946 F.3d 41
1st Cir.2019Background
- Flaherty worked as an armed Nuclear Security Officer at Pilgrim; NRC regulations (UAAP) required unescorted access authorization (UA) as essential to the job.
- He received VA disability benefits (including chronic fatigue syndrome (CFS) and PTSD) in October 2013 but repeatedly did not disclose CFS on Entergy medical questionnaires prior to April 2015.
- In April 2015 Flaherty reported his CFS via Entergy’s ethics hotline and provided VA records; Entergy investigated, had medical/psychological evaluators report nondisclosure and defensiveness, and revoked his UA for five years.
- Without UA Flaherty could not perform essential job functions; Entergy terminated his employment in May 2015.
- Flaherty filed MCAD/EEOC charges and sued under the ADA and Massachusetts Chapter 151B for disability discrimination and failure to accommodate; the district court struck portions of his affidavit as contradictory to his deposition and granted summary judgment to Entergy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to strike portions of Flaherty's affidavit | Flaherty said deposition questions were ambiguous/confusing and his affidavit corrected the record | Entergy said the affidavit directly contradicted clear deposition testimony and should be excluded | Court did not abuse discretion: struck affidavit statements that contradicted clear deposition answers without satisfactory explanation |
| Prima facie ADA discrimination ("qualified individual") | Flaherty argued he was qualified and had disclosed CFS earlier (affidavit statements) | Entergy argued nondisclosure showed lack of trustworthiness/reliability, permitting revocation of UA and rendering Flaherty unqualified | Court held Flaherty failed to show he was a qualified individual; loss of UA meant he could not perform essential functions—summary judgment for Entergy |
| Failure-to-accommodate / administrative exhaustion | Flaherty argued Entergy failed to accommodate (e.g., excuse overtime) | Entergy argued claims were not administratively exhausted and, in any event, accommodation would not restore UA so is moot | Court dismissed failure-to-accommodate: not exhausted and, on the merits, no accommodation would have enabled performance of essential functions without UA |
| Imputation of medical evaluators’ knowledge to Entergy | Flaherty contended medical examiners were Entergy’s agents so their knowledge of CFS should be imputed | Entergy said no evidence evaluators were aware or that their knowledge bound Entergy; argument waived below | Court rejected the imputation theory as unpreserved/unsupported |
Key Cases Cited
- Pena v. Honeywell Int'l, Inc., 923 F.3d 18 (1st Cir. 2019) (post-deposition affidavit that contradicts clear, unambiguous deposition testimony may be disregarded absent satisfactory explanation)
- Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir. 1994) (same; deposition-affidavit contradiction rule)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for discrimination claims)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard and nonmovant’s burden to present affirmative evidence)
- Bonilla v. Muebles J.J. Álvarez, Inc., 194 F.3d 275 (1st Cir. 1999) (administrative charge exhaustion requirement before filing ADA/Chapter 151B claims)
- McNelis v. Pa. Power & Light Co., 867 F.3d 411 (3d Cir. 2017) (loss of required nuclear-plant unescorted access authorization can render a security officer unable to perform essential job functions)