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, theref ore, 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

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- 983

ERIC MADONNA

vs . MASS A CHUSETTS 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 p ost t raumatic s tress d isorder (PTSD) diagnosis. MCAD dismissed the complaint, and Madonna sought j udicial 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. Bo ston , 476 Mass. 786 (2017) , when determining whether the FRPD unlawfully denied him detail s and overtime shifts
. W e 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 b ackground . 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, h e 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 h e was eventually diagnosed with PTSD
. After co mplet ing 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 FRP D internal affairs offi cer 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 detail s and overtime shifts again. On January 27, 2009, Madonna was i nformed that he was not eligible for details or overtime shifts3 due to a department policy making such assignments unavailable
to "light duty" officers
. O n hearing the news that he would not be permitted to work details, Madonna testified that he became " stressed out," fe eling "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 escalate d the situation ; according to Madonna's therapist, Madonna beca me "extremely d istraught " at being ordered to turn in his weapons. Nevertheless, the therapist told the FRPD that Madonna was "not in danger of harm ing [him]self or others" at th at time
. A doctor at a V eteran s
A dminis tration h ospital agreed , after an evaluation on January 29 , that Madonna was neither homicidal n or 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 entirel y , 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 ,
a mong other things, that the FRPD unlawfully denied him overtime shifts and detail s 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. Echazaba l, 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. S he found that , while Chief Souza believed in good faith that the policy restricting light

- duty officers from working detail s 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 prohibit s 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 c onsent 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 appeal ing the dismissal to the full commissio n, 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 argu ed 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 med ical 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

-- whe re in an employer claims that a safety risk stemming from an6 employee's disability renders the employee unqualified to perform an essential job function

-- the employer must come forward with "specific evidence sh owing 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
. " I d . 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 handi cap, but whether [the employee] has proved by a preponderance of the evidence that he can do so. " Id . at 797.
T he full commission affirmed the decision of the hearing officer in April 2019 , reiterat ing 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 conclud ing , 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 sta n dard. Nor did it address whether the FRPD's evidence was sufficiently objective and7 reliable, or whether it sufficed to me e t the employer's burden of produc ing evidence show ing 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 be fore 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 detail s 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 su ch officers from working overtime shifts and details
. 3

3 Alt hough 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, w e reject MCA D'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 administr ative agency .
. . [nor] in the court below." Albert v. Municipal C our t of Boston , 388 Mass. 491, 493

– 4 94 (1983)
. " T he inquiry into whether an issue has been raised is fact specific
. " Boss v. Leverett , 484 Mass. 553, 563 (2020)
. It requires us to deter mine 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 , i n his appellate brief, Madonna has reframe d his previous argument s about the "direct threat" standard to us e the framework provided in Gannon
. First , i nstead of asserting that
MCAD erred by fail ing 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 th is 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 simil a rly , 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
. T he 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 w as informed and supported by sufficient objective evidence
. The employer's g ood faith is not a defense. See Gannon , 476 Mass. at 79 6

- 797
. We also reject MCAD's assertion that Madonna was required
to update his briefing to the full c ommission after Ganno n was issued in 2017
. 4 As explained, Madonna's brief to the commission provided adequate notice of his arguments . H aving cited Gannon

4 At the time MCAD issued its d ecision 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 C ode M ass . R egs . § 1.23 (2019). The regulations have since been updated to specify that parties may advise the c ommission 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 i njury 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 fait h 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

acco mmodations for a disability
. See generally Mass achusetts
Comm issio n 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 requir ing the finder of fact in the discrimination case to de cide that issue
. See Gannon , 47 6 Mass. at 797.11 Discrimination on the Basis of Handicap , § VII (1998) ("MCAD Guidelines")
. We decline to do so for several reasons. First , t he record does not support MCAD's assertion that it has always viewed this case exclusively through a failure to accommodate l ens. To the contrary, the hearing officer explicitly considered whether the denial of details and overtime shifts " constitute [ d ] disparate treatment based on handicap discr i mination
. " And , if MCAD consider ed Gannon in applicable , it is puzzling that MCAD did not say so when cit ing Gannon in its decision.
More fundamentally , however, n either 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 base d 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 rule12 . . . is clear: An agency must defend its actions based on the reasons it gave when it acted "). 6
Sec ond, 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 apply ing t hat standard to the facts found by the hearing officer
. See Retirement Bd. of Somerville v. Contributory Ret irement 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 seem ed 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, w e 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 e vidence that Madonna " would pose an unacceptably significant risk of serious i njury to [ himself ] or others , " id
. at 799 ; or (3) if the FRPD had done so, then whether Madonna could in fact "safely perform " detail s and overtime shifts
. Id
. W e are left only wi th MCAD's conclusion that the FRPD's concerns were "legitimate" and "justified," without any definite statement of how that resolve d Madonna's claim
. Third, we are un per suaded b y MCAD's assertion in its brief that , viewing this as a fail ure 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 essenti al functions of the position involved and to enjoy equal terms, conditions and benefits of employment " (emphasis added). MCAD Guidelines,
§ II( C ). T he opportunity to earn extra compensation through details and overtime shifts would appear to be a term, condition, or benefit of employm ent as a police officer
. Cf.
Yee v. Massachusetts State Police , 481 Mass. 290, 297 (2019) (denial of desired o pportunity to earn extra compensation can constitute adverse employment action ). Where, as here, the14 emplo yer 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 resu lting threat to the safet y of the employee or others , the principles underlying Gannon would appear relevant in analyzing whether the overall acc ommodation 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 th e issue s 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, w e vacate the judgment and order the entry of a new judgment remanding the matt er 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 Mad onna 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.