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Equal Employment Opportunity Commission v. Day & Zimmerman NPS, Inc.

United States District Court, D. Connecticut

August 22, 2017



          Victor A. Bolden, United States District Judge.

         The 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.

         In 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 the ADA.

         The 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.

         For the 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.


         DZNPS is a maintenance and modification company that provides unionized, craft labor to its clients in the power industry[1]. Pl.'s 56(a)(1) ¶ 1, ECF No. 71.

         DZNPS 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.

         DZNPS 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.

         Dominion 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. ¶ 7.

         Once 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[2]. Id. ¶ 11.

         Whenever 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.

         A. Events in Fall of 2012

         In or 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[3]. 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.

         After 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.

         After 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) ¶ 14.

         B. EEOC Charge and Investigation

         On or 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[4]. Id. ¶ 19. DZNPS also denied any allegation that it discriminated against Mr. Marsh. Def.'s 56(a)(1) ¶ 34.

         Mr. 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 terminated.” Id.

         On 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.

         On June 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. ¶ 32.

         C. DZNPS's June 2014 Letter

         In June 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.

         Before 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).

         The 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 EEOC investigation.
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 necessary arrangements.

         Letter 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.

         Ms. 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.

         D. DZNPS Motivations for Sending Letter

         With 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.

         As to 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.

         Ms. 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.

         DZNPS 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.” Id. 186:14-20.

         E. Events after June 2014.

         After 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.

         Mr. 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 ...

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