Seyfarth Synopsis: In Flaherty v. Entergy Nuclear Operations, Inc., ___ F.3d ___, No. 18-1759, 2019 WL 7046367, at *1 (1st Cir. Dec. 23, 2019), the First Circuit struck a terminated nuclear plant security officer’s self-serving affidavit opposing summary judgment and held that he was not qualified for his position, and thus could not establish a prima facie case of disability discrimination, because his failure to disclose a medical diagnosis demonstrated untrustworthiness and a lack of reliability, both of which his job required.

Background

In 2005, military veteran Mark Flaherty applied for and received a nuclear security officer position with Entergy at a nuclear power station. The U.S. Nuclear Regulatory Commission (NRC) requires that such officers attain and hold special clearances. To obtain and retain the clearance, an individual must, among other things, “provide high assurance” of trustworthiness and reliability and pass annual assessments that evaluate those same traits.

In July 2012, Flaherty filed a claim for disability benefits with the VA based on chronic fatigue syndrome (CFS), PTSD, and other medical issues. Three weeks later, he failed to disclose on Entergy’s annual medical assessment any of the symptoms or conditions for which he was seeking VA benefits. He repeated his failure to disclose in his 2013 and 2014 assessments as well.

In 2015, Entergy asked Flaherty to work overtime. Flaherty refused, claiming he would be too tired to work. Still without knowledge of Flaherty’s medical issues, Entergy suspended him for three days. At that point, Flaherty complained to Entergy’s ethics hotline.

It was only then that Flaherty revealed that he had CFS. That triggered a hold on his clearance and an investigation, which revealed his failures to disclose his conditions. Based on those failures, Entergy found Flaherty untrustworthy and unreliable, and thus unable to hold his clearance. Entergy terminated him.

Flaherty sued for, among other things, disability discrimination. He claimed Entergy terminated him because of his CFS. Entergy moved for summary judgment, arguing Flaherty was not qualified for his position because his failure to disclose CFS until after his suspension demonstrated a lack of the trustworthiness and reliability that his clearance required. Flaherty opposed with an affidavit that, according to Entergy, contradicted Flaherty’s prior testimony about when he was diagnosed with CFS and when he first disclosed it. Agreeing with Entergy, the district court struck the affidavit and held that Flaherty failed to establish that he was qualified for his role because he violated NRC regulations requiring that officers be trustworthy and reliable. The First Circuit affirmed.

The Court’s Analysis

The ADA prohibits employers from discriminating against a “qualified individual on the basis of disability.” Qualified means that an individual can perform the essential functions of his or her position with or without accommodation. Flaherty’s ability to show qualification turned on the timing of his CFS diagnosis disclosure, and that timing turned on his affidavit.

The court first observed that plaintiffs cannot resist summary judgment with testimony that contradicts, without satisfactory explanation, clear answers to unambiguous questions at a deposition. Flaherty’s deposition testimony—he told Entergy about his CFS only after his suspension—said the court, was clear and in response to the unambiguous question: “You never told anyone you had CFS until April 29, 2015, correct?” To explain his contradictory affidavit, Flaherty argued that he misunderstood the question to reference when he disclosed his CFS to his supervisors, not his employer more broadly. The court rejected that explanation, noting that Flaherty had an attorney present at the deposition, the question made no mention of supervisors, and Flaherty had a chance to correct his testimony but declined to do so. Without a sufficient explanation for the testimonial discrepancy, the court affirmed the striking of Flaherty’s affidavit.

Without his affidavit saying that he disclosed his CFS to Entergy prior to April 2015, Flaherty’s discrimination claim crumbled. He conceded that he had to maintain his clearance to remain qualified for his position. He also implicitly conceded that a failure to disclose CFS would support Entergy’s conclusion that he was untrustworthy and unreliable. Without an affidavit to unwind his earlier deposition testimony, the undisputed facts supported only that conclusion. Given that finding, the court found that Flaherty was unqualified for his position and thus could not establish a prima facie case of disability discrimination.

Lessons Learned

Entergy obtained summary judgment even though Flaherty was plainly disabled and even though his unaccommodated disability arguably led to his termination. Key employer takeaways include:

  • Clearly define job prerequisites and anticipate possible alternatives that would achieve the same business result. The trust and reliability requirements that disqualified Flaherty were clearly spelled out and not susceptible to accommodation. Entergy was able to rely on them to avoid a costly trial.
  • Be skeptical and push back against factual assertions where appropriate, including by moving to strike when unexplainable contradictions appear.