COMMONWEALTH OF MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION

******************************

JOlm NAGLE,

Complainant

Docket No. 90-BEM-O347v.

CITY OF BOSTON FIRE DEPARTMENT

Respondent

******************************

Raul Echevarria, Esq. for ComplainantJames B.Cox, Esq. for Respondent

Appearances:

FINDINGS OF FACT AND CONCLUSIONS

OF LAW OF THE HEARING COMMISSIONER W

PROCEDURAL HISTORYI.

On April 6, 1990 Complainant, John J. Nagle, filed a

complaint with this Commission charging Respondent, Boston Fire

Department (hereinafter "BFD"} with unlawful di~crimination in

employment on the basis of his handicap. Specifically,

Complainant alleges he was rejected for the position of

firefighter due to an unjustified consideration of his hearing

1

3

(Stipulation No.2} .

Appointments to the position of firefighter are governed3.

(Stipulation No.3} .by the procedures set forth in G.L. c. 31.

Complainant took the Civil Service Firefighters Exam andIn 1983,

He was subsequently placed on areceived a perfect score of 100.

civil service ceztification list for appointment to the position

(Tape 1, 2/21/96) .Pursuant to the governingof. firefighter.

procedure, the BFD made Complainant an offer of employment,

contingent upon the successful completion of a pre-employment

physical examination. The Complainant passed the required

strength test, but reported to the BFD's Medical Examiner, Dr.

(StipulationAlan w. Jenest, that he had difficulty hearing.

Complainant was subsequently informed that his6 & 7) .

appointment was rejected due to his failure to pass the medical

Specifically, Complainant failed to pass the hearing examexam.

and tested positively for hepatitis. (Tape 1, 2/21/96, C-1) .

The Complainant unsuccessfully appealed to the Medical4.

Occupational Review Board and the Civil Service Commission.

(Tape 1, 2/21/96)

Becau.se the Complainant's name appeared first on thes.

Civil Service Commission's certification list, the BFD invited

him to submit a new application each time they accepted

6

because a hearing aid raises the overall level of sound,

foreground noises such as voices. In situations such as

one's ability to hear. (Tape 2, 2/22/96) .

10..

studies,

position of firefighter. After interviewing fi~.efighters in

several cities,

them.

those in the cities he had studied. He concluded that

firefighter. (Tape 2, 2/22/96)

is a

9

and other visual cues and must therefore listen to hear orders,

to locate the position of the fire and, most importantly, to hear

for noises from trapped victims. (Tape 2, 2/21/96) .

Maiorana testified that firefighters are trained to15.

listen for moaning and to call out a victim's name with the hope

of getting a response and locating the individual. (Tape 2,

2/21/96) .He stated that this technique is crucial when

attempting to locate a child who may be trapped in a residential

fire. Children become frightened during a fire and are likely to

hide in closets, under beds, or other difficult-to-locate places.

{Tape 2, 2/21/96) .

16. Maiorana testified that firefighters must also listen

carefully for fire entrapment in the walls, components that may

be cracking and subject to collapse, fire travelling overhead in

the walls, radio messages, Self Contained Breathing Apparatus

(SCBA) alarms whjch are designed to warn firefighters when their

air supply is running out, and personal alert devices which emit

a shrill noise if a firefighter falls and is trapped under

debris. (Tape 2, 2/21/96)

17. Carmean testified that the decibel level in which

firefighting occurs is routinely at 114 decibels and sometimes as

high as 120 decibels. (Tape 1, 2/22/96) . This noise level is

10

caused by fire apparatus outside the building, motors, people

firefighters communicating verbal orders,yelling and screaming,

fire itself and water hitting the ceilings and walls of the

burning building. (Tape 2, 2/21/96) .

16. Maiorana testified that conditions of poor visibility

worsened by the equipment firefighters must wear. For

example, face masks obstruct visibility and deflect sound, making

it more difficult to hear. The use of protective gear coupled

with the conQitions inside a burning building often make it

impossible for firefighters to see beyond their hands. {Tape 2

2/21/96) . Thus, a firefighter's ability to hear clearly is

extremely crucial. Carmean testified that because a

firefighter's job is performed often in situations of total

da~kness, reliance upon the auditory system is much greater in

(Tape 2, 2/22/96) .firefighting than in any other job.

19. Although not all firefighters at a fire scene are

involved in search and rescue operations, those who do not enter

the building, such as the pump and turntable operators, must be

able to hear commands from other firefighters. For example, a

turntable operator may be required to move the ladder if someone

is trapped on the roof, and a pump operator may be required to

increase water pressure. Moreover, firefighters share

11

assignments on the pump and ladder trucks. Therefore, at any

given time, a pump or turntable operator may be ordered to enter

the building. {Tape 2, 2/21/96) .

CONCLUS IONS OF LAW

A handicapped person is none who has a phys~cal or mental

impairment which substantially limits one or more of such

person's major life activities, has a record of such impairment,

G.L. c. 151B sec.or is regarded as having such an impairment.

4(17) . It is unlawful for an employer "to refuse to hire. ..or

otherwise discriminate against, because of his handicap, any

person alleging to be a qualified handicapped person, capable of

performing the essential functions of the position involved with

G.L. c. l5lB sec. 4 (16) .reasonable accommodation." However,

"an employer may condition an offer of employment on the results

of a medical examination conducted solely for the purpose of

determining whether the employee, with reasonable accommodation,

is capable of performing the essential functions of the job."

4 (16) (3) .c. l5lB sec.

The Complainant in a handicap discrimination case bears the

burden of proving discrimination by a preponderance of the

12

evidence. Often in handicap discrimination cases, there is no

dispute that the Complainant's impairment was the reason for the

In such cases, the Commission utilizes theadverse action.

framework set forth in Push kin v. Regents of the Universit~ of

Colorado, 658 P.2d 1372, 1385-1386 (10th Cir. 1981) and Jasan~ v.

755 F.2d 1244, 1249-1250 (6th CirUnited States Postal Service,

1985) .Under £ushkin a Complainant must demonstrate:

That he was an otherwise qualified handicappedperson apart from his handicap and was rejectedunder circumstances which give rise to theinference that his rejection was based solely uponhis handicap;

(1)

Once the Complainant establishes his prima faciecase, Respondent must show either that theComplainant was not an otherwise qualifiedhandicapped person or that his rejection was forreasons other than his handicap;

That the Complainant then satisfy the burden ofproving, with rebuttal evidence, that theRespondent's reasons for rejecting him are basedupon misconceptions or unfounded factualconclusions and that the reasons articulated forthe rejection encompass unjustified considerationof the handicap itself.

(See Push kin, 658 F.2d at 1387) .

The Complainant has established that he is a handicapped

person under G.L. c. 151B sec. 4(17} due to his hearing

He ~as also proven that apart from his handicap, heimpairment.

is qualified for the position of firefighter. He scored 100 on

13

the civil service examination and passed the required strength

test. There is no dispute that the BFD rejected Complainant as a

firefighter in 1990 due to his hearing impairment. The incidents

occurring prior to March of 1990 are beyond the statute of

limitations and thus are not properly before this Commission. I

conclude that Complainant has established a prima facie case of

handicap discrimjnation with respect to the 1990 rejection

Once Complainant establishes a prima facie case, the burden

shifts to the Respondent to demonstrate that the Complainant

not an otherwise qualified handicapped person or that to employ

him would pose a "reasonable probability of substantial harm".

R~an v. Town of Lunenburg, 11 MDLR 1215, 1242 (1989) {citing

1985) .Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir. An

employer may not make subjective evaluations regarding an

individual's capabilities or the risk he poses, hut is required

to gather and evaluate information regarding the functions of

job in question and the work and medical history of an individual

Williams v. Town of Stoughton, 13 MDL~ at 1419 (citingemployee.

R~an, 11 MDLR at 1242) ; Moreau v. Cit~ of Haverhill, lS MDLR

1782, 1808 (1993) (citing Mikuki v. u.s. Postal Service, 41 FEP

1503 (DC Mass. 1986) .

In the instant matter, Respondent reviewed Complainant's

15

rejecting Complainant's application

In addition,

impediment in loud and chaotic environments.

Given the above, the Complainant has failed to demonstrate

misconceptions or unfounded factual conclusions. On the

severity of Complainant's impairment. It is clear that the

16

decision not to appoint Complainant was based upon considerations

of reasonable probability of substantial harm and was, therefore,

discriminatory.

I am similarly persuaded that no reasonable accommodation

existed to equip Complainant to perform the essential functions

firefighter safely, and that Respondent reasonably explored

the possibility prior to rejecting Complainant by testing him

with hearing aids

Complainant contends that the Respondent failed to take into

consideration the possibility of accommodating him by means other

than hearing aids, such as non-verbal codes. However, as Chief

Maiorana testified, the method employed by the Br'D when fighting

"incident command", requires verbal communication throughfires,

the chain of command. Respondent demonstrated that the use of

rope or flashlight signals are not effective substitutes for

verbal communication. Respondent is not required to alter its

long standing methods of fighting fires to accommodate

See Beal v. Bd. of Selectmen ofComplainant's impairment.

542 {1995) .{An employer is not requiredHingham, 419 Mass. 535,

to undergo substantial modification of employment standards in

order to accommodate a handicap} .

I conclude that Complainant hasIn light of the above,

~

17

~~

,

~~~~~~

.

~