MARK W. FLAHERTY, Plaintiff, Appellant,
ENTERGY NUCLEAR OPERATIONS, INC., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor IV, U.S. District Judge]
Cohen, with whom Cohen & Sales, LLC was on brief, for
F. Keith, with whom Amanda L. Carney and Greenberg Traurig,
LLP was on brief, for appellee.
Torruella, Lynch, and Kayatta, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
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.
Flaherty's Employment as a Security Officer at
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. U.S. Nuclear Regulatory Commission
("NRC") regulations required Entergy to maintain an
armed security force to protect Pilgrim from any 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.
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 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).
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.
Flaherty's Medical History
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 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.
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 experiencing. As with his 2012 questionnaire,
Flaherty did not disclose any conditions for which he was
seeking VA disability benefits to his evaluating physician.
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.
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
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
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.
returning to work, in his next annual medical history
questionnaire on July 30, 2014, Flaherty again neglected to
indicate that he was suffering from
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.
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."
Flaherty Refuses to Work Mandatory Overtime
February 14, 2015 -- right before his five-year evaluation --
Flaherty refused to work a mandatory overtime shift 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