that, in his appellate brief, Madonna has reframed his previous

arguments about the "direct threat" standard to use the 

framework provided in Gannon. First, instead of asserting that

MCAD erred by failing to apply the "direct threat" standard,

Madonna now argues that the hearing officer should have 

considered whether he posed an "unacceptably significant risk."
9

The substance of this argument, however, remains the same: in 

Madonna's view, MCAD should have assessed whether the evidence 

showed that he posed a safety risk so significant as to render

him unqualified to perform details and overtime shifts. See 

Gannon, 476 Mass. at 799-800.

Second, and similarly, Madonna now uses the language of

Gannon to clarify his earlier argument against the deferential 

"reasonableness" standard applied by the hearing officer. He 

now equates the "reasonableness" standard to the "good faith" 

standard rejected in Gannon. The substance of his argument, 

however, is still that the hearing officer should have 

determined not merely whether the FRPD acted without animus or 

pretext but whether the FRPD's risk assessment was informed and 

supported by sufficient objective evidence. The employer's good 

faith is not a defense. See Gannon, 476 Mass. at 796-797.

We also reject MCAD's assertion that Madonna was required 

to update his briefing to the full commission after Gannon was 

issued in 2017.4 As explained, Madonna's brief to the commission 

provided adequate notice of his arguments. Having cited Gannon

4 At the time MCAD issued its decision in this case, its 

regulations were silent about what, if any, actions a party 

should take when a relevant court decision is issued during the 

pendency of a full commission review. See 804 Code Mass. Regs. 

§ 1.23 (2019). The regulations have since been updated to 

specify that parties may advise the commission by letter of any 

pertinent and significant authorities that come to their 

attention. See 804 Code Mass. Regs. § 1.23(4) (2020).
10

in its decision for the proposition that "the employer must make 

an individualized factual inquiry into the employee's work and 

medical history in order to determine whether the employee would 

pose an unacceptably significant risk of serious injury to 

himself or others," MCAD cannot now claim that it was unaware of 

Gannon's potential relevance.5

2. Applicability of Gannon. MCAD's main argument on 

appeal is that Gannon is inapplicable here because Madonna did 

not make a "qualified handicapped person" claim based on 

disparate treatment, but instead, a "failure to accommodate" 

claim. Accordingly, MCAD states that the focus of its inquiry 

was not whether Madonna was qualified to perform details and 

overtime shifts, but whether the FRPD negotiated in good faith 

and provided Madonna with reasonable accommodations. MCAD urges 

us to affirm on the ground that, despite the FRPD's attempts to 

negotiate in good faith, Madonna abandoned the interactive 

process required under MCAD guidelines when an employee seeks 

accommodations for a disability. See generally Massachusetts

Commission Against Discrimination, Guidelines: Employment 

5 We note, however, that MCAD's characterization of Gannon as 

requiring the employer to determine the unacceptably significant 

risk issue appears to conflict with language in Gannon requiring 

the finder of fact in the discrimination case to decide that 

issue. See Gannon, 476 Mass. at 797.
11

Discrimination on the Basis of Handicap, § VII (1998) ("MCAD 

Guidelines"). We decline to do so for several reasons.

First, the record does not support MCAD's assertion that it 

has always viewed this case exclusively through a failure to 

accommodate lens. To the contrary, the hearing officer 

explicitly considered whether the denial of details and overtime 

shifts "constitute[d] disparate treatment based on handicap 

discrimination." And, if MCAD considered Gannon inapplicable, 

it is puzzling that MCAD did not say so when citing Gannon in 

its decision. 

More fundamentally, however, neither the hearing officer 

nor MCAD articulated the good faith negotiation standard 

anywhere in their respective decisions. Nor did the hearing 

officer make any findings of fact about the parties' interactive 

process, let alone any conclusions of law based on Madonna's 

supposed abandonment of the process. Because MCAD did not rely 

on the abandonment rationale below, neither may we rely on it to 

affirm MCAD's decision. See Doe, Sex Offender Registry Bd. No. 

58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 307, 313 

(2020), quoting Department of Homeland Sec. v. Regents of the 

Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) ("The basic rule 
12

. . . is clear: An agency must defend its actions based on the 

reasons it gave when it acted").6

Second, regardless of which framework MCAD applied to 

Madonna's case, it has not sufficiently explained why it did not 

apply the Gannon standard. In particular, having received 

Madonna's appeal arguing that the hearing officer should have 

applied the "direct threat" standard, and knowing that standard 

had been superseded by Gannon, as evidenced by its citation to 

the new standard in its decision, it was incumbent on the full 

commission to explain what standard applied to Madonna's case 

and then how it was applying that standard to the facts found by 

the hearing officer. See Retirement Bd. of Somerville v. 

Contributory Retirement Appeal Bd., 38 Mass. App. Ct. 673, 678 

(1995), quoting G. L. c. 30A, § 11 (8) (agency decision "shall

be accompanied by a statement of reasons for the decision, 

including determination of each issue of fact or law necessary 

to the decision"). The commission seemed to acknowledge that 

Gannon was relevant, yet it did not determine (1) whether the 

FRPD actually conducted "an individualized factual inquiry based 

6 For a related reason, we decline to affirm on the basis 

supplied by the judge. A reviewing court may "not 'supply a 

reasoned basis for the agency's action that the agency itself 

has not given'" (citation omitted). Costello v. Department of 

Pub. Utils., 391 Mass. 527, 536 (1984). As discussed supra, the 

judge ruled for MCAD based on the absence of any adverse 

employment action, yet neither the hearing officer nor MCAD had 

ruled on that basis.
13

on substantial information regarding the employee's individual

work and medical history" (quotation and citation omitted),

Gannon, 476 Mass. at 799-800; (2) whether the FRPD presented 

sufficient evidence that Madonna "would pose an unacceptably 

significant risk of serious injury to [himself] or others," id. 

at 799; or (3) if the FRPD had done so, then whether Madonna

could in fact "safely perform" details and overtime shifts. Id. 

We are left only with MCAD's conclusion that the FRPD's concerns 

were "legitimate" and "justified," without any definite

statement of how that resolved Madonna's claim.

Third, we are unpersuaded by MCAD's assertion in its brief 

that, viewing this as a failure to accommodate case, Gannon does 

not apply. Under MCAD's own guidelines, a "reasonable 

accommodation" is "any adjustment or modification to a job [or] 

employment practice . . . that makes it possible for a 

handicapped individual to perform the essential functions of the 

position involved and to enjoy equal terms, conditions and 

benefits of employment" (emphasis added). MCAD Guidelines, 

§ II(C). The opportunity to earn extra compensation through 

details and overtime shifts would appear to be a term, 

condition, or benefit of employment as a police officer. Cf. 

Yee v. Massachusetts State Police, 481 Mass. 290, 297 (2019) 

(denial of desired opportunity to earn extra compensation can

constitute adverse employment action). Where, as here, the 
14

employer defends its decision not to extend a term, condition,

or benefit to an employee based on the employee's disability 

status and what the employer believes to be a resulting threat 

to the safety of the employee or others, the principles

underlying Gannon would appear relevant in analyzing whether the 

overall accommodation offered by the employer is "reasonable." 

Although Madonna asks us to apply Gannon and order a 

finding in his favor on liability, we think it preferable that 

MCAD determine the issues presented by Madonna in the first 

instance. See Doe, Sex Offender Registry Bd. No. 11204 v. Sex 

Offender Registry Bd., 97 Mass. App. Ct. 564, 576 (2020). To 

that end, we vacate the judgment and order the entry of a new 

judgment remanding the matter to MCAD for reconsideration and 

any necessary further proceedings, which may include the taking 

of additional evidence before a hearing officer.7

So ordered.

By the Court (Sacks, Grant & 

Smyth, JJ.8),

Clerk

Entered: September 12, 2023.

7 As we do not rule in favor of Madonna on his underlying claim, 

we deny his request for attorney's fees under G. L. c. 151B, 

§§ 5 & 9.

8 The panelists are listed in order of seniority.