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Williamstown Police Sergeant Counters Town's Motion to Dismiss Lawsuit
By Stephen Dravis, iBerkshires Staff
01:25AM / Thursday, November 05, 2020
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SPRINGFIELD, Mass. — The opening salvos have been fired in a discrimination lawsuit between a Williamstown police sergeant and the town.
 
Now it is up to U.S. Magistrate Judge Katherine Robertson to decide whether there are grounds to proceed with a large piece of the suit filed by Scott McGowan.
 
Last month, the attorneys for the town, Town Manager Jason Hoch and Police Chief Kyle Johnson asked Robertson to dismiss three of McGowan's five complaints. Counts 3, 4 and 5 seek unspecified damages for handicap discrimination, violation of the Americans with Disabilities Act and violation of the federal Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978.
 
On Friday, McGowan's attorney filed his response to that request.
 
The 13-page submission from Boston attorney David A. Russcol covers many of the same allegations made in McGowan's original lawsuit, with an emphasis on how the facts not in dispute support the discrimination claim.
 
"First, [McGowan] has alleged that Johnson, by his own account, believed that McGowan had a medical impairment and based on that perceived disability he required McGowan to take involuntary leave, confiscated his license to carry a firearm, required an unjustified psychological examination that had already been deemed medically unnecessary, and transmitted to the entire [Williamstown Police] Department that McGowan had some sort of health-related issue that required him to suddenly and involuntarily be placed on leave," Russcol wrote. "Second, and in the alternative, McGowan has alleged the Defendants required him to undergo medical examinations in bad faith, based on retaliation, and not consistent with business necessity."
 
At issue is Johnson's decision to put McGowan on administrative leave on Jan. 16, 2019.
 
In a letter dated that day titled "Fitness for Duty," Johnson cites an email from McGowan that says the latter suffers " 'physical, emotional and medical setbacks' that have caused [McGowan] to use 'sick leave along with seeking professional medical assistance and other professional services in an effort to contend with these challenging conditions.' "
 
In the defendants' Jan. 7, 2020, response to the Massachusetts Commission Against Discrimination (McGowan's first stop before going to federal court), they say Johnson made the administrative leave decision after consulting with Hoch, the counsel for the Massachusetts Chiefs of Police Association and the town's labor counsel.
 
"The consensus was that, because the Complainant had put the Chief on notice of these issues, the proper course of action would be to put the Complainant on a paid administrative leave while he underwent fitness-for-duty examinations for his alleged physical and mental issues."
 
McGowan argues that step violated the ADA and points to the 2008 ADA Amendments Act.
 
"Under post-ADAAA regulations, '[p]rohibited actions' for one who is regarded as disabled 'include but are not limited to … placement on involuntary leave,' " Friday's response from Russcol reads. "This, if there was any uncertainty before, now it is explicit that involuntary leave may be an adverse act."
 
McGowan's attorney said the town compounded that adverse act by refusing to accept a statement from McGowan's physician that a psychological consultation was not necessary. Instead, the town required McGowan to undergo a psychological consultation in Wakefield, which ultimately cleared him for return to duty on Feb. 12.
 
Russcol cites several precedents and U.S. law for arguing that McGowan had the protection of the ADA at the time when he was placed on administrative leave. In essence, he argues, the question is not whether McGowan had a disability but whether the town thought he did, the complainant argues.
 
According to 42 U.S. Code, Section 12102, "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."
 
In McGowan's response to the defendants' motion, the words "or perceived" are underlined.
 
The response filed on Friday raises a constitutional issue not mentioned in McGowan's original lawsuit.
 
"Along with the involuntary leave, Johnson required McGowan to surrender his license to carry a firearm, thereby infringing on McGowan's Second Amendment and statutory due process rights associated with restrictions on a firearms license," the complainant's response reads. "Given the requirement that a police officer be able to carry a firearm, the license to carry is linked to, though also independent of, McGowan's employment."
 
The defendants' motion to dismiss did not address the first two counts of McGowan's complaint: that the town retaliated against the sergeant for his activities as a whistleblower, activities protected by Massachusetts General Law and the Civil Rights Act of 1964.
 
Russcol's Oct. 30 response therefore does not detail the allegations of racist and sexist conditions in the WPD that were raised in the MCAD complaint and Aug. 12 lawsuit.
 
But it does reference allegations of retaliation, both as a source of McGowan's stress and as a reason for the "adverse act" of putting McGowan on leave.
 
"[T]he Complainant also alleges that Johnson required McGowan to undergo fitness-for-duty examinations in bad faith, out of retaliation for McGowan's past protected activity, and that Johnson's actions were 'not justified by any legitimate concern that McGowan was unfit for duty' (Complaint paragraph 50)," the response reads.
 
The response, as does the original complaint, uses the defendants' own words to justify the allegation of retaliation.
 
On pages 20 and 21 of the defendants' Jan. 7 response to the MCAD filing, the Johnson and Hoch indicate that there was more to McGowan's leave than the "health & wellness" issues cited in Johnson's Jan. 16, 2019, email to WPD staff.
 
"First and foremost, the Chief has the duty and the authority to determine an officer's continuing fitness to carry and use a firearm and perform police duties," the defendants' MCAD response reads. "He was fully aware that failing to do so could result in significant negative consequences, including danger to the Complainant and the public and liability to the Town. He was also concerned about the baseless and accusatory language in [McGowan's Jan. 4, 2019] email, and did not want to take any action without consulting with others."
 
Robertson's eventual ruling on the motion to dismiss will not be a finding of fact one way or the other. It only will determine the legal sufficiency of McGowan's claims. And, according to precedent cited by Russcol, "this Court must 'accept the complaint's factual allegations as true and draw all reasonable inferences from those facts in favor of [McGowan' " for purposes of that determination. In other words, the complainant is asking Robertson to rule that if all the facts are as McGowan claims, there is sufficient cause for relief under the ADA and Rehabilitation Act.
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