Flaherty v. Entergy Nuclear Operations Inc ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1759
MARK W. FLAHERTY,
Plaintiff, Appellant,
v.
ENTERGY NUCLEAR OPERATIONS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Sol J. Cohen, with whom Cohen & Sales, LLC was on brief, for
appellant.
Justin F. Keith, with whom Amanda L. Carney and Greenberg
Traurig, LLP was on brief, for appellee.
December 23, 2019
TORRUELLA, Circuit Judge. Mark Flaherty ("Flaherty")
appeals the district court's order partially striking the
affidavit he submitted in support of his opposition to Entergy
Nuclear Operations, Inc.'s ("Entergy") motion for summary judgment
and dismissing his disability discrimination and failure to
accommodate claims on summary judgment. Because we find that the
district court did not abuse its discretion in partially striking
Flaherty's affidavit and that Flaherty failed to establish a prima
facie case of disability discrimination or a claim for failure to
accommodate, we affirm.
I. Background
A. Factual Background
1. Flaherty's Employment as a Security Officer at Pilgrim
In June 2005, Flaherty was hired as a Nuclear Security
Officer at Pilgrim Nuclear Power Station ("Pilgrim") in Plymouth,
Massachusetts by Wackenhut Corp., Pilgrim's former security
operator. In 2007, Flaherty began working directly for Entergy,
the owner and operator of Pilgrim at the time.1 U.S. Nuclear
Regulatory Commission ("NRC") regulations required Entergy to
maintain an armed security force to protect Pilgrim from any
1 Entergy has since sold its interest in the Pilgrim power plant,
which was decommissioned in August 2019. See Pilgrim Nuclear Power
Station Decommissioning, http://www.pilgrimpower.com (last
visited Dec. 16, 2019).
-2-
threats. Because security personnel had access to sensitive areas
in the plant, such as nuclear reactors, Entergy developed the
Unescorted Access Authorization Program ("UAAP") to comply with
NRC regulations, which required security officers to attain and
hold special clearance or unescorted access authorization. See
10 C.F.R. § 73.56.
The UAAP certification process involved an extensive
background investigation, including assessments of the applicant's
personal history, employment history, credit history, character
and reputation, and criminal history, along with psychological and
behavioral tests. 10 C.F.R. § 73.56(d)-(f). NRC regulations also
required Entergy to perform ongoing annual assessments of
individuals who were granted access under the UAAP. 10 C.F.R.
§ 73.56(i). The objective of these requirements was to "provide
high assurance that the individuals . . . 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). Further clarifying the applicable
regulations, the NRC Regulatory Guide for Training and
Qualification of Security Personnel at Nuclear Power Reactor
Facilities states:
[I]ndividuals should not have an established medical
history or medical diagnosis of existing medical
-3-
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
responsibilities.
NRC Regulatory Guide 5.75, § 2.5 (July 2009).
To implement these applicable NRC regulations and
guidelines, Entergy's "Medical Program" set a benchmark for
whether an applicant was fit to perform his or her essential
duties, which included "guard, armed response, armed escort and
alarm station operator activities as well as . . . strenuous
physical activity." Under this program, the security officers
were subject to annual medical assessments to ensure that they
remained qualified for UAAP certification, and these annual
assessments included renewed personal and medical history
questionnaires.
2. Flaherty's Medical History
Flaherty is a U.S. military veteran who was stationed in
Iraq between 2000 and 2004. He "saw" live combat while in Iraq,
as a result of which he sustained a number of medical conditions
and disabilities. Accordingly, on or about July 5, 2012, Flaherty
filed a claim for disability benefits with the Department of
Veterans Affairs ("VA"). He claimed disability based on
-4-
radiculopathy, chronic diarrhea, lumbar strain, as well as
symptoms associated with chronic fatigue syndrome ("CFS") and
posttraumatic stress disorder ("PTSD"). However, on July 26,
2012, when Flaherty filled out Entergy's annual medical history
questionnaire in accordance with UAAP requirements, he failed to
indicate that he was seeking treatment for depression and anxiety,
suffering from frequent diarrhea, and experiencing "back trouble,
injury, [and] pain." Nor did he disclose any of the symptoms or
conditions for which he was seeking VA benefits to Entergy's
evaluating physician.
On July 8, 2013, Flaherty was examined at a VA medical
facility, and on October 10, 2013, he completed a "Chronic Fatigue
Syndrome Disability Benefits Questionnaire." Among other things,
he reported that his CFS symptoms "began mid 2009 and have
continued and worsened since." He stated that his symptoms
included "poor attention," "inability to concentrate," and
"forgetfulness," and that those symptoms were "nearly constant."
In between these two VA appointments, on August 8, 2013, Flaherty
filled out another Entergy medical history questionnaire where he
again failed to indicate that he was suffering from depression and
anxiety, frequent diarrhea, and "back trouble, injury, [and]
pain." Furthermore, the form had changed since 2012 and now
included a specific question about PTSD, which Flaherty denied
-5-
experiencing. As with his 2012 questionnaire, Flaherty did not
disclose any conditions for which he was seeking VA disability
benefits to his evaluating physician.
On October 22, 2013, the VA granted Flaherty disability
benefits for CFS, PTSD, radiculopathy, chronic diarrhea, and
lumbar strain, finding that his CFS symptoms restricted his daily
activities "to 50 to 75 percent of the pre-illness level[s]." On
October 29, 2013, he was awarded monthly benefits retroactive to
August 1, 2012.
On May 10, 2014, Flaherty applied for short-term medical
leave from work at Entergy under the Family and Medical Leave Act
("FMLA") for the period between May 11, 2014 and July 15, 2014.
The FMLA leave application did not include specific information
from Flaherty himself about the basis for his leave, but did
include a handwritten note from a VA clinical psychologist, named
Dr. Julie Klunk-Gillis, stating:
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.
Neither Dr. Klunk-Gillis nor Flaherty referenced any CFS symptoms
or diagnosis in Flaherty's application for medical leave.
Furthermore, prior to returning to work in July, Flaherty was
-6-
cleared to work by both Dr. Klunk-Gillis and a nurse practitioner,
Shelia Shea, from Cape and Islands Occupational Medicine, P.C. in
Hyannis, Massachusetts. Neither of these medical clearances
contained references to CFS, and there is no evidence that Entergy
or any of Flaherty's direct supervisors were told at the time of
Flaherty's FMLA leave that he was suffering from CFS.
After returning to work, in his next annual medical
history questionnaire on July 30, 2014, Flaherty again neglected
to indicate that he was suffering from "[d]epression/anxiety/other
psychological disorder"; PTSD; frequent diarrhea; and "[b]ack
trouble, injury, pain." He denied that he was taking medications
and failed yet again to disclose any of the diagnosed conditions
for which he was receiving VA disability benefits to the evaluating
physicians.
On March 25, 2015, as part of a five-year evaluation for
continued UAAP certification, Flaherty was interviewed by Dr.
George Peters, a psychologist working with a company named The
Stress Center. Without evaluating any of Flaherty's background
information, The Stress Center found that Flaherty's psychological
status was "acceptable for unescorted access authorization."
3. Flaherty Refuses to Work Mandatory Overtime
On February 14, 2015 -- right before his five-year
evaluation -- Flaherty refused to work a mandatory overtime shift
-7-
scheduled for February 17, 2015, claiming that he would be too
fatigued to work. Recognizing that it was uncommon for people to
self-report fatigue three days in advance, Flaherty's supervisors
initiated an investigation into Flaherty's fatigue claim on
February 28, 2015. Following a "consensus meeting" on March 26,
2015, Entergy notified Flaherty on April 23, 2015 that he would be
suspended for three days for refusing to work a mandatory overtime
shift.
4. Flaherty Calls Entergy's Ethics Hotline, and Entergy
Initiates an Investigation Resulting in Flaherty's
Termination
On April 24, 2015, Flaherty called Entergy's ethics
hotline to make a complaint about his suspension. He reported
that he was a "disabled veteran who suffers from chronic fatigue
syndrome" and that, although his supervisors were not aware of his
medical condition, he "plan[ned] to present them with
documentation of his medical condition." Flaherty's complaint was
forwarded to the UAAP department at Entergy, and on April 28, 2015,
Entergy placed on hold his unescorted access authorization pending
further investigation into his recent disclosure that he was
suffering from CFS.
As a follow-up to his ethics complaint, on April 29,
2015, Flaherty provided his VA medical records to his supervisor,
who then forwarded them to the UAAP department. The UAAP
-8-
department reviewed Flaherty's records along with his previously
submitted annual medical questionnaires and concluded that
Flaherty had failed to disclose his disabilities -- most
importantly the CFS -- on the questionnaires. Next, as a part of
the investigation, Flaherty was given a medical examination by Dr.
Kenneth Boyd and a psychological evaluation by Dr. Laurence Baker.
In his May 1, 2015 report, Dr. Boyd found that Flaherty
had "not been forthcoming about his previous and ongoing medical
diagnoses when queried about his medical history at the time of
his annual exams" and "did not notify the medical department of
important medical conditions that needed to be considered in
evaluating him for his ability to adequately and safely perform
security officer duties in a timely manner." In his May 11, 2015
report, Dr. Baker found that Flaherty should have disclosed his
disabilities during his medical exams and clinical interviews.
Dr. Baker also conducted the "Minnesota Multiphasic Personality
Inventory -- 2" test, finding that Flaherty was highly defensive
and suffered from depression and anxiety. In all, Dr. Baker
concluded that "Mr. Flaherty does not appear to be acceptable for
unescorted access in a nuclear facility, or to be qualified to be
employed as a security officer in such a setting."
Based on Entergy's investigation, the UAAP department
concluded that Flaherty did not satisfy the requirements for
-9-
continued unescorted access authorization because he did not
exhibit the "trustworthiness and reliability" required under NRC
regulations for UAAP certification. As a result, on May 12, 2015,
Entergy denied Flaherty unescorted access authorization for a
period of five years. According to NRC regulations, Flaherty
could no longer work as a security officer at Pilgrim, and Entergy
terminated his employment on May 19, 2015. Entergy maintained
that it did not deny Flaherty's unescorted access authorization or
terminate him on account of his disabilities but denied his UAAP
certification solely on the basis of his lack of trustworthiness
and reliability in failing to report his CFS. Entergy had
previously revoked the unescorted access authorization from two
other security officers who had failed to disclose important
information. These other officers did not have known disabilities.
B. Procedural History
On May 26, 2015, Flaherty filed a charge with the
Massachusetts Commission Against Discrimination ("MCAD") against
Entergy2 alleging disability-based discrimination in violation of
the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101
et seq., and Mass. Gen. Laws ch. 151B, § 4(16) ("Chapter 151B").3
2 The complaint initially named Entergy Louisiana, LLC, but
Flaherty later amended the MCAD charge to correct Entergy's name
to Entergy Nuclear Operations, Inc.
3 Flaherty initially filed the charge pro se but then secured
-10-
Six months later, Flaherty requested permission to withdraw the
matter from the MCAD, and the Equal Employment Opportunity
Commission ("EEOC") eventually issued a right-to-sue letter.
Thereafter, on August 16, 2016, Flaherty filed a complaint in the
U.S. District Court for the District of Massachusetts.
In his complaint, Flaherty asserted claims for
disability discrimination and failure to accommodate under the ADA
and Chapter 151B. Specifically, he claimed that Entergy
terminated his employment on the basis of his disabilities and
that it failed to provide him with reasonable accommodations by
refusing to excuse him from having to work overtime. After
discovery, Entergy moved for summary judgment, seeking the
dismissal of all claims. After Flaherty filed an opposition to
the motion for summary judgment accompanied by his own affidavit,
Entergy moved to strike certain portions of Flaherty's affidavit
on the grounds that they contradicted Flaherty's prior testimony
and mischaracterized documents in the record.
On July 9, 2018, the district court issued a memorandum
and order granting in part Entergy's motion to strike and granting
Entergy's motion for summary judgment. Flaherty v. Entergy Nuclear
Operations, Inc., No. 16-11667-FDS, 2018 WL 3352957 (D. Mass.
representation on October 30, 2015.
-11-
July 9, 2018). The district court struck those portions of
Flaherty's affidavit covering his initial diagnosis with CFS and
PTSD and non-disclosure to Entergy because, according to the court,
they conflicted with Flaherty's prior sworn testimony at his
deposition, and he had failed to provide a satisfactory explanation
for the change in testimony.4 Id. at *10-12.
The district court then turned to Entergy's motion for
summary judgment. It found that Flaherty had failed to establish
the second element of a prima facie case of disability
discrimination -- i.e., that he was a qualified individual capable
of performing the essential functions of the position he held.
Id. at *15-16. The court reasoned that "[b]y concealing his [CFS]
diagnosis -- which undoubtedly impacted his ability to work as a
security guard -- Flaherty violated NRC regulations requiring that
nuclear plant security personnel demonstrate trustworthiness and
reliability." Id. at *15. Accordingly, Entergy could revoke
Flaherty's unescorted access authorization, which he needed to be
qualified to perform the essential functions of the position he
held. Id. The court further noted that Entergy had offered a
4 In consequence, the court struck paragraphs 29, 37, 58, 66, 69,
72, 75, 93, 94, and 96 of Flaherty's affidavit to the extent they
referred to CFS, and paragraphs 74, 88, 89, and 99 in their
entirety. Flaherty, 2018 WL 3352957, at *11-12. The court also
struck other paragraphs on other grounds, which are not relevant
to this appeal. Id. at *8-14.
-12-
"legitimate, non-discriminatory reason for its decision to
terminate" Flaherty's employment and that Flaherty had failed to
provide any admissible evidence to show that Entergy's articulated
reason was pretextual. Id. at *16. Therefore, the court dismissed
Flaherty's disability discrimination claims. Id.
Furthermore, the court determined that Flaherty's
failure to accommodate claims also fell short because they had not
been administratively exhausted, as required before he could bring
those claims in court. Id. at *17-18 (noting that an employee
asserting claims under both the ADA and Chapter 151B must first
file an administrative charge before commencing a civil action
(citing Bonilla v. Muebles J.J. Álvarez, Inc., 194 F.3d 275, 277
(1st Cir. 1999) and Lattimore v. Polaroid Corp., 99 F.3d 456, 464
(1st Cir. 1996))). The court noted that, although Flaherty had
filed a charge with the MCAD, that charge "solely allege[d]
discrimination on the basis of disability" and "sa[id] nothing
whatsoever about any failure to accommodate." Id. at *18. Thus,
the court concluded that dismissal of the failure to accommodate
claims was warranted. Finally, the court determined that without
his unescorted access authorization Flaherty was not qualified to
perform the essential functions of his position "even if an
accommodation was possible." Id. at *16. Accordingly, the court
granted summary judgment on both the disability discrimination and
-13-
failure to accommodate claims. Id. at *18. Flaherty filed a timely
appeal.
II. Discussion
A. Motion to Strike
The district court granted in part Entergy's Motion to
Strike and struck those portions of Flaherty's affidavit
regarding: (1) the date of Flaherty's initial CFS diagnosis,5 and
(2) the date he disclosed his CFS diagnosis to Entergy. Id. at
*10-12. The court based its finding on the fact that Flaherty had
failed to provide a satisfactory explanation for the testimonial
dissonance between his deposition and his affidavit. Id.
Flaherty argues that the district court abused its discretion in
granting in part Entergy's Motion to Strike because his prior
testimony at his deposition was neither clear nor unambiguous and
he provided a satisfactory explanation for the change in testimony.
We review the district court's decision as to the
evidentiary materials it will consider in deciding a motion for
summary judgment only for "a clear abuse of discretion." EEOC v.
Green, 76 F.3d 19, 24 (1st Cir. 1996).
5 Although the district court also struck those portions of
Flaherty's affidavit regarding the date when he was first diagnosed
with PTSD, that is not an issue on appeal.
-14-
"When an interested witness has given clear answers to
unambiguous questions [at deposition], he cannot create a conflict
and resist summary judgment with an affidavit that is clearly
contradictory, but does not give a satisfactory explanation of why
the testimony is changed." Pena v. Honeywell Int'l, Inc.,
923 F.3d 18, 30 (1st Cir. 2019) (alteration in original) (quoting
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5
(1st Cir. 1994)).6
At his deposition, Flaherty testified that he did not
disclose his CFS diagnosis to Entergy until April 29, 2015.7 Then,
in support of his opposition to Entergy's motion for summary
judgment, Flaherty submitted an affidavit stating that he
disclosed his CFS diagnosis to Entergy both in July 2014 (during
Entergy's medical and psychological evaluation upon returning from
FMLA leave) and in March 2015 (to Entergy's psychological
evaluator, Dr. George Peters, as part of a full evaluation and
investigation for fitness to unescorted access).
6 In contrast, "[a] subsequent affidavit that merely explains, or
amplifies upon, opaque testimony given in a previous deposition is
entitled to consideration in opposition to a motion for summary
judgement." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,
26 (1st Cir. 2002) (emphasis added) (citing Shepherd v. Slater
Steels Corp., 168 F.3d 998, 1007 (7th Cir. 1999)).
7 Specifically, Flaherty was asked, "[Y]ou never told anyone you
had chronic fatigue until April 29, 2015, correct?," to which he
responded, "That's correct."
-15-
Flaherty tries to explain the change in testimony by
arguing that he was confused about the question in his deposition
for two different reasons. First, he argues that because the
question about not having told anyone that he had CFS until
April 29, 2015 followed a series of questions regarding
accommodation requests, he therefore believed the question "to be
within the context of any request [he] made for accommodations."
Second, he argues that he understood the question "to be asking
whether [he] told any of [his] supervisors at Entergy about [his]
CFS diagnosis before April 29, 2015."
The district court did not clearly abuse its discretion
in finding that Flaherty's "two different explanations for the
change" were unsatisfactory. Flaherty, 2018 WL 3352957, at *11.
In considering whether to strike Flaherty's later contradictory
testimony, the district court properly noted that "the question of
when Flaherty disclosed his CFS to Entergy is one of the central
issues, if not the central issue, in the case," inasmuch as
Entergy's reasons for deeming Flaherty untrustworthy was that he
had concealed his medical condition from Entergy, which in turn,
impacted his ability to work as an armed security guard at a
nuclear power plant. Id. Accordingly, the court reasoned that,
"[t]he timing of the disclosure of CFS was thus not a collateral
issue as to which a lapse in memory might be overlooked." Id.
-16-
We also agree with the district court that both the
question posed to Flaherty at his deposition as well as his
response were "clear and direct." Id. "Nothing about it was
confusing or ambiguous," especially since neither the word
"accommodation" nor "supervisors" was mentioned in the question.
Id. Flaherty also failed to provide supporting evidence
indicating that his post-summary judgment statement, rather than
his deposition answer, was correct.8 See Rodríguez v. Trujillo,
507 F. Supp. 2d 131, 136-37 (D.P.R. 2007) (finding a post-summary
judgment affidavit including an explanation of confusion adequate
to correct contradicting testimony because it was "supported by
ample evidence"). In addition, Flaherty -- who was accompanied
by his attorney at his deposition -- had ample opportunity to seek
clarification about the questions posed to him at his deposition
and his responses. See Colantuoni, 44 F.3d at 5 (noting that
plaintiff's attorney "was present at the deposition, and had the
opportunity to clarify any incorrect impressions"). Furthermore,
he had the opportunity to "note any change or correction to [his]
testimony and the reason therefor" upon receiving the deposition
transcript, prior to Entergy filing its motion for summary
8 Contrary to Flaherty's argument below, a note made in relation
to his FMLA leave does not provide supporting evidence of the
statement in his affidavit because the note did not mention CFS at
all, but only PTSD and related symptoms.
-17-
judgment. Yet, Flaherty's "confusion" by the line of questioning
seems to have materialized only after Entergy filed its motion for
summary judgment. See Orta-Castro v. Merck, Sharp & Dohme Química
P.R., Inc., 447 F.3d 105, 110 (1st Cir. 2006) (finding that the
chronology of events -- where the plaintiff's affidavit
contradicting her prior deposition testimony was executed only
after the defendant had filed its motion for summary judgment --
was "probative of the fact that the non-movant was merely
attempting to create an issue of fact"). Because Flaherty
provided a clear answer to an unambiguous question during his
deposition, which he then directly contradicted without
satisfactory explanation in an affidavit filed only after Entergy
moved for summary judgment, the district court did not clearly
abuse its discretion in rejecting Flaherty's claim of "confusion"
and striking his subsequent contradictory testimony.
We now turn to Flaherty's statements about his initial
CFS diagnosis. At his deposition, Flaherty was asked: "[W]hen
were you first formally diagnosed by a medical professional with
PTSD and chronic fatigue syndrome?" Flaherty responded: "[A]round
the middle of 2012, June or July when I was going to all my
doctors['] appointments for the claim that I put in."9 However,
9 As the district court noted, Flaherty had similarly stated in
his MCAD charge that he "ha[d] been rated with chronic fatigue
syndrome by Veteran[s] Affairs in 2012." These statements were
-18-
in his affidavit, Flaherty reversed course and claimed that this
response was "incorrect[]," for he "was not made aware of [his]
diagnoses of CFS and PTSD until [he] received the VA's October 22,
2013 decision, in November, 2013," which granted his claim for
disability payments. Flaherty did not explain this alleged mistake
in his affidavit. Furthermore, although Flaherty acknowledged in
his opposition to Entergy's Motion to Strike that his statement in
the affidavit was "inconsistent with his deposition testimony," he
argued that documentary evidence (i.e., the VA Rating Decision of
October 22, 2013) supported his statement inasmuch as it referenced
a CFS diagnosis while nothing else in the record referenced a
"definitive, formal, physician's diagnos[is]" before October 22,
2013.
The district court found that Flaherty had not met his
burden of satisfactorily explaining why his testimony changed.
Flaherty, 2018 WL 3352957, at *12. It reasoned that the VA's
letter granting Flaherty's claim for disability was not itself a
medical diagnosis, but an "eligibility decision[] based on [a]
diagno[sis] made by [a] physician[]." Id. (citing Miller v.
Comm'r of Soc. Sec., No. 3:17-CV-295, 2018 WL 1357442, at *5 (S.D.
Ohio Mar. 16, 2018) ("The VA Disability Rating System is
made before filing his complaint in court and the taking of his
deposition.
-19-
diagnosis-driven and percentages are assigned based on diagnoses
and certain specific objective or clinical findings.")) Thus,
Flaherty must have been diagnosed with CFS at some time before
October 22, 2013, when his claim was granted. Id.
Flaherty now argues that the district court abused its
discretion in striking the sections of his affidavit related to
the date of his CFS diagnosis because, according to him, his
deposition testimony was neither clear nor unambiguous. He points
to three places in the deposition where he seemingly indicated
that he was diagnosed with CFS later than mid-2012 and submits
that the inconsistent testimony creates an issue of credibility
for the factfinder.
We note that Flaherty raises the argument that his
deposition testimony was internally inconsistent for the first
time on appeal. Below, he merely highlighted that the October 22,
2013 VA Rating Decision referenced his CFS diagnosis and that no
other document referenced it before then. He cannot raise this
new argument on appeal. See Ahern v. Shinseki, 629 F.3d 49, 58
(1st Cir. 2010) ("An appellant cannot change horses in mid-stream,
arguing one theory below and a quite different theory on appeal.").
Faced with no satisfactory explanation for the alleged
error in his deposition testimony, and in light of how the VA
Disability Rating System works, the district court did not clearly
-20-
abuse its discretion in striking Flaherty's inconsistent
statements in his affidavit. In any event, even if the court had
erred in striking the inconsistent statements, any such error would
be harmless given that, as Flaherty himself concedes, the central
issue of this case is not the date of Flaherty's CFS diagnosis,
but the date he disclosed his knowledge of that diagnosis to
Entergy.10 See Fed. R. Civ. P. 61 (providing that errors that do
not affect "any party's substantial rights" do not warrant
"vacating, modifying, or otherwise disturbing a judgment or
order"). We note that even if Flaherty was not aware of his CFS
diagnosis until November 2013, he nevertheless waited eighteen
months (until April 2015) to notify his employer about his CFS
diagnosis.
B. Granting of Summary Judgment
We review a district court's grant of summary judgment
de novo, construing the record in the light most favorable to the
nonmovant and resolving all reasonable inferences in that party's
favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir.
10 Specifically, in his opposition to Entergy's Motion to Strike,
Flaherty stated that "[t]he Court should note that the central
issue to which both the relevant deposition testimony and [the
challenged statement in his affidavit] relate are a) when
Mr. Flaherty disclosed to Entergy his mental health diagnoses and
b) when was it reasonable for him to have done so under the NRC
regulations and Entergy policy."
-21-
2015); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)
(quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
Summary judgment is appropriate when the moving party shows that
"there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A genuine dispute is "one that must be decided at trial
because the evidence, viewed in the light most flattering to the
nonmovant, would permit a rational factfinder to resolve the issue
in favor of either party." Medina-Muñoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted). "Facts are
material when they have the 'potential to affect the outcome of
the suit under the applicable law.'" Cherkaoui v. City of Quincy,
877 F.3d 14, 23 (1st Cir. 2017) (quoting Sánchez v. Alvarado, 101
F.3d 223, 227 (1st Cir. 1996)). The party opposing summary
judgment bears "the burden of producing specific facts sufficient
to deflect the swing of the summary judgment scythe." Mulvihill
v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003) (citation
omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256-57 (1986) (warning that the nonmoving party may not simply
"rest upon mere allegations or denials of his pleading," but
instead must "present affirmative evidence").
-22-
1. Discrimination Claims
The ADA prohibits employers from discriminating against
a "qualified individual on the basis of disability." 42 U.S.C.
§ 12112(a). Where, as here, the plaintiff does not have direct
evidence of discriminatory animus, we generally apply the
burden-shifting framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973). See Mancini v. City of
Providence, 909 F.3d 32, 38 (1st Cir. 2018).
Under the McDonnell Douglas framework, a plaintiff
alleging an ADA claim for discriminatory firing has the initial
burden of establishing a prima facie case by showing that he
(1) was disabled within the meaning of the ADA, (2) was a
"qualified individual," and (3) was discharged in whole or in part
because of his disability. Phelps v. Optima Health, Inc., 251 F.3d
21, 24 (1st Cir. 2001). Under the ADA, a "qualified individual"
is "an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position
that such individual holds or desires." 42 U.S.C. § 12111(8).
Accordingly, our analysis of whether an individual is qualified
requires us to determine: "first, whether the individual can
perform the essential functions of [his] position; and second, if
[he] is unable to perform those essential functions, whether any
-23-
reasonable accommodation by [his] employer would allow [him] to do
so." Phelps, 251 F.3d at 25.
If the plaintiff establishes his prima facie case, the
burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its action. See Straughn v. Delta
Air Lines, Inc., 250 F.3d 23, 33-34 (1st Cir. 2001). If the
employer articulates such a reason, the burden shifts back to the
plaintiff, who must then show, by a preponderance of the evidence,
that the employer's proffered reason for the adverse employment
action was pretextual and that the true reason was unlawful
discrimination. Id. at 34.11
Flaherty challenges the district court's conclusion that
he did not establish a prima facie case of disability
discrimination because he did not set forth sufficient evidence
from which a reasonable jury could conclude that he was qualified
for the position he held. Specifically, Flaherty takes issue with
the court's reasoning that Entergy properly revoked his unescorted
11 Flaherty also brought claims under Chapter 151B, which
prohibits discrimination in employment against qualified
individuals with disabilities. Mass. Gen. Laws ch. 151B, § 4(16).
Flaherty does not contest that his Chapter 151B claims should be
evaluated under the same standards as ADA claims, as has been done
before. See, e.g., Sensing v. Outback Steakhouse of Fla., LLC,
575 F.3d 145, 153-54 (1st Cir. 2009) (evaluating discrimination
claims brought under both Chapter 151B and the ADA under the same
framework).
-24-
access authorization due to his unreliability and
untrustworthiness (as evidenced by his failure to disclose his CFS
diagnosis until April 2015), without which he was not qualified to
work as a security officer at Entergy.
Flaherty concedes that he needed to maintain his
unescorted access authorization to remain qualified for the
position he held.12 See McNelis v. Pa. Power & Light Co., 867 F.3d
411, 415 (3d Cir. 2017) (affirming summary judgment for the
employer, concluding that a terminated nuclear security officer
was unable to perform the essential functions of the job after
losing his unescorted access authorization). He also implicitly
concedes that a finding that he intentionally failed to disclose
his CFS diagnosis until April 2015 would support Entergy's
conclusion that he was untrustworthy and unreliable and that his
unescorted access authorization was properly revoked. Flaherty
thus centers his efforts on disputing the finding that he failed
to disclose his CFS to Entergy until April 2015. In doing so,
Flaherty points to the statements stricken from his opposition to
12 This concession disposes of Flaherty's argument in his opening
brief that he must have been able to perform the essential
functions of his job because he had held that position for a number
of years. As Entergy notes and Flaherty concedes in his reply
brief, pursuant to the NRC regulations, having the unescorted
access authorization was essential for Flaherty's ability to
perform his job as a security officer.
-25-
Entergy's motion for summary judgment which, according to him,
establish that he disclosed his CFS diagnosis on two occasions
prior to April 2015: (1) in July 2014 to a nurse practitioner from
Cape and Islands Occupational Medicine, P.C. upon his return from
FMLA leave, and (2) in March 2015 to Dr. Peters, a psychological
evaluator working with The Stress Center, as part of a full
evaluation and investigation for fitness to unescorted access.
Furthermore, Flaherty now argues for the first time that the
nurse's and Dr. Peters's alleged knowledge of his CFS diagnosis
should be imputed to Entergy because they were hired by Entergy to
examine Flaherty and, thus, "were Entergy's agents."
As the district court noted, Flaherty has offered no
evidence that Entergy was aware of his CFS diagnosis before April
2015 except for the stricken portions of his affidavit. Thus,
Flaherty's challenge to the entry of summary judgment against his
disability discrimination claim fails due to our decision
regarding the statements that the district court struck from his
affidavit. Since we have already found that the district court
did not abuse its discretion in striking those statements which
contradicted his prior testimony, it follows that the district
court correctly concluded that Flaherty failed to establish a prima
facie case of disability discrimination inasmuch as he could not
-26-
prove that he was qualified for the position he held at Entergy.13
In other words, because Flaherty's failure to disclose his CFS
diagnosis until April 2015 made him untrustworthy and unreliable,
Entergy was entitled to revoke his unescorted access
authorization, which Flaherty needed to perform the essential
functions of the position he held in order to be deemed a qualified
individual.14 Our conclusion that Flaherty failed to establish a
13 This conclusion disposes of Flaherty's argument that the
medical examiners' alleged knowledge of his CFS diagnosis should
be imputed to Entergy because they were its agents. If Flaherty
did not share his CFS diagnosis with the medical examiners, then
he cannot establish that they had any knowledge that could be
imputed to Entergy. In any event, this new argument would be
waived because Flaherty did not raise it below. We note that,
although Flaherty referred to the nurse and Dr. Peters as
"Entergy's medical evaluators" below, he did not make the argument
he now makes on appeal that they were Entergy's agents and that
their knowledge should be imputed to Entergy. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
14 We note that even if we were to reverse the district court's
striking of Flaherty's statements that he disclosed his CFS
diagnosis to Entergy in July 2014, Flaherty would still have failed
to disclose his condition on prior occasions over several years
beforehand. We also note that, according to Flaherty, he did not
disclose his CFS condition earlier because he did not believe he
needed to do so, for he did not think it interfered with his
ability to perform his duties. Yet, it was up to Entergy, not
Flaherty, as mandated by the NRC, to decide what he needed to
disclose to his employer about his mental health and when. See
McNelis, 867 F.3d at 416 ("[T]his is a feature -- not a bug -- of
the nuclear regulatory scheme. Presumably because of the
sensitive nature of the work, the Nuclear Regulatory Commission
made a policy judgment that, for a limited number of jobs, nuclear
power plants must screen employees for certain traits and behaviors
-27-
prima facie case of disability discrimination makes it unnecessary
to address the remaining stages of the McDonnell Douglas burden-
shifting framework.
2. Failure to Accommodate Claims
The ADA compels an employer "to make 'reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless [the employer] can demonstrate that
the accommodation would impose an undue hardship on [its] operation
of the business.'" Ortiz-Martínez v. Fresenius Health Partners,
PR, LLC, 853 F.3d 599, 604 (1st Cir. 2017) (alterations in
original) (quoting 42 U.S.C. § 12112(b)(5)(A)); see also U.S.
Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002). To establish
a claim for failure to accommodate, a plaintiff must produce
sufficient evidence for a reasonable jury to find that (1) he was
disabled within the meaning of the ADA, (2) he was a qualified
individual, and (3) the defendant, despite knowing of the
plaintiff's disability, did not reasonably accommodate it. See
42 U.S.C. §§ 12111(8), 12112(b)(5)(A); Estades-Negroni v. Assocs.
Corp. of N. Am., 377 F.3d 58, 63 (1st Cir. 2004).
that may endanger the public.").
-28-
Individuals asserting discrimination or failure to
accommodate claims under the ADA are required to file an
administrative charge with the EEOC, or alternatively, with an
appropriate state or local agency, prior to commencing a civil
action.15 See Bonilla, 194 F.3d at 278. The judicial complaint
subsequently filed "must bear some close relation to the
allegations presented to the agency." Jorge v. Rumsfeld, 404 F.3d
556, 565 (1st Cir. 2005).
Although Flaherty filed an administrative charge with
the MCAD, Entergy argues that the charge related only to Flaherty's
disability discrimination claims, and thus, his failure to
accommodate claims should be dismissed for non-exhaustion of
administrative remedies. We bypass the exhaustion issue because
Flaherty's claims clearly fail on the merits. See Morales-Cruz
v. Univ. of P.R., 676 F.3d 220, 223-24 (1st Cir. 2012).
Flaherty's failure to accommodate claims require
sufficient evidence that he was a "qualified individual."
15 "[The] charge 'shall be filed' with the EEOC 'within one hundred
and eighty days after the alleged unlawful employment practice
occurred,' or within 300 days if 'the person aggrieved has
initially instituted proceedings with [an authorized] State or
local agency.'" Bonilla, 194 F.3d at 278 (second alteration in
original) (quoting 42 U.S.C. § 2000e-5(e)). Because the EEOC and
the MCAD have a "worksharing agreement," "claims filed with either
the MCAD or the EEOC are effectively filed with both agencies."
Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n.1 (1st Cir. 2001)
(citing Isaac v. Harvard Univ., 769 F.2d 817, 824 (1st Cir. 1985)).
-29-
See 42 U.S.C. § 12111(8); Tobin v. Liberty Mut. Ins. Co., 433 F.3d
100, 107 (1st Cir. 2005). Flaherty needed to prove that "the
proposed accommodation would have enabled [him] to perform the
essential functions of [his] job." Echevarría v. AstraZeneca
Pharm. LP, 856 F.3d 119, 127 (1st Cir. 2017) (citing Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001)); see also
42 U.S.C. § 12111(8). He has not presented such evidence. Rather,
the undisputed evidence, as discussed earlier, includes Flaherty's
admission that he needed unescorted access authorization to
perform the essential functions of his position. Even had Entergy
granted Flaherty's request to be excused from occasionally working
overtime, his loss of the unescorted access authorization would
have rendered him unable to perform the essential functions of his
job. The district court thus properly granted Entergy's motion
for summary judgment as to Flaherty's failure to accommodate
claims.16
16 We note that Flaherty also challenges the district court's
findings that: (1) the disabilities caused by his CFS and PTSD
prevented him from performing the essential job functions of the
position he held and no reasonable accommodation was possible, and
(2) Entergy was not required to engage in an interactive process
with Flaherty to determine an appropriate accommodation because
without his unescorted access authorization he could not perform
the essential functions of his position, even with an
accommodation. Nevertheless, our conclusion that without his
unescorted access authorization Flaherty was not able to perform
the essential functions of the position he held, and thus was not
a qualified individual, makes it unnecessary to further address
these additional arguments. See Kvorjak v. Maine, 259 F.3d 48,
-30-
III. Conclusion
For the foregoing reasons, we affirm the district
court's order.
Affirmed.
52 (1st Cir. 2001) ("[L]iability [for failure to engage in the
interactive process] . . . depends on a finding that, had a good
faith interactive process occurred, the parties could have found
a reasonable accommodation that would enable the disabled person
to perform the job's essential functions."); Phelps, 251 F.3d at
26 ("[A]n employer need not exempt an employee from performing
essential functions, nor need it reallocate essential functions to
other employees.").
-31-