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 
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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 
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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. 
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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 
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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. 
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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 
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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). 
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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 
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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 entrylevel 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. 
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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. 
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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 
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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. 
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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. 
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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 
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(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 
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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).