United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
STRIKE AND MOTION FOR SUMMARY JUDGMENT
Dennis Saylor IV United States District Judge.
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.
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.
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.
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
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.
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
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.
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.
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
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.
otherwise noted, the following facts are as set forth in the
record and are undisputed.
Regulatory and Operational Background
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
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.).
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.
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.”
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.
Flaherty's Employment at Pilgrim
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. ¶
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).
Flaherty's Medical and Mental Health
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).
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).
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).
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). On October 29,
2013, he was awarded monthly benefits retroactive to August
1, 2012. (Id. at 143).
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).
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).
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).
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).
Flaherty's 2012 and 2013 Medical History
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.
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
August 8, 2013 annual medical history questionnaire, Flaherty
marked the “no” boxes for
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
noted, on October 22, 2013, the VA granted Flaherty's
application for disability benefits.
Flaherty's Application for FMLA Leave
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).
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
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
(Id.). Neither Flaherty nor Klunk-Gillis made
reference of any kind to CFS in the application for leave.
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).
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
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.
Flaherty's 2014 Medical History
July 30, 2014 annual medical history questionnaire, Flaherty
again marked the “no” boxes for
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
Flaherty's Rationale for Providing False
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.
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
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
(Id. ¶ 95).
Flaherty's Refusal to Work ...