Labor & Employment Law Daily Nuclear security officer’s untrustworthiness about condition, not disability itself, led to discharge
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Tuesday, January 7, 2020

Nuclear security officer’s untrustworthiness about condition, not disability itself, led to discharge

By Brandi O. Brown, J.D.

A military veteran employed as a Nuclear Security Officer was deemed unqualified for his position, not because of medical diagnoses that included chronic fatigue syndrome and PTSD, but because he failed on multiple occasions to disclose them.

Reviewing a summary judgment decision in an employer’s favor in a former nuclear security officer’s claim of disability discrimination in violation of the ADA and state law, the First Circuit, agreeing with the court below, found the employee failed to establish that he was qualified for the position from which he had been terminated. The lower court had not abused its discretion in striking key statements from an affidavit submitted by the employee that purported to correct his deposition testimony regarding a key issue related to his qualification to hold the security officer position and thus his prima facie case. His repeated failure to disclose medical diagnoses led to a determination that he was neither reliable nor trustworthy, qualities that were required by regulation for authorization to hold the sensitive position (Flaherty v. Entergy Nuclear Operations, Inc., December 23, 2019, Torruella, J.).

Nuclear power station employment. In 2005, the year after the employee, a military veteran, returned from service abroad, he was hired as a nuclear security officer at a nuclear power station in Massachusetts. His position was governed by U.S. Nuclear Regulatory Commission regulations and he was subject to a program developed by his employer, the Unescorted Access Authorization Program (UAAP), to comply with those regulations. Certification under the program required an extensive background investigation, psychological and behavioral tests, and annual assessments.

In 2012, the employee filed a claim for disability benefits with the Department of Veterans Affairs. Included among the conditions he claimed were symptoms associated with chronic fatigue syndrome (CFS) and posttraumatic stress disorder (PTSD). However, although he filed a disability claim for those issues with the VA, he did not report those conditions in his job-related annual assessments in 2012 or 2013. In fact, he denied experiencing symptoms of PTSD despite a direct question related specifically to that condition.

Disability benefits. In 2013, the VA granted his request for disability benefits for CFS, PTSD, and other physical conditions. Although the employee applied for short-term medical leave in 2014, with his doctor’s statement noting that he was struggling with anxiety, depressive symptoms, and insomnia and that he had been diagnosed with PTSD and Prolonged Depressive Disorder, neither he nor his physician referenced his CFS symptoms or diagnosis. Again, the employee did not include that information in his annual assessment.

Disclosure to employer. In February 2015, the employee was disciplined for refusing to work a mandatory overtime shift, a refusal he based on anticipated fatigue. He was suspended and submitted a complaint, referencing his status as a disabled veteran and that he suffered from CFS. Shortly thereafter, the employer placed a hold on his unescorted access authorization pending investigation into his disclosure. He was subjected to medical and psychological evaluation and the physician deemed him unacceptable for unescorted access in light of his failure to be forthcoming about his previous and ongoing medical diagnoses. In turn, the employer concluded that he did not satisfy the requirements for continued authorization because he did not satisfy NRC regulation requirements for “trustworthiness and reliability.” As a result, he could no longer work as a security officer and his employment was terminated.

He filed an administrative charge and subsequently filed suit. The employer filed a motion for summary judgment, after which the employee filed an opposition accompanied by his own affidavit. The court granted the employer’s motion to strike portions of that affidavit and also granted the summary judgment motion. The employee appealed.

Affidavit statements properly stricken. The district court did not abuse its discretion in striking portions of the affidavit, the appeals court concluded. The excerpts in question related to the date of the employee’s initial CFS diagnosis and the date on which he disclosed that diagnosis to the employer. In the employee’s deposition he testified that he did not disclose the diagnosis until April 2015, but he stated in his subsequent affidavit that he had, in fact, disclosed it as early as July 2014. He sought to explain the change by arguing that he was confused by the context in which he was asked the question at deposition (the question was, “[Y]ou never told anyone you had chronic fatigue until April 29, 2015, correct?,” and to which he answered, “That’s correct.”)

The district court’s determination that the employee’s explanation for the change (confusion) was unsatisfactory was not a clear abuse of its discretion, the appeals court concluded, particularly in light of the centrality of the timing question. The appeals court agreed that both the question and the response were “clear and direct.” The court also noted that the employee was represented at the deposition by an attorney and had ample opportunity prior to the employer’s dispositive motion to note any corrections.

The employee’s arguments with regard to testimony related to when he was first diagnosed likewise held little sway with the appeals court, which noted that even if the employee was not aware of his diagnosis until late 2013, as he now argued, he had “nevertheless waited eighteen months” to tell his employer about the diagnosis.

Not qualified. The employee conceded that he needed to maintain his unescorted access authorization to remain qualified for the security officer position. He also “implicitly” conceded that a finding that he intentionally failed to disclose his CFS diagnosis until 2015 would support the conclusion that he was untrustworthy and unreliable and, therefore, that access was properly revoked. The employee’s defense primarily focused on the contention that he had twice disclosed the diagnosis before April 2015. However, with those portions of the affidavit stricken, the employee offered no evidence that the employer was aware of the diagnosis prior to April 2015.

Because the employee could not prove that he was qualified for the position he held (because the employer had been entitled to revoke his authorization) he could not make out a prima facie case of disability discrimination. Moreover, because the undisputed evidence included the employee’s admission that the authorization was necessary to perform the essential functions of his position, his claim for failure to accommodate likewise failed.

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