Day & Zimmerman Letter to Workers During EEOC Probe Spurs Trial

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By Patrick Dorrian

Day & Zimmerman NPS Inc. must face trial on allegations it interfered with federal job protections of a disabled former employee and more than 140 other employees who were potential witnesses in an EEOC discrimination investigation. A federal judge said that a letter the company sent to 146 electricians divulging details of the discrimination charge may have violated the federal rights of the letter recipients and the former employee who brought the charge.

A jury could find the letter “had a reasonable tendency to coerce or intimidate the recipients” and Gregory Marsh, the charging party, from exercising their rights under the Americans with Disabilities Act, the U.S. District Court for the District of Connecticut said Aug. 22 ( EEOC v. Day & Zimmerman NPS, Inc. , 2017 BL 294158, D. Conn., No. 15-cv-1416, 8/22/17 ).

The case invokes the ADA’s rarely used “interference provision.” It’s “an important case and an important issue” because it involves the potential chilling of workers’ rights to participate in the EEO process, Raechel L. Adams, an attorney in the Equal Employment Opportunity Commission’s New York office, told Bloomberg BNA Aug. 23. Adams, who represents the agency together with other attorneys in the EEOC’s New York, Boston, and Newark, N.J., offices, declined to comment further on the ruling because “the case is still pending.”

Marsh, a fired electrician and a member of IBEW Local 35, prompted the investigation when he told the EEOC that the construction, engineering, and staffing company, which provides unionized, craft labor to power companies, discriminated against him based on disability. According to Marsh, Day & Zimmerman assigned him to work at a Dominion Power nuclear power station in Waterford, Conn., but he lost the assignment when he revealed that his lung disease prevented him from working around radiation and he requested a job accommodation.

The court said trial also is necessary on the EEOC’s separate claim that the company’s letter amounted to retaliation against Marsh for filing his charge of discrimination. Day & Zimmerman said the letter from its in-house counsel was sent to the recipients—whose contact information was turned over to the EEOC as part of its investigation—as a courtesy and to minimize disruptions to its business. But the court said it found evidence that could rebut the company’s contention. For example, the letter didn’t need to disclose Marsh’s identity, the specific allegations in his EEOC charge, or the actual accommodations he sought for his sensitivity to radiation, the court said.

Disability Rights Connecticut, which participated as an amicus in the case, said Day & Zimmerman’s letter amounted to both interference and retaliation. “It is important that defendants understand that they do not have carte blanche to violate the privacy of ADA plaintiffs and to essentially threaten employees that they will lose their privacy if they file an ADA complaint. It seems as if the Court agreed with this position,” Nancy B. Alisberg, the group’s legal director, told Bloomberg BNA in an Aug. 23 email. Disability Rights Connecticut participated in the case on behalf of the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities.

Day & Zimmerman didn’t respond Aug. 23 to Bloomberg BNA’s request for comment.

Rare Claim

The EEOC may proceed to trial on its ADA interference claim even though Day & Zimmerman argued that there is no evidence the company sent the letter with an improper motive, that the letter threatened reprisal against any of the recipients, or that the letter actually deterred any of them from pursuing their ADA rights, Judge Victor A. Bolden said.

The ADA’s interference provision has a broad sweep and even protects workers who haven’t engaged in protected activity, like most of the letter recipients, Bolden said. All that’s required to establish a claim under the provision is evidence of employer action that might coerce or intimidate a worker into not exercising his ADA rights, he held.

Noting that the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit haven’t “yet outlined a legal test” for ADA interference claims, the judge drew guidance from the “sparse” case law from outside the circuit interpreting the ADA’s interference provision, as well as cases from inside and outside the circuit interpreting a similar provision in the National Labor Relations Act. A reasonable jury could find that the letter sent by Day & Ziimmerman “could have the effect of interfering with or intimidating the Letter’s recipients with respect to communicating with the EEOC about possible disability discrimination,” Bolden said.

On the retaliation claim, the court rejected the company’s contention that its dissemination of the letter wasn’t an adverse employment action for purposes of the ADA. The court declined to decide that issue as a matter of law in a previous ruling, and Day & Zimmerman didn’t point to any intervening change in the law that would require the court to disturb that prior decision, Bolden said. Moreover, Marsh testified that dissemination of the letter has caused him to be let go first when the clients to which he is assigned conduct layoffs and that he no longer is referred for jobs posted by Day & Zimmerman, the court said.

The argument that the EEOC didn’t establish the causal link between a protected activity and an adverse employment action needed to prove retaliation also failed, the court ruled. Day & Zimmerman’s dissemination of the letter three months after the EEOC requested contact information for the 146 other electricians might, on its own, be enough to show a causal connection, the court said. Plus, the letter expressly refers to Marsh’s charge and the agency’s ensuing investigation, it added. Thus, the letter “is clearly a response to those things,” the court wrote.

Stephen P. Rosenberg in New Haven, Conn., and Kimberly Gost and William J. Simmons in Philadelphia, all of Littler Mendelson P.C., represented Day & Zimmerman.

Ronald W. Taylor in Baltimore and Benjamin E. Stockman and Doreen S. Martin in New York, all of Venable LLP, and Barry J. Waters of Murtha Cullina in New Haven represented the National Association of Manufacturers as an amicus.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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