Police officer's ADA suit survives summary judgment.

Byline: Eric T. Berkman

A police officer who was forced out several years after being transferred to a court prosecutor position could bring a disability discrimination claim against the town even though he could not perform all essential duties of his sworn position, a U.S. District Court judge has ruled.

While plaintiff Tim Ballinger was in his sworn position as a sergeant, he suffered post-traumatic stress disorder from an on-duty incident.

The plaintiff was subsequently transferred to a court prosecutor position that did not entail the physical duties of his sworn position, though the police chief, when making the assignment, allegedly did not know he had PTSD.

It was not until later, when Ballinger testified in support of a fellow officer at her termination hearing, that he disclosed his condition to the department, which ultimately forced him to retire because he could not perform all the duties of a police sergeant.

Seeking summary judgment on the plaintiff's handicap-bias claim, the town argued there was no dispute that he could not perform the essential functions of his job.

But Judge F. Dennis Saylor IV disagreed, finding a legitimate question as to which position was the relevant one to consider in determining whether the plaintiff was a "qualified individual" within the meaning of the Americans with Disabilities Act.

"Here, a jury could reasonably conclude that plaintiff was able to perform the essential functions of a court prosecutor [though] some evidence points the other way," Saylor wrote.

"Thus, whether he was a 'qualified individual' that is, someone who, with or without reasonable accommodation, can perform the essential functions of the employment position is a question for the jury to resolve at trial," he added.

[box type="shadow" align="alignright" width="325px"]Ballinger v. Town of Kingston, Lawyers Weekly No. 02-522-19 (35 pages)

THE ISSUE:Could a police officer who was terminated several years after being transferred to a court prosecutor position bring a disability discrimination claim against the town even though he allegedly could not perform all the essential duties of his sworn position?

DECISION:Yes (U.S. District Court)

LAWYERS:Elijah Bresley and Joseph L. Sulman, of the Law Office of Joseph L. Sulman, Waltham (plaintiff)

Megan K. Baker, Alexandra R. Hassell, Bradford N. Louison and Regina M. Ryan, of Louison, Costello, Condon, Pfaff, Boston (defense)[/box]

'Wide-reaching consequences'

Plaintiff's counsel...

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