Flaherty v. Entergy Nuclear Operations, Inc.

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

Civil Action No. 16-11667-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 9, 2018

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

SAYLOR, J.

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 health-care 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 thoseconditions 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 inPlymouth, 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, orcapability 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 theDepartment 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)...