Equal Emp't Opportunity Comm'n v. Day & Zimmerman NPS, Inc., 15–cv–1416 (VAB)

• Decision Date: 22 August 2017
• Docket Number: No. 15–cv–1416 (VAB),15–cv–1416 (VAB)
• Court: U.S. District Court — District of Connecticut
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. DAY & ZIMMERMAN NPS, INC., Defendant.

265 F.Supp.3d 179

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.DAY & ZIMMERMAN NPS, INC., Defendant.

No. 15–cv–1416 (VAB)

United States District Court, D. Connecticut.

Signed August 22, 2017

Raechel Lee Adams, Justin Mulaire, Robert David Rose, U.S. Equal Employment Opportunity Commission, New York, NY, Sara Smolik, U.S. Equal Employment Opportunity Commission, Boston, MA, Rosemary Disavino, U.S. Equal Employment Opportunity Commission, Newark, NJ, for Plaintiff.

Kimberly Gost, William J. Simmons, Littler Mendelson, P.C., Philadelphia, PA, Stephen P. Rosenberg, Littler Mendelson, P.C., New Haven, CT, Theane Evangelis, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher—LA, CA, Los Angeles, CA, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

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.

I. FACTUAL BACKGROUND

DZNPS is a maintenance and modification company that provides unionized, craft labor to its clients in the power industry¹ . 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 down² . 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 Millstone³ . 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 DZNPS⁴ . 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...