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Flaherty v. Entergy Nuclear Operations, Inc.

United States Court of Appeals, First Circuit

December 23, 2019

MARK W. FLAHERTY, Plaintiff, Appellant,


          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.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.


         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 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 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 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 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 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 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 ...

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