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Flaherty v. Entergy Nuclear Operations, Inc.

United States District Court, D. Massachusetts

July 9, 2018

MARK FLAHERTY, Plaintiff,
v.
ENTERGY NUCLEAR OPERATIONS, INC., Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge.

         This is a claim of disability discrimination brought by a nuclear-power station security guard. In 2004, plaintiff Mark Flaherty began working for defendant Entergy Nuclear Operations, Inc., as a guard at its Pilgrim Nuclear Power Station in Plymouth, Massachusetts. Since at least 2012, he has suffered from post-traumatic stress disorder (“PTSD”), chronic fatigue syndrome (“CFS”), and a variety of other conditions.

         The Nuclear Regulatory Commission requires Entergy to perform comprehensive ongoing assessments of its guards to ensure that they are “trustworthy and reliable” and capable of performing the work. That work requires, among other things, constant alertness and the carrying of firearms. As a part of that process, Flaherty was required to report annually on his medical and psychological condition.

         In February 2015, Flaherty was asked to work mandatory overtime as required under a collective bargaining agreement. He refused, citing fatigue. That precipitated an inquiry by Entergy into his medical history. Entergy discovered that Flaherty had been diagnosed with PTSD and CFS and had been receiving disability benefits for those conditions from the Department of Veterans Affairs since 2013. In the interim, Flaherty had submitted multiple annual medical questionnaires to Entergy that failed to disclose either condition.

         After concluding that he had improperly failed to disclose his medical history, Entergy stripped him of his security clearance. Without proper clearance, Flaherty could no longer work as a security guard and was terminated from his employment.

         Flaherty then filed a complaint asserting claims for disability discrimination and failure to accommodate under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Massachusetts Antidiscrimination Statute, Mass. Gen. Laws ch. 151B.

         As to his principal claim, Flaherty contends, in substance, that it was permissible to give false answers on his medical questionnaire and to conceal his conditions, if he and his healthcare providers thought the conditions would not affect his ability to work. Put another way, Flaherty contends that it was up to him, not Entergy or the Nuclear Regulatory Commission (“NRC”), to decide what to disclose to his employer about his mental health, and when. That, of course, is not true, and Entergy was within its rights to terminate his employment when they discovered his false statements.

         Flaherty also contends that he took leave under the Family and Medical Leave Act in May 2014, that he disclosed his conditions to the company at that time, and the company allowed him to continue working. There is evidence that Flaherty's psychologist revealed the existence of his PTSD to someone at the Entergy human resources department (although not Flaherty's supervisors) at that time. There is no admissible evidence, however, that Flaherty ever disclosed his CFS in connection with that leave.

         In short, it is undisputed (1) Flaherty suffers from PTSD and CFS, (2) he lied about those conditions on his annual medical questionnaires, and (3) at a minimum, he did not disclose his CFS at any point prior to April 2015, immediately before his termination. Entergy terminated him based on his failure to provide truthful information. Flaherty has not produced sufficient evidence to show that the stated reason was a pretext, and accordingly summary judgment will be granted as to his claim arising out his termination.

         Flaherty's claim for lack of accommodation fares no better. It is perhaps obvious that PTSD and CFS, taken together, are not ideal qualities for a security officer who carries a firearm and guards a nuclear facility, and it is far from clear whether any accommodation of those conditions could ever be made. Flaherty admits that he did not ask for an accommodation until April 26, 2015, the day he was suspended for failing to report his conditions. Even then, the only accommodation he claimed was to work fewer overtime hours. And, in any event, he failed to raise a lack of accommodation claim before the MCAD. Having failed to exhaust those claims at the agency level, he is barred from raising them in federal court.

         In his opposition to the motion for summary judgment, Flaherty submitted an affidavit that contradicts his sworn deposition testimony in a variety of ways. Entergy has moved to strike portions of the affidavit, including a key statement that directly contradicts his deposition testimony. That motion will be granted in part and denied in part.

         I. Background

         Unless otherwise noted, the following facts are as set forth in the record and are undisputed.

         A. Factual Background

         1. Regulatory and Operational Background

         Entergy Nuclear Operations, Inc., operates the Pilgrim Nuclear Power Station in Plymouth, Massachusetts. (Colburn Decl. ¶ 4). As part of its security operations, Entergy maintains an armed security force. (Id. ¶ 6). The “primary function” of the nuclear security officers is “to protect the health and safety of the public from radiological sabotage.” (Beabout Dep. at 13).

         The NRC requires all nuclear power plants to maintain an “access authorization program.” 10 C.F.R. § 73.56. Pursuant to NRC regulations, all security personnel are required to have “Unescorted Access Authorization” in order to access sensitive areas in the plant, such as nuclear reactors. (Id.).

         The NRC requires an extensive background investigation to obtain unescorted access authorization, including assessments of personal history, employment history, credit history, character and reputation, and criminal history, as well as a psychological assessment and behavioral observation. (Id.). The regulations also require ongoing annual assessments for those granted such access. (Id.). In the words of the NRC, the “general performance objective” of such an access authorization program is to “provide high assurance” that the individuals in question “are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security, including the potential to commit radiological sabotage.” 10 C.F.R. § 73.56(c)

         As to medical and mental health issues, NRC Regulatory Guide 5.75 (Training and Qualification of Security Personnel at Nuclear Power Reactor Facilities) states the following, under § 2.5 (Existing Medical Conditions):

[I]ndividuals should not have an established medical history or medical diagnosis of existing medical conditions that could interfere with or prevent the individual from effectively performing assigned duties and responsibilities. If a medical condition exists, the individual must provide medical evidence that the condition can be controlled with medical treatment in a manner that does not adversely affect the individual's fitness-for-duty, mental alertness, physical condition, or capability to otherwise effectively perform assigned duties and responsivities.

(Colburn Decl. Ex. A at 12). In addition, 10 C.F.R. § 73, App. B(I)(B)(2)(b) requires that “[a]rmed individuals” should “have no emotional instability that would interfere with the effective performance of assigned security job duties.”

         Entergy's medical program, incorporating those regulations, requires that its security personnel be “medically fit to perform guard, armed response, armed escort and alarm station operator activities” and “perform strenuous physical activity while carrying security equipment including firearms and other protective equipment.” (Colburn Decl. Ex. D at 2). Entergy security officers are subject to annual medical and physical assessments to ensure that they are qualified for the necessary Unescorted Access Authorization. (Colburn Decl. ¶ 10). As part of that process, each officer is required each year to answer a personal and medical history questionnaire.

         2. Flaherty's Employment at Pilgrim

         Mark Flaherty served in the Marine Corps from 1993 to 1997 and from 2000 to 2004. (Keith Decl. Ex. 2 at 105). While serving in the Marines, he saw combat in Iraq. (Flaherty Aff. ¶ 7).

         Flaherty was hired as a Nuclear Security Officer at the Pilgrim station in June 2005. (Flaherty Dep. at 2). At the time, he was employed by a private security company named Wackenhut. (Id.). On January 1, 2007, he began directly working directly for Entergy. (Keith Decl. Ex. 2 at 77). The security team was overseen by Richard Daly, the security superintendent, and Phil Beabout, a security manager. (Colburn Decl. ¶ 22; Beabout Dep. at 7).

         3. Flaherty's Medical and Mental Health History

         On July 5, 2012, Flaherty filed a claim for service-connected disability benefits with the Department of Veterans Affairs (“VA”). (Keith Decl. Ex. 2 at 105-11). He claimed service-connected disability based on CFS, PTSD, radiculopathy, chronic diarrhea, and lumbar strain. (Id. at 105-06).[1]

         On July 9, 2013, Flaherty was examined at a VA medical center. (Id. at 187). According to VA records, he reported disability based on stomach and duodenal conditions, back and neck problems, joint pain, PTSD, fatigue, and sleep disturbances. (Id. at 189-93).[2]

         On October 10, 2013, Flaherty completed a “Chronic Fatigue Syndrome Disability Benefits Questionnaire” at a VA medical center. (Id. at 180-84). Among other things, he reported that his CFS symptoms “began mid 2009 and have continued and worsened since.” (Id. at 180). He reported that his symptoms included “poor attention, ” “inability to concentrate, ” and “forgetfulness, ” and that those symptoms were “nearly constant.” (Id. at 182).

         On October 22, 2013, the VA granted Flaherty's application for disability benefits. It concluded that he had CFS (40 percent disability), PTSD (30 percent disability), radiculopathy (10 percent disability), chronic diarrhea (10 percent disability), and lumbar strain (10 percent disability). (Id. at 147-53).[3] On October 29, 2013, he was awarded monthly benefits retroactive to August 1, 2012. (Id. at 143).

         On May 23, 2014, Flaherty was seen again at the VA medical center, complaining of chronic pain and fatigue. (Id. at 177). At a follow-up appointment on June 3, 2014, the attendant physician noted that he suffered from PTSD, dyslipidemia, back pain, headaches, chronic fatigue, irritable bowel syndrome, sciatic nerve paralysis, and lumbosacral/cervical strain. (Id. at 175). He was taking acetaminophen and Etodolac (a non-steroidal anti-inflammatory drug) for pain, Prazosin (a drug used to treat anxiety and PTSD), and Sertraline (a drug used to treat depression, anxiety, and PTSD). (Id. at 176). He was seen on multiple occasions by VA physicians between May 12 and July 18, 2014. (Id. at 163, 166, 177, 178, 179).

         On April 24, 2015, Flaherty was seen again at the VA medical center. (Id. at 161-62). On May 1, 2015, at a follow-up physical therapy appointment, he complained of increased back pain. He also indicated that he had a history of alcohol abuse, depressive disorder, dyslipidemia, PTSD, and chronic low-back pain. (Id. at 160). He was seen again four days later for medication management and individual therapy. (Id. at 157). Among other things, he was taking acetaminophen, Etodolac, Prazosin, Bupropion (an anti-depressant), and cyclobenzaprine (a muscle relaxant). (Id. at 159).

         At some point, Flaherty claimed an increase in his disability due to, among other things, CFS and PTSD. On March 17, 2016, the VA granted his application, rating him 60% disabled due to CFS and 50% disabled due to PTSD. (Id. at 132-35).

         On January 12, 2017, he filed another claim for an increase, claiming 100% disability based on PTSD. (Id. at 126). That application was granted by the VA on March 23, 2017. (Id.). As of February 2017, he was receiving $3, 545.04 in benefits each month. (Id. at 118).

         4. Flaherty's 2012 and 2013 Medical History Questionnaires

         On July 26, 2012, Flaherty filled out his annual medical history questionnaire for Entergy. He filled out that questionnaire only three weeks after he filed the application with the VA for disability benefits for a variety of conditions, including CFS, PTSD, diarrhea, and lumbar strain.

         The questionnaire asked, “Do you have or have you ever had any of the following, ” and listed a variety of conditions or symptoms. Flaherty marked the “no” boxes for the following conditions: “depression or anxiety treatment”; “frequent diarrhea”; and “back trouble, injury, pain.” (Keith Decl. Ex. 2 at 19-20). He only marked the “yes” box for weekly coffee consumption. (Id. at 20). He did not list any medical conditions or medications. (Id. at 19-20). He also did not disclose any conditions to the evaluating physician.[4]

         On his August 8, 2013 annual medical history questionnaire, Flaherty marked the “no” boxes for “depression/anxiety/other psychological disorder”; “frequent diarrhea”; and “back trouble, injury, pain.” (Id. at 21-22). The form had changed from the prior year, and now included a specific question concerning “Post-Traumatic Stress Disorder.” (Id.). Flaherty marked the “no” box. (Id.). He did not list any medical conditions or medications. (Id. at 21). Again, he did not disclose any conditions to the evaluating physician.[5]

         As noted, on October 22, 2013, the VA granted Flaherty's application for disability benefits.

         5. Flaherty's Application for FMLA Leave

         On May 15, 2014, Flaherty applied to Entergy for short-term leave under the Family and Medical Leave Act (“FMLA”) for the period from May 11 to July 15, 2014. (Pl. Ex. 4 at 2, 5). His application for leave was sent to the “Entergy Leave Team, ” which apparently was composed of human resources representatives. (Id. at 4). In his application, he checked a box stating that he was “unable to perform the essential functions of my job, with or without reasonable accommodation, for more than forty (40) consecutive work hours due to a physical or mental impairment or condition.” (Id. at 7).

         The application for FMLA leave did not include any specific statement by Flaherty as to the claimed basis for the leave. However, the application included a handwritten note from a clinical psychologist at the VA named Julie Klunk-Gillis. (Id. at 10). The note from Klunk-Gillis stated as follows:

Veteran stating that he is struggling with daily anxiety, depressive symptoms, and insomnia. He is diagnosed with PTSD and Prolonged Depressive Disorder. Veteran would benefit from individual group therapy as well as psychiatry to address his symptoms. Prognosis is good with consistent treatment. Veteran denies any risk to self or others currently or in the past.

(Id.). Neither Flaherty nor Klunk-Gillis made reference of any kind to CFS in the application for leave.

         Flaherty was granted leave on May 16, 2014. (Id. at 14). On July 3, 2014, after approximately a month and a half, Flaherty returned to work. (Pl. Ex. 5).

         Prior to his return, Flaherty was cleared for work by Klunk-Gillis and a nurse practitioner, Sheila Shea, from Cape and Islands Occupational Medicine (“CIOM”) in Hyannis, Massachusetts. (Id. at 3, 5). The only evidence in the record as to that clearance are the forms filled out by the two providers. Again, neither form contains any reference to CFS.

         There is no evidence that any of his direct supervisors were told at the time of Flaherty's leave that he suffered from either PTSD or CFS.

         6. Flaherty's 2014 Medical History Questionnaire

         On his July 30, 2014 annual medical history questionnaire, Flaherty again marked the “no” boxes for “depression/anxiety/other psychological disorder”; “Post-Traumatic Stress Disorder”; “frequent diarrhea”; and “back trouble, injury, pain.” (Keith Decl. Ex. 2 at 23-24). At that time, he was receiving disability benefits for those very conditions. He marked “yes” boxes indicating that he previously smoked but quit in May 2010; had hives, eczema, or a rash; and consumed coffee and beer on a weekly basis. (Id.). He did not list any other medical conditions or medications. (Id.). Again, he did not disclose any conditions to the evaluating physician.[6]

         7. Flaherty's Rationale for Providing False Answers

         As noted, Flaherty did not disclose the diagnoses of CFS and PTSD on the medical questionnaires for 2012, 2013, and 2014. He also failed disclose other medical issues, such as his diarrhea and back pain issues.

         Flaherty does not dispute that his answers to the questionnaires were false. In the affidavit he submitted in opposition to the motion for summary judgment, Flaherty states that he discussed his CFS and PTSD with his “medical providers” (apparently, his providers at the VA) in late 2013 or early 2014. (Flaherty Aff. ¶ 23). His affidavit further states as follows:

My medical providers were of the opinion that the CFS and PTSD conditions and symptoms, with treatment, in my case, would not interfere with my work duties at Pilgrim.
My medical providers recommended to me that I not volunteer my diagnoses to my employer without good reason; they advised me that my privacy rights as a disabled veteran dictated that I was within my rights to refrain from such a volunteered disclosure unless the condition affected my ability to perform my duties in any way.
At the time, I also conducted my own research by reviewing EEOC guidelines relative to military veterans and service connected disabilities such as PTSD.
Between my own research and my medical providers['] advice, I concluded that unless my symptoms of CFS and PTSD were interfering with work, I was not required to disclose these symptoms to my supervisors at Entergy.

(Id. ¶¶ 24-27); see also id. ¶ 41 (“I did not disclose my CFS or PTSD diagnoses on the July 30, 2014 Medical Questionnaire because a) as of that time, Entergy's medical examiner, my VA medical providers and I had all determined that these conditions were not interfering with my ability to perform the duties of my position; and b) I understood from both my VA medical providers and from Entergy's human resources representative that the specific diagnoses were sufficiently private that my supervisors need not be privy to them.”).[7]

         Flaherty also admits that he did not tell his supervisors at Entergy about his conditions. His rationale, as set forth in his affidavit, is as follows:

I in fact did not tell my supervisors at Entergy about my PTSD or CFS diagnoses until April 29, 2015 because I considered these private, and because Entergy's Human Resources department, my own medical providers as well as my own research about my legal rights had led me to conclude that I need not discuss these conditions with my direct supervisors.

(Id. ¶ 95).

         8. Flaherty's Refusal to Work ...


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