United States District Court, D. Connecticut
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
A. Bolden, United States District Judge.
Equal Employment Opportunity Commission (the
“Commission” or “EEOC” or
“Plaintiff”) brought this action against Day and
Zimmerman NPS, Inc. (“DZNPS” or
“Defendant”) under Title V of the Americans with
Disabilities Act of 1990 (the “ADA”). ECF No. 1.
October of 2012, Gregory Marsh filed a charge with the EEOC,
alleging that DZNPS had violated the ADA. In March of 2014,
as part of its investigation of Mr. Marsh's allegations,
the EEOC sought information from DZNPS, including the names
and contact information of other DZNPS employees. In June of
2014, before DZNPS provided the requested information to the
EEOC, DZNPS sent a letter to approximately 146 DZNPS
employees. This letter, among other things, identified Mr.
Marsh by name and noted that he had filed a discrimination
disability charge with the EEOC. The EEOC alleges that, by
sending the letter, DZNPS (1) retaliated against Mr. Marsh
for filing a charge with the EEOC in violation of the ADA and
(2) interfered with Mr. Marsh's and the Letter
recipients' exercise and enjoyment of rights protected by
EEOC has filed a motion for partial summary judgment on its
interference claim under the ADA. ECF No. 69. DZNPS has filed
a motion for summary judgment as to the Complaint in its
entirety, arguing that (1) the EEOC's legal theories
would violate DZNPS's free speech rights under the First
Amendment of the United States Constitution; (2) that the
June 2014 letter is protected by the litigation privilege
under Connecticut law; (3) that the EEOC cannot, as a matter
of law, make out a claim for retaliation under the ADA; (4)
that the EEOC cannot, as a matter of law, make out a claim
for interference under the ADA; and (5) that the EEOC lacks
standing to bring this case under Article III of the United
States Constitution. ECF No. 73.
reasons that follow, the Court DENIES the
EEOC's motion for partial summary judgment, ECF No. 69,
and also DENIES DZNPS's motion for
summary judgment, ECF No. 73.
is a maintenance and modification company that provides
unionized, craft labor to its clients in the power
industry. Pl.'s 56(a)(1) ¶ 1, ECF No. 71.
has written anti-discrimination and anti-retaliation policies
that apply to corporate employees, permanent craft workers,
and temporary craft workers. Def.'s 56(a)(1) ¶ 9,
ECF No. 75. These policies prohibit reprisal or retaliation
against DZNPS employees that report violations of any policy,
including non-discrimination and non-harassment policies, or
who are “involved in an investigation of
discrimination.” Cooney Dep. 174:17-174:21, Def.'s
56(a)(1) Ex. B, ECF No. 75-1.
maintains a policy to provide reasonable accommodations to
qualified employees or job applicants that have disabilities.
Def.'s 56(a)(1) ¶ 12. DZNPS also has a policy that
medical information that DZNPS obtains in connection with the
reasonable accommodation process will be kept confidential,
including by being kept in files separate from an
employee's personnel file. Id. ¶ 13. The
policy does allow DZNPS to share the information with an
employee's supervisor or foreman, as needed to make
appropriate determinations regarding a reasonable
accommodation request. Id.
Power, which operates the Millstone nuclear power station
(“Millstone”), located in Waterford, Connecticut,
is one of DZNPS's clients. Pl.'s Rule 56(a)(1) ¶
2. DZNPS provides both long-term and temporary workers to
Millstone. Id. ¶ 3. Approximately twice a year,
Millstone's nuclear reactors are shut down for scheduled
maintenance for around one month to several weeks.
Id. ¶ 5. During these temporary outages, DZNPS
hires additional labor through union hiring halls, to assist
with the work at Millstone during the shutdown. Id.
¶ 6. During each shutdown, DZNPS employs as many as 600
temporary craft workers, including electricians, pipe
fitters, welders, boilermakers, and carpenters. Id.
the Millstone shutdown is over and the maintenance work is
complete, DZNPS generally lays off the temporary craft
workers, though the same temporary workers are often re-hired
for subsequent Millstone outages. Pl.'s 56(a)(1) ¶
9. DZNPS begins laying off temporary workers as the outage
winds down. Id. ¶ 11.
DZNPS needs to hire electricians to work at Millstone, it
typically contacts the International Brotherhood of
Electrical Workers (“IBEW”) Local 90 hiring hall.
Pl.'s 56(a)(1) ¶ 9. If and when IBEW Local 90 does
not have enough electricians to meet demand, electricians
from other locals, including IBEW Local 35, are referred to
DZNPS to fill remaining need. Id. Union members
cannot solicit work directly with DZNPS; they must instead
rely on the referral system through their union to obtain
work. Id. Under the agreement between DZNPS and
Local 90, DZNPS may reject any referred worker without
providing a reason for the rejection. Id.
Events in Fall of 2012
around the fall of 2012, during a Millstone outage, DZNPS
hired roughly 150 temporary electricians, a typical number
for a shutdown. Pl.'s 56(a)(1) ¶ 8. For the fall
2012 outage, IBEW Local 90 referred Mr. Marsh, an electrician
and member of IBEW Local 35, to work at
Millstone. Id. ¶ 12. Mr. Marsh is
licensed as an electrician by both the State of Connecticut
and the Commonwealth of Massachusetts. Def.'s 56(a)(1)
¶ 18. Mr. Marsh accepted the assignment. Pl.'s
56(a)(1) ¶ 12. Mr. Marsh then reported to work for DZNPS
at Millstone. Id. ¶ 14. For the fall 2012
Millstone outage, DZNPS also hired 146 other electricians.
Def.'s 56(a)(1) ¶ 28.
Mr. Marsh began training for the fall 2012 position at
Millstone, he provided a doctor's note to a DZNPS
representative. Pl.'s 56(a)(1) ¶ 14. That DZNPS
representative was Tom Keith. Def.'s 56(a)(1) ¶ 29.
The doctor's note indicated that Mr. Marsh could not work
around radiation. Pl.'s 56(a)(1) ¶ 14.
Specifically, the note was from Northeastern Pulmonary
Associates, and it stated that “[d]ue to lung disease,
” Mr. Marsh “should not be around radiation,
chemicals[, ] or exposure.” Def.'s 56(a)(1) ¶
30. The note requested a reasonable accommodation for Mr.
Marsh. Pl.'s 56(a)(1) ¶ 14.
receiving the doctor's note and the request for a
reasonable accommodation, Mr. Keith terminated Mr.
Marsh's employment at Millstone. Pl.'s 56(a)(1)
EEOC Charge and Investigation
around October 23, 2012, Mr. Marsh filed a charge of
discrimination with the EEOC, alleging that DZNPS had
discriminated against him on the basis of his disability.
Pl.'s 56(a)(1) ¶ 15. DZNPS believed that the
EEOC's investigation of Mr. Marsh's charge was an
adverse proceeding against DZNPS. Id. ¶ 19.
DZNPS also denied any allegation that it discriminated
against Mr. Marsh. Def.'s 56(a)(1) ¶ 34.
Marsh's charge specifically stated that, on September 28,
2012, he had gone to his doctor who wrote the note indicating
that Mr. Marsh could not work in an area that had radiation,
chemicals, or exposure. See EEOC Charge at 1,
Def.'s 56(a)(1) Ex. N, ECF No. 75-2. His charge indicated
that when he had given the doctor's note to Mr. Keith,
Mr. Keith said that DZNPS could not accommodate Mr. Marsh,
and that Mr. Keith then terminated Mr. Marsh. Id.
Mr. Marsh's charge then stated that he believed that he
was discriminated against because of his disability.
Id. at 2. Specifically, Mr. Marsh alleged that
“90% of [Millstone] does not even have radiation and
[he] could still work in an different area of the job without
radiation, ” “[i]nstead [he] was
March 4, 2014, as part of its investigation, the EEOC
requested a list of all individuals that DZNPS employed as
electricians at Millstone during the fall 2012 outage,
including each individual's name, job title, dates of
employment, last known home address, and last known telephone
number. Pl.'s 56(a)(1) ¶ 16. DZNPS initially did not
want to provide this list of contact information.
Id. ¶ 17. Instead, DZNPS initially suggested
that the EEOC investigator should interview Richard Bohan,
who had been an employee of DZNPS for over 20 years, and who
had worked as a foreman during the fall 2012 shutdown at
Millstone. Id. DZNPS argued that the EEOC made the
request for all of the electricians' contact information
to “engag[e] in a fishing expedition.”
Id. ¶ 18.
19, 2014, DZNPS provided the EEOC with the employee contact
information that the EEOC had requested on March 4, 2014.
Pl.'s 56(a)(1) ¶ 31. The EEOC ultimately spoke to
four of the individuals that DZNPS identified. Id.
DZNPS's June 2014 Letter
2014, DZNPS sent a letter discussing Mr. Marsh's EEOC
charge to the current and former electricians that had worked
at Millstone during the fall 2012 outage (the
“Letter”). Pl.'s 56(a)(1) ¶ 20. The
Letter was sent to the other 146 electricians that had been
hired for the fall 2012 Millstone shutdown in addition to Mr.
Marsh. Def.'s 56(a)(1) ¶ 41. The Letter's
recipients were members of IBEW Local 90 and Local 35.
Pl.'s 56(a)(1) ¶ 20. Some of the recipients
were foremen, or held other supervisory roles on union jobs.
Id. The Letter was on DZNPS letterhead, and it was
signed by Lisa Anne Cooney, the Senior Labor and Employment
Counsel for DZNPS. Id. ¶ 21.
DZNPS sent the Letter, Ms. Cooney sent a draft of the letter
to the business agent for IBEW Local 90. Def.'s 56(a)(1)
¶ 50. The business agent is the most senior management
person for the Local. Id. ¶ 52. The business
agent for IBEW Local 90 consented to DZNPS sending out the
Letter before DZNPS sent it. Id. ¶ 53. Ms.
Cooney testified that, had the business agent not consented,
she would not have sent out the letter. See
Pl.'s 56(a)(1) ¶ 53, ECF No. 88 (admitting that Ms.
Cooney so testified while denying this is a material fact).
Letter stated, in relevant part, that:
The [EEOC] has required [DZNPS] to provide a list of all
electricians employed by DZNPS at [Millstone] during the Fall
2012 outage. The EEOC is specifically seeking each
electrician's name, job title, dates of employment, last
known home address[, ] and last known telephone number . . .
The EEOC sought this information to investigate a charge of
disability discrimination filed by Gregory Marsh. Mr. Marsh,
a member of the [IBEW Local 35], was one of several
electricians referred by his Union for hire during the Fall
2012 outage at Millstone. In his charge, Mr. Marsh alleges
that his doctor told him he could not work in an area that
had radiation, or be around radiation, chemicals or exposure.
He further alleges that DZNPS failed to accommodate this
disability because 90% of the Millstone plant, he claims,
does not have radiation, and that he could have worked in an
area without radiation, chemical or exposure. DZNPS denies
the allegations made by Mr. Marsh, and specifically denies
any wrongdoing or discrimination.
As part of the EEOC process, an investigator has been
assigned to evaluate the merits of Mr. Marsh's
allegations. It is our understanding that the investigator
may contact you to inquire into your job responsibilities
during the Fall 2012 outage. It is your decision whether you
wish to speak with the investigator and your decision will
not have an adverse impact on your current or future
employment with DZNPS. DZNPS is committed to providing equal
employment opportunities to all employees and applicants for
employment without regard to race, color, religion, sex,
national origin, age, disability, sexual orientation[, ] or
other status protected by applicable federal, state, or local
law. DZNPS also prohibits any form of retaliation against an
employee, including those who chose to participate in the
If you choose to speak with the EEOC investigator and would
like to have a counsel for DZNPS present while you speak to
the investigator, please let us know and we will make the
at 1, ECF No. 72-9. The letter goes on to provide the contact
information for DZNPS's counsel at Littler Mendelson.
Id. The Letter omits any reference to Mr.
Marsh's specific medical condition of lung disease.
Def.'s 56(a)(1) ¶ 46. At the time Ms. Cooney sent
the letter, she knew that the EEOC was still in the process
of investigating Mr. Marsh's charge. Cooney Dep. 27:8-14,
ECF No. 72-1. Four recipients of the Letter contacted DZNPS
in response to the Letter. Pl.'s Rule 56(a)(1) ¶ 33.
Cooney helps shape equal employment opportunity and human
resources policies at DZNPS. Pl.'s 56(a)(1) ¶ 22.
Ms. Cooney also manages DZNPS's outside litigation
relating to labor and employment. Id.
DZNPS Motivations for Sending Letter
respect to the sending of the Letter, Ms. Cooney has
testified that it was a “standard courtesy notice,
” and that her usual practice, as with many other
lawyers, is that “when there's an adverse
proceeding and there's witnesses who also happen to be
employees, ” to notify those employees to let them know
that someone from the government might want to interview them
and possibly take their deposition. Cooney Dep. 25:13-22, ECF
No. 72-1. Ms. Cooney further testified that such standard
notices should let employees know that the employer has given
out the employees' contact information and that the
employees can expect a phone call. Id. 25:22-25. She
testified that communicating by letter is a better
alternative than making “a lot of phone calls” to
every affected employee. Id. 26:1-7.
DZNPS's motive for sending the Letter, Ms. Cooney has
also testified that the Letter was also intended to respond
to “questions that [she had] received over the years in
situations like this, ” such as whether employees need
to cooperate and how DZNPS would not retaliate against
employees who did cooperate, that employees could contact the
“ethic[s] hotline” if they felt retaliated
against in connection with cooperating with the
investigation, and so on. Cooney Dep. 45:1-46:1, ECF No.
72-1. She therefore testifies that the “[L]etter really
answers questions that [she had] received over the
years.” Id. 46:1-3. Her testimony also
mentions other employee questions and concerns that she had
received in the past and that were not addressed in the
Letter, including “can I get paid, ”
“[t]his is on company time, ” and “[i]s the
company paying for my lawyer.” Id. 46:3-10.
Cooney has also testified that part of the purpose for
sending out the Letter and similar notices is to find out
“what the witnesses have knowledge about, ”
regarding the EEOC charge. Cooney Dep. 54:13-20, ECF No.
72-1. She also testified that she “had no reason to
believe” that all the Letter recipients “knew
anything about the case. Id. 165:1-8. She further
agreed that DZNPS did not think it had a “legal
obligation to inform he witnesses that it had provided their
contact information to the EEOC.” Id. 47:1-5.
She also agreed that not every potential witness necessarily
needs to know the identity of the individual that filed the
EEOC charge. Id. 165:1-6.
maintains a policy that medical information that DZNPS
obtains in connection with the reasonable accommodation
process for disabled employees will be kept confidential.
Def.'s 56(a)(1) ¶ 13. Ms. Cooney has testified,
however, that after an employee files a charge with the EEOC,
the resulting process is “very different than an
employee engaging interactively with their employer” in
the reasonable accommodation process. Cooney Dep. 186:9-20,
ECF No. 75-1. Ms. Cooney has also testified that, in her
view, when there is an EEOC investigation, DZNPS needs to
“do a fact investigation, ” and the employee
filing the charge has “put the disability and/or the
denial of the accommodation at issue in the claim.”
Events after June 2014.
DZNPS sent out the Letter, Mr. Marsh testified that he was
approached by a few other individuals regarding the letter or
its contents. Def.'s 56(a)(1) ¶¶ 69-77.
Specifically, Mr. Marsh was approached by two of the Letter
recipients, Dan Petit and Henry Calderon, who discussed the
letter's contents, including the fact that Mr. Marsh had
alleged disability discrimination against DZNPS. Id.
¶¶ 69-70. Mr. Marsh also testified that he spoke to
a Mike Stebbins, a member of Local 35 who had not received
the Letter, and that Mr. Stebbins told Mr. Marsh, “I
heard you sue everybody.” Id. ¶¶
71-74. Mr. Stebbins did not tell Mr. Marsh how he had learned
about Mr. Marsh's EEOC charge. Id. ¶ 74.
Marsh has also testified that, since the Letter was sent, he
has received the same number of referrals for work from the
union hiring halls. Def.'s 56(a)(1) ¶ 78. He also
testifies, however, that he is now being laid off from every
job first. Id. Mr. Marsh has testified that he
believes that part of the reason for his now being one of the
first workers to be laid off from each job is that ...