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Case 3:15-cv-01416-VAB Document 20 Filed 12/21/15 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION,
)
)
Plaintiff,
)
)
v.
)
)
DAY & ZIMMERMANN NPS, INC.,
)
)
Defendant.
)
)

CIVIL ACTION NO. 3:15-cv-01416 (VAB)

Filed: December 21, 2015

______________________________________________________________
PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COMPLAINT

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iv
I.

INTRODUCTION……………………………………………………………………1

II.

LEGAL STANDARD ..................................................................................................3

III.

ARGUMENT ...............................................................................................................4
A. The Facts Alleged in the Complaint State a Claim Against DZNPS
for Violation of Section 503(a) of the ADA. ...........................................................4
1. Publication of an employee’s disability discrimination
charge, along with the details of the medical restrictions
placed on the employee as a result of his disability, is a
materially adverse action because it could dissuade a
reasonable person from making a charge of discrimination. ....................5
a. DZNPS ignores the appropriate standard
for determining that an action is “materially
adverse” for purposes of a retaliation claim. .......................5
b. Federal courts, applying the Burlington North
standard, have repeatedly recognized that
publication of information related to an
employee’s administrative charge may be
materially adverse, satisfying the adverse action
element of a retaliation claim. ..............................................8
2. Plaintiff has pled sufficient facts to satisfy the causation
element of its Section 503(a) claim. .......................................................12
B. The Facts Alleged in the Complaint State a Claim Against DZNPS
for Violation of Section 503(b) of the ADA. .........................................................15
1. Defendant’s letter constituted interference with rights
secured by the ADA. ...............................................................................16
2. An employee need not be actively exercising his or her
ADA-protected rights to be a victim under Section 503(b). ...................18
3. EEOC has alleged a causal connection between Defendant’s
interference and the enjoyment of rights protected by the ADA. ...........20
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C. DZNPS’s Post-Hoc Justifications for Its Conduct Do Not Merit
Dismissal of the Complaint Pursuant to Federal Rule 12(b)(6).............................22
D. An Employer’s Rights to Communicate With Its Employees
Are Not Absolute. ..................................................................................................25
1. Defendant’s right to communicate with its employees, as
protected by the First Amendment or otherwise, does not
relieve it of its obligations under the ADA. ............................................25
2. No court has recognized an absolute litigation privilege
that insulates employers from claims of retaliation under
the employment discrimination laws. .....................................................29
E. EEOC’s Damages Request and Demand for a Jury Trial Are Appropriate. ..........32
1. EEOC may seek monetary relief for Marsh pursuant to
Plaintiff’s section 503(a) claim. ..............................................................33
2. EEOC is entitled to a jury trial on its section 503(a) claim. ...................36
3. EEOC may seek injunctive relief for Defendant’s violation
of section 503(b). ....................................................................................37
CONCLUSION .............................................................................................................................39

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TABLE OF AUTHORITIES
Cases
Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009) ............................................... 32
Amar v. New York City Health & Hosps. Corp.,No. 14-2502, 2015 U.S. Dist. LEXIS 77718
(S.D.N.Y. June 15, 2015).......................................................................................................... 14
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 3
Austen v. Catterton Partners V, LP, 831 F. Supp. 2d 559 (D. Conn. 2011) ................................. 26
Bachelder v. Am. W. Airlines, Inc., 259 F. 3d 1112 (9th Cir. 2001) ............................................. 16
Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009) ........................ 34, 35
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................ 3, 4
Bingham v. Oregon Sch. Activities Ass’n, 24 F. Supp. 2d 1110 (D. Or. 1998) ............................ 16
Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) ........................................................................ 26
Booth v. Pasco Cty., Fla., 829 F. Supp. 2d 1180, 1192 (M.D. Fla. 2011) ...................................... 9
Breimhorst v. Educ. Testing Serv., No. Civ.A. 99–3387, 2000 WL 34510621 (N.D. Cal. Mar. 27,
2000) ................................................................................................................................... 19, 20
Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003).................................................. 15, 16, 18
Brown v. Daikin America, Inc., 756 F.3d 219 (2d Cir. 2014)................................................... 4, 22
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) .......................................................................... 6
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ........................... 2, 6, 7, 8, 10, 33
CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008)................................................................ 34
Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) ..................................................... 24
City of Austin Police Ret. Sys. V. Kinross Gold Corp., 957 F. Supp. 2d 277 (S.D.N.Y. 2013).... 23
Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225 (D. Kan. 2007) .................... 16
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Conneen v. MBNA AM. Bank, N.A., 182 F. Supp. 2d 370 (D. Del. 2002) .................................... 28
Craig v. Stafford Construction, Inc., 271 Conn. 78 (2004) .......................................................... 31
Dawson v. County of Westchester, 373 F.3d 265 (2d Cir. 2004).................................................... 6
Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994) ....................................... 19, 21
Doner-Hendrick v. New York Inst. of Tech., No. 11-121, 2011 U.S. Dist. LEXIS 72714
(S.D.N.Y. July 5, 2011) ............................................................................................................ 31
Edwards v. Brookhaven Science Associates, LLC, 390 F. Supp. 2d 225 (E.D.N.Y. 2005) ... 32, 33,
34, 36, 37
EEOC v. Dolgencorp, LLC, No. 13-cv-04307, 2015 WL 2148394 (N.D. Ill. May 5, 2015) ....... 11
EEOC v. JBS USA, LLC, No. 8:10CV318, 2012 WL 169981 (D. Neb. Jan. 19, 2012) ............... 11
EEOC v. K&J Mgmt., Inc., No. 99-8116, 2000 U.S. Dist. LEXIS 8012 (N.D. Ill. June 7, 2000) .. 6
EEOC v. L.B. Foster, 123 F.3d 746 (3d Cir. 1997) ...................................................................... 17
EEOC v. Morgan Stanley & Co., 206 F. Supp. 2d 559 (S.D.N.Y. 2002) ..................................... 27
EEOC v. OhioHealth Corp., 2:13-cv-780, 2014 WL 5323068 (S.D. Ohio, Oct. 17, 2014) ......... 11
EEOC v. Outback Steakhouse of Fla., Inc., 75 F. Supp. 2d 756 (N.D. Ohio 1999) ..................... 30
EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) ....................................................................... 38
Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005) ..................................................... 35
Farrar v. Town of Stratford, 537 F. Supp. 2d 332 (D. Conn. 2008)............................................. 15
Flores v. Mamma Lombardis of Holbrook, Inc., 942 F. Supp. 2d 274 (E.D.N.Y. 2013) ............. 30
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) .................................... 18, 19, 20, 21
Franklin v. Local 2 of the Sheet Metal Workers Int’l Ass’n, 565 F.3d 508 (8th Cir. 2009) ......... 24
Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) ....................................................... 12
Galiano v. Fid. Nat’l Title Ins. Co., 684 F.3d 309 (2d Cir. 2012) .................................................. 3

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Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81 (D. Conn. 2006) ........................................... 6
Gomez-Perez v. Potter, 553 U.S. 474 (2008) ............................................................................... 35
Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000) ................................................... 14
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) ................................................ 13
Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481 (7th Cir. 2015) ........................... 6, 8, 13, 24
Gulf Oil Comp. v. Bernard, 452 U.S. 89 (1981) ........................................................................... 27
Halliburton, Inc. v. Admin. Review Bd., 771 F. 3d 254 (5th Cir. 2014) ................................... 8, 10
Hashimoto v. Dalton, 118 F. 3d 671 (9th Cir. 1997) .................................................................... 17
Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) ............................................................................. 7, 8
Hollis v. Dep’t of Metal Health & Addictive Servs., No. 14-516, 2015 U.S. Dist. LEXIS 121668
(D. Conn. Sept. 11, 2015) ......................................................................................................... 14
Hopkins v. Bridgeport Bd. of Educ., 834 F. Supp. 2d 58 (D. Conn. 2011) .............................. 8, 13
Howard v. City of New York, 602 Fed. Appx. 545 (2d Cir. 2015)................................................ 14
Husser v. New York City Dep’t of Educ., No. 12-CV-6095 MKB JO, 2015 WL 5774741
(E.D.N.Y. Sept. 30, 2015) ............................................................................................... 7, 10, 13
In re Initial Pub. Offering Sec. Litig., 499 F. Supp. 2d 415 (S.D.N.Y. 2007) .............................. 27
Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp. 2d 351 (E.D.N.Y. 2008) ................ 33
Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005)........................................ 34, 37
John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ............................................................. 26
Johnson v. Meachum, 839 F. Supp. 953 (D. Conn. 1993) ............................................................ 22
Joseph v. Leavitt, 465 F.3d 87 (2d Cir. 2006)................................................................................. 6
Kleiner v. First Nat. Bank of Atlanta, 751 F. 2d 1193 (11th Cir. 1985) ....................................... 27
Kramer v. Banc of Am. Sec. LLC, 355 F.3d 961 (7th Cir. 2004) .................................................. 32

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Lee Pharmaceuticals v. Mishler, 526 F.2d 1115 (2d Cir. 1975) .................................................. 37
Lewis v. Boehringer Ingelheim Pharm., Inc., 79 F. Supp. 3d 394 (D. Conn. 2015)....................... 6
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) ....................... 20, 32, 36
Marchuk v. Faruqi & Faruqi, LLP, No. 13-1669, 2015 U.S. Dist. LEXIS 9806 (S.D.N.Y. Jan.
28, 2015) ..................................................................................................................................... 7
McMahan v. UMG Mfg. & Logistics, Inc., No. 1:06-cv-1149, 2008 WL 906152 (S.D. Ind. Mar.
31, 2008) ................................................................................................................................... 19
McMiller v. Precision Metal Products, Inc., No. 3:13-CV-577 VAB, 2015 WL 4886460 (D.
Conn. Aug. 17, 2015).................................................................................................................. 7
Mendez v. Enecon Northeast Applied Polymer Sys., No. 14-6736, 2015 U.S. Dist. LEXIS 90794
(E.D.N.Y. July 13, 2015) .......................................................................................................... 26
Mogenhan v. Napolitano, 613 F. 3d 1162 (D.C. Cir. 2010) ............................................... 8, 11, 24
Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998) ......................................... 15
Muller v. Costello, 187 F. 3d 298 (2d Cir. 1999).......................................................................... 32
Munck v. New Haven Sav. Bank, 251 F. Supp. 2d 1078 (D. Conn. 2003) .................................... 18
New York Univ. Med. Ctr. v. NLRB, 156 F.3d 405 (2d Cir. 1998) ................................... 16, 17, 20
Nieman v. RLI Corp., No. 12-1012, 2012 U.S. Dist. LEXIS 25378 (C.D. Ill. Feb. 28, 2012), .... 31
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .................................................... 17, 20, 27, 28
Norflet v. John Hancock Fin. Serv., Inc., 422 F. Supp. 2d 346 (D. Conn. 2006) ......................... 38
O’Hazo v. Bristol-Burlington Health Dist., 599 F. Supp. 2d 242................................................. 14
Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74 (E.D.N.Y. 2013) ................................................... 30
Oorah, Inc. v. Schick, 552 Fed. Appx. 20 (2d Cir. 2014) ............................................................. 37
Piesco v. City of New York, 933 F.2d 1149 (2d Cir. 1991) ........................................................... 12

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Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85 (2d Cir. 2010) ................. 5, 10, 13
Ray v. Ropes & Gray LLP, 961 F. Supp. 2d 344 (D. Mass. 2013) ............................... 9, 10, 25, 28
Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143 (4th Cir. 2012) .................................................. 28
Ridgeway v. Royal Bank of Scto. Group, No. 11-976, 2013 U.S. Dist. LEXIS 67822 (D. Conn.
May 13, 2013) ........................................................................................................................... 22
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11 (2d Cir. 2012) ......................... 4, 6
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ....................................................................... 8, 35
Rolfe v. Lawrence & Mem'l Hosp., No. 3:10-CV-80 RNC, 2013 WL 5435507 (D. Conn. Sept.
30, 2013) ................................................................................................................................... 10
Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th Cir. 1995) ........................................................ 19
Seguin v. Marion Cnty Health Dep’t, No. 13-96, 2014 U.S. Dist. LEXIS 112110 (M.D. Fla. Aug.
13, 2014) ................................................................................................................................... 22
Sista v. CDC Ixis North Am., Inc., 445 F.3d 161 (2d Cir. 2006) .................................................... 4
Smith v. United States, 508 U.S. 223 (1993) ................................................................................ 36
Spector v. Bd. of Trustees of Community-Technical Colleges, 463 F. Supp. 2d 234 (D. Conn.
2006) ......................................................................................................................................... 31
Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998) ...................................................................... 6
Stoddard v. Eastman Kodak Co., 309 Fed. Appx. 475 (2d Cir. 2009) ......................................... 14
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ........................................................................ 3
Tepperwien v. Entergy Nuclear Operations, Inc., 663 F. 3d 556 (2d Cir. 2011) ..................... 6, 29
Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447 (S.D.N.Y. 2008) ............................. 30
Trachtenberg v. Dep’t of Educ., 937 F. Supp. 2d 460 .................................................................... 4
Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010) ............................................................ 19

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Urtubia v. B.A. Victory Corp., 857 F. Supp. 2d 476 (S.D.N.Y. 2012) ......................................... 27
Vess v. Scott Med. Corp., No. 11-2549, 2013 U.S. Dist. LEXIS 39812 ....................................... 22
Walker v. Braes Feed Ingredients, Inc., No. 02-9236, 2003 U.S. Dist. LEXIS 6873 (N.D. Ill.
Apr. 22, 2003) ........................................................................................................................... 28
Walker v. City of Lakewood, 272 F.3d 114 (9th Cir. 2001) .......................................................... 18
Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int’l, Inc., 455 F.2d 770 (2d Cir.
1972) ......................................................................................................................................... 26
Wheeler v. Natale, 137 F. Supp. 2d 301 (S.D.N.Y. 2001) ............................................................ 12
Wiggins v. DaVita Tidewater, LLC, 451 F. Supp. 2d 789 (E.D. Va. 2006) .................................. 28
Wray v. Nat’l R.R. Passenger Corp., 10 F. Supp. 2d 1036 (E.D. Wis. 1998) .............................. 19
Statutes
42 U.S.C. § 12112 ......................................................................................................................... 28
42 U.S.C. § 12117 ................................................................................................................... 33, 38
42 U.S.C. § 12203 ................................................................. 1, 2, 3, 5, 7, 15, 18, 20, 21, 32, 33, 35
42 U.S.C. § 1981 ........................................................................................................................... 34
42 U.S.C. § 2000e-5................................................................................................................ 34, 38
Civil Rights Act of 1991 ............................................................................................................... 35
Conn. Gen. Stat. Ann. § 31-128f .................................................................................................. 23
Regulations
29 C.F.R. § 1601.22 ................................................................................................................ 10, 23
Rules
Fed. R. Civ. P. 12(b)(6)........................................................................................................... 22, 26
Other Authorities
EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of
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Employees Under the Americans With Disabilities Act (ADA) ................................................ 9
Mark C. Weber, Workplace Harassment Claims under the Americans with Disabilities Act: A
New Interpretation, 14 Stan. L. & Pol’y Rev. 241 (2003)........................................................ 35

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I.

INTRODUCTION
The Americans with Disabilities Act (“ADA”), as amended, confers important rights

upon American workers. These include the right to communicate freely with the Equal
Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing the
ADA, and the right to file a charge of discrimination with EEOC. To ensure that employees’
retain their freedom to exercise these rights, the ADA contains broad prohibitions against
retaliation. In addition to prohibiting discrimination against one who has “opposed any act or
practice made unlawful by this chapter or because such individual made a charge, testified,
assisted or participated in any manner in an investigation, proceeding, or hearing under [the]
chapter,” 42 U.S.C. § 12203(a) (“section 503(a)”), the statute prohibits interference, coercion and
intimidation. 42 U.S.C. § 12203(b) (“section 503(b)”). Specifically, the ADA makes it
“unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her
having aided or encouraged any other individual in the exercise or enjoyment of any right
protected by this chapter.” Id.
The right to file a charge of disability discrimination with EEOC is among those
protected by the ADA’s anti-retaliation provision. Moreover, employers may not interfere with,
or chill, employees’ right to communicate with the Commission. As alleged in the Complaint,
Day & Zimmermann, NPS (“DZNPS”) has violated both the ADA’s anti-retaliation clause (§
503(a)) and its interference provision (§ 503(b)). After Charging Party, Gregory Marsh
(“Charging Party” or “Marsh”), filed his charge of discrimination with the Commission, and
after EEOC sought contact information from DZNPS for witnesses, Defendant sent a letter to all
146 employees who had worked at the job site during the period in question with the subject line:
“Information Requested by Equal Employment Opportunity Commission.” The letter was on
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Defendant’s letterhead and signed by Lisa Ann Cooney, the company’s Senior Labor &
Employment Counsel. In the letter, DZNPS:
 Stated that EEOC was requiring it to provide a list of all electricians it employed
at the worksite during the period relevant to the charge, including contact
information and dates of employment;
 Identified Marsh, by name, as having filed a charge of disability discrimination
and explained that EEOC sought information in conjunction with the investigation
of that charge;
 Identified Marsh’s union local;
 Identified the medical restrictions placed on Marsh’s ability to work (that “he
could not work in an area that had radiation, or be around radiation, chemicals or
exposure”);
 Identified the accommodation Marsh had requested;
 Informed the witnesses of their right to refuse to speak to the EEOC’s
investigator;
 Offered the witnesses the option to have counsel for Defendant present while
speaking to EEOC;
 Provided the name and telephone number of DZNPS’s outside counsel at Littler
Mendelson.
See June 17, 2014 Letter from Lisa Ann Cooney, attached as Exhibit A to Defendant’s Motion
(ECF No. 13-1, at 46).
By publicizing the content of Marsh’s charge of discrimination – including that the
charge alleged disability discrimination, the nature of Marsh’s medical restrictions, the form of
accommodation he sought, and the union local of which he was a member – DZNPS violated §
503(a) of the ADA. This conduct – taken in direct reaction to Marsh’s act of filing a claim with
EEOC and EEOC’s investigation of that charge – would dissuade a reasonable worker from
reporting discrimination to the Commission and from pursuing a charge. See Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). DZNPS’s letter sent a clear message to its
146 recipients that complaints to EEOC about Defendant would be met with widespread
publication of both the fact of the charge and of personal details (such as a requested disability
accommodation). The letter’s statement that employees could refuse to speak with the

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Commission, or could request the presence of Defendant’s counsel at any meeting, left no
mistake that DZNPS’s preference was that employees decline to participate in EEOC’s
investigation entirely. This conduct is the very type of interference with ADA-protected rights
that is prohibited by § 503(b). The intended effect of Defendant’s letter was to chill the
employees’ freedom to exercise and enjoy their statutory rights under the ADA, including the
right to communicate with EEOC, to participate in the investigation of a charge, or to file a
charge of their own.
As set forth below, Defendant’s motion should be denied. The conduct described in
Plaintiff’s Complaint sets out a violation of §§ 503(a) and 503(b) of the ADA. The ADA, when
properly read in conjunction with the incorporated sections of Title VII, as amended by the Civil
Rights Act of 1991, provides compensatory and punitive damages for violations of § 503(a) and
guarantees the right to a jury trial. Furthermore, the injunctive relief for violations of § 503(b),
as sought here, is appropriate.
II.

LEGAL STANDARD
When resolving a motion to dismiss, the Court must “construe the Complaint liberally,

accepting all factual allegations in the Complaint as true, and drawing all reasonable inferences
in plaintiff’s favor.” Galiano v. Fid. Nat’l Title Ins. Co., 684 F.3d 309, 311 (2d Cir. 2012). In a
discrimination action, the plausibility standard described in Ashcroft v. Iqbal, 556 U.S. 662
(2009) applies in conjunction with the standard for pleading employment discrimination. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (affirming holding in Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 (2002), that employment discrimination plaintiffs are not subject
to a heightened pleading standard). A plaintiff need not plead facts establishing a prima facie
case to survive a motion to dismiss; it is enough to plead facts that give rise to an inference that

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the employee was subject to discrimination. See Brown v. Daikin America, Inc., 756 F.3d 219,
228-29 (2d Cir. 2014) (reversing district court’s dismissal of Title VII claims).
III.

ARGUMENT

A. The Facts Alleged in the Complaint State a Claim Against DZNPS for Violation of
Section 503(a) of the ADA.
Retaliation claims under § 503(a) of the ADA employ the same prima facie case as
retaliation claims under Title VII: EEOC must demonstrate that (a) Marsh engaged in protected
activity; (b) DZNPS was aware of his protected activity; (c) DZNPS “took adverse action
against” Marsh; and (d) a causal connection existed between the protected activity and the
adverse action. Sista v. CDC Ixis North Am., Inc., 445 F.3d 161, 177 (2d Cir. 2006). The
Complaint alleges facts as to each of these elements, setting forth a plausible claim to relief. See
Twombly, 550 U.S. at 556 (complaint must plead “enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence of [plaintiff’s claim].”); Trachtenberg v. Dep’t of
Educ., 937 F. Supp. 2d 460, 466 (pleading elements of prima facie case “provide an outline of
what is necessary to render a plaintiff’s employment discrimination claims for relief plausible.”)
(internal citations omitted). EEOC alleges – and Defendants cannot dispute – that Marsh filed a
charge of discrimination with the Commission in October 2012. Compl., ¶ 17(b). There is no
question that filing a charge of discrimination with EEOC constitutes protected activity. See
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 25 (2d Cir. 2012). Nor is there
any question that DZNPS was aware of this protected activity, satisfying the second element of
the claim. See Compl., ¶ 17(c) – (j).1 Further, EEOC has alleged sufficient facts to support its
claim that DZNPS took adverse action against Marsh, specifically that Defendant publicized

1

The content of Defendant’s June 17, 2014 letter confirms DZNPS’s knowledge of Marsh’s protected
activity at the time Defendant took adverse action against Charging Party.

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Marsh’s disability discrimination charge, including facts about the medical restrictions placed on
his ability to work as a result of his disability and the specific accommodation Marsh had sought,
identified Marsh by name as the source of the charge, and identified him as a member of his
union local. See Compl., ¶¶ 17(e) – (h); 18.
DZNPS argues that EEOC’s § 503(a) claim should be dismissed because the conduct at
issue – Defendant’s June 17, 2014 letter – can never rise to the level of a materially adverse
action for purposes of a retaliation claim. DZNPS further argues that Plaintiff has failed to state
sufficient facts to satisfy the causation element of the claim. As set forth below, DZNPS is
incorrect with respect to both of these arguments, and its motion to dismiss EEOC’s § 503(a)
claim should be denied.
1. Publication of an employee’s disability discrimination charge, along with the
details of the medical restrictions placed on the employee as a result of his
disability, is a materially adverse action because it could dissuade a reasonable
person from making a charge of discrimination.
DZNPS asserts that EEOC has failed to state a claim for violation of § 503(a) because it
has not alleged sufficient facts to indicate that Marsh suffered any adverse action as a result of
the company’s conduct. D’s Br. at 11-17; 26-29. DZNPS contends that while the publication of
details of an employee’s disability discrimination charge may cause a “bruised ego,” it cannot
constitute a materially adverse action for the purposes of a retaliation claim. See D’s Br. at 27.
Despite its effort to minimize the harmful effect of its retaliatory conduct, DZNPS grossly
misstates the standard for finding an action materially adverse under § 503(a).
a. DZNPS ignores the appropriate standard for determining that an action
is “materially adverse” for purposes of a retaliation claim.
Because of the similarity between the language in § 503(a) of the ADA and Title VII’s
anti-retaliation provision, courts have interpreted the analogous provisions uniformly. See, e.g.,
Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85, 90 (2d Cir. 2010). Importantly,
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courts will apply to ADA retaliation claims the standard for adverse action adopted by the
Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a case
interpreting Title VII. See Lewis v. Boehringer Ingelheim Pharm., Inc., 79 F. Supp. 3d 394, 413
(D. Conn. 2015) (noting that adverse actions in the retaliation context of the ADA are “defined
more broadly than the discrimination context”); Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d
81, 89 (D. Conn. 2006). Under the standard announced in Burlington Northern, an action need
not affect the terms and conditions of employment to be “materially adverse” for the purposes of
a retaliation claim. Burlington Northern, 548 U.S. at 67. Rather, an adverse action exists if “a
reasonable employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 69 (internal citations omitted).2
As the Second Circuit has noted, when determining whether or not conduct alleged to be
retaliatory is “materially adverse,” “[c]ontext matters, as some actions may take on more or less
significance depending on the context.” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.
3d 556, 568 (2d Cir. 2011); see also Rivera, 743 F.3d at 26-27 (reversing, in part, district court’s
award of summary judgment and finding that supervisor’s comment that filing an EEOC charge
2

Despite this clear and well-established precedent, DZNPS relies extensively on cases decided prior to
Burlington Northern in support of its argument that EEOC has failed to plead sufficient facts to give rise to an
inference that Marsh suffered an adverse action. See D’s Br. at 26-28 (citing Burlington Indus. v. Ellerth, 524 U.S.
742, 761 (1998); Dawson v. County of Westchester, 373 F.3d 265, 272-73 (2d Cir. 2004); Steffes v. Stepan Co., 144
F.3d 1070, 1075-76 (7th Cir. 1998) (refusing to recognize an absolute litigation privilege insulating all conduct
taken during course of litigation from scope of Title VII’s anti-retaliation provision and stating that “some actions
taken in the course of litigation could conceivably constitute retaliation.”); EEOC v. K&J Mgmt., Inc., No. 99-8116,
2000 U.S. Dist. LEXIS 8012, at *12 (N.D. Ill. June 7, 2000)). Although the factual circumstances in Steffes are
similar to the instant case, it is of little persuasive value as the Seventh Circuit in Steffes did not have the benefit of
the Supreme Court’s decision in Burlington Northern, eight years later. Cf. Greengrass v. Int’l Monetary Sys. Ltd.,
776 F.3d 481, 485 (7th Cir. 2015) (discussed below, infra, pp. 8-9). And while Joseph v. Leavitt, 465 F.3d 87, 89-90
(2d Cir. 2006), cited by Defendant, was decided three months after Burlington Northern, it did not consider the
standard for establishing an adverse employment action for purposes of a claim of retaliation, and the case’s
discussion of what constitutes an adverse action under other theories of discrimination is irrelevant to the case at bar.

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“could get [him] fired” constituted adverse action under Burlington Northern standard). “There
is also no bright-line test for determining what constitutes an adverse employment action.”
McMiller v. Precision Metal Products, Inc., No. 3:13-CV-577 VAB, 2015 WL 4886460, at *8
(D. Conn. Aug. 17, 2015). Moreover, “the scope of actions that may be materially adverse for
purposes of a […] retaliation claim is broader than those actions prohibited by [the statute’s]
anti-discrimination provisions and ‘extends beyond workplace-related or employment-related
retaliatory acts and harm.’” Husser v. New York City Dep’t of Educ., No. 12-CV-6095 MKB JO,
2015 WL 5774741, at *14 (E.D.N.Y. Sept. 30, 2015) quoting Hicks v. Baines, 593 F.3d 159, 165
(2d Cir. 2010) (discussing retaliation claims under the analogous provision of Title VII).
Under this standard, a jury could conclude that Defendant’s June 17, 2014 letter
constitutes an adverse action under § 503(a)’s retaliation provision. The letter was sent to 146
members of Marsh’s union local, it identified Marsh by name and as a member of Local 35, it
stated that the basis of his charge was disability discrimination, and it disclosed the medical
limitation placed on Marsh by his doctor because of his disability. Compl. ¶ 17 (d)–(h). As
described in Burlington Northern, such an action “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. The message sent by
DZNPS was clear: those who file charges with EEOC risk having the fact of their filing, and the
circumstances of their complaint, including sensitive medical information, broadly exposed to
members of their union local, on which they rely for future job referrals. Such conduct
constitutes an adverse action under § 503(a).3

3

Defendant’s reliance on Marchuk v. Faruqi & Faruqi, LLP, No. 13-1669, 2015 U.S. Dist. LEXIS 9806
(S.D.N.Y. Jan. 28, 2015), is curious, as the case is both readily distinguishable from the instant action and fails to
conform to binding Second Circuit precedent. First, Marchuk was decided on a motion for judgment as a matter of
law, after a jury trial. 2015 U.S. Dist. LEXIS 9806 at *1-2. Second, the Marchuk court’s decision to dismiss a Title
VII retaliation claim, to the extent it relied on the fact that the complained of adverse action occurred after plaintiff’s
employment with defendant terminated, see id. at *13-14, is in direct contradiction of Second Circuit law “that Title

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b. Federal courts, applying the Burlington Northern standard, have
repeatedly recognized that publication of information related to an
employee’s administrative charge may be materially adverse, satisfying
the adverse action element of a retaliation claim.
The D.C. Circuit, applying the Burlington standard to a retaliation claim brought by a
federal employee under the analogous Rehabilitation Act, held that where the employee’s
supervisor “posted her EEO complaint on the [agency] intranet, where her fellow employees
could and did access it,” the adverse action element was met. Mogenhan v. Napolitano, 613 F.
3d 1162, 1166 (D.C. Cir. 2010) (reversing district court’s grant of summary judgment and
finding that a jury could “believe that broadcasting an EEO complaint would have such an effect
– and so chill a reasonable employee from further protected activity.”). Other courts have
similarly held that publicly identifying an employee as the individual making a charge against
the employer is materially adverse and may constitute an adverse action for the purposes of a
retaliation claim.4 In Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 485 (7th Cir. 2015),
the Seventh Circuit held that the employer’s act of naming EEOC claimants in publicly available

VII’s anti-discrimination and anti-retaliation provisions ‘are not coterminous’; anti-retaliation protection is broader
and ‘extends beyond workplace-related or employment-related retaliatory acts and harm.’” Hicks v. Baines, 593
F.3d 159, 165 (2d Cir. 2010) (“Prior decisions of this Circuit that limit unlawful retaliation to actions that affect the
terms and conditions of employment … no longer represent the state of the law.”) (internal citations omitted)
(emphasis added). As the Supreme Court has held in the Title VII context, the statute’s prohibition on retaliation
applies to former, as well as current, employees. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding
that Title VII protects former employees from post-employment retaliation); see also Hopkins v. Bridgeport Bd. of
Educ., 834 F. Supp. 2d 58, 66 (D. Conn. 2011) (failure to provide employment references constitutes adverse action
for purposes of ADA retaliation claim). EEOC’s compliance manual recognizes that informing a prospective
employer about an individual’s protected conduct is one example of post-employment retaliation. EEOC
Compliance Manual, Section 8-II.D.2.
4

See also Halliburton, Inc. v. Admin. Review Bd., 771 F. 3d 254, 262 (5th Cir. 2014) (applying Burlington
Northern standard to retaliation claim brought under § 806 of Sarbanes-Oxley Act to find that employer’s
publication of complainant as whistleblower who filed complaint with SEC was conduct that would dissuade a
reasonable worker from filing a complaint). As the Fifth Circuit stated there: “when it is the boss that identifies one
of his employees as the whistleblower who has brought an official investigation upon the department, as happened
here, the boss could be read as sending a warning, granting his implied imprimatur on differential treatment of the
employee, or otherwise expressing a sort of discontent from on high.” Id.  

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SEC filings and referring to the charge as “meritless” constituted an adverse action under Title
VII because such conduct could “dissuade [] a reasonable worker from making or supporting a
charge of discrimination.” In Booth v. Pasco Cty., Fla., 829 F. Supp. 2d 1180, 1192, 1202 (M.D.
Fla. 2011), the court denied summary judgment to defendants on plaintiffs’ retaliation claim,
finding that where the employee alleged that the employer approved a union communication,
sent to the employees’ colleagues and fellow union members, that identified the plaintiffs by
name and cast doubt on the merits of their EEOC charges, it was “entirely foreseeable” that such
conduct would dissuade a reasonable worker from making a charge of discrimination “[a]s no
one volunteers for the role of social pariah.”
Moreover, the fact that Defendant may not have had a legal obligation to limit
dissemination of information relating to Marsh’s medical condition does not mean that
information was not confidential and entitled to be treated privately. See EEOC Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the
Americans With Disabilities Act (ADA) (counseling that employers must treat as confidential
“any medical information voluntarily disclosed by an employee.”). In Ray v. Ropes & Gray
LLP, 961 F. Supp. 2d 344, 359-60 (D. Mass. 2013), the court denied summary judgment on
plaintiff’s Title VII retaliation claim, finding that the employer’s disclosure of EEOC’s
determination letter on the underlying charge – which contained sensitive information about the
plaintiff’s performance and an investigation into alleged criminal conduct – satisfied the
materially adverse action element of a retaliation claim, despite the fact that the employer was
under no legal obligation to keep the Commission’s determination confidential. The Ray court
recognized that “[a]lthough an EEOC determination of a charge by a private sector employee is
not a ‘decision’ of public record, there is nothing prohibiting either the charging party or the

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[employer] from publicizing the determination.” 961 F. Supp. 2d. at 359-60 citing 29 C.F.R. §
1601.22 (requirement to keep investigation confidential applies only to EEOC).5 Despite this,
the court was not persuaded by the employer’s argument that it had a right to disseminate the
determination letter:
[I]nsofar as Ropes claims that it was free to disseminate the
determination letter containing sensitive information about Ray
because it was ‘not private,’ the argument proves too much. Even
in the absence of any non-disclosure obligation, Title VII prohibits
an employer from responding to protected activity by taking an
action that would ‘dissuade a reasonable worker from making or
supporting a charge of discrimination.’ … The threat of
dissemination of derogatory private information, even if true,
would likely deter any reasonable employee from pursuing a
complaint against his employer.
Id. at 360 citing Burlington Northern, 548 U.S. at 68 (internal quotations and citations
omitted).
Finally, determining what constitutes an adverse action under the Burlington Northern
standard is driven by an analysis of the specific facts. See, e.g., Husser, 2015 WL 5774741, at
*15 (whether or not employer’s conduct was materially adverse was a “fact-intensive, contextspecific” question for the jury). For example, in Ragusa, the Second Circuit reversed the district
court’s grant of summary judgment for the employer, holding that a reasonable jury could
conclude that increasing plaintiff’s teaching load in a manner that would make it more difficult
for her to succeed during her probationary period was materially adverse. Ragusa, 381 Fed.
Appx. at 90. Similarly, in Rolfe v. Lawrence & Mem'l Hosp., No. 3:10-CV-80 RNC, 2013 WL
5435507, at *6 (D. Conn. Sept. 30, 2013), the court held that the employer’s reassignment of a
5

In Ray, EEOC issued an initial determination letter, finding no cause, and a second determination letter,
finding reasonable cause on Ray’s retaliation claim. Ray, 961 F. Supp. 2d at 359. Plaintiff shared with Harvard
Law School, his alma mater, the EEOC’s second determination letter and advocated that the law firm be banned
from participating in on-campus recruiting as a result. Id. Defendant disseminated the Commission’s earlier
determination letter, which was unfavorable to Ray, to the legal news website, “Above the Law.” Id.

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nurse to “float” to other units more often after her complaint could constitute an adverse action
under the ADA, despite the fact that “floating” was part of the nurse job description. As such, an
evaluation of whether or not Defendant’s conduct was “materially adverse” is not appropriate at
the motion to dismiss stage, where the only facts in the record are those in the Complaint.
In an effort to achieve dismissal of Plaintiff’s claims, DZNPS asserts that it “simply
alerted the Witnesses that it disclosed their contact information to the EEOC.” D’s Br. at 16.
This is a gross misstatement of the facts alleged here. As stated in the Complaint, DZNPS’s
letter went beyond informing witnesses that the employer had shared their contact information
with EEOC; it identified Charging Party by name, it identified him as the individual who had
filed the charge, it identified his union local, it indicated that he had a disability and described
the medical restrictions placed on him as a result. See Compl., ¶ 17(e)-(h). Importantly,
Defendant’s letter demonstrated to the recipients what happens to DZNPS employees who
communicate with EEOC: the details of their non-public communications with the Commission,
including sensitive information, are publicized widely. See Halliburton, 771 F. 3d at 262 (where
employer identifies complaining worker, conduct can be understood to send a message of
disapproval to company employees); Mogenhan, 613 F. 3d at 1166.6 If all DZNPS had done was
6

Defendant opens its brief arguing that, by filing this litigation, EEOC has done more to publicize Marsh’s
protected conduct than DZNPS did. D’s Br. at 1-2. This argument ignores the proper focus of both this litigation
and claims under the ADA generally. It is the employer’s conduct, and not that of the Commission, that is at issue
here. See, e.g., EEOC v. Dolgencorp, LLC, No. 13-cv-04307, 2015 WL 2148394, at *4 (N.D. Ill. May 5, 2015)
(EEOC’s policies regarding background checks not relevant to litigation alleging defendant’s own background
check practices violated Title VII); EEOC v. OhioHealth Corp., 2:13-cv-780, 2014 WL 5323068, at *4-5 (S.D.
Ohio, Oct. 17, 2014) (denying request for discovery, noting that “EEOC’s own internal policies or practices as an
employer” were not relevant to the litigation); EEOC v. JBS USA, LLC, No. 8:10CV318, 2012 WL 169981, at *6
(D. Neb. Jan. 19, 2012) (case against company did “not involve questions of whether the EEOC failed to
accommodate the religious practices of its employees”). DZNPS effectively suggests that EEOC should refrain
from enforcing the ADA – including bringing claims to seek relief for identified, disabled individuals – or suffer
accusations of being a publicity-hungry hypocrite. Unsurprisingly, this tactic is consistent with the very conduct
that resulted in this litigation; namely, attempting to shame those who seek to hold DZNPS accountable for its
violations of the ADA.

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notify employees that their contact information had been shared with EEOC, the parties likely
would not be before this Court. Because Plaintiff has pled sufficient facts to satisfy the
materially adverse action element of a retaliation claim, Defendant’s motion should be denied.
2. Plaintiff has pled sufficient facts to satisfy the causation element of its section
503(a) claim.
EEOC alleges that DZNPS took adverse action against Marsh because of his filing of a
charge of discrimination. Compl., ¶ 17. In March 2014, the Commission sought witness contact
information from DZNPS. Id. at ¶ 17(c). Three months later, DZNPS sent its June 17, 2014
letter identifying Marsh and revealing the details of his charge and medical restrictions. Id. at ¶
17(d). In addition, the substance of the letter revealed private, confidential information about the
Charging Party, including information about his medical condition. Id. at ¶ 17(e)-(h). These
facts are sufficient to establish the elements of causation for purposes of overcoming
Defendant’s motion to dismiss. See Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (2d Cir.
1994) (denying motion to dismiss where allegations “provide a chronology of events from which
an inference can be drawn that actions” were motivated by plaintiff’s protected conduct).
“Circumstantial facts in a retaliation claim can suggest an improper motive sufficient to
withstand a motion to dismiss.” Wheeler v. Natale, 137 F. Supp. 2d 301, 305 (S.D.N.Y. 2001).
Because the question of causation, in a retaliation claim, is essentially a question of motive, such
issues are not appropriately resolved on a motion to dismiss, particularly where, as here, there are
sufficient facts to support the causation element. See Piesco v. City of New York, 933 F.2d 1149
(2d Cir. 1991) (without a factual inquiry into defendant’s motives, “those intent on punishing the
exercise of […] rights could easily mask their behavior behind a complex web of post hoc
rationalizations.”) (internal citations omitted).

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DZNPS contends that the year and a half between when Marsh filed his initial charge of
discrimination and when Defendant sent its June 17, 2014 letter is sufficient, by itself, to defeat
causation and warrant dismissal. D’s Br. at 30. But Defendant’s analysis misconstrues the
timeline, including important, intervening events. Although Marsh’s original charge was filed in
October of 2012, just three months elapsed between the date of EEOC’s first request for witness
contact information and Defendant’s letter publicizing Marsh’s charge and details about his
disability and medical condition. See Compl., ¶ 17(c)-(d).
As the Seventh Circuit recently found, in analyzing a claim under Title VII’s antiretaliation provision, the starting point for the relevant timeframe is not limited to the date of the
filing of the charge. See Greengrass, 776 F.3d at 486. In Greengrass, the court held that the
three months between when the employer received EEOC’s request to interview witnesses –
which signaled the agency’s “intention to seriously pursue” the charge – and the adverse action
was evidence of suspicious timing and causation. Id. Thus, the temporal proximity between
EEOC’s request for additional information, including witness contact information, and
Defendant’s letter is further evidence of a causal link between Marsh’s protected conduct and
DZNPS’s retaliation. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)
(“Though this Court has not drawn a bright line defining, for the purposes of a prima facie case,
the outer limits beyond which a temporal relationship is too attenuated to establish causation, we
have previously held that five months is not too long to find the causal relationship”); Ragusa,
381 Fed. Appx. at 90; Husser, 2015 WL 5774741, at *16 (jury could infer causation where
adverse action occurred within three months of report, issued by investigating state EEO agency,
that supported plaintiff’s complaint and created consequences for employer); Hopkins, 834 F.

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Supp. 2d at 67 (three month lapse between protected conduct and adverse action sufficient to
show temporal proximity).
Additionally, DZNPS focuses myopically on temporal proximity and relies on cases
holding that, where temporal proximity, alone, is alleged to establish causation, the timing
between the protected conduct and the adverse action must be very close. See Hollis v. Dep’t of
Metal Health & Addictive Servs., No. 14-516, 2015 U.S. Dist. LEXIS 121668, at *15 (D. Conn.
Sept. 11, 2015) (“to establish causation indirectly through relying solely on temporal proximity,
the protected activity and the retaliatory action must have occurred very close in time.”).7 This
focus is inappropriate here, however, for temporal proximity between EEOC’s request for
witness contact information and Defendant’s letter is not the sole basis for inferring causation.
EEOC also includes allegations about the content of DZNPS’s letter, which included sensitive
information about Marsh’s disability, medical restrictions and union affiliation. Compl., ¶ 17(e)(h). That these details were included in the letter is evidence of a retaliatory animus on
Defendant’s part, and is additional factual information from which causation can be inferred.
See Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (evidence of animus

7

Because of this, the remaining cases cited by DZNPS on this point are distinguishable, as all relied solely
on temporal proximity to establish the causation element. See Howard v. City of New York, 602 Fed. Appx. 545, 549
(2d Cir. 2015) (at summary judgment, plaintiff offered only temporal proximity of ten months between protected
activity and adverse action as evidence of causation); Stoddard v. Eastman Kodak Co., 309 Fed. Appx. 475, 480 (2d
Cir. 2009) (affirming summary judgment “where there is nothing other than […] temporal proximity invoked to
establish a retaliatory intent, the causal relationship is not established.”); O’Hazo v. Bristol-Burlington Health Dist.,
599 F. Supp. 2d 242, 262 (granting summary judgment to employer where more than 11 months lapsed between
protected conduct and adverse action, and plaintiff put forth no other evidence of causation in support of retaliation
claim); Amar v. New York City Health & Hosps. Corp., No. 14-2502, 2015 U.S. Dist. LEXIS 77718, at *30
(S.D.N.Y. June 15, 2015) (dismissing retaliation claim where only connection that could be inferred from pleadings
was time between protected conduct and adverse action). Importantly, all of the cases cited by Defendant in support
of its causation argument were decided on a motion for summary judgment, with the exception of Amar, which was
dismissed pursuant to Rule 12(c), and where the parties had attached numerous documents (including personnel
related materials) to the pleadings. See 2015 U.S. Dist. LEXIS 77718, at *12-15. As such, these cases do little to
support Defendant’s request for dismissal on a motion pursuant to Federal Rule 12(b)(6).

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against employee may be sufficient to establish causation); Farrar v. Town of Stratford, 537 F.
Supp. 2d 332, 355 (D. Conn. 2008) (where plaintiff presented other evidence – beyond temporal
proximity –demonstrating causal connection between protected conduct and adverse action,
causation should be resolved by jury). As such, Defendant’s motion to dismiss EEOC’s § 503(a)
claim should be denied.
B. The Facts Alleged in the Complaint State a Claim Against DZNPS for Violation of
Section 503(b) of the ADA.
Section 503(b) of the ADA prohibits interference with the rights protected by the statute.
See 42 U.S.C. § 12203(b). This section “arguably sweeps more broadly” that Section 503(a), the
language of which mirrors Title VII almost identically. See Mondzelewski v. Pathmark Stores,
Inc., 162 F.3d 778, 789 (3d Cir. 1998). Recognizing that §§ 503(a) and 503(b) contain
distinctive language, and provide unique protections, many federal courts have concluded that
that ADA interference claims should not be analyzed under the Title VII burden-shifting analysis
but, instead, guided by the treatment of similar language in the Fair Housing Act (“FHA”),
National Labor Relations Act (“NLRA”) and Family Medical Leave Act (“FMLA”). See, e.g.,
Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003). Thus, § 503(b) is violated when
an employer engages in conduct that tends to chill employees’ freedom to exercise rights
protected by the ADA. Any employee’s rights under the ADA may be interfered with,
regardless of whether the employee is disabled or is actively engaged in asserting rights
protected under the statute (e.g., seeking an accommodation). To establish a violation of Section
503(b) there must be a causal connection between the employer’s conduct and the ADA rights
with which that conduct interferes. As set forth below, Plaintiff has pled sufficient facts to
establish these elements here, and dismissal is inappropriate.

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1. Defendant’s letter constituted interference with rights secured by the ADA.
Section 503(b) prohibits interference with rights protected by the ADA; interference is
understood as “any conduct that tends to chill an employee’s freedom to exercise his statutory
rights.” Brown v. City of Tucson, 336 F. 3d 1181, 1191 (9th Cir. 2003) (internal citations
omitted); see also Bachelder v. Am. W. Airlines, Inc., 259 F. 3d 1112, 1123-24 (9th Cir. 2001)
(discussing FMLA’s interference language in light of interpretation of Section 8(a)(1) of the
NLRA and finding that “attaching negative consequences to the exercise of protected rights
surely ‘tends to chill’ an employee’s willingness to exercise those rights.”).8 As one district
court held, conduct that “clearly operates to dissuade disabled [individuals] from exercising their
rights” under the act constitutes interference. Cf. Bingham v. Oregon Sch. Activities Ass’n, 24 F.
Supp. 2d 1110, 1118 (D. Or. 1998) (in claim under Section 504 of ADA, school athletic
association rule that discouraged disabled students from challenging application of rule as
violative of ADA, violated public policy).
Analyzing the language of National Labor Relations Act (“NLRA”), the Second Circuit
has repeatedly held that interference under Section 8(a)(1) of that statute occurs “if, under all the
existing circumstances, the conduct has a reasonable tendency to coerce or intimidate employees,
regardless of whether they are actually coerced.” New York Univ. Med. Ctr. v. NLRB, 156 F.3d
405, 410 (2d Cir. 1998). In that context, assessment of the employer’s statements to the workers
“must take into account the economic dependence of the employees on their employers, and the
necessary tendency of the former, because of that relationship, to pick up intended implications

8

Under the FMLA, courts have held that where “an employer provides a powerful disincentive” for
exercising FMLA rights, such as taking leave, it constitutes interference under that statute. See Coleman v. Blue
Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1245 (D. Kan. 2007).

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of the latter that might be more readily dismissed by a more disinterested ear.” Id. citing NLRB
v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
Applying this reasoning here, there can be no question that DZNPS’s June 2014 letter
constitutes interference with rights conferred by the ADA, including the right to file a charge of
discrimination and the right to participate in EEOC’s investigation of that charge. The intent of
Defendant’s letter was clear; by disclosing Charging Party’s identity, the nature of his charge and
sensitive medical information to 146 members of his union local, the employer sought to shame
Marsh and to discourage others from either participating in EEOC’s investigation or filing
charges of their own.9 DZNPS made clear that a consequence of communication with EEOC
was that the company would widely publicize the individual’s protected conduct, including
sensitive information that could potentially interfere with the individual’s future job prospects.
DZNPS contends that the Complaint should be dismissed for failure to allege a “distinct
and palpable injury” as a result of Defendant’s interference. D’s Br. at 22. First, EEOC submits
that this is not, in fact, a requirement of a § 503(b) claim. Defendant relies on the decision by the
Ninth Circuit in Brown v. City of Tucson, 336 F.3d 1181, 1193 (9th Cir. 2003). Although the
9

Defendant argues that EEOC’s Complaint should be dismissed because Marsh had already filed his charge
(and, as such, his right to do so could not be interfered with) and because there is no evidence that any of the
witnesses were discouraged from speaking with EEOC as a result of Defendant’s letter. See D’s Br. at 23-25. But
this argument ignores the proper focus of the inquiry: whether the employer’s conduct would have a reasonable
tendency to chill protected conduct. See New York Univ. Med. Ctr., 156 F.3d at 410. As with retaliation under §
503(a), the employer’s efforts to interfere need not be successful to violate the act. Cf. EEOC v. L.B. Foster, 123
F.3d 746, 754 n.4 (3d Cir. 1997) (“an employer who retaliates cannot escape liability merely because the retaliation
falls short of its intended result.”) citing Hashimoto v. Dalton, 118 F. 3d 671, 673 (9th Cir. 1997) (“There is little
question that the dissemination of adverse employment references can constitute a violation of Title VII if motivated
by discriminatory intent. Thus, it is beside the point that [the employer’s] dissemination of the negative job
reference was not the reason Hashimoto did not get the job with the Army.”). DZNPS similarly argues that EEOC
cannot assert claims under both § 503(a) and § 503(b) for Marsh because such claims are duplicative. See D’s Br. at
24-25. But EEOC has done no such thing here. Plaintiff alleges that, by sending its June 17, 2014 letter, DZNPS
retaliated against Marsh for his charge; in other words, it sought to punish him – by publicizing sensitive, private
information to his fellow union members – for his protected conduct. Compl., ¶ 18. EEOC also alleges that this
conduct sought to interfere with Marsh’s right to continue to communicate with EEOC because of the chilling effect
of the letter. Id. at ¶ 19.

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Brown court’s decision, which reviewed a summary judgment ruling, provides much helpful
guidance for interpreting § 503(b), its conclusion that a plaintiff must demonstrate that she has
suffered a “distinct and palpable injury” lacks any foundation in either the text of the ADA or in
case law interpreting the statute. See 336 F.3d at 1193 citing Walker v. City of Lakewood, 272
F.3d 114, 1123 (9th Cir. 2001) (considering whether an independent fair housing services
provider had standing to sue city for retaliation for engaging in advocacy efforts). Second, even
applying the limited language of Brown (explaining that the injury could consist of either the
giving up of ADA rights “or from the threat itself”), EEOC has alleged sufficient facts to state a
claim under § 503(b). See id. Here, it is the chilling effect of the implied threat contained in
Defendant’s letter – that communication with the EEOC will lead to publication of sensitive and
personal information – that is the injury alleged. See Compl., ¶ 19.
2. An employee need not be actively exercising his or her ADA-protected rights
to be a victim of interference under Section 503(b).
Unlike § 503(a), the text of § 503(b) “does not expressly limit a cause of action to the
particular employee that engaged in protected activity.” Fogleman v. Mercy Hosp., Inc., 283
F.3d 561, 570 (3d Cir. 2002). The Fogleman court, relying on similar language in the NLRA,
noted that “action taken against the third party employee can have the effect of coercing the
employee [from] engaging in protected activity, and may also coerce other employees of the
company from engaging in protected activity in the future.” Fogleman, 283 F.3d at 571, n.5.
Additionally, there is broad agreement among federal courts that one need not be disabled within
the meaning of the statute to be entitled to the benefit of Section 503(b)’s protections. See, e.g.,
Munck v. New Haven Sav. Bank, 251 F. Supp. 2d 1078, 1087 (D. Conn. 2003) (husband who
sought reasonable accommodation on his wife’s behalf and was later terminated stated claim for
violation of ADA’s interference provision) (citing cases); Turner v. The Saloon, Ltd., 595 F.3d
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679, 690 (7th Cir. 2010) (employee need not be disabled under ADA to assert claim for
retaliation under the statute); McMahan v. UMG Mfg. & Logistics, Inc., No. 1:06-cv-1149, 2008
WL 906152, at *8 (S.D. Ind. Mar. 31, 2008) (Section 503(b)’s protections extend to worker who
alleged he was terminated for informing his co-worker that he believed the employer was
discriminating against her because of her disability).10
Here, EEOC alleges that DZNPS interfered with the rights of Marsh and each of the 146
witnesses who received a copy of the June 17, 2014 letter. Importantly, § 503(b) prohibits an
employer both from interfering with an employee who exercises rights under the statute and from
interfering so as to prevent an individual from exercising ADA-protected rights. See Breimhorst
v. Educ. Testing Serv., No. Civ.A. 99–3387, 2000 WL 34510621, at *7 (N.D. Cal. Mar. 27,
2000) ( “The plain words of the statute ... preclude a party from intimidating or coercing another
party not to exercise his rights under the ADA, as well as barring interference against a person
who has exercised his rights under the ADA.”) (emphasis in the original). A jury could easily
conclude that Defendant’s goal in sending the letter was to intimidate Marsh with respect to the
10

DZNPS argues just the opposite: that to establish a violation of § 503(b), a plaintiff must demonstrate that
she was exercising a right protected by the ADA when the coercion took place. D’s Br. at 21. Notably, Defendant’s
argument relies on a single case that pre-dates the analysis laid out in the cases cited above. See Wray v. Nat’l R.R.
Passenger Corp., 10 F. Supp. 2d 1036, 1040 (E.D. Wis. 1998) (noting the lack of case law interpreting § 503(b)
when considering interference claim in public accommodation context). In support of its conclusion, the Wray
court, like DZNPS, cited Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th Cir. 1995). But the only claim before the
court in Roth was retaliation under § 503(a), and nowhere in the decision does the Seventh Circuit suggest that a
plaintiff must demonstrate that the coercion occurred while she was exercising a right guaranteed by the statute to
prove interference under § 503(b). See 57 F.3d at 1459-60. Similarly, the holding in Doe v. Kohn Nast & Graf,
P.C., 866 F. Supp. 190, 197 (E.D. Pa. 1994) (refusing to dismiss § 503(b) claim where plaintiff alleged that
employer asked him to leave the company because it discovered that he planned to file a lawsuit alleging
discrimination on the basis of HIV status), also cited by DZNPS, does not support Defendant’s argument. To the
extent the Kohn Nast court’s ruling could be read in such a limited way, that holding is plainly over-ruled by
Fogleman. See 283 F.3d at 571, n.5. Even if the Court were to accept Defendant’s position, which it should not,
because the ADA provides – at all times – the right to file a charge with the Commission and a right to communicate
with the Commission, any action taken by an employer to chill those rights is interference with the ability of the
worker to enjoy the rights conferred, whether or not the interference happens at the precise moment when the worker
is exercising those rights.

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exercise of his ADA rights, including continued participation in EEOC’s investigation, and to
similarly intimidate the witnesses from participating in EEOC’s investigation, or making a
charge of their own, in the future. See Fogleman, 283 F.3d at 571, n.5; Breimhorst, 2000 WL
34510621, at *7 (plaintiffs’ complaint that defendant’s practice of “flagging” test scores of
disabled students who received reasonable accommodations with the words “SCORES
OBTAINED UNDER SPECIAL CONDITIONS” interfered with test-takers’ rights to seek
reasonable accommodations and stated a claim for interference under § 503(b)).
3. EEOC has alleged a causal connection between Defendant’s interference and
the enjoyment of rights protected by the ADA.
The final element of a claim for retaliation under the ADA is whether “a causal
connection exists between the protected activity and the adverse action, i.e., that a retaliatory
motive played a part in the adverse employment action.” Lovejoy-Wilson v. NOCO Motor Fuel,
Inc., 263 F.3d 208, 223 (2d Cir. 2001). In other words, the causation element asks the ultimate
question in a § 503(a) retaliation claim: whether the employer’s conduct was intended to retaliate
against the employee. Similarly, a plaintiff seeking to enforce § 503(b) must demonstrate
causation. But here, the appropriate question is whether the employer’s conduct could
reasonably be understood as an effort to interfere with rights protected by the ADA. Cf. Gissel
Packing, 395 U.S. 575, 619 (in NLRA interference claim, ultimate question is whether the
listener could reasonably have understood employer’s communication as threatening or
coercive); N.Y.U. Med. Ctr., 156 F.3d at 410 (communications are threats that violate NLRA’s
interference section if they “are motivated by or conditioned upon an employee’s participation
in” protected conduct).
Here, EEOC has pled sufficient facts from which a connection can be inferred between
DZNPS’s interfering conduct – the June 2014 letter – and the protected rights of the letter’s
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recipients. Defendant’s letter explicitly referenced Marsh’s charge and the attendant EEOC
investigation. Compl., ¶ 17(e). Further, the letter was designed to influence the conduct of the
recipients with respect to their own communications with EEOC – both as to whether to speak
with the investigator and the substance of those communications. See id., ¶ 17(g)-(j). For
purposes of § 503(b), it is irrelevant that DZNPS’s letter was sent to all 146 witnesses prior to
EEOC’s contacting them in the course of its investigation of Charging Party’s claim; individuals
need not be actively involved in asserting rights under the ADA to be protected by § 503(b). See
Fogleman, 283 F.3d at 571, n.5 (rejecting the view that a claim under § 503(b) is limited “to
those individuals who have themselves engaged in protected activity under the ADA”); Doe v.
Kohn Nast & Graf, P.C., 866 F. Supp. 190, 197 (E.D. Pa. 1994) (where plaintiff alleged that his
employer asked him to resign because it learned that he planned to file a lawsuit alleging the
employer failed to renew his contract on the basis of plaintiff’s HIV positive status, employee
stated claim under § 503(b).).
Finally, DZNPS suggests that, in order to make out a claim for interference under §
503(b), EEOC must demonstrate that each and every recipient of Defendant’s June 2014 letter
felt threatened or coerced by Defendant’s conduct. D’s Br. at 23-24. At the outset, it is
important to note that Defendant does not cite a single case arising under § 503(b) of the ADA in
support of this contention. See id. For that reason, alone, Defendant’s motion should be denied;
Plaintiff’s claim should not be dismissed for failure to allege facts in support of an element that
no court has recognized as integral to the cause of action.11 But, more importantly, EEOC has

11

To the extent DZNPS argues that EEOC must show that the letter’s recipients could reasonably have
understood the letter as threatening or coercive, EEOC does not dispute this. But that is a question for a jury, and
even DZNPS does not cite to a case where similar claims under the FMLA were dismissed pursuant to Rule
12(b)(6), as it seeks to do here. See D’s Br. at 22-23, citing Ridgeway v. Royal Bank of Scto. Group, No. 11-976,
2013 U.S. Dist. LEXIS 67822, at *57-58 (D. Conn. May 13, 2013) (denying summary judgment where there “are
triable issues of fact as to whether [plaintiff] was prejudiced by incorrect and misleading information he received

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pled facts to support a claim that a reasonable person, receiving Defendant’s letter, would be
deterred from exercising the rights they enjoy under the ADA. Specifically, EEOC alleges that
DZNPS disclosed personal, private information about an employee who filed a charge with the
Commission to the employee’s entire union local, implying that communications with EEOC
were not confidential, that the employer would learn of them, and that the employer would
publicize – without reasonable justification – the contents of that communication. See Compl. ¶
¶ 17, 19. As such, Defendant’s motion should be denied.
C. DZNPS’s Post-Hoc Justifications for Its Conduct Do Not Merit Dismissal of the
Complaint Pursuant to Federal Rule 12(b)(6).
Defendant’s request for dismissal is laced with arguments about the reasonableness of its
actions. As an initial matter, on a motion to dismiss, the alleged “reasonableness” of
Defendant’s conduct cannot be considered where the facts, as pled, suggest an improper motive.
See Brown v. Daikin Am. Inc., 756 F.3d 219, 230-31 (2d Cir. 2014) (“Whether there existed nonpretextual, non-discriminatory explanations for the defendants’ employment decisions – a
question as to which the defendants bear the burden of production – it is not properly decided on
a motion to dismiss for failure to state a claim.”) (internal citations omitted); Johnson v.
Meachum, 839 F. Supp. 953, 958 (D. Conn. 1993) (denying motion to dismiss government
officials on qualified immunity grounds because whether officials could establish that their
conduct was “objectively reasonable” required a “focus on the particular facts of the case,” and
could not be resolved on a motion to dismiss). Furthermore, dismissing Plaintiff’s complaint on

[from employer]”); Seguin v. Marion Cnty Health Dep’t, No. 13-96, 2014 U.S. Dist. LEXIS 112110, at *27 (M.D.
Fla. Aug. 13, 2014) (granting summary judgment where plaintiff “failed to present any evidence that … the
Department discouraged her from exercising her rights under the [FMLA]”); Vess v. Scott Med. Corp., No. 11-2549,
2013 U.S. Dist. LEXIS 39812, at *8-9 (denying summary judgment on FMLA interference claim where jury could
conclude that employer’s phone calls to plaintiff while on leave constituted interference with rights guaranteed by
statute).

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the basis of Defendant’s proffered explanations for its conduct would require the Court to
assume the employer’s credibility without the benefit of a factual record or admissible evidence.
This is plainly inappropriate on a motion pursuant to Federal Rule 12(b)(6).
For example, DZNPS argues that the content of its letter was reasonable because it had an
obligation to inform the witnesses that it had provided their contact information to EEOC. See
D’s Br. at 6. Specifically, DZNPS argues that because a state statute – that does not apply to
EEOC investigations – generally protects information contained in personnel files from
disclosure, it was reasonable for Defendant to inform the witnesses of Marsh’s charge, its basis
and the facts asserted in it. D’s Br. at 6, n.3.12 But it will be for a jury to decide whether
Defendant’s conduct was reasonable, particularly where DZNPS could have informed the
witnesses of this disclosure without identifying the basis of the charge as disability
discrimination, and without providing information about Charging Party’s medical restrictions.
Moreover, to allay any concerns on the witnesses’ part, DZNPS could have affirmatively
informed its employees of the confidential nature of EEOC investigations. See 29 C.F.R. §
1601.22. Of course, it did not do this.
DZNPS contends that revealing Marsh’s name and the medical restrictions placed upon
him by his disability “was reasonable for the Witnesses to understand what the EEOC wanted to
interview them about.” D’s Br. at 12, n. 6. But there are no facts before the Court indicating
why EEOC requested the contact information for these witnesses, nor are there any facts before
12

See Conn. Gen. Stat. Ann. § 31-128f (protecting disclosure of “individually identifiable information
contained” in personnel files and making explicit exception to law for information requested pursuant to a
government investigation). DZNPS urges the Court to take judicial notice of this statute, as well as other materials
extraneous to EEOC’s Complaint. While the Court may take judicial notice of, for example, state law, it may not
take judicial notice of the impact of that law on DZNPS, nor may it infer what effect that law may or may not have
had on Defendant’s motivations here. See City of Austin Police Ret. Sys. V. Kinross Gold Corp., 957 F. Supp. 2d
277, 288 (S.D.N.Y. 2013) reconsideration denied June 6, 2013 (causal connection posited by party to judicially
noticed fact was “plausibly subject to dispute” and, as such “not appropriate for judicial notice.”).  

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the Court indicating that DZNPS knew what EEOC’s motivations were. Similarly, DZNPS
argues that dismissal is warranted because an employer must be able to conduct its own
investigation of the charge, which necessarily requires “disclosing the identity of the charging
party [and] the nature of the allegations.” D’s Br. at 13. First, as explained above, the steps an
employer takes to investigate a charge of discrimination must always be balanced against the
prohibition against retaliation in the ADA; nothing in that statute (or in Title VII) grants an
employer complete immunity to disclose information broadly if that disclosure is undertaken for
a retaliatory purpose. See, e.g., Greengrass, 776 F.3d at 485; Mogenhan, 613 F.3d at 1166.
Second, there is nothing in EEOC’s Complaint suggesting that this employer made the
disclosures at issue here as part of its own, internal investigation. As such, Defendant’s
theoretical argument is no basis for dismissal of EEOC’s Complaint.13
Even where defendants have argued that their response to a charge of discrimination was
part of their ordinary practice, courts will not dismiss a claim for retaliation where there is
evidence to suggest the conduct was retaliatory. For example, in Franklin v. Local 2 of the Sheet
Metal Workers Int’l Ass’n, 565 F.3d 508, 521 (8th Cir. 2009), the Eight Circuit reversed
summary judgment for the union on the plaintiffs’ retaliation claims. There, the plaintiffs
alleged that the union local’s practice of publicizing to its members the plaintiffs’ names, claims
and the related costs of defending those claims was retaliatory. 565 F.3d at 521. The union
countered that it had an obligation to inform its members of litigation-related costs and had

13

DZNPS contends – without citing any admissible evidence – that Charging Party’s union, Local 35,
reviewed and approved Defendant’s June 17, 2014 letter before it was sent to the witnesses and that, because of this,
the letter cannot be the basis of a claim for retaliation. See D’s Br. at 6, n. 4. This allegation is plainly beyond the
scope of EEOC’s Complaint and, as such, should not be considered for purposes of resolving Defendant’s motion.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002) (“[W]hen a district court considers certain
extra-pleading materials and excludes others, it risks depriving the parties of a fair adjudication of the claims by
examining an incomplete record.”). 

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always done so, entitling it to summary judgment. Id. The court rejected this argument:
“Although Local 2's prior practice and obligation to disclose expenses may justify what Local 2
did, the degree of Local 2's disclosures raises credibility issues and a potential reasonable
inference of retaliation.” Id. Simply put, where arguments concerning the alleged
reasonableness of a defendant’s motives are rarely sufficient to merit summary judgment,
Defendant’s unsubstantiated assertions of reasonableness here cannot justify dismissal of the
Complaint, and DZNPS’s motion should be denied.14
D. An Employer’s Rights to Communicate With Its Employees Are Not Absolute.
In support of its effort to win dismissal of EEOC’s claims, DZNPS argues that an
employer’s right to communicate with its employees – as protected by the First Amendment and
the litigation privilege – insulate it from liability under the ADA, even where the effect of that
communication is retaliatory. See D’s Br. at 14-18. These arguments reflect a dangerous, and
deeply flawed, view of the ADA’s prohibition on retaliation. Moreover, no court has ever held
that an employer can escape the requirements of its obligation not to retaliate against workers on
the basis of any of the rights or privileges cited by Defendant.
1. Defendant’s right to communicate with its employees, as protected by the First
Amendment or otherwise, does not relieve it of its obligations under the ADA.
Incredibly, DZNPS suggests that EEOC’s complaint should be dismissed because its First
Amendment right to communicate with witnesses insulates it from a finding of retaliation. D’s
Br. at 14-17. At the outset, it is obvious that the ADA – like Title VII, the ADEA and other civil
rights statutes – imposes limitations on an employer’s First Amendment rights. Certainly,

14

See Ray, 961 F. Supp. at 360 (defendant law firm’s argument that it publicized EEOC determination letter
to “ensure an accurate picture of the EEOC proceedings” was not sufficient to permit summary judgment on
retaliation claim because it was “open to a jury to find that Ropes would not have respondent to Above the Law in
the way it did but for” plaintiff’s protected conduct).

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DZNPS would not suggest that an ADA complaint alleging that a disabled plaintiff’s employer
repeatedly referred to her as “cripple” should be dismissed, pursuant to Rule 12(b)(6), because to
conclude otherwise would improperly infringe on the employer’s right to free speech. Cf.
Bonnell v. Lorenzo, 241 F.3d 800, 820 (6th Cir. 2001) (granting summary judgment to employer
on professor’s claim that school violated his free speech rights by terminating him over use of
language that violated the employer’s sexual harassment policy).15
In support of this argument, DZNPS relies on a series of cases dealing with
communications with Rule 23 class members. See D’s Br. at 14-16.16 Even in the class action
litigation context, however, where the speech usually occurs after civil litigation is publicly filed,
courts routinely restrict or limit defendants’ communications with putative class members,
15

DZNP’s reliance on John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), is misplaced. The Mukasey
case reviewed the constitutionality of a provision of the Patriot Act, 18 U.S.C. § 2709, which prohibited electronic
communication service providers from disclosing that they had received a request from the FBI for information
about a subscriber. 549 F.3d at 864. The question before the Mukasey court was whether the requirements of the
law constituted a content-based prior restraint on speech, in violation of the First Amendment. Id. at 873-74. Here,
however, there is no such prior restraint on speech. EEOC’s allegation in the complaint is not that DZNPS violated
some confidentiality provision. Rather, EEOC alleges that the reason DZNPS publicized Marsh’s charge – and
certain details from it – was to retaliate against Marsh for his protected activity.
16

These cases are distinguishable, chiefly, because, here, there has been no prior restraint on Defendant’s
speech and, furthermore, in none of the cases cited by DZNPS was there an allegation that the communication with
class members was based on a retaliatory motive. See, e.g., Austen v. Catterton Partners V, LP, 831 F. Supp. 2d
559, 568-69 (D. Conn. 2011) (imposing limitations on counsels’ ability to communicate with putative Rule 23 class
members and recognizing the inherent coercion that may characterize the employment relationship); Mendez v.
Enecon Northeast Applied Polymer Sys., No. 14-6736, 2015 U.S. Dist. LEXIS 90794, at * (E.D.N.Y. July 13, 2015)
(denying defendant’s motion to require plaintiff’s counsel to send curative communication where counsel had sent
letter to putative class members describing claims filed on their behalf and seeking information). Defendant’s
reliance on Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int’l, Inc., 455 F.2d 770 (2d Cir. 1972), is
particularly inexplicable. That case, which concerned an antitrust class action on behalf of franchisees against a
franchisor, dealt primarily with the ripeness of plaintiff’s appeal of the trial court’s order on class communications.
See 455 F.2d at 772. Although the Second Circuit refused to entertain plaintiff’s appeal seeking retraction of
defendant’s statements to class members, it let stand the district court’s order, which: limited defendant’s ability to
communicate with class members concerning the subject matter of the action except in the limited context of
contract negotiations requested by the class member, required the franchisee’s counsel to be present for such
communications, and ordered that counsel for the plaintiff-class be given advance notice of the negotiation and be
permitted to attend. Id. at 772. Such an order hardly supports DZNPS’s argument that an employer should be
entitled to say anything to witnesses, regardless of the employer’s motives.

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particularly where there is potential for coercion. See, e.g., Gulf Oil Comp. v. Bernard, 452 U.S.
89, 100 (1981); In re Initial Pub. Offering Sec. Litig., 499 F. Supp. 2d 415, 418 n. 13 (S.D.N.Y.
2007). As numerous courts have recognized, the potential for coercion is particularly strong
where the recipients of the communication are employees of the defendant. See, e.g., Urtubia v.
B.A. Victory Corp., 857 F. Supp. 2d 476, 485 (S.D.N.Y. 2012) (“workplace relationship with
current employees, and their knowledge of sensitive information about current and former
employees, put [the employer] in a position to exercise strong coercion”); EEOC v. Morgan
Stanley & Co., 206 F. Supp. 2d 559, 562 (S.D.N.Y. 2002) (“Courts have found the danger of
such coercion between employers and employees sufficient to warrant the imposition of
restrictions regarding communication between defendants and potential class members.”);
Kleiner v. First Nat. Bank of Atlanta, 751 F. 2d 1193, 1206 (11th Cir. 1985) (“In the realm of
litigation, a fair and just result often presupposes restraints on the speech of the parties.”).
Defendant’s reliance on NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1965), in
support of its First Amendment argument is similarly misplaced. There, the Supreme Court
rejected the employer’s argument that the National Labor Relations Board’s finding that the
employer had violated § 8(a)(1) of the NLRA, which prohibits interference, restraint or coercion
of employees in the exercise of their rights under the statute, constituted an unlawful
infringement on the employer’s right to free speech. 395 U.S. at 617. As the Gissel court held,
the NLRA “merely implements the First Amendment by requiring that the expression of ‘any
views, argument or opinion’ shall not be ‘evidence of an unfair labor practice’ so long as such
expression contains ‘no threat of reprisal or force or promise of benefit’ in violation of §
8(a)(1).” Id.17 This statement is perfectly consistent with the allegations here. DZNPS has a
17

The Gissel court further held that “an employer’s rights cannot outweigh the equal rights of the employees
to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any

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right to communicate with its employees, but it runs afoul of the ADA where that
communication – because of both its content and context – constitutes evidence of retaliation.
See id.
DZNPS argues that, because the company had no independent, legal obligation to keep
Marsh’s medical information confidential, EEOC’s complaint should be dismissed for failure to
state a claim for retaliation. D’s Br. at 11-12.18 Relatedly, Defendant asserts that it cannot be
liable for retaliation because nothing in Title VII’s administrative scheme, which applies equally
to charges asserted under the ADA, required it to keep the details of Marsh’s charge confidential.
D’s Br. at 13. As described above, however, federal courts have rejected similar arguments,
noting that the relevant question is not whether the employer had an obligation to keep the
information confidential, but whether it disclosed the information for a retaliatory purpose. See
Ray, 961 F. Supp. 2d at 360. The fact that the particular information DZNPS disclosed here was
of a private, or confidential, nature, is evidence from which a jury could infer a retaliatory

balancing of those rights must take into account the economic dependence of the employees on their employers, and
the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that
might be more readily dismissed by a more disinterested ear.” 395 U.S. at 617. Similarly, in the context of the
ADA, an employer’s right to free speech cannot outweigh the equal rights of workers to file charges and
communicate freely with EEOC. This point is further addressed above. See, supra, pp. 17, 20.
18

DZNPS cites several cases dismissing claims for breach of the ADA’s confidentiality provision, 42 U.S.C.
§ 12112(d) (see, e.g, Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 155 (4th Cir. 2012); Wiggins v. DaVita
Tidewater, LLC, 451 F. Supp. 2d 789, 802 (E.D. Va. 2006); Conneen v. MBNA AM. Bank, N.A., 182 F. Supp. 2d
370, 381 (D. Del. 2002)), as well as cases dismissing state or common law claims for breach of privacy. See,
Walker v. Braes Feed Ingredients, Inc., No. 02-9236, 2003 U.S. Dist. LEXIS 6873, at *16-17 (N.D. Ill. Apr. 22,
2003). But these cases are irrelevant to the motion before the Court. EEOC has not alleged a violation of the
ADA’s confidentiality provision, which makes it unlawful for an employer to disclose medical information that it
has solicited as part of an authorized, employment-related inquiry or medical examination. See 42 U.S.C. §
12112(d). None of the cases cited by DZNPS suggest that an employer may disclose sensitive information for a
retaliatory purpose with impunity so long as the information itself is not subject to some legally-established
confidentiality obligation. In fact, in Walker, the plaintiff also alleged that his former employer’s practice of
advising numerous, potential employers with whom plaintiff sought work subsequent to his dismissal that “litigation
was pending” after plaintiff filed an administrative charge of discrimination. 2003 U.S. Dist. LEXIS 6873, at *2-3.
The retaliation claim in Walker was not subject to dismissal. Id.

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motive. Id. Thus, the absence of an independent legal obligation to keep confidential Marsh’s
administrative charge, or information about his disability, does not insulate DZNPS from
liability, nor does it provide grounds for dismissal of EEOC’s complaint.  
2. No court has recognized an absolute litigation privilege that insulates employers from
claims of retaliation under the employment discrimination laws.
DZNPS argues that employers, when faced with a charge of discrimination, have an
absolute litigation privilege to communicate any facts, in any manner, to employees and
witnesses. See D’s Br. at 17-19. Defendant urges this Court to dismiss EEOC’s lawsuit,
claiming that “the EEOC’s position is that an employer cannot disclose the fact that a charge of
discrimination was filed or disclose the allegations contained in the charge to employeewitnesses.” Id. at 17. This is a mischaracterization of EEOC’s claims here. Plaintiff alleges that
the ADA prohibits an employer from publicizing information contained in a charge of
discrimination for the purpose of retaliating against one who has engaged in protected conduct or
in order to interfere with the rights of workers to engage in and enjoy the rights guaranteed under
the law.
Of course, whether or not an employer’s disclosure is retaliatory is a fact-bound inquiry
that requires careful examination of the context in which the publication occurred. See
Tepperwien, 663 F. 3d at 568. EEOC’s complaint does not advocate, as DZNPS suggests, an unnuanced, concrete rule about employer communications. Rather, it is Defendant who advances a
position that would protect employers from retaliation claims – regardless of the facts and
context of the case – so long as the action taken was done in the context of litigation, or even
pre-litigation investigation of complaints of discrimination. See D’s Br. at 17-18.19

19

DZNPS asserts that, if communications like its June 17, 2014 letter are held to constitute retaliation,
“ordinary litigation holds, internal investigations, and related communication procedures will be thrown into
disarray.” D’s Br. at 18. But this argument assumes too much. Here, there is no allegation that Defendant’s letter

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Arguments similar to Defendant’s here have been roundly rejected by other federal
courts. See, e.g., Flores v. Mamma Lombardis of Holbrook, Inc., 942 F. Supp. 2d 274, 279
(E.D.N.Y. 2013) (holding, under FLSA, that filing of baseless counterclaim may constitute an
adverse action under statute’s anti-retaliation provision); Torres v. Gristede’s Operating Corp.,
628 F. Supp. 2d 447, 473-75 (S.D.N.Y. 2008) (granting summary judgment to plaintiffs on
retaliation claim and noting that, by countersuing, employer sent the individual plainitffs “and
other actual and potential class members a strong message that, by initiating and/or maintaining
claims against [the employer], they would be subject to burdensome countersuits.”); EEOC v.
Outback Steakhouse of Fla., Inc., 75 F. Supp. 2d 756, 759-61 (N.D. Ohio 1999) (denying motion
to dismiss retaliatory counterclaims under Title VII because such tactics may “be used by an
employer as a powerful instrument of coercion and retaliation” and may dissuade other
employees from pursuing discrimination claims).
Defendant’s litigation privilege argument is hinged on the fact that its June 17, 2014
letter was signed by an attorney. D’s Br. at 18. The cases relied upon by DZNPS in support of
this argument are inapposite. First, in Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74, 76
(E.D.N.Y. 2013), Officemax sued a former employee, Cinotti, for claims relating to Cinotti’s
alleged misuse of business information he acquired while working for the company on behalf of
Cinotti’s subsequent employer, and plaintiff’s competitor, W.B. Mason. Prior to filing suit
against Cinotti, Officemax sent Cinotti a letter, making various allegations and demands; it later
forwarded that letter to W.B. Mason in order to put the company on notice of a potential

was sent in order to effectively enforce a litigation hold, to conduct an internal investigation or for any other,
legitimate purpose. Ultimately, it will be for the jury – on a developed factual record – to determine whether
DZNPS was motivated by a legitimate, non-discriminatory motive or if, as EEOC alleges, Defendant’s motivation
was to retaliate against Marsh and interfere with its employees’ ability to enjoy and exercise the rights guaranteed by
the ADA.

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violation of a settlement agreement previously negotiated by the two companies. 966 F. Supp.
2d at 77. Cinotti counter-sued, alleging common law defamation as a result of Officemax’s letter
to W.B. Mason. Id. The Officemax court dismissed the claim, relying on New York State law’s
litigation privilege because the communication to W.B. Mason was a communication with a
party to the dispute, in an effort to resolve the matter prior to litigation. Id. at 80. DZNPS
cannot claim – nor are there any facts that would suggest – that Defendant’s June 17, 2014 letter
was to parties to the dispute in an effort to resolve the matter, short of litigation.20
Connecticut courts have not applied the litigation privilege so broadly, limiting
application of the privilege to “statements made in judicial proceedings.” See Spector v. Bd. of
Trustees of Community-Technical Colleges, 463 F. Supp. 2d 234, 255 (D. Conn. 2006) (denying
motion to dismiss defamation claim based upon statements contained in incident reports where
there was no way to determine from pleadings whether investigation in which statements were
given was judicial in nature); Craig v. Stafford Construction, Inc., 271 Conn. 78, 85 (2004)
(whether a proceeding is quasi-judicial in nature, such that privilege applies, requires
consideration, for example, whether entity receiving communication has power to “make binding
orders and judgments, affect personal property rights of private persons, examine witnesses”).
Under this standard, there is nothing in the pleadings to suggest that Defendant’s June 17, 2014
letter was made in a judicial proceeding such that Connecticut’s litigation privilege would attach.
20

  
In Doner-Hendrick v. New York Inst. of Tech., the court dismissed plaintiff’s retaliation claim, the basis of
which were statements made by the employer to the EEOC during “quasi-judicial proceedings.” No. 11-121, 2011
U.S. Dist. LEXIS 72714, at *26 (S.D.N.Y. July 5, 2011). The Donner-Hendrick court, which cited no statute or
case law in support of this ruling, focused on the context of the disclosure, not the assertion of a particular privilege.
See id. Similarly, in Nieman v. RLI Corp., No. 12-1012, 2012 U.S. Dist. LEXIS 25378, at *7 (C.D. Ill. Feb. 28,
2012), cited by Defendant, plaintiff’s retaliation claim was based on statements made by defense counsel to the fair
employment practices agency during the investigation. The court there, however, recognized that any litigation
privilege did not extend to communications by the employer’s attorney to an attorney who was in discussions with
the plaintiff about possible representation, confirming that the litigation privilege is not, as Defendant argues,
absolute. See Nieman, 2012 U.S. Dist. LEXIS 25378, at *7-8. 

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Defendant’s reliance on hyperbole and dooms-day fantasies cannot support dismissal of EEOC’s
Complaint. As such, DZNPS’s motion to dismiss should be denied.
E. EEOC’s Damages Request and Demand for a Jury Trial Are Appropriate.
Here, EEOC seeks compensatory and punitive damages, on behalf of Marsh, for
Defendant’s retaliation in violation of § 503(a). See Lovejoy-Wilson, 242 F. Supp. 2d at 241
(holding that compensatory and punitive damages are available to remedy an employer’s
retaliation based on a prior complaint of disability discrimination). Because Plaintiff seeks
compensatory and punitive damages on behalf of Marsh, it is entitled to a jury trial in this matter.
Edwards v. Brookhaven Science Associates, LLC, 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005).
Additionally, EEOC seeks injunctive relief for DZNPS’s interference with the rights of Marsh
and the witnesses, in violation of § 503(b).
DZNPS incorrectly asserts that neither compensatory nor punitive damages is available
under § 503(a), see D’s Br. at 31, and that, as such, Plaintiff is not entitled to a jury trial. In
support of its argument, Defendant fails to cite a single case that is binding authority on this
Court. See id. at 32. EEOC concedes that some federal courts, including the Seventh and Ninth
Circuit Courts of Appeals, have held that § 503(a) does not provide for compensatory and
punitive damages. See Kramer v. Banc of Am. Sec. LLC, 355 F.3d 961, 965 (7th Cir. 2004);
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268-69 (9th Cir. 2009). It is important to
recognize, however, that federal courts do not agree on this issue. Importantly, the Second
Circuit has yet to rule on this question, although, in Muller v. Costello, 187 F. 3d 298, 314 (2d
Cir. 1999), the appeals court upheld a compensatory damages award, after a jury trial, under §
503(a). Moreover, courts within the Second Circuit have reached conflicting conclusions on this
issue. Compare Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp. 2d 351, 362

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(E.D.N.Y. 2008) (noting that, while the court could not “fathom why Congress would draft a
statute that effectively, even if obliquely, forecloses a damages remedy for such cases,” it was
Congress’s place, not the court’s, to remedy its own “oversight”) with Edwards, 390 F. Supp. 2d
225, 235 (E.D.N.Y. 2005) (explicitly rejecting the Seventh Circuit’s analysis and finding
compensatory and punitive damages available under ADA’s anti-retaliation provision).
As discussed here, the better-reasoned decisions confirm that compensatory and punitive
damages are available where an employer has violated § 503(a). It is inconceivable that
Congress would have intended to adopt a statutory scheme that protects individuals from both
disability-based discrimination and retaliation based on asserting one’s rights under the disability
provisions, but then provide effective remedies only for the underlying discrimination claims and
not for retaliation claims. See Burlington Northern, 548 U.S. at 66 (emphasizing that the antiretaliation provisions of federal anti-discrimination laws must be read broadly to effectuate the
underlying enforcement scheme). Defendant’s argument that the injunctive relief sought by
EEOC is “redundant and useless,” see D’s Br. at 32, should similarly be rejected.
1. EEOC may seek monetary relief for Marsh pursuant to Plaintiff’s section 503(a)
claim.
Section 503(c) of the ADA states that the “remedies and procedures available under
sections 12117, 12133, and 12188 of this title [sections 107, 203, and 308 of the ADA] shall be
available to aggrieved persons for violation of subsections (a) and (b) of the section…” 42
U.S.C. § 12203(c). This statutory scheme establishes that the remedies available for
employment-based retaliation claims under § 503 are coextensive with the remedies available at
§ 107, 42 U.S.C. § 12117, which, in turn, are coextensive with the remedies available pursuant to
Title VII, including those at section 706(g), 42 U.S.C. § 2000e-5(g). While § 706(g) does not
authorize compensatory and punitive damages, in the 1991 Civil Rights Act, Congress amended
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42 U.S.C. § 1981 to permit damages in Title VII and ADA cases, like this, brought under § 706
to seek relief for intentional discrimination. See 42 U.S.C. § 1981(a)(1) (authorizing damages
for Title VII cases brought under the powers of § 706); 42 U.S.C. § 1981a(a)(2) (authorizing
compensatory and punitive damages in ADA cases brought under the powers of § 706).
Accordingly, because compensatory and punitive damages are available for Title VII
violations under section 706(g), 42 U.S.C. § 2000e-5(g), they are also available under § 107 of
the ADA, 42 U.S.C. § 12117 (which incorporates the remedies of § 706(g)), and therefore –
pursuant to § 503(c) of the ADA (which incorporates the remedies and procedures of § 107 of
the ADA) – for the § 503(a) claim asserted here. See Edwards, 390 F. Supp. 2d at 235 (because
the “retaliation provision in the ADA refers the reader to 42 U.S.C. § 12117 for its remedy,
which in turn adopts the remedies set forth in Title VII, specifically 42 U.S.C. § 2000e-5 and 42
U.S.C. § 1981a(a)(2) [...], the remedies for violations of § 12230 of the ADA and § 12117 of the
ADA are coextensive with the remedies available in a private cause of action brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5.”); Baker v. Windsor Republic Doors,
635 F. Supp. 2d 765, 769 (W.D. Tenn. 2009) (affirming jury award of compensatory damages on
plaintiff’s retaliation claim under ADA and finding that, to rule otherwise, would be contrary to
Congress’s intent “to enact a co-extensive cause of action for retaliation when it proscribed
intentional discrimination at § 12112.” ).21

21

In support of its conclusion, the Baker court relied on several, recent Supreme Court decisions finding that
intentional discrimination encompasses retaliation. 635 F. Supp. 2d at 769-70 (discussing Jackson v. Birmingham
Board of Education, 544 U.S. 167 (2005) (Title IX case holding that a private right of action for retaliation is
contained within statutory prohibition against intentional discrimination on the basis of sex); CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 454-56 (2008) (holding that a private right of action for retaliation is included within the
language of 42 U.S.C. § 1981, which ensures right of non-white people to “make and enforce contracts”); GomezPerez v. Potter, 553 U.S. 474, 481 (2008) (interpreting “the ADEA federal-sector provision’s prohibition of
‘discrimination based on age’ as … proscribing retaliation,” although the Act contained no explicit prohibition
against federal-sector retaliation) (internal citation omitted)). The Sixth Circuit affirmed the decision in Baker,

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Thus, compensatory and punitive damages are available under § 503(a) of the ADA by a
straight, albeit extended, pathway via reference in section 1981a(a)(2) to § 706 of Title VII,
which, in turn, provides the remedies available under section 107 of the ADA, which, in turn,
supplies the remedies authorized by § 503(c). Because the damages are available under this
incorporation pathway, there was no need for Congress explicitly to list the retaliation provision.
See, e.g., Mark C. Weber, Workplace Harassment Claims under the Americans with Disabilities
Act: A New Interpretation, 14 Stan. L. & Pol’y Rev. 241, 262 (2003) (concluding the
“incorporation-by-reference pathway leads in a straight line from ADA Title V’s section 12203
to ADA Titles I and II to the Civil Rights Act of 1964 to the Civil Rights Act of 1991, placing
section 12203 squarely within section 1981a.”).22 In refusing to follow the incorporation-byreference pathway through the relevant sections of the three related statutes, DZNPS’s argument
– as well as the Kramer and Alvarado courts’ “plain language” analysis – contravene the
Supreme Court’s directive that courts should examine statutory language “in light of context,
structure, and related statutory provisions.” Exxon Mobil Corp. v. Allapattah Servs., 545 U.S.
546, 558 (2005); Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (courts must consider the
“broad context of the statute as a whole.”).
The three statutes – the ADA, Title VII and the Civil Rights Act of 1991 – are linked, by
explicit references, and when they are read together, it is apparent from the statutory language

although on other grounds and without reaching this particular issue. See Baker v. Windsor Republic Doors, Inc.,
414, F. App'x 764 (6th Cir. 2011).
22

Congress’s decision not to enumerate claims under § 503 when amending § 1981 makes sense given the
text and scope of § 503. Reference to section 503 would have expanded the scope of remedies available for
retaliation claims brought under the public accommodations and public services provisions of Title II and III of the
ADA, when all Congress intended in adding the damages provisions of section 1981 was to provide additional
remedies for intentional employment discrimination claims. See Civil Rights Act of 1991, Pub. L. 102-166, Sec. 3
and Sec. 102.

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itself that damages are available in an ADA retaliation action. By failing to read the relevant
statutes as a whole, Defendant – and the court decisions it cites – focuses too narrowly only on
the damages provision itself. In considering the remedies available in an ADA retaliation case, it
is indefensible to focus on an amendment providing damages and ignore the language of the
primary statute initially providing the right of action. The Supreme Court has cautioned that
statutory interpretation does not “look at one work or one provision in isolation” but rather
“looks to the statutory scheme for clarification and contextual reference.” Smith v. United States,
508 U.S. 223, 233-34 (1993). If one starts with the ADA retaliation provision and traces its
incorporation provisions back to Title VII, and then considers the Civil Rights Act amendment
providing damages for intentional discrimination claims brought under section 706 of Title VII,
it is clear that those damages are available for ADA retaliation claims against employers. As
such, Defendant’s motion to dismiss Plaintiff’s claim for compensatory and punitive damages
should be denied.
2. EEOC is entitled to a jury trial on its section 503(a) claim.
As explained above, Plaintiff is entitled to seek compensatory and punitive damages on
behalf of Marsh for DZNPS’s violation of § 503(a) of the statute. As such, Plaintiff is entitled to
a jury trial on this claim. Edwards, 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005) (rejecting
defendant’s argument that monetary damages and jury trial not available for ADA retaliation
claims); see Lovejoy-Wilson, 242 F. Supp. 2d at 241 (same). In Edwards, the court stated that,
“Case law makes clear that retaliation is, by definition, an intentional act. It is a form of
discrimination because the complainant is being subjected to differential treatment.” 390 F.
Supp. 2d at 236 citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (internal
quotations omitted). There, the court rejected the employer’s argument, like Defendant’s here,

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that because the ADA, and § 503 in particular, did not expressly so provide, plaintiff was not
entitled to a jury trial. Id. at 234. Rejecting the Seventh Circuit’s approach in Kramer, the
Edwards court reasoned that because the retaliation provision of the ADA refers to Title I of the
act for its remedy, “which in turn adopts the remedies set forth in Title VII, specifically 42
U.S.C. § 2000e-5 and 42 U.S.C. § 1981a(a)(2),” the Civil Rights Act of 1991, remedies for
violations of the ADA’s anti-retaliation provisions were coextensive with those available in a
private cause of action under § 706 of Title VII and included the right to a jury trial. Id. at 235.
Furthermore, in this Circuit, all doubts with respect to a party’s demand for a jury trial must be
resolved “in favor of the right to a jury trial.” Lee Pharmaceuticals v. Mishler, 526 F.2d 1115,
1117 (2d Cir. 1975). Thus, Defendant’s argument should be rejected, and its motion to strike
EEOC’s demand for a jury trial denied.23
3. EEOC may seek injunctive relief for Defendant’s violation of section 503(b).
EEOC seeks injunctive relief to remedy DZNPS’s violation of § 503(b) of the statute and
Defendant’s interference with the rights protected by the ADA. This includes a permanent
injunction enjoining Defendant from retaliating against those individuals who oppose practices
made unlawful by the ADA, a permanent injunction enjoining Defendant from further
interference with the exercise or enjoyment of rights protected by the ADA, corrective notice to
the witnesses, a tolling of the statute of limitations to bring a charge, and training of Defendant’s
human resources, legal and management personnel. See Compl., pp. 6-7. DZNPS contends that
the relief EEOC seeks is “redundant and useless”. D’s Br. at 32. At the core of Defendant’s
argument, and its effort to strike Plaintiff’s requested remedies, is an argument that it has not
violated the statute and, as such, the remedies EEOC seeks are unnecessary. See id.
23

See D’s Br. at 33 citing, among other cases, Oorah, Inc. v. Schick, 552 Fed. Appx. 20, 23 (2d Cir. 2014)
(where only equitable relief available, party is not entitled to jury trial).

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Such circular reasoning cannot form the basis of a motion to strike remedies permitted by
statute. See 42 U.S.C. § 12117 (incorporating procedures and remedies set forth in §§ 705, 706,
707, 709 and 710 of Title VII of the Civil Rights Act of 1964).24 Defendant contends that,
because its June 17, 2014 letter contained a statement that the company prohibits any form of
retaliation, no injunctive relief is required. See D’s Br. at 32. This argument misses the point,
for in the same communication where DZNPS made that statement, it simultaneously engaged in
retaliation against Marsh. See Compl., ¶ 17. Moreover, the question of what injunctive relief is
required is not one that is appropriate on resolution of a motion to dismiss, where no factual
record exists and there has been no resolution of the merits of Plaintiff’s claims. See Norflet v.
John Hancock Fin. Serv., Inc., 422 F. Supp. 2d 346, 356 (D. Conn. 2006) (denying motion to
dismiss claim for injunctive relief as premature where facts and claims had not yet been
established). Because EEOC is authorized to seek injunctive relief, including relief in the
public’s interest, there is no basis for striking its demand for such relief at this time. See 42
U.S.C. § 2000e-5(g) (authorizing Commission to seek injunctive relief); EEOC v. Waffle House,
Inc., 534 U.S. 279, 307 (2002) (ADA confers upon EEOC right to seek “relief that will benefit
the public and any victims of an employer’s unlawful practices”). As such, Defendant’s motion
should be denied.

24

Contrary to Defendant’s assertion, EEOC does not allege a pattern-or-practice claim here. See D’s Br. at 3,
19. Title I of the ADA incorporates the enforcement and civil actions provisions of Title VII, section 706 and 707 of
42 U.S.C. § 2000e. Thus, EEOC’s Complaint, at ¶¶ 1 and 3, mirrors that language, which refers to the two sections
of Title VII that implicate EEOC’s enforcement authority.

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IV.

CONCLUSION

As stated above, EEOC has satisfied the liberal pleading standards embodied in Federal Rule
of Civil Procedure 8. Plaintiff has pled sufficient facts in support of its claims that DZNPS
engaged in conduct that violated the ADA’s anti-retaliation and interference provisions.
Moreover, Plaintiff is entitled to seek compensatory and punitive damages for violation of the
ADA’s anti-retaliation clause, and is entitled to a jury trial on that claim. The injunctive relief
EEOC seeks in relation to its interference claim is wholly appropriate. As such, Defendant’s
motion to dismiss should be denied in its entirety.

Respectfully submitted,
/s/ Sara Smolik
Sara Smolik (phv04536)
Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Boston Area Office
John F. Kennedy Federal Building
Room 475
Boston, MA 02203-0506
(617) 565-3207
(617) 565-3196 (f)
sara.smolik@eeoc.gov
Raechel L. Adams
Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
New York District Office
33 Whitehall Street, 5th Floor
New York, NY 10004-2112
(212) 336-3707
Raechel.adams@eeoc.gov

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CERTIFICATE OF SERVICE
I hereby certify that on December 21, 2015, I electronically filed the foregoing with the
Clerk of the District Court using its CM/ECF system, which then electronically notified all those
registered as CM/ECF participants in this case.
/s/ Sara Smolik
Sara Smolik

40