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Case 3:15-cv-01416-VAB Document 13 Filed 11/30/15 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Civil Action No. 3:15-cv-01416 (VAB)

Plaintiff,

v.
DAY & ZIMMERMANN NPS, INC.

November 30,2015

Defendant.

DEFENDANT'S MOTION TO DISMISS THE COMPLAINT
Defendant Day & Zimmermann NPS, Inc. ("DZNPS"), by and through its undersigned
counsel, hereby respectfully requests that this Court grant its Motion to Dismiss the Complaint
("Motion"). In support of this Motion, DZNPS submits the accompanying Memorandum of Law,
which is incorporated herein by reference.
WHEREFORE, DZNPS respectfully requests that this Court GRANT its Motion and
dismiss the Complaint in its entirety, with prejudice.

ORAL ARGUMENT IS REQUESTED

Case 3:15-cv-01416-VAB Document 13 Filed 11/30/15 Page 2 of 3

Respectfully submitted,

Dated: November 30,2015

Is/ Stephen P. Rosenberg
Stephen P. Rosenberg (CT2660 1)
LITTLER MENDELSON, P.C.
One Century Tower
265 Church Street, Suite 300
New Haven, CT 06510
203-974-8700
203-974-8799 (fax)
sprosenberg@littler.com
Kimberly J. Gost (pro hac vice)
William J. Simmons (pro hac vice motion
forthcoming)
LITTLER MENDELSON, P.C.
Three Parkway
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102.1321
267-402-3000
267-402-3131 (fax)
kgost@littler.com
wsimmons@littler.com
Attorneys for Defendant
Day & Zimmermann NPS, Inc.

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Case 3:15-cv-01416-VAB Document 13 Filed 11/30/15 Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that on November 30, 2015, a copy of the foregoing was filed
electronically and served by mail on anyone unable to accept electronic filing. Notice of this
filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or
by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic
Filing. Parties may access this filing through the Court's CM/ECF system.
Additionally, on November 30, 2015, a copy of the foregoing was hand-delivered to the
following counsel for record for the Plaintiff:
Robert D. Rose
Raechel L. Adams
Sara Smolik
Trial Attorneys
Equal Employment Opportunity Commission
Boston Area Office
John F. Kennedy Federal Building
Room 475
Boston, MA 02203-0506

Is/ Stephen P. Rosenberg
Stephen P. Rosenberg

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 1 of 71

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Civil Action No. 3:15-cv-01416 (VAB)

Plaintiff,

v.
DAY & ZIMMERMANN NPS, INC.

November 30,2015

Defendant.

DEFENDANT DAY & ZIMMERMANN NPS, INC.'S BRIEF
IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT

Kimberly J. Gost (pro hac vice)
William J. Simmons (pro hac vice
motion forthcoming)
LITTLER MENDELSON, P.C.
Three Parkway
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102.1321
267-402-3000
267-402-3131 (fax)
kgost@littler.com
wsimmons@littler.com
Stephen P. Rosenberg (CT26601)
LITTLER MENDELSON, P.C.
One Century Tower
265 Church Street, Suite 3QO
New Haven, CT 06510
203-974-8700
203-974-8799 (fax)
sprosenberg@littler.com

Attorneys for Defendant
Day & Zimmermann NPS, Inc.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 2 of 71
TABLE OF CONTENTS
PAGE

I.

INTRODUCTION ............................................................................................................. I

II.

APPLICABLE LEGAL STANDARDS ............................................................................ 3
A.

Rule 12(b)( 6) Standard .......................................................................................... 3

B.

The EEOC's Enforcement Authority: Sections 706 and 707 ................................ 4

III.

ALLEGATIONS ................................................................................................................ 5

IV.

ARGUMENT ................................................................................................................... 10
A.

Because DZNPS Had No Legal Duty Under the ADA or Any Other Law
or Regulation to Keep the Contents of the Letter Confidential, the Letter
Cannot Be the Foundation for the EEOC's Claim that DZNPS Acted
Unlawfully ........................................................................................................... II
I.

DZNPS Had No Legal Duty Under the ADA or Any Other Statute
to Keep the Contents of the Letter Confidential ...................................... II

2.

DZNPS Had No Legal Duty Under the Applicable Administrative
Scheme to Keep the Contents of the Letter Confidential; In Fact,
Doing So Would Interfere with DZNPS's Fundamental Right to
Defend Itself Against Marsh's Charge .................................................... 13

3.

Not Only Was There No Legal Duty to Keep the Contents of the
Letter Confidential, There Was a First Amendment Right to
Disclose Such Information to Witnesses ................................................. 14

4.

The Argument that Employers Cannot Disclose the Fact that a
Charge of Discrimination Was Filed or Disclose Allegations
Contained in the Charge to Third-Party Witnesses Has FarReaching Implications Beyond this Lawsuit ........................................... 17

B.

The EEOC's Section 707 Claim Fails for Lack of Any Pattern or Practice ........ 19

C.

The EEOC's Section 706 Claims Lack Factual Basis ......................................... 20
I.

DZNPS Did Not Interfere with Any ADA Rights ................................... 21
a.

Interference Claims Under the ADA ........................................... 21

b.

The EEOC Cannot Adequately Plead that DZNPS
Interfered with the Witnesses' ADA Rights ................................ 23

I.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 3 of 71
TABLE OF CONTENTS

(CONTINUED)
PAGE

c.
2.

V.

DZNPS Did Not Interfere with Marsh's Rights Under the
ADA ............................................................................................. 24

The Complaint Fails to State a Claim that DZNPS Retaliated
Against Marsh .......................................................................................... 26
a.

The EEOC Fails to Allege an Adverse Employment Action ....... 26

b.

The EEOC Fails to Allege Causation .......................................... 30

D.

The Damages the EEOC Seeks Are Unavailable as a Matter of Law ................. 31

E.

The EEOC's Jury Demand Must Be Stricken From the Complaint.. .................. 33

CONCLUSION ................................................................................................................ 34

n.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 4 of 71

TABLE OF AUTHORITIES
Pagc(s)
CASES

Alvarado v. Cajun Operating Co.,
588 F.3d 1261 (9th Cir. 2009) .......................................................................................... .32, 33
A mar v. New York City Health & Hasps. Corp.,
Civ. A. No, 14-2503,2015 U.S. Dist. LEXIS 77718 (S.D.N.Y. June 15, 2015) ..................... 30
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................................... 4
Austen v. Catterton Partners V, LP.
831 F. Supp. 2d 559 (D.Conn. 2011) ....................................................................................... 15
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................. .4
Bledsoe v. Emery Worldwide Airlines. Inc.,
635 F.3d 836 (6th Cir. 2011) ................................................................................................... 34
Bowles v. Carolina Cargo. Inc.,
100 F. App'x 889 (4th Cir. 2004) ............................................................................................ 32
Brown v. City ofLee 's Summit,
Civ. A. No. 98-0438, 1999 U.S. Dist. LEXIS 17671 (W.D. Mo. 1999 ................................... 32
Brown v. City of Tucson,
336 F.3d 1181 (9th Cir. 2003) ..................................................................................... 21, 22, 23
Burlington Indus .. Inc. v. Ellerth,
524 u.s. 742 (1998) ........................................................................................................... 26, 27
Burlington N & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) ................................................................................................................... 23
Calderone v. Scott,
Civ. A. No. 14-519,2015 U.S. Dist. LEXIS 109484 (M.D. Fla. Aug. 19, 2015) ................... 16
Colburn v. Parker Hannijin/Nichols Portland Div..
429 F.3d 325 (I st Cir. 2005) .................................................................................................... 25
Conneen v. MBNA AM Bank. NA.,
182 F. Supp. 2d 370 (D. Del. 2002) ......................................................................................... 11

iii

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 5 of 71

Connor v. Office of Atty. Gen. ofTex.,
Civ. A. No. 14-961, 2015 U.S. Dist. LEXIS 27174 (W.O. Tex. Mar. 5, 2015) ...................... 17
Conroy v. N.Y. State Dep 't of Carr. Servs.,
333 F.3d 88 (2d Cir. 2003) ....................................................................................................... 33
Dawson v. County of Westchester,
373 F.3d 265 (2d Cir. 2004) ..................................................................................................... 27
Design Strategy, Inc. v. Davis,
469 F.3d 284 (2d Cir. 2006) ..................................................................................................... 34
Doe v. Kahn, Nasi & Graj.' P.C.,
866 F. Supp. 190 (E.D. Pa. 1994) ............................................................................................ 22
Doner-Hendrick v. Net\1 York Inst. ofTech.,
Civ. A. No. 11-121,2011 U.S. Dist. LEXIS 72714 (S.D.N.Y. July 5, 2011) ......................... 18
E. E. 0. C. v. Bloomberg L. P.,
967 F. Supp. 2d 802 (S.D.N.Y. 2013) ...................................................................................... 20
E.E.O.C. v. C.R. New England Inc.,
644 F. 3d 1028 (lOth Cir. 2011) .............................................................................................. 12
E.E.O.C. v. Carolls Corp.,
Civ. A. No. 98-1772,2011 U.S. Dist. LEXIS 20972 (N.D.N.Y. Mar. 2, 2011) ................ 20, 23
E.E.O.C. v. CRST Van Expedited, Inc.,
611 F. Supp. 2d 918 (N.D. Iowa 2009) .................................................................................... 21
E.E.O.C. v. Faurecia Exhaust Sys., Inc.,
601 F. Supp. 2d 971 (N.D. Ohio 2008) .................................................................................... 32
E.E.O.C. v. PortAuth. ofN.Y &N.J.,
768 F.3d 247 (2d Cir. 2014) ..................................................................................................... 23
E.E.O.C. v. K&J Mgmt. Inc.,
Civ. A. No. 99-8116,2000 U.S. Dist. LEXIS 8012 (N.D. Ill. Jun. 7, 2000) ........................... 28
E.E.O.C. v. Kaplan Higher Educ. Corp.,
748 F.3d 749 (6th Cir. 2014) ..................................................................................................... !
Faragher v. City of Boca Raton,
524 u.s. 775 (1998) ................................................................................................................. 23
Fisher v. Harvey,
Civ. A. No. 05-102,2006 U.S. Dist. LEXIS 21657 (E.D. Tenn. Mar. 31, 2006) .................... 12

IV

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 6 of 71

Gaube v. Day Kimball Hospital,
Civ. A. No. 13-1845,2015 U.S. Dist. LEXIS 36506 (D. Conn. Mar. 24, 2015) ...................... .4
Gilliard v. Ga. Dep 't ofCorr.,
500 Fed. Appx. 860 (lith Cir. 2012) ....................................................................................... 12
Gulf Oil Co. v. Bernard,
452 u.s. 89 (1981) ................................................................................................................... 16
Haskett v. Cant'/ Land Res., LLC, ·
Civ. A. No. 14-281,2015 U.S. Dist. LEXIS 40610 (S.D. Tex. Feb. 9, 2015) ......................... 13
Hernandez v. Best Buy Stores, L.P.,
Civ. A. No. 13-2587,2015 U.S. Dist. LEXIS 154103 (S.D. Cal. Nov. 13, 2015) ................. .16
Hogan v. Mabus,
Civ. A. No. 14-423,2015 U.S. Dist. LEXIS 84546 (D. Conn. Jun. 30, 2015) .......................... 4
Hollis v. Dep 't ofMental Health & Addictive Servs.,
Civ. A. No. 14-516, 2015 U.S. Dist. LEXIS 121668 (D. Conn. Sept. II, 2015) .................... 30
Howardv. City ofNew York,
602 Fed. Appx. 545 (2d Cir. 20 15) ......................................................................................... .31
Hughes Training Inc. v. Pegasus Real-Time Inc.,
255 A.D.2d 729 (3d Dep't 1998) ............................................................................................. 28
Infantolino v. Joint Indus. Bd. of Elec. Indus.,
582 F. Supp. 2d 351 (E.D.N.Y. 2008) ..................................................................................... 32
Int '/Brotherhood o[Teamsters v. US.,
431 U.S. 324 (1977) ........................................................................................................... 19, 20
John Doe, Inc. v. Mukasey,
549 FJd 861 (2d Cir. 2008) ..................................................................................................... 14
Joseph v. Leavitt,
465 F.3d 87 (2d Cir. 2006) ....................................................................................................... 26
Kendall v. Walgreen Co.,
No. A-12-CV-847, 2014 U.S. Dist. LEXIS 52444 (W.D. Tex. Apr. 16, 2014) ...................... 25
Kramer v. Bane ofAm. Sec., LLC,
355 F.3d 961 (7th Cir. 2004) ............................................................................................. 32, 33
Krish v. Conn. Ear, Nose & Throat, Sinus & Allergy Specialists, P. C.,
607 F. Supp. 2d 324 (D. Conn. 2009) ...................................................................................... 19

v

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 7 of 71

Louie v. Carichoff,
300 Fed. Appx. 5 79 (9th Cir. 200 8) ......................................................................................... 2 9
Lutz v. Glendale Union High Sch., Dis/. No. 205,
403 F .3d 1061 (9th Cir. 2005) ................................................................................................. 34
Marchuk v. Faruqi & Faruqi,
LLP, Civ. A. No. 13-1669,2015 U.S. Dist. LEXIS 9806 (S.D.N.Y. Jan. 28, 2015) ......... 27, 28
McCarthy v. Dun & Bradstreet Corp.,
482 F .3d 184 (2d Cir. 2 007) ...................................................................................................... .4
Mendez v. Enecon Northeast Applied Polymer Systems,
Civ. A. No. 14-6736,2015 U.S. Dist. LEXIS 90794 (E.D.N.Y. July 13, 2015) ..................... 15
Middleton v. City ofNew York,
Civ. A. No. 13-6095,2014 U.S. Dist. LEXIS 113616 (S.D.N.Y. Aug. 13, 2014) ................... .4
Morgan v. Dzurenda,
Civ. A. No. 14-966,2015 U.S. Dist. LEXIS 131647 (D. Conn. Sept. 29, 2015) ...................... 4
Muller v. Costello,
187 F. 3d 298 (2d Cir. 1999) .................................................................................................... .32
Nieman v. RLI Corp.,
Civ. A. No. 12-1012,2012 U.S. Dist. LEXIS 25378 (C.D. Ill. Feb. 28, 2012) ....................... 18
NLRB v. Gissel Packing Co.,
395 U.S. 57 5 (1969) ..................................................................................................... 15, 16, 17

0 'Hazo v. Bristol-Burlington Health Dist.,
599 F. Supp. 2d 242 (D. Conn. 2009) ...................................................................................... 31

Officemax Inc. v. Cinotti,
966 F. Supp. 2d 74 (E.D.N. Y. 2013) ....................................................................................... 18
Oorah, Inc. v. Schick,
5 52 Fed. Appx. 2 0 (2d C ir. 2 0 14) ............................................................................................ 33
Pal v. New York Univ.,
5 83 Fed. Appx. 7 (2d Cir. 2 0 14) .............................................................................................. 3 3
Reynolds v. Am. Nat 'I Red Cross,
70 I F .3d 143 (4th Cir. 20 12) ................................................................................................... 12
Rhoads v. Fed. Deposit Ins. Corp.,
94 F. App 'x 187 (4th Cir. 2004) .............................................................................................. 32

VI

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 8 of 71

Ridgeway v. Royal Bank of Scotland Group,
Civ. A. No. 11-976,2013 U.S. Dist. LEXIS 67822 (D. Conn. May 13, 2013) ....................... 22
Robinson v. Metro-North Commuter R.R. Co.,
267 F.3d 147 (2d Cir. 2001) ....................................................................................................... 5
Romero v. Allstate Ins. Co.,
3 F. Supp. 3d 313,336 (E.D.Pa. 2014) .................................................................................... 21
Roth v. Luteran Gen. Hasp.,
57 F. 3d 1446 (7th Cir. 1995) ............................................................................................ 21, 22
Rubinow v. Boehringer Ingelheim Pharms., Inc.,
Civ. A. No. 08-1697,2010 U.S. Dist. LEXIS 45704 (D. Conn. May 10, 2010) ..................... 19
Seguin v. Marion County Health Dep 't,
Civ. A. No. 13-96,2014 U.S. Dist. LEXIS 112110 (M.D. Fla. Aug. 13, 2014) .................... 22
Steffes v. Stepan Co.,
144 F.3d 1070 (7th Cir. 1998) ........................................................................................... 28, 29
Stoddard v. Eastman Kodak Co.,
309 Fed. Appx. 475 (2d Cir. 2009) .......................................................................................... 31
Treglia v. Town of Manlius,
313 F.3d 713 (2d Cir. 2002) ..................................................................................................... 26
Vess v. Scott Medical Corp.,
Civ. A. No. II- 2549,2013 U.S. Dist. LEXIS 39812 (N.D. Ohio Mar. 15, 2013) ................. 23
Walker v. Braes Feed Ingredients, Inc.,
Civ. A. No. 02-9236, 2003 U.S. Dist. LEXIS 6873 (N.D. Ill. Apr. 22, 2003) ........................ !!
Walker v. City of Lakewood,
272 F.3d 1114 (9th Cir. 2001) ................................................................................................. 22
Weight Watchers ofPhiladelphia, Inc. v. Weight Watchers Int '1, Inc.,
455 F.2d 770 (2d Cir. 1972) ......................................................................................... 14, 15, 17
Wiggins v. DaVila Tidewater, LLC,
451 F. Supp. 2d 789 (E.D. Va. 2006) ...................................................................................... 12
Wilmington Firefighters Local 1590 v. Wilmington,
824 F.2d 262 (3d Cir. 1987) .................................................................................................... .33
Wray v. Nat/ R.R. Passenger Corp.,
I 0 F. Supp. 2d I 036 (E. D. Wis. 1998) ..................................................................................... 21

Vll

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STATUTES

42 U.S .C. § 2000e-5 ....................................................................................................................... 31
42 U.S. C. § § 2000e-5(f) and 2000e-6 .............................................................................................. 5
42 U .S.C. § 12101 et seq............................................................................................................... .33
42 U .S.C. § 12203 .................................................................................................................... 31, 32
42 U .S.C. § § 12203 (a), (b) ............................................................................................................. 29
42 U .S.C. § 12203(b) ..................................................................................................................... 21
OTHER AUTHORITIES

29 C.F .R. § 825 .500(g) .................................................................................................................. 12
29 C. F.R. § 160 1.22 ...................................................................................................................... . 11
4 5 C .F .R. § 160.1 03 ....................................................................................................................... 12
FED. R. CIV. P. 8(a)(2) ..................................................................................................................... .4
FED. R. CIV. P. 39( a)(2) .................................................................................................................. 33
The Sedona Conference Commentary on Legal Holds: The Trigger & the Process, 11
SEDONA CONF. J. 265 (201 0) ................................................................................................... 17

Vlll

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I.

INTRODUCTION

This lawsuit exemplifies the U.S. Equal Employment Opportunity Commission
("EEOC")'s enforcement position of"do as I say, not as I do." In this case, the EEOC identified
potential witnesses during the course of an agency investigation, communicated to Defendant
Day & Zimmermann NPS, Inc. ("DZNPS") its intent to interview those witnesses, but then
accused DZNPS of violating the law when DZNPS counsel contacted those witnesses in
accordance with the Rules of Professional Responsibility. Then, the EEOC itself engaged in
widespread distribution of information about the charge in its public lawsuit and press releases.
The EEOC, whose responsibility is to conduct a neutral fact-finding investigation, appears to be
using similar tactics against other employers. See, e.g. E.E.O.C. v. Kaplan Higher Educ. Corp.,
748 F.3d 749, 750 (6th Cir. 2014) (affirming dismissal and noting: "[i]n this case the EEOC sued
the defendants for using the same type of background check that the EEOC itself uses.").
Because DZNPS did nothing wrong, conciliation of the underlying Charge in this case
(obviously) failed, and the EEOC then initiated this lawsuit.
On September 29, 2015, the EEOC filed the Complaint in this matter. The publicly
available lawsuit named an individual, Gregory Marsh, as a union member of Local 35 of the

International Brotherhood of Electrical Workers ("IBEW"), specified that Mr. Marsh had filed an
EEOC charge of discrimination (the "Charge") against DZNPS in October 2012, noted that
Marsh had alleged disability discrimination in his Charge, and shared that Marsh had medical
restrictions related to his alleged "disability." Not content with the mere filing of a public
lawsuit, though, the EEOC sought to disseminate this same information to as wide a public
audience as possible by issuing a public press release on the same date. See Press Release,
http://www l.eeoc.gov/eeoc/newsroom/release/9-28-15.cfm.

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The EEOC continued its fervent efforts to publicize these facts by sharing its press
release via Twitter with its 7,000+ followers. EEOC Tweet, available at
https://twitter.com/EEOCNews/status/648943094260465665. The EEOC's tenacious publicity
blitz had its intended effect. Soon, other outlets picked up the story, re-publishing the facts
alleged by EEOC, including Marsh's name, that he had filed a charge of discrimination, and that
he alleged he had a disability and medical restrictions. See, e.g., Staffing Industry Daily News,
http://www.staffingindustry.com/Research-Publications/Daily-News/EEOC-Sues-DavZimmermarm-NPS-for-retaliation-over-discrimination-charge-35516, Employment Law 360,
http://www.law360.com/articles/708089/day-zimmermann-punished-worker-tor-ada-chargeeeoc. Indeed, the Law360 article garnered the EEOC with the ability to reach hundreds of
thousands of readers with these facts about Marsh. See Law360 "About,"
http://www.law360.com/about ("With over 400,000 newsletter recipients each day, Law360 is a
trusted news source"). Thus, due to the EEOC's own conduct, the public now is aware that
Gregory Marsh filed a charge of discrimination against his former employer, that he claims he is
disabled, and that he claims he has medical work restrictions as a result of his disability.
In stark contrast to its own conduct, the EEOC challenges as unlawful DZNPS's
circumscribed distribution of information to 146 witnesses. In the course of cooperating with the

EEOC's demand for those witnesses' contact information so the EEOC could interview them
about Marsh's Charge, DZNPS understandably informed the witnesses by letter that DZNPS had
provided their private contact information to the EEOC (the "Letter"). Exhibit A, June 17, 2014
DZNPS Letter to Witnesses. The EEOC's theory is that by sending benign information about
Marsh's Charge in the Letter, such as his name and the fact that he had filed the Charge, DZNPS
somehow "retaliated" against Marsh and "interfered" with the rights of the recipients of the

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Letter. On the contrary, the Letter explicitly re-affirmed DZNPS's policy against retaliation,
DZNPS's commitment to equal employment opportunity, and DZNPS's position that a decision
to speak with the EEOC investigator "will not have an adverse impact on your current or future
employment." (The EEOC conveniently omitted these statements in its Complaint and in every
press statement it issued on the subject).
The EEOC's lawsuit impermissibly seeks to interfere with employers' rights to defend
and investigate charges of discrimination and their freedom of speech by attempting to restrict
employers' factual communications with third party witnesses. For that reason alone, the
EEOC's Complaint must be dismissed. Yet, there also are other flaws with the EEOC's
pleading. The EEOC has not adequately pled a "pattern or practice" Section 707 claim, because
the EEOC relies on an isolated occurrence- one Jetter- for its claim. The EEOC's Section 706
claims fail because the EEOC does not, and cannot, allege sutlicient facts to meet the legal
standard for interference or retaliation claims. Finally, the EEOC's Complaint seeks damages
which, as a matter oflaw, are unavailable to it. Accordingly, as discussed in more detail below,
the EEOC's Complaint must be dismissed in its entirety, with prejudice. 1

II.

APPLICABLE LEGAL STANDARDS

A.

Rule 12(b)(6) Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may
move to dismiss a Complaint for "failure to state a claim upon which relief can be granted."
FED. R. CIV. P. 12(b)(6). The Court should grant a motion to dismiss if the complaint fails to
1

Perhaps not surprisingly, the EEOC did not file suit based on Marsh's underlying original
Charge. The Charge alleged that DZNPS violated the Americans with Disabilities Act ("ADA")
when it could not reasonably accommodate Marsh's disability (which, to this day, remains
unknown to the DZNPS) by allowing him to work in a nuclear power plant while simultaneously
guaranteeing that he be kept free from "radiation," or "chemicals" of any sort. The entire dispute
here involves only DZNPS's post-Charge Jetter.

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plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); accord Ashcro.fi v. Iqbal, 556 U.S. 662, 677 (2009).
"[A] plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555. "Rule 8 ... does not unlock the doors of discovery tor a
plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-679; See also FED.
R. CIV. P. 8(a)(2). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. See also Gaube v. Day Kimball
Hospital, Civ. A. No. 13-1845,2015 U.S. Dist. LEXIS 36506, *2 (D. Conn. Mar. 24, 2015)
(Bolden, J.) (granting defendant's Rule 12(b)(6) motion to dismiss the claims under Title VII and
the ADA); Hogan v. Mabus, Civ. A. No. 14-423,2015 U.S. Dist. LEXIS 84546, *I (D. Conn.
Jun. 30, 2015) (Bolden, J.) (dismissing the plaintiff's Title VII claims).
In deciding a motion to dismiss, courts may consider "the facts as asserted within the four
corners of the complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference." McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 191 (2d Cir. 2007). Courts may also consider matters of public record and other
matters "of which judicial notice may be taken." Morgan v. Dzurenda, Civ. A. No. 14-966,2015
U.S. Dist. LEXIS 131647, at *9 (D. Conn. Sept. 29, 2015) (Bolden, J.). This includes
government publications and websites. Middleton v. City ofNew York, Civ. A. No. 13-6095,
2014 U.S. Dist. LEXIS 113616, at *6 (S.D.N.Y. Aug. 13, 2014).

B.

The EEOC's Enforcement Authority: Sections 706 and 707

The ADA, as amended, sets forth two procedural mechanisms by which the EEOC may
challenge allegedly unlawful employment practices- Section 706 and Section 707. See 42
U.S.C. § 12117(a) (incorporating by reference Sections 706(t)(l) and (3) and Section 707 of

4

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Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e-5(f) and 2000e-6).
Section 706 grants the EEOC authority to bring a suit on behalf of an individual whom it
believes has been aggrieved. !d. at§ 2000e-5(f). If successful in a Section 706 claim under the
ADA, the EEOC is entitled to only equitable relief. !d. at 2000e-5(g); see infi·a § IV.D.
Meanwhile, Section 707 permits the EEOC to sue employers when it believes that the
employer "is engaged in a pattern or practice of resistance to the full enjoyment of any rights
secured by this subchapter, and that the pattern or practice is of such a nature and is intended to
deny the full exercise of the rights herein described." !d. § 2000e-6(a). Claims under Section
707 are commonly referred to as "pattern or practice claims." A pattern or practice claim is a
type of disparate treatment claim that alleges widespread acts of intentional discrimination
against a class of individuals rather than isolated or sporadic incidents of discrimination. See

generally Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001)
(abrogated on other grounds). In order to succeed on such a claim, the EEOC must prove that
intentional discrimination was the defendant's "standard operating procedure." !d. Only
equitable relief is available under Section 707. !d. § 2000e-6(a).

III.

ALLEGATIONS 2
The Complaint alleges that in September 2012, DZNPS hired Marsh, an electrician and

member ofLocal35 of the IBEW ("Local35"), to work at the Millstone Power Station, a nuclear
power plant, in Waterford, Connecticut.

Complaint~

17(a). According to Marsh, his doctor

informed him that he could "not work on any site with radiation" and that he "should not be
around radiation, chemicals or exposure." Exhibit B, Charge of Discrimination. Marsh made

2

For purposes of this Motion only, DZNPS accepts as true the facts alleged in the EEOC's
Complaint. DZNPS also permissibly relies on documents integral to and incorporated in the
Complaint, and other matters of public record of which this Court may take judicial notice. See
supra, § Il(A).

5

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 15 of 71

DZNPS aware of his doctor's instructions shortly after his hire, but DZNPS could not employ
Marsh at the nuclear power plant with these limitations and terminated his employment. /d.
Alleging that DZNPS failed to reasonably accommodate his disability and unlawfully terminated
his employment, Marsh filed his Charge with the EEOC.

Complaint~

17(b). Marsh filed the

Charge in his individual capacity and not on behalf of a broader group of individuals. Ex. B.
A year and a half later, in the course of investigating the Charge in its capacity as a
neutral fact-finder, the EEOC determined that "additional information [from DZNPS was]
required" to complete its investigation. Exhibit C, March 4, 2014 Letter trom EEOC
Investigator Susan Boscia. Among other things, the EEOC demanded from DZNPS a list of all
electricians DZNPS employed in the fall of2012 at the power plant, and for each individual,
their job title, dates of employment, last known home address, and last known telephone number.
Ex. C;

Complaint~

17(c).

DZNPS provided the requested information to the EEOC.

Complaint~

17(d). This

lawsuit is about the following single-page letter that DZNPS sent on one day, limited to the 146
other electricians (the "Witnesses") whom the EEOC deemed relevant to its investigation and
presumably wanted to interview about Marsh's Charge. Complaint~ 17(d). 3 First and foremost,
the letter alerted the Witnesses that DZNPS had provided their contact information to the

3

Under Connecticut General Statutes 31-128f, personally identifiable information in personnel
files is generally protected trom disclosure absent the involved employee's affirmative written
authorization. Although there is an exception under the law for govemment investigations,
employees might not be aware of the nuance, so notification of disclosure makes eminent sense.
4
Local35, the union that represented the interests of Marsh and the Recipients of the Letter,
reviewed and approved the Letter before DZNPS mailed it. Thus, any suggestion that the letter
had nefarious motives is misplaced. This fact, however, is not necessary for disposition of this
motion, because even absent the union's approval, the letter was proper.

6

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 16 of 71

0
Oay&Zimmermann
'*"" ........

"9''

Juno 17,201-4

Dear--·
Rt:

Infotlllltioo Requcstcd by !!qual Bmploymorrt Oppottwrity Commlulon

The Eqael Employmcot Opportunity Commluloo ("EEOC") bat roqulrod Day .t. Zlmmannann NPS ("DZNPS") to
provide a lilt of oll oloctriolau cmployod by DZNPS 11 duo Millalooc Nuclou Power Stadoo Ia W.non!,
COIIDOC1:Icut cludng 1ha Poll 2012 01J1aF. The EEOC ilspeclftcally seelcfna oacb eloctriclan'snamo,job titla, d-.
of omp!oymaat, JutJmown homo ~ IID<I·lut known telepbooe number. On JeVicrw of DZNPS' rocords, you
have bocm ldoatlflod u m IDdlvldaal who wu employed • MIJ1IIDno during tbc roJcvmt limo periocl.
The EEOC 10Q8bt 1hla klftxmatlou to !nvatigl1e a charge of disability dlsc:rlmlDGion fi1od by Oropy Manh. Mr.
Marsh. a mambar of1bo Tnlmolllonal Btotberbood of B1ectrical WOJ!an, Local3S, wu ono of IICIVtnl electriclma
rafamd by biJJ Unloo for hire during tho Poll 2012 Ollta3' at MIJliiDno. In his charge, Mr. Manh a1Jcgco that his
doctcr told him be could not wad In m .,.. that had Bdla!lon, or bo lrOIIDd radiation, cbcmiC'lw or OXjlOIUIO. He
fur1hcr allep that DZNPS failed to OCOOIIIIIIOdlle this disability boc&IIIIC 90% of tho Ml1!stono plalll, ho clalms,
cloet not have ndllllon, aod that he coold bavc worked In 1111 area without radiation, chemicals or axpo111n1.
DZNFS doolos !be ollOI!Ilioas uwle by Mr. Minh, aod spoclflca1Jy dcolea aay wrongdoing or discrimination.

ru port oftba EEOC procc!IS. an invcstlgaltt bu bocm uslgoed to cvalua tbc maritJ of Mr. Marsh's allop!lom.
It II our uadenlmdiiJ& that tbo invesligslor Ill&)' cootact you !o Iuquire brto your job rasponslbllitlos during tba Foll
2012 ou11p. It II your ciDclslon wbclbcr you wish to speak with tba hrmtlplor aod your tltclaloa will 1101 bava an
ad'Y1no ~ oo your cumm1 or lUtare employmorrt with DZNPS. DZNPS Is M«Dm!Ued to provldlos oqual
emp~ opportuDilles to oll emptor- and appi:lc:eu for employmcmt witboot rapnl to J1ICO, color, roU&IoD,
- . DlllaDal Ol'iiiD. age, diaabillty, II8XIII.i odeulltion or other 11111111 prtl(eCIOd by applicable fadanl, JbiiD or local
taw. DZNPS al10 prohlbiDaay funn ofrotallallon against 111 employae, Including tboso '1\'bo cboae to participllo iD
!be EEOC lnvesdgation.
If you cboo5c to speak wltb the EEOC Investigator and would like to hava a COIJII!CII for DZNPS prosent while you
speak to tba ~. ploasa let us know aod wo will make tho ooccsaary arrangcu>an13. Ploue call DZNPS'
counsfi Elizabeth McKmu1, Littlar Mandclsoo P.C,at (203) 974-871411Jld sbo will coordiDaJe this.
We bopa to have this IDIItOr roaolvcd u expeditiously u poulble.
Sincerely,

~a.

a

CoooeyOO'T\Ij

Lisa Ann
Senior Labor k Employment Counsel

7

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 17 of 71

The Letter provided background into why the EEOC sought the Witnesses' information
and basic information about Marsh's Charge:
The EEOC sought this information to investigate a charge of disability discrimination filed by Gregory Marsh. Mr.
Marsh, a mCI!lber of tho International Brotherhood of Electrical Workers, Local35, was one of several electricians
refimed by his Union for hire during the Fall 2012 outage at Millstone. In his charge, Mr. Marsh alleges that his
doctor told him he could not work in an area that had radiation, or be around radiation, chemicals or expoSW'O, He
further alleges that DZNPS failed to accommodate this disability because 90% of the Mlllstone plant, he claims,
does not have radiation, and that he could have worked in an area without radiation, chemicals or expoSllnl,
DZNPS denies the allegations made by Mr. Marsh, and specifically denies any wrongdoing or discrimination.
Ex. A.
The Letter's description of Marsh's claim tracks the Charge and no more:
Statement in Letter (Ex. A)

Corresponding Statement in Charge (Ex. B)

"In his charge, Mr. Marsh alleges that his
doctor told him he could not work in an area
that had radiation, or be around radiation,
chemicals or exposure."

"On 9/28/2012, I went to my doctor, who told
me that I couldn't work in an area that had
radiation as it would be bad for my disability ..
. Specifically, my doctor stated that due to my
condition, I should not be around radiation,
chemicals or exposure."

"[Marsh] further alleges that DZNPS tailed to
accommodate his disability because 90% of the
Millstone plant, he claims, does not have
radiation, and that he could have worked in an
area without radiation, chemicals or exposure."

"I believe that I have been discriminated
against based on my disability, in that
Respondent would not reasonably
accommodate my disability. 90% of the
Millstone Power Plant does not even have
radiation and I could still work in a different
area of the job without radiation (over 250
electricians were hired). Instead I was
terminated.

I

I

The Letter expressly informs the Witnesses that it was entirely tlzeir choice whether to speak
with the EEOC, and assures them ofDZNPS's commitment to equal employment opportunity
and 1zon-retaliation:
As part of tho EEOC process, an investigator has been assigned to evaluate the merits of Mr. Marsh's allegations.
It is our understanding that the investigator may contact you to inquire into your job responsibilities during tho Fall
2012 outage. It is your decision whether you wish to speak with the investigator and your decision will not have Wl
adverse impact on your cum.:nt or future employment with DZNPS. DZNPS is committed to providing equal
employment opportunities to all employees and appllcamts for employment without regard to race, color, religion,
sex, national origin, age, disability, sexual orientation or other status protected by applicable federsl, state or local
law. DZNPS also prohibits any form of retaliation against an employee, including those who chose to participate in
the EEOC investigation.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 18 of 71

Ex. A; Complaint ,I,Jl7(i-j).
After learning about the Letter, the EEOC had Marsh "amend" his original Charge of
Discrimination to now claim the Letter was retaliatory and to omit all of his original substantive
allegations of disability discrimination. See Exhibit D, Amended Charge. Marsh's amended
Charge does not allege that DZNPS engaged in any "pattern or practice" of unlawful behavior.
See id. After the EEOC issued a probable cause finding against DZNPS and after conciliation
failed, the EEOC filed this lawsuit.
The EEOC's lawsuit alleges that DZNPS's Letter: (a) retaliated against Marsh and (b)
interfered with the rights of Marsh and the Witnesses to communicate with the EEOC, to
participate in an EEOC investigation, and to file a charge of discrimination with the EEOC. The
EEOC seeks compensatory damages, punitive damages, and equitable relief on behalf of Marsh.
See Complaint, Prayer for

Relief,!~

E-G. It also seeks injunctive and other equitable relief on

behalf of Marsh and the Witnesses. Notably, the Complaint fails to identifY a single Witness
whose rights were interfered with as a result of receiving the Letter. See generally Complaint.
Nor does the Complaint allege any other action purportedly taken by DZNPS to retaliate against
Marsh in the three years since he filed his Charge. !d.
The EEOC issued a press release the day it filed the Complaint. Exhibit E, EEOC Press
Release. The EEOC's press release identified Marsh and DZNPS, publicized that Marsh had
filed a disability discrimination charge, and informed the public that Marsh had claimed medical
restrictions on his ability to work:
According to EEOC's suit, Gregor/ rY1arsh, an electrician hired by Day & Zimmermann NPS to v·.~ork during a power piant shutdovm< filed a charge v..-:th EEOC
alleging discrimination under the Americans with Disabilities P..ct (ADA.i. Day & Zimmermann NPS publicized h·larsli's charge. inc!uding !lis name and dE:Iails

about the medic8i restrictions on his ability to work. to 146 members of his union !ocaL EEOC said. By pubiic:::.ing tvlarsh's charge in this manner. Day &
Znnrnerrnann NPS sought to interfere with the rig tits of workers and witnesses to communicate freely •Nith the EEOC and to file charges of their ov-m, EEOC
charged

9

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 19 of 71

Jd. (screen capture image). The EEOC also published information about the lawsuit on its

Twitter feed, directing readers to its press release via a linlc
U.S. EEOC r!:EEOCNews

Sep 29

C:EEOC Sues Day & Zimmermann NPS for Retaliation. Power Industry
Contractor Punisl1ed Worker for Disability Bias Charge ow ly/SNxJ6

•••
Exhibit F, EEOC Tweet (screen capture image). The EEOC currently has over 7,000 followers:

T'NE..ETS

FOLLOI.'.'ING

FOLLO'•'\'ERS

LW.E~

4.974

321

7,077

225

As the EEOC no doubt intended, a variety of other outlets picked up its press release,
further publicizing facts relating to Gregory Marsh to many thousands of individuals. Exhibit
G, Sampling of Publications Following EEOC Press Release. One of the outlets was Law360,

which indicates that it has over 400,000 newsletter subscribers. See id. The Law360 article
reiterated many details about Marsh found in the EEOC's lawsuit. Jd.
IV.

ARGUMENT

Despite its campaign to convince the general public that DZNPS did something wrong,
the EEOC has not- and cannot- plead sufficient facts to state any plausible claim for relief in
its Complaint. Therefore, the Complaint must be dismissed in its entirety with prejudice. Yet
even if the Complaint is not dismissed in its entirety, the EEOC's requested relief and jury
demand must be stricken from the Complaint. A more detailed argument follows.

10

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 20 of 71

A.

Because DZNPS Had No Legal Duty Under the ADA or Any Other Law or
Regulation to Keep the Contents of the Letter Confidential, the Letter
Cannot Be the Foundation for the EEOC's Claim that DZNPS Acted
Unlawfully
1.

DZNPS Had No Legal Duty Under the ADA or Any Other Statute to
Keep the Contents of the Letter Confidential

Information Marsh provided in his Charge about his alleged restrictions from working
around radiation or chemicals or that he alleged he had an unspecified "disability" is not
prohibited or protected from disclosure by any law to which DZNPS is subject (e.g., the ADA,
the Family Medical Leave Act ("FMLA"), the Health Insurance Portability and Accountability
Act ("HIPPA"), or other federal, state or local law). As such, DZNPS could lawfully reveal both
the fact that Marsh filed the Charge and the contents of such Charge.
More to the point, the ADA's regulatory scheme prohibits the EEOC from disclosing
information about a charge of discrimination during its investigation, but nothing prevents an
employer or charging party from disclosing the same information. See 29 C.F.R. § 1601.22
(duty of EEOC only to keep Charge confidential). As one court explained in rejecting a
plaintiffs privacy claim based on disclosure of facts alleged in a charge of discrimination:
[A]ny facts communicated regarding the EEOC charge were not
private. Although EEOC regulations prohibit the Commission from
disclosing a charge of discrimination until a complaint has been
liled in court, nothing prevents an employer or charging party from
disclosing the charge. Because Braes Feed lawfully could reveal
the fact that plaintiff filed an EEOC charge, plaintiff could not
have believed reasonably that the information was private.

Walker v. Braes Feed Ingredients, Inc., Civ. A. No. 02-9236, 2003 U.S. Dist. LEXIS 6873, at

** 16-17 (N.D. Ill. Apr. 22, 2003).
This conclusion does not change, even if the facts alleged in a charge include medical
information. See Co1111een v. MBNA AM Bank, N.A., 182 F. Supp. 2d 370,381 (D. Del. 2002)
(rejecting an ADA confidentiality claim because the employer's disclosure of data occurred after

II

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 21 of 71

the plaintiff was terminated by the company and in the context of defending against the lawsuit
for failure to accommodate plaintiffs psychiatric disabilities); Wiggins v. DaVila Tidewater,

LLC, 451 F. Supp. 2d 789, 802 (E.D. Va. 2006) (where employee received treatment for medical
condition and then voluntarily authorized doctor to disclose condition to employer, employer's
alleged disclosure of information to coworkers was not unlawful under ADA's confidentiality
provision). 5 Indeed, the EEOC has not brought a claim here for failure to properly maintain the
confidentiality of medical information under the ADA, and rightly so. See id.
Further, because DZNPS is not a health plan, a health care provider, or a health care
clearinghouse, it is not subject to HIPAA. See 45 C.F.R. § 160.103.
Additionally, although FMLA regulations require that "records and documents relating to
certifications, recertifications or medical histories of employees or employees' family members,
created for purposes ofFMLA," be maintained as "confidential medical records in separate
files/records from the usual personnel files," no FMLA request was at issue here. 29 C.F.R. §
825 .500(g). 6

5

See also Reynolds v. Am. Nat '1 Red Cross, 701 FJd 143, 155 (4th Cir. 2012) (voluntary
disclosure of medical information to employer bars confidentiality claim); E.E.O.C. v. C.R. New
England Inc., 644 F. 3d 1028, 1047 (lOth Cir. 2011) ("if an employer discloses medical
information that was voluntarily offered by an employee- outside of the context of an
authorized employment-related medical examination or inquiry- then the employer is not
subject to liability.... "); Gilliard v. Ga. Dep 't o.fCorr., 500 Fed. Appx. 860, 872 (11th Cir.
2012) ("when an employee voluntarily discloses information to the employer ... the employee
cannot establish an unlawful disclosure under the ADA"); Fisher v. Harvey, Civ. A. No. 05-102,
2006 U.S. Dist. LEXIS 21657, at *20 (E.D. Tenn. Mar. 31, 2006) (noting limited nature of
ADA's confidentiality requirement and holding that medical information voluntarily submitted
by an employee to obtain a benefit is not protected).
6
In any event, the Letter does not disclose Marsh's medical condition. The Letter lacks any
description of a medical diagnosis. It merely repeats the allegations in the Charge with regard to
Marsh's alleged limitations, which was reasonable for the Witnesses to understand what the
EEOC wanted to interview them about.

12

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 22 of 71

2.

DZNPS Had No Legal Duty Under the Applicable Administrative
Scheme to Keep the Contents of the Letter Confidential; In Fact,
Doing So Would Interfere with DZNPS's Fundamental Right to
Defend Itself Against Marsh's Charge

Furthermore, DZNPS did not have a legal duty under the applicable administrative
scheme to keep the information disclosed in the Letter confidential. In fact, the opposite is true:
in order to meaningfully participate in the administrative charge-filing process, DZNPS had to
disclose basic information to the Witnesses.
"The primary purpose of an EEOC charge is to provide notice ... to the respondent ...
[,which] triggers an investigation by the EEOC." Haskett v. Cant'! Land Res., LLC, Civ. A. No.
14-281,2015 U.S. Dist. LEXIS 40610, at *14 (S.D. Tex. Feb. 9, 2015). The EEOC asks
employers, like DZNPS, to submit "a statement of position" when it serves a charge of
discrimination on them. See www.eeoc.gov/employers/process.din. According to the EEOC,
this is the employer's "opportunity to tell your side of the story and you should take advantage of
it." !d. In order to tell the EEOC its "side of the story," the employer necessarily must be able to
conduct an investigation to uncover the relevant facts. This necessarily involves speaking to
witnesses and, in the process, disclosing basic information about the charge of discrimination. It
would be fruitless to attempt to conduct an investigation into a charge of discrimination without
disclosing the identity of the charging party or the nature of the allegations.
In arguing that it was improper to inform the Witnesses about the nature of Marsh's
Charge, the EEOC is tying DZNPS's hands and prohibiting it from investigating Marsh's Charge
and presenting its "side of the story." Making the EEOC's position even more astonishing, the
EEOC admits in its Complaint that it put the Witnesses at issue in the case. Ex. C, March 4,
2014 Letter from Susan Boscia;

Complaint~

17(c). This is not a situation in which the employer

took an overly-inclusive position on relevant witnesses and disseminated the charge of

13

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 23 of 71

discrimination to its entire workforce. To the contrary. the EEOC identified the Witnesses here;
DZNPS merely responded by sending a Letter with basic facts about the dispute to them.
In sum, the EEOC's attempts to prevent DZNPS from contacting the Witnesses (i.e., by
amending Marsh's Charge to allege retaliation, finding "probable cause" in connection with the
retaliation claim, and filing the instant lawsuit) run afoul of the administrative charge-filing
process; they interfere with DZNPS' ability to conduct an investigation and respond completely
to Marsh's allegations of disability discrimination.

3.

Not Only Was There No Legal Duty to Keep the Contents of the
Letter Confidential, There Was a First Amendment Right to Disclose
Such Information to Witnesses

According to the Complaint, DZNPS should not have revealed to the Witnesses the fact
that Marsh 11led the Charge and the contents of such Charge. Yet this view infringes on DZNPS'
First Amendment right to communicate with witnesses.
As the Second Circuit has explained:
Any prior restraint on expression comes to [a court] with a heavy
presumption against its constitutional validity," and "carries a
heavy burden of showing justification." A content-based restriction
is subject to review under the standard of strict scrutiny, requiring
a showing that the restriction is "narrowly tailored to promote a
compelling Government interest."

John Doe, Inc. v. Mukasey, 549 F.3d 861, 871 (2d Cir. 2008) (internal citations omitted). For
this reason, courts repeatedly refhse to infringe on similar communications to putative class
members in class actions.
In Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int 'I, Inc., 455 F.2d 770 (2d
Cir. I 972) (Friendly, J.), for example, a pre-certification class action, the chairman of the
defendant's board of directors sent a letter to putative class members: (I) announcing that the
defendant would vigorously defend against the lawsuit; (2) seeking evidence helpful to its

I4

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 24 of 71

defense; and (3) stating its view that widespread publicity about the lawsuit would have a
detrimental effect on its image. !d. at 772. Later, the president of the defendant sent a similar
letter. !d. The Second Circuit denied the plaintitT's request that the defendant be made to retract
those statements. !d. Judge Kravitz of this Court succinctly explained why such
communications are appropriate:
Both parties need to be able to communicate with putative class
members - if only to engage in discovery regarding issues
relevant to class certification - from the earliest stages of class
litigation. Furthermore, named plaintiffs and their counsel do not
always act in the best interests of absent class members, and not all
defendants and defense counsel engage in abusive tactics. District
courts thus must not interfere with any party's ability to
communicate freely with putative class members, unless there is a
specific reason to believe that such interference is necessary.
Austen v. Catterton Partners

v; LP, 831 F. Supp. 2d 559, 567 (D.Conn. 2011); see also Mendez

v. Enecon Northeast Applied Polymer Systems, Civ. A. No. 14-6736,2015 U.S. Dist. LEXIS

90794, **5-6 (E.D.N.Y. July 13, 2015) (holding a letter sent by plaintitT's counsel to defendant's
employees (I) informing them about the existence of plaintiffs lawsuit, (2) briefly describing the
claims alleged, (3) stating that plaintitrs counsel is "currently investigating" plaintiffs claims
"by speaking with other[] employees to determine if they have any information that support[s
plaintiffs] claims," and (4) stating that recipients may "feel free" to contact plaintitT's counsel
was permissible, as both parties need to be free to conduct discovery and there was nothing
"inherently intrusive or misleading about the communication.").
Likewise, employers are permitted to engage in similar communications with employees
in the context of a union-organizing campaign. As the Supreme Court explained in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969):

[A ]n employer is free to communicate to his employees any of his
general views about unionism or any of his specific views about a

15

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 25 of 71

particular union, so long as the communications do not contain a
'threat of reprisal or force or promise of benefit.' He may even
make a prediction as to the precise effects he believes unionization
will have on his company.

!d. at 618 (holding that an employer's statement that the company was in a precarious financial
condition and that unionization would probably lead to a strike resulting in a plant shutdown,
with the employees facing great difficulty in finding employment elsewhere, was an unfair labor
practice).
Courts' refusals to unduly limit employer communications in the class action and union
context are motivated by the same overarching concern- government restrictions on the content
of speech. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 103-104 (1981) ("Although we do not
decide what standards are mandated by the First Amendment in this kind of case, we do observe
that the order [restricting communications with putative class members] involved serious
restraints on expression. This fact, at minimum, counsels caution on the part of a district court in
drafting such an order, and attention to whether the restraint is justified by a likelihood of serious
abuses"). 7
There is no reason to treat this case differently than in the class action or unionorganizing setting. Here, DZNPS simply alerted the Witnesses that it disclosed their contact
information to the EEOC. Tracking the language of the Charge itself, DZNPS also provided a
neutral description of Marsh's Charge and told the Witnesses that they were free to speak with
7

See also Hernandez v. Best Buy Stores, L.P., Civ. A. No. 13-2587,2015 U.S. Dist. LEXlS
154103, at **15, 42-43 (S.D. Cal. Nov. 13, 2015) (noting that ban on communications can have
First Amendment implications and finding that "The 'mere possibility' of abusive tactics is
simply not enough" to restrict communications with potential witnesses); Calderone v. Sco/1,
Civ. A. No. 14-519,2015 U.S. Dist. LEXIS 109484, at **3-4 (M.D. Fla. Aug. 19, 2015) (noting
that limiting communications between parties and putative class members should be done
"sparingly due to First Amendment considerations" and refusing to enter protective order related
to defendant's press release related to litigation where there was no evidence of coercion,
threatening or misleading in the communication).

16

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 26 of 71

the EEOC should they want to do so. Although DZNPS indicated that it views Marsh's Charge
as meritless, the Letter stops far short of the conduct deemed permissible in Weight Watchers, in
which the company opined that widespread publicity about the lawsuit would have a detrimental
effect on its image. Moreover, the Letter does not do anything to discourage the Witnesses from
speaking with the EEOC. Unlike the employer's threats in Gisse/ Packing, the Letter reinforces
DZNPS's nondiscrimination and anti-retaliation policies. Accordingly, the EEOC's position
violates DZNPS's First Amendment right to freedom of speech.
4.

The Argument that Employers Cannot Disclose the Fact that a
Charge of Discrimination Was Filed or Disclose Allegations
Contained in the Charge to Third-Party Witnesses Has Far-Reaching
Implications Beyond this Lawsuit

At its core, 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. The EEOC's view would impact and limit employers and their attorneys in the
litigation context.
For instance, a recommended best practice for litigation holds is for defendants to include
substantive information about the claims at issue to people who work for the company. See, e.g.,
The Sedona Conference, The Sedona Conference Commentary on Legal Holds: The Trigger &
the Process, II SEDONA CONF. J. 265,283 (2010) ("The initial and subsequent hold notices
should describe the matter at issue, provide specific examples of the types of information at

issue, identify potential sources of information, and inform recipients of their legal obligations to
preserve information, and include reference to the potential consequences to the individual and
the organization of noncompliance.") (emphasis added); Connor v. Office ofAtty. Gen. ofTex.,
Civ. A. No. 14-961,2015 U.S. Dist. LEXIS 27174, **15-16 (W.O. Tex. Mar. 5, 2015) (holding
that the employer did not retaliate against the plaintitT by issuing a litigation hold because the

17

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employer was required to issue a litigation hold to individuals with relevant information when it
learned of the plaintiffs claims). If the basis for a follow-on claim of retaliation or interference
is the act of providing neutral background information to witnesses, ordinary litigation holds,
internal investigations, and related communication procedures will be thrown into disarray.
For similar policy reasons, in the defamation context, courts hold that pre-litigation
communications are absolutely privileged and, therefore, not actionable as a matter of Jaw. See
Ojjicemax Inc. v. Cinotti, 966 F. Supp. 2d 74, 81 (E.D.N.Y. 2013). The rationale here is that
certain causes of action should be barred so that litigants can "speak with that free and open
mind which the administration of justice demands." !d. See also Doner-Hendrick v. New York
Inst. ofTech., Civ. A. No. 11-121,2011 U.S. Dist. LEXIS 72714, at **26-27 (S.D.N.Y. July 5,
2011) (dismissing retaliation claim based on statement made during EEOC proceedings, based
on absolute litigation privilege). This rationale applies in equal force here, particularly because it
was DZNPS's attorney, Lisa Ann Cooney, "Senior Labor & Employment Counsel," who signed
the Letter in the course of this EEOC proceeding. Ex. A; Nieman v. RLI Corp., Civ. A. No. 121012,2012 U.S. Dist. LEXIS 25378, at *7 (C.D. Ill. Feb. 28, 2012) ("It is well-settled that
actions taken by attorneys in the adversarial setting of litigation or other administrative or quasijudicial processes (including alleged defamation and retaliation) are precluded by the litigation
privilege from ... forming a basis for further litigation.") (reversed on other grounds).
In sum, DZNPS had a right to send the Letter in connection with the defense of Marsh's
Charge and the EEOC's request for information about the Witnesses. The EEOC, through its
lawsuit here, cannot be permitted to prohibit DZNPS from contacting witnesses the EEOC deems
relevant to its own investigation. To allow that result will unlawfully curtail DZNPS' right to
free speech and infringe upon its ability to defend itself against claims of discrimination.

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Allowing such a result also would change the way litigation is conducted. For all these reasons,
this Court should dismiss the Complaint.

B.

The EEOC's Section 707 Claim Fails for Lack of Any Pattern or Practice

It appears that the EEOC's reference in the Complaint to its Section 707 enforcement

authority was habitual, not purposeful. 8 To the extent that the EEOC intended to assert a true
Section 707 claim, it fails because DZNPS has not engaged in any "pattern or practice" of
discrimination or retaliation. DZNPS's decision to send one letter on one occasion to the
Witnesses in response to a unique situation cannot support a claim that DZNPS has a "pattern or
practice" of discrimination or retaliation.
In order to establish a prima facie case under Section 707, the government must "prove
more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts,"
instead showing discrimination of a "repeated, routine, or of a generalized nature." Jnt 'I
Brotherhood of Teamsters v. US., 431 U.S. 324, 336 n. 16 (I 977). To prevail on a Section 707

claim, the EEOC must be able to show by a preponderance of the evidence that "discrimination
was the company's standard operating procedure- the regular rather than the unusual practice."

!d.
Pattern or practice claims are routinely dismissed on Rule 12(b)(6) motions even where
the complaint alleges multiple separate allegedly discriminatory actions. See Krish v. Conn. Ear,
Nose & Throat, Sinus & Allergy Specialists, P.C., 607 F. Supp. 2d 324, 332 (D. Conn. 2009)

(three instances of alleged discrimination cannot support a pattern or practice claim); Rubinow v.
Boehringer Jngelheim Pharms., Inc., Civ. A. No. 08-1697, 2010 U.S. Dist. LEXIS 45704, at *4
8

DZNPS does not expect the EEOC to assert that it is pursuing a "pattern or practice" claim
here: indeed, those words are absent from the Complaint in its entirety, as well as absent from
Marsh's Charge and the EEOC's reasonable cause finding. In the unlikely event the EEOC
reverses course, DZNPS reserves the right to argue failure to exhaust administrative prerequisites
for such a claim.

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(D. Conn. May 10, 2010) (six instances of discrimination cannot support a pattern or practice
claim). Here, the EEOC alleges only one illegal action- sending the Letter. The EEOC's
Complaint contains no allegations that discrimination or retaliation is DZNPS's ''standard
operating procedure." Int'l Brotherhood ofTeamsters, 431 U.S. at 336. Instead, even if the
Letter was discriminatory or retaliatory- which it is not- the single occurrence is, by definition,
an "isolated" act. !d. Accordingly, the EEOC's claims under Section 707 fail as a matter oflaw
and must be dismissed.

C.

The EEOC's Section 706 Claims Lack Factual Basis

The EEOC's claims pursuant to Section 706- that (I) DZNPS interfered with the ADAprotected rights of the Witnesses and Marsh, and (2) DZNPS retaliated against Marsh- also fail
as a matter of law and must be dismissed because the EEOC has failed to plead facts
demonstrating a plausible entitlement to relief.
Where, as here, the EEOC brings a claim pursuant to Section 706, each plaintiff (in this
case, Marsh and each Witness) must prove each element of his or her claim. E.E.O.C. v.
Bloomberg L.P., 967 F. Supp. 2d 802, 812 (S.D.N.Y. 2013) (describing difference between"(!)
individual claims under Section 706 and (2) pattern-or-practice claims under Section 707").
Although the EEOC may bring suit with or without the consent of the allegedly aggrieved
individuals pursuant to Section 706, it "stands in the shoes of those aggrieved persons in the
sense that it must prove all of the elements of their [claims] to obtain individual relief for them."
E.E.O.C. v. Carol/s Corp., Civ. A. No. 98-1772,2011 U.S. Dist. LEXIS 20972, **8-9 (N.D.N.Y.
Mar. 2, 2011) (discussing a "class-based" Section 706 claim and engaging in a detailed summary
judgment analysis of facts for each individual claim, deciding that some groups of plaintiffs'
individual claims were insufficient to prove harassment, or were time barred, etc., while other
individual claims survived). See also Romero v. Allstate Ins. Co., 3 F. Supp. 3d 313,336

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(E.D.Pa. 2014) ("Absent a showing that the employee agents were enjoying or exercising a right
protected by the ADA, the EEOC cannot simply invoke a provision within that Act in order to
hold Allstate substantively liable."); E.E.O.C. v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918,
929 (N.D. Iowa 2009) ("Nonetheless, it is axiomatic that the EEOC stands in the shoes of those
aggrieved persons in the sense that it must prove all of the elements of their sexual harassment
claims to obtain individual relief for them."). In short, claims brought under the EEOC's Section
706 authority require facts that the defendant actually violated the law as to each individual the
EEOC seeks to represent. The EEOC cannot meet this burden in the instant case.
1.

DZNPS Did Not Interfere with Any ADA Rights
a.

Interference Claims Under the ADA

An ADA "interference" claim is derived from§ 503(b) of the statute, which 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 granted or protected by this chapter.
42 U.S.C. § 12203(b). The provision should not be read so broadly as "to prohibit any action
whatsoever that in any way hinders a member of a protected class." Brown v. City ofTucson,
336 F.3d 1181, 1192 (9th Cir. 2003) (typographical error corrected and internal quotation
omitted).
First, "to establish a violation of[§ 503(b ),] plaintiffs must show that when the coercion

took place they were exercising or enjoying a right protected by the ADA." Wray v. Nat/ R.R.
Passenger Corp., 10 F. Supp. 2d 1036, 1040 (E.D. Wis. 1998) (citing Roth v. Lutheran Gen.
Hasp., 57 F.3d 1446 (7th Cir.1995); Doe v. Kahn, Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa.

1994)).

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Second, a plaintiff must demonstrate that he has suffered a "distinct and palpable injury"

as a result of the action. Brown, 336 F.3d at 1193. "That injury could consist of either the giving
up of her ADA rights, or some other injury which resulted from her refusal to give up her rights,
or from the threat itself." !d. (citing Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir.
200 I) (holding that telling the plaintiff she was "sloughing off" and "goofing ofl" and informing
her that other members of the unit were complaining about her early departures did not constitute
violations of§ 503(b) while a demand that the plaintiff stop taking her medications did violate §
503(b)). "[C]onclusory allegations- without more- are insufficient to state a violation of§
503(b)." Brown, 336 F.3d at 1193.
Third, even if the plaintiff may allege that he or she was subjectively harmed by the

alleged interference, he must show that a reasonable person would have been similarly harmed.
This is a standard requirement in other, more established, "interference" claims. See e.g.
Ridgeway v. Royal Bank ofScotland Group, Civ. A. No. 11-976,2013 U.S. Dist. LEXIS 67822,

**51-52 (D. Conn. May !3, 2013) ("Discouraging an employee from exercising rights protected
by the FMLA can amount to a denial of benefits in violation of the FMLA upon a showing that
the employer's purported acts of discouragement would have dissuaded a similarly situated
employee of ordinary resolve from attempting to exercise his or her FMLA rights."); Seguin v.
Marion County Health Dep 't, Civ. A. No. !3- 96, 20!4 U.S. Dist. LEXIS 112110, *35 n. 20

(M.D. Fla. Aug. !3, 2014) ("An interference claim [under the FMLA] based upon alleged acts of
"discouragement" should be judged on the basis of an objective standard: would a reasonable
employee in the same circumstances be dissuaded from exercising any ... benefit because of
such discouragement?"); Vess v. Scott Medical Corp., Civ. A. No. II- 2549,2013 U.S. Dist.
LEXIS 39812, **4-5 (N.D. Ohio Mar. 15, 2013) (same).

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Furthermore, the objective reasonable person standard pervades other areas of related
jurisprudence, making a transition to ADA "interference" claims natural. Faragher v. City of

Boca Raton, 524 U.S. 775, 787 (1998) ("in order to be actionable under the statute, a sexually
objectionable environment must be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be
so"); Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (plaintiff must show
that alleged retaliatory act would have dissuaded a reasonable person).

b.

The EEOC Cannot Adequately Plead that DZNPS Interfered
with the Witnesses' ADA Rights

The EEOC's Complaint does not contain a single allegation that DZNPS's Letter actually
interfered with any Witnesses' rights under the ADA. Despite the requirement that the EEOC
plead that each and every Witness was exercising or enjoying a right protected by the ADA and
that each recipient sufJered a "distinct and palpable injury," such allegations are notably absent
from the Complaint. See Brown, 336 F.3d at 1193; Carrolls Corp., 2011 U.S. Dist. LEXIS
20972, **8-9.
Furthermore, the EEOC cannot presume the Witnesses were injured simply because they
received the Letter. See e.g., E.E.O.C. v. Port Auth. ofNY. & NJ., 768 FJd 247,258 (2d Cir.
2014) (finding the EEOC's complaint under the Equal Pay Act insufficient when it pled only that
female attorneys had been paid less, but not that the female attorneys performed substantially
equal work, which was the workplace ill addressed by the EPA.). Here, the EEOC pled the
existence of the Letter but did not plead any facts demonstrating that the Witnesses were actually
intimidated into refusing to speak with the EEOC or suffered any other injury which could

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conceivably be protected by the ADA. At base, there is not a single allegation that DZNPS's
Letter actually interfered with any of the Witnesses' rights under the ADA. 9
Additionally, no reasonable person could construe the Letter as interfering with the
Witnesses' rights to participate in the EEOC's investigation or to pursue any other rights they
may have under the ADA. To the contrary, the Letter specifically informs the Witnesses that the
decision whether or not to speak with the EEOC's investigator is up to the Witness and that the
Witness's decision will not impact his or her current or future employment with DZNPS. Ex. C.
Moreover, the Letter reiterates DZNPS's nondiscrimination and anti-harassment policies. !d. To
assert, as the EEOC does in this litigation, that this communication "coerce[s], intimidate[s],
threaten[s], or interfere[s]" in any way, with the Witnesses' rights under the ADA is absurd. No
reasonable person could construe this Letter as interference.
Accordingly, the EEOC's Section 706 allegations that DZNPS interfered with the
Witnesses' rights under the ADA fails and must be dismissed pursuant to Rule 12(b)(6).

c.

DZNPS Did Not Interfere with Marsh's Rights Under the ADA

The EEOC's Section 706 claim that DZNPS interfered with Marsh's rights under the
ADA also fails.
As a threshold matter, under these circumstances, Marsh cannot logically have an
"interference" claim. The EEOC is not alleging that DZNPS engaged in a preemptive strike
taken in anticipation of limiting Marsh's ADA rights. Rather, the EEOC is challenging an action
that occurred after Marsh had engaged in alleged protected activity- filing his Charge. This
court should make clear that no duplicative cause of action for ADA "interference" lies in such
9

Nor is this an area where discovery is needed to enable the EEOC to plead actual injury to any
of the Witnesses. The EEOC had the opportunity, using the full and broad scope of its
investigative and subpoena authority, before tiling suit, to investigate whether a single Witness
was actually harmed by the Letter. If the EEOC identified any Witness who was allegedly
actually harmed by the Letter, it must plead those facts now to attempt to state a plausible claim.

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circumstances; otherwise, litigants will be destined to repeat the similar confusion regarding
duplicative "retaliation" and "interference" claims that has developed in the FMLA context and
has lasted for decades. See Colburn v. Parker Hannifin!Nichols Portland Div., 429 F .3d 325,
330 (I st Cir. 2005) (tracing history and distinction between retaliation and interference claims
under FMLA and establishing different analytical frameworks for such claims to prevent them
from becoming duplicative). Allowing the EEOC to assert, on the exact same set of facts, that
DZNPS's Letter created separate "retaliation" and "interference" liability would muddy the
waters of these theories of liability for years to come. The better approach is to limit
"interference" claims, at best, to circumstances in which the plaintiff has not yet exercised, but
will soon exercise, ADA rights, and leave other claims to the familiar retaliation framework, to
prevent such confusion. See Kendall v. Walgreen Co., No. A-12-CV-847, 2014 U.S. Dist.
LEXIS 52444, *15-16 (W.O. Tex. Apr. 16, 2014) (collecting circuit and district court authorities
dismissing duplicative interference claims).
Even if an "interference" claim is available under these facts, though, it fails. As above,
the EEOC's Complaint fails to allege that DZNPS's Letter caused Marsh any "distinct and
palpable injury." Also, no reasonable person would construe the Letter as interference. Although
the Complaint alleges that "[t]he effect of [the Letter] has been to interfere with Marsh ... in
[his] exercise or enjoyment of rights protected by the ADA, including the right to communicate
with the Commission, the right to participate in a Commission investigation, and the right to file
a charge of discrimination with the Commission", that statement is belied by the very existence
of this litigation. Marsh appears to be communicating with the EEOC perfectly well as he
decided to amend his Charge after the Letter and continues to pursue his claims under the ADA

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through this lawsuit. There is no allegation- and can be no allegation- that DZNPS coerced
Marsh into retracting his Charge, or intimidated or threatened him in any way.
Thus, the EEOC's conclusory allegations are insufficient to state a violation of§ 503(b)
with respect to Marsh. Dismissal is warranted.
2.

The Complaint Fails to State a Claim that DZNPS Retaliated Against
Marsh.

The EEOC's Complaint fails to state a claim that DZNPS retaliated against Marsh
because there is no allegation that Marsh experienced an adverse employment action, and no
facts plausibly suggesting a causal connection between the Letter and Marsh's protected activity.
To establish a prima facie case of retaliation, the EEOC is required to plead that: (I) Marsh
participated in a protected activity under the ADA; (2) DZNPS knew of the protected activity;
(3) Marsh experienced an adverse employment action; and (4) a causal connection exists
between the protected activity and the adverse employment action. Treglia v. Town of Manlius,
313 F.3d 713, 719 (2d Cir. 2002) (emphasis added).
a.

The EEOC Fails to Allege an Adverse Employment Action

First, the EEOC fails to adequately allege that Marsh experienced an adverse
employment action. Supreme Court precedent requires that, in order to be actionable under
federal discrimination laws, an adverse employment action must be "tangible" or "material."
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also Joseph v. Leavitt, 465 F.3d

87, 90 (2d Cir. 2006) ("A plaintiff sustains an adverse employment action if he or she endures a
materially adverse change in the terms and conditions of employment.") (citation and internal
quotation marks omitted). "A tangible employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524

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U.S. at 761. A "bruised ego," a "demotion without change in pay, benefits, duties, or prestige,"
or "reassignment to [a] more inconvenient job" are all insufficient to constitute a tangible or
materially adverse employment action. Ellerth, 524 U.S. at 761 (internal quotations and citations
omitted).
Here, the only adverse employment action the EEOC asserts befell Marsh was that
DZNPS sent the Letter to the Witnesses describing the nature of Marsh's Charge and offering the
Witnesses the option to have counsel present should they decide to speak with the EEOC.
Complaint~

17. Although Marsh may have a "bruised ego" because his coworkers learned of

his Charge, DZNPS's Letter did not alter his employment status, change his salary or benefits, or
cause any other materially adverse change in the terms and conditions of Marsh's employment.
This case is similar to Marchuk v. Faruqi & Faruqi, LLP, Civ. A. No. 13-1669,2015
U.S. Dist. LEXIS 9806 (S.D.N.Y. Jan. 28, 2015). In Marchuk, the Court held that the
employer's filing of defamation and tortious interference counterclaims and issuance of a press
release about those counterclaims was not an adverse employment action. Jd at * 14. The court
reasoned that at the time defendants asserted their counterclaims and issued the press release, the
plaintiff had not been defendants' employee for more than a year. The court explained,
"Defendants lacked control over any aspect of Ms. Marchuk's working conditions, and indeed
Ms. Marchuk does not identify any aspect of her working conditions that changed after the
counterclaim was filed." !d. at *14. See also, Dawson v. County of Westchester, 373 F.3d 265,
272-74 (2d Cir. 2004) (holding that where a supervisor distributed a copy of a letter that formed
the basis ofplaintifl's allegation of harassment, and that content was embarrassing to the
plaintiff: the supervisor's conduct did not rise to the level of a hostile work environment).

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As in Marchuk, Marsh had not been DZNPS's employee for over a year and a half when
DZNPS sent the Letter. Marchuk, 2015 U.S. Dist. LEXIS 9806, at *14. At the time DZNPS
mailed the Letter, DZNPS lacked control over any aspect of Marsh's working conditions.
Indeed, Marsh does not- and cannot- identify any aspect of his working conditions that
changed after DZNPS sent the Letter. The Letter thus, cannot constitute an adverse employment
action under the ADA.
Furthermore, DZNPS sent the Letter in the context of an active adversarial proceeding,
specifically Marsh's pending Charge with the EEOC, making it impossible to deem it an
"adverse employment action." In Steffes v. Stepan Co., the Seventh Circuit held that the
defendant's disclosure of the plaintiffs discrimination suit and medical restrictions to his
subsequent employer in the course of litigation could not serve as a basis for a retaliation claim.
Steffes v. Stepan Co., 144 F.3d I 070, I 075 (7th Cir. 1998). The Seventh Circuit reasoned that "it
will be the rare case in which conduct occurring within the scope of litigation constitutes
retaliation," and that "litigation tactics [such as here] for the most part will not give rise to
actionable retaliation." !d. Ultimately,"[ d]efendants in discrimination suits must have some
leeway to investigate possible defenses without undue fear of being subjected to additional
liability in retaliation suits." !d. 10

10

See also E.E.O.C. v. K&J Mgmt. Inc., Civ. A. No. 99-8116,2000 U.S. Dist. LEXIS 8012, at
* 13 (N.D. Ill. Jun. 7, 2000) ("filing a counterclaim is unlikely to chill plaintiffs' exercise of their
rights to challenge discrimination" as "plaintiffs have already made their charges with the EEOC
and initiated a lawsuit against their employer."); Hughes Training Inc. v. Pegasus Real-Time
Inc., 255 A.D.2d 729, 730 (3d Dep't 1998) (applying New York Civil Rights Law§ 74 and
finding that a memorandum which accurately reflects the substance of the plaintiffs lawsuit,
does not suggest more egregious conduct than that recounted in the complaint, and does not
present the purported wrongdoing as established fact rather than allegation, cannot support a
claim of defamation); Louie v. Carie hoff, 300 Fed. Appx. 579, 581 (9th Cir. 2008) ("Louie's
claims for retaliation ... under 42 U.S.C. §§ 12203(a), (b) fail because tiling a motion to compel

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As in Steffes, DZNPS sent the Letter as part of the litigation around Marsh's Charge. The
EEOC identified 146 potential witnesses and indicated, through its request for address and
telephone numbers that it would be contacting them to further its investigation. DZNPS simply
alerted the Witnesses of this fact and provided a neutral context of the Charge, which allowed the
Witnesses to understand DZNPS had provided their contact information and why the EEOC
would be contacting them. The EEOC cannot turn DZNPS's legitimate conduct in litigation into
an adverse employment action.
Moreover, the EEOC's position that DZNPS's Letter injured Marsh in any way is
hypocritical and contradicted by its own actions. In fact, the EEOC broadcasted the same
information to a wider audience. Specifically, on September 28,2015, the EEOC issued a press

release, in which it

Identified Gregory Marsh by name;

Identified Marsh's employer;

Indicated that Marsh had filed a charge of discrimination under the ADA; and

Indicated that he had medical restrictions on his ability to work.

Ex. E. The EEOC also published this information on Twitter to its more than 7,000 followers.
Ex. F. For the EEOC to now claim that the same behavior in which it engaged was retaliatory
only when done by DZNPS is disingenuous.
In sum, DZNPS's Letter cannot form the basis of an adverse employment action as it did
absolutely nothing to alter Marsh's employment status, was sent in the context oflitigation, and
mirrors the content which the EEOC itself has broadly disseminated to the public. Accordingly,
this Court must dismiss Marsh's claim of retaliation.
in the course of a discovery dispute is an appropriate step towards resolving the dispute, not an
act of retaliation, coercion, or intimidation.").

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b.

The EEOC Fails to Allege Causation

Even if the Letter could be construed as an adverse employment action- and it cannotthe EEOC's retaliation claim still fails for lack of plausible causation. To the extent DZNPS had
a motive to retaliate against Marsh for filing his Charge, that motive would have accrued on or
about the date DZNPS received notice of it in November 2012. See Ex. B. Yet, the EEOC fails
to allege that DZNPS engaged in a single allegedly retaliatory action against Marsh until over a
year and a half later, when it sent the Letter in June 2014. Furthermore, the EEOC does not
present any facts otherwise suggesting that the Letter was sent due to a retaliatory motive (such
as, for instance, alleged statements by DZNPS personnel that the Jetter was sent to harm Marsh).
If DZNPS had wanted to retaliate against Marsh by publicizing his Charge and facts about his
medical condition (assuming arguendo such conduct could ever form the basis for a claim), there
was no need for DZNPS to wait until a fortuitous request from the EEOC for witness information
over a year later to do so. DZNPS simply could have sent out notice of the Charge and the
Charge allegations to everyone at the site at the time it learned of the Charge. There is no
allegation DZNPS endeavored to do so. It is simply implausible to infer, as the EEOC suggests,
that DZNPS suddenly manifested its retaliatory intent at such a late stage. It is for this reason
that courts dismiss retaliation complaints where temporal proximity is so attenuated. See, e.g.,

Hollis v. Dep't ofMental Health & Addictive Servs., Civ. A. No. 14-516,2015 U.S. Dist. LEXIS
121668, at * 16 (D. Conn. Sept. II, 20 15) (granting motion to dismiss retaliation claim to the
extent based on conduct that occurred nine months after filing of discrimination charge as timing
was insufticient to support retaliatory intent); Amar v. New York City Health & Hasps. Corp.,
Civ. A. No. 14-2503,2015 U.S. Dist. LEXIS 77718, at **30-32 (S.D.N.Y. June 15, 2015)

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(granting motion to dismiss retaliation claim where year and a half passed between filing of
discrimination complaint and alleged adverse employment action). 11
Because the EEOC failed to plead a pattern or practice claim under Section 707 and
because the claims of interference and retaliation under Section 706 are insufficient as a matter
of law, the entire Complaint must be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6).

D.

The Damages the EEOC Seeks Arc Unavailable as a Matter of Law

The EEOC's Complaint should be dismissed in its entirety. But, even if dismissal were
not appropriate, the EEOC's remedial requests should be stricken. Punitive and compensatory
damages are unavailable in ADA retaliation and interference cases. The remaining "equitable"
relief the EEOC seeks is redundant and inappropriate.
A meticulous tracing of the language of the ADA and Title VII reveals no valid basis for
the EEOC's claim for compensatory and punitive damages. The EEOC's claims for retaliation
and interference under the ADA arise under 42 U.S.C. § 12203. In the employment context,§
12203 incorporates the remedies set forth in §12117. Section 12117, in turn, adopts the remedies
set forth in Title VII of the Civil Rights Act of 1964, and, in particular, 42 U.S.C. § 2000e-5.
Section 2000e-5 does not authorize compensatory or punitive damages. 42 U.S.C. § 2000e-5. In
further support of this conclusion, the Civil Rights Act of 1991, authorizes compensatory and
punitive damages for violations of certain enumerated sections of the ADA. 42 U.S.C. §
11

See also Howard v. City ofNew York, 602 Fed. Appx. 545, 549 (2d Cir. 2015) (ten month time
period between start of protected activity and alleged adverse employment action insufficient to
demonstrate retaliatory intent); Stoddard v. Eastman Kodak Co., 309 Fed. Appx. 475,480 (2d
Cir. 2009) (two months between protected activity and alleged adverse employment action
insufficient to demonstrate causation); 0 'Hazo v. Bristol-Burlington Health Dist., 599 F. Supp.
2d 242,261-262 (D. Conn. 2009) (noting, from survey of relevant Second Circuit authorities,
that time periods greater than one year are insufficient to establish causation).

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1981a(a)(2). Notably, ADA's retaliation and "interference" provisions, both found in 42 U.S.C.

§ 12203, are omitted from the list of claims for which those damages are available. Accordingly,
the EEOC's request for monetary damages in this case is improper. See In.fantolino v. Joint
Indus. Bd. o.fElec. Indus., 582 F. Supp. 2d 351,362 (E.D.N.Y. 2008); Kramer v. Bane ofAm.
Sec., LLC, 355 FJd 961,966 (7th Cir. 2004); Alvarado v. Cajun Operating Co., 588 FJd 1261,

1268-69 (9th Cir. 2009); Bowles v. Carolina Cargo, Inc., 100 F. App'x 889, 889 (4th Cir. 2004);
Rhoads v. Fed Deposit Ins. Corp., 94 F. App'x 187, 188 (4th Cir. 2004); E.E.O.C. v. Faurecia
Exhaust Sys., Inc., 601 F. Supp. 2d 971, 975-76 (N.D. Ohio 2008); Brown v. City of Lee's
Summit, Civ. A. No. 98-0438, 1999 U.S. Dist. LEXIS 17671, **8-13 (W.D. Mo. 1999). But see
Muller v. Costello, 187 F.3d 298,314 (2d Cir. 1999) (upholding a compensatory damages award

but without being presented with, or considering, argument that such damages were unavailable
as a matter of law). Because the text of the ADA and the statutes it incorporates reveal no valid
basis for the EEOC to assert a claim of compensatory and punitive damages for a violation of the
ADA's retaliation provision, the Court must strike this request from the EEOC's Complaint.
Furthermore, there is no equitable relief appropriate here. The EEOC seeks a "corrective
communication" informing employees that they may communicate with the EEOC and file a
charge of discrimination. But that information already was contained in the Letter, which also
emphasized DZNPS's anti-discrimination and non-retaliation policies. Ex. A. Sending a second
communication containing the exact same information is redundant and useless. Moreover,
tolling the statute of limitations period for any Witnesses to file a charge of discrimination, as the
EEOC also appears to request, is pointless. There is no allegation that any of the Witnesses
wanted to file an ADA charge of discrimination (or even purported to have an ADA-covered

32

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 42 of 71

disability to even begin to form the basis for a disability discrimination charge) but did not do so
because of the Letter.
As DZNPS has already taken all of the remedial actions to which the EEOC would have
been entitled to as a remedy, no further equitable relief could be obtained and dismissal is
appropriate. See e.g., Wilmington Firefighters Locall590 v. Wilmington, 824 F.2d 262,266 (3d
Cir. 1987).

E.

The EEOC's Jury Demand Must Be Stricken From the Complaint

As the EEOC's remedial requests should be stricken from the Complaint, so too should
its jury trial demand. Under Federal Rule of Civil Procedure 39(a)(2), the court must deny a jury
trial where the Court determines "on motion or on its own" that there is no federal right to a jury
trial on issues raised by the Complaint. The ADA does not expressly provide for a right to jury
trial. See generally 42 U.S.C. § 12101 et seq.; Kramer, 355 F.3d at 966-67. As such, the right to
jury trial, if any, here, must be founded on the Seventh Amendment, which provides that "[i]n
suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved." Const. Amend. XII. The weight of authority among courts that have
considered this issue in analogous circumstances distills the relevant analysis here to a single
dispositive principle: a jury trial is improper where only equitable relief may be awarded.

Conroy v. N.Y. State Dep 't ofCorr. Servs., 333 F.3d 88, 99 (2d Cir. 2003) ("Fountain is seeking
only equitable relief [under the ADA], and therefore, is not entitled to a jury trial under the
Seventh Amendment."); Pal v. New York Univ., 583 Fed. Appx. 7, 10 (2d Cir. 2014) (affirming
the district court's decision striking the plaintitl"s request for a jury trial because, at best, she was
only entitled to equitable remedies); Oorah, Inc. v. Schick, 552 Fed. Appx. 20, 23 (2d Cir. 2014)
("Seeking equitable relief only, a party has no right to a jury trial."); Alvarado, 588 F.3d at 1269
(no jury trial under ADA for equitable-only relief); Kramer, 355 F.3d at 966-67 (no jury trial for

33

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 43 of 71

an ADA retaliation claim); 966 Lutz v. Glendale Union High Sch., Dis/. No. 205,403 F.3d 1061,
I 069 (9th Cir. 2005) (same); Design Strategy, Inc. v. Davis, 469 F.3d 284, 300 (2d Cir. 2006)
(affirming district court's decision not to allow jury trial on claims because damages sought were
in the form of equitable remedies rather than legal relief compensating plaintiff's proven actual
loss.); Bledsoe v. Emery Worldwide Airlines, Inc., 635 F.3d 836, 845 (6th Cir. 2011) (federal
WARN statute provided for only equitable relief therefore district court properly struck request
for jury trial). Here, no relief should be available. See supra,§ IV.D. But, if the Court were to
determine that the EEOC's equitable demands for relief should remain, then the EEOC's jury
demand must be stricken.

V.

CONCLUSION
The EEOC's attempt to prevent employers from defending themselves against allegations

of discrimination and from notifying witnesses whom the EEOC wishes to interview of their
rights simply cannot be rewarded by this Court. The EEOC should not be allowed to sue an
employer for allegedly publicizing a discrimination charge while at the same time itself
mounting a public relations campaign that goes much farther than the employer's conduct.
DZNPS's Letter was entirely appropriate and cannot be used to support any violation of the
ADA, or any other law. Accordingly, this Court should dismiss the EEOC's Complaint, with
prejudice.

34

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 44 of 71

Dated: November 30, 2015

Respectfully submitted,

Is/ Stephen P. Rosenberg
Stephen P. Rosenberg (CT26601)
LITTLER MENDELSON, P.C.
One Century Tower
265 Church Street, Suite 300
New Haven, CT 06510
203-974-8700
203-974-8799 (fax)
sprosenberg@littler.com
Kimberly J. Gost (pro hac vice)
William J. Simmons (pro hac vice motion
forthcoming)
LITTLER MENDELSON, P.C.
Three Parkway
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102.1321
267-402-3000
267-402-3131 (fax)
kgost@littler.com
wsimmons@littler.com
Attorneys for Defendant
Day & Zimmermann NPS, Inc.

35

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 45 of 71

EXHIBIT A

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 46 of 71

()

"""'

Day&Zimmennann
\& "" what ... "!!'· •

June 17,2014

Re:

lnfonmtion Requested by Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission ("EEOC") lw required Day & Zimmennann NPS ("DZNPS") to
provide a list of all electricians employed by DZNPS at the Millstone Nuclear Power Station in Waterford,
Connecticut during the Fall 2012 outage. The EEOC is specifically seeking each electrician's name, job title, dates
of employment, last known home address and last known telephone number. On review of DZNPS' records, you
have been identified as an individual who was employed at Millstone during the relevant time period.
The EEOC sought this information to investigate a charge of disability discrimination filed by Gregory Marsh. Mr.
Marsh, a member of the International Brotherbood of Electrical Workers, Local 35, was one of several electricians
referred by his Union for hire during the Fall 2012 outage at Millstone. In his charge, Mr. MIII'Sh alleges that hls
doctor told him he could not work in an area that had radiation, or be arolDld radiation, chemicals or exposure. He
further alleges that DZNPS failed to accommodate this disability because 90% of the Millstone plant, he clalms,
does not have radiation, and that he could have worked in an area without radiation, chemicals or exposure.
DZNPS denies the allegations made by Mr. Marsh, and specifically denies any wrongdoing or discrimination.
As part of the EEOC process, an investigator has been assigned to evaluate the merits of Mr. Marsh's allegations.
It is our understanding that the investigator may contact you to inquire into your job responsibilities during the Fall
2012 outage. It is your decision whether you wish to speak With the investigator and your decision will not have an
adverse impact on your cu=nt or future employment with DZNPS. DZNPS is committed to providing equal
employment opportunities to all employees and applicants for employment without regard to race, color, religion,
sex, national origin, age, disability, sexual orientation or other status protected by applicable federal, state or local
law. DZNPS also prohibits any form of retaliation against an employee, including those who chose to participate in
the EEOC investigation.
If you choose to speak with the EEOC investigator and would like to have a counsel for DZNPS present while you
speak to the investigator, please let us know and we will make the necessary arrangements. Please call DZNPS'
counsel Elizabeth McKenna, Littler Mendelson P.C., at (203) 974-8714 and she will coordinate this.
We hope to have this matter resolved as expeditiously as possible.
Sincerely,

'd.Wo. fbcmw.

Lisa Ann Cooney · U
Senior Labor & Employment Counsel

Tha OilY & Zimmermann Group, Inc. 1500 Spring Garden Philadelphia, PA 19130

dayzlm.com

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 47 of 71

EXHIBITB

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 48 of 71

U.S. Equal Employment Opportunity Commission

EEOC FORP.I131 (11/09)

PERSON FILING CHARGE

Gregory Marsh

Chief Executive Officer
DAY &ZIMMERMANN NPS
1827 Freedom Road
Lancaster, PA 17601

THIS PERSON (check one or both)

[!] Claims To Be Aggrieved

0

L

_j

Is Filing on Behalf of Other(s}

EEOC CHARGE NO.

846-2013-02424
NOTICE OF CHARGE OF DISCRIMINATION
(See the enclosed for additional information)

This Is notice lhat a charge

ot employment discrimination has been filed against your organization under.

0

Title VII of the Civil Rights Act (Tille VII)

0

0

The Age Dlscrimlnallon in Employment Act (ADEA)

The Equal Pay Act (EPA)

,0

W

The Americans With Disabilities Act (ADA)

The Genetic lnfonnation Nondiscrimination Act (GINA)

The boxes checked below apply to our handling of this charge:
No action is required by you at this time.

1,

[8]

2.

O

3.

D

4.

D

5.

D

Please call the EEOC Representative listed below concerning the further handling of this charge.
Please provide by a statement of your position on the issues covered by this charge, with copies of any supporting documentation to the EEOC
Representative listed below. Your response will be placed In the file and considered as 'W'B investigate the charge. A prompt response to this
request will make it easter to conclude our Investigation,
Please respond fully by to the enclosed request for Information and send your response to the EEOC Representative listed below. Your
response will be: placed in the file and considered as 'Ne Investigate the charge. A prompt response to this request will make it easier to
conclude our inveatigatlon.
EEOC has a Wediation program that gives parties an opportunity to resotve the Issues of a charge without extensive Investigation or
expenditure of resources. If you would like to parUclpate, please say so on the endODed form and respond by
to

If you .QQ..tAQI wish to try Mediation, you must respond to any request(s} made above by the date{s) specified there.
For further inquiry on this matter, please use the charge number shown above. Your position statement, your response to our request for information.
or any inquiry you may have should be directed to:

Susan M. Boscia,
Boston Area Office
,.,._, ___._ _ _.___ Jo:;:e.,.till!l\Q.L....-.._. __.________·---John-F,-Ketmedy-FOO..Bidg--···-·---·---·--------- -

Government Ctr, Room 475
Boston, MA 02203
Fax: (617) 565·3196

EEOC Representauve
Telephone

Endosure{s):

D

(617) 565-3213
Copy of Charge

CIRCUMSTANCES OF ALLEGED DISCRIMINATION

0

R&ca

D

Color

D

Sex

0

Religion

0

National Origin

0

ISSUES: Discharge, Accommodation
DATE(S) (on or about): EARLIEST: 10.()1-2012

LATIEST: 10.()1-2012

Date

Name I TiUe of AUthorized Official

November 1, 2012

Robert L. Sanders,
Area Office Director

Age

0

Disability

0

Retaliation

0

Gefletic Information

D

Other

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 49 of 71

t=nclosuro with EEOC
Form 131 {11109)

INFORMATION ON CHARGES OF DISCRIMINATION
EEOC RULES AND REGULATIONS
Section 1601.15 of EEOC's regulations provides that persons or organizations charged with employment
discrimination may submit a statement of position or evidence regarding the issues covered by this charge.
EEOC's recordkeeping and reporting requirements are found at Title 29, Code of Federal Regulations (29 CFR):
29 CFR Part 1602 (see particularly Sec. 1602.14 below) for Title VII and the ADA; 29 CFR Part 1620 for the EPA;
and 29 CFR Part 1627, for the ADEA These regulations generally require respondents to preserve payroll and
personnel records relevant to a charge of discrimination until disposition of the charge or litigation relating to the
charge. (For ADEA charges, this notice is the written requirement described in Part 1627, Sec. 1627.3(b)(3),
.4(a)(2) or .5(c), for respondents to preserve records relevant to the charge- the records to be retained, and for
how long, are as described in Sec. 1602.14, as setout below). Parts 1602, 1620 and 1627 also prescribe record
retention periods- generally, three years for basic payroll records and one year for personnel records.
Questions about retention periods and the types of records to be retained should be resolved by referring to the
regulations.
Section 1602.14 Preservation of records made or kept..... Where a charge ... has been filed, or an action
brought by the Commission or the Attomey General, against an employer under Title VII or the ADA, the
respondent ... shall preserve all personnel records relevant to the charge or the action until final disposition of the
charge or action. The term personnel records relevant to the charge, for example, would include personnel or
employment records relating to the aggrieved person and to all other aggrieved employees holding positions
similar to that held or sought by the aggrieved person and application forms or test papers completed by an
unsuccessful applicant and by all other candidates or the same position as that for which the aggrieved person
applied and was rejected. The date of final di;position of the charge or the action means the date of expiration of
the statutory period within which the aggrieved person may bring [a lawsuit] or, where an action is brought
against an employer either by the aggrieved person, the Commission, or the Attorney General, the dale on which
such litigation is terminated.

NOTICE OF NON-RETALIATION REQUIREMENTS

Section 704(a) of Title VII, Section 207(f) of GINA, Section 4(d) of the ADEA, and Section 503(a) of the ADA
provide that it is an unlawful ernployment practice for an employer to discriminate against present or forrner
employees or job applicants, for an employment agency to discriminate against any individual, or for a union to
discriminate against its members or applicants for membership, because they have opposed any praclice made
an unlawful employment practice by the statutes, or because they have made a charge, testified, assisted, or
participated in any manner In an investigation, proceeding, or hearing under the statutes. The Equal Pay Act
contains similar provisions. Additionally, Section 503(b) of the ADA prohibits coercion, intimidation, threats, or
interference with anyone because they have exercised or enjoyed, or aided or encouraged others in their
exercise or enjoymen~ of rights under the Act.
Persons filing charges of discrimination are advised of these Non-Retaliation Requirements and are instructed to
notify EEOC if any attempt at retaliation is made. Please note that the Civil Rights Act of 1991 provides
substantial additional monetary provisions to remedy instances of retaliation or other discrimination, including, for
example, to remedy the emotional harm caused by on-the-job harassment.

NOTICE REGARDING REPRESENTATION BY ATTORNEYS

Although you do not have to be represented by an attorney while we handle this charge, you have a right, and
may wish to retain an attorney to represent you. If you do retain an attorney, please give us your attorney's
name, address and phone number, and ask your attorney to write us confirming such representation.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 50 of 71
~vY\f"-

. ' ... ,
Charge Presented To:

CHARGE OF DISCRIMINATION

'

Agency(ies) Charge No(s):

D FEPA

This form Is affected by the Prlvaey Act of 1974. See enclosed Privacy Act
Stalernenl am:! other lnforma~on before completlng this form,

[Kj

EEOC

846-2013-02424

Connecticut Comm. On Human Rights & Opportunities

and EEOC

Slate or lOcal Agttncy, if .any
Name (indicate Mr" Ms., Mrs.)

Home Phone (Inc/, Aroa Code)

Date of Birth

(860) 429-6766

09-29·1965

Mr. Gregory Marsh
City. State and ZIP Code

Street Address

64 Laurel Lane, Ashford, CT 06278
Named Is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee. or State or Local Government Agency That 1Believe
Discriminated Against Me or Others, (If rrwre than two, list under PARTICULARS below.)
Name

DAY & ZIMMERMANN NPS

Nc. Employees. Mltrnbers

Phone No. (Include Area Code)

500 or More

(717) 481-5600

City, State and ZIP Code

Street Address

1827 Freedom Road, Lancaster, PA 17601.
No.

Name

Phone No. (Include Area Code)

Emplo~NS. Mttmbe~

OCT 2 f, 701?
City, State and ZIP Code

Street Address

'
DISCRIMINATION BASED ON (Check appro¢ate box(es),J
DRACE
D

0

c'OLoR

RETAliATION

D

D

D

SEX

AGE

0

D

REliGION

DISABILITY

D

D

DATE(S) DISCRIMINATION TOOK PLACE
Earliut
Latest

10-01-2012

NATIONALORIGIN

GENETIC INFORMATION

D

OTHER (Specify)

10-01-2012

CONTINUING ACTION

THE PARTICULARS ARE (If additional paper Is needed, attach extra sheet(s)}:

On September 19, 2012 I was hired by Day and Zimmerman NPS to work as an Electrician at Dominion
Power's Millstone Power Station in Waterford, CT.
I was in the process of finishing all the pre-employment testing which needed to be completed before I could
actually work at the Millstone site.
On 9/28/2012, I went to my doctor, who told me that I couldn't work in an area that had radiation as it would
be bad for my disability. He wrote me a note to give to my employer, stating that I could not work on any site
· ·
with radiation. Specifically, my doctor stated that due to my condition I shautri nlllJle..am• '""
allemieals or exposu•o::.
On 10/01/2012, I gave the note to the secretary in the training area who worked for Dominion/Millstone. (I
believe her name was Lori). She told me that I needed to speak with Tam, who was the Head of Training at
Dominion/Millstone.
Tom called up Day and Zimmerman and told them about my doctor's note, that I couldn't work in radiation,
and could they use me anywhere else. He was told they could not. Tom then told me that I was terminated,
that I would receive a check in the mail, and that they would give me a good slip so I could collect
unemployment.! told him that !hare were other places in the buildino Where I could work, oaris of the site
I want this charge filed with both the EEOC and the State or local Agency, ff any, I
will advise !he agencies If I change my address or phone number and I will
cooperate fully With them in tne processing of my Ctlarge in accordance with their
procedures
I declare under penalty of pe~ury that the above Is true and correct.

'{_j {)--J.3-dOJ.>.
I

Date

~

r

NOTARY- When necessary tor State and Local Agency Requirements

·.-

SIGNATUREOFCOMPLAINANT

A'

..?,A,(.'

r

f 'I·~ A~

(/ Chrj'ng ~rty Signaturo

M

I swear or affirm that I have read the above charge and that it is true to
the best of my knowledge, information and belief.

~

~- ~:J;,

RIBEOANOrN;~

S
(month, day, year}

lo ~ CJ.J-

METHISDATE

ao /()-

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 51 of 71
EEOC Form 5(11109)

.

Charge Presented To:

CHARGE OF DISCRIMINATION

D FEPA
00 EEOC

This form Is aNected by the Privacy Act of 1974, See enclo&ed Prlvacy Act
Statement and other lnfonnation before completing this form.

Agency(ies) Charge No( s ):

846-2013-02424

Connecticut Comm. On Human Rights & Opportunities
Slat9

and EEOC

or local Aaency, if any

THE PARTlCut.ARS ARE (ff eddltlonal paper /3 n&ecled, attach a:dra sheet(s)):

that didn't have radiation, including outside. He still told me I was terminated.
I believe that I have been discriminated against based on my disability, in that Respondent would not
reasonably accommodate my disability. 90% of the Millstone Power Plant does not even have radiation and I
could still work in an different area of the job without radiation (over 250 electricians were hired). Instead I
was terminated.
I therefore charge Respondent with discriminating against me in violation of the Americans with Disabilities
Act of 1990, as amended, and the applicable Jaws of the State of Connecticut.

'

'

.,
-

~

~-

.

~

~-

.

~-

~-

..

~

"····'

{,IC J ? r..
• v

ZOic

.

1want tnts·t:harge·fded With bOtn-the EEOC ahd the Sia·te or lOcal AQency, If any. I
wilt advise the agencies if I change my address or phone number and I Will
cooperate fully with them in the processing of my charge !n accordance with their

NOTARY- Wflen necess&y for Stale and LoeB! Agency ReqtJirements

procedures.

I swear or affinn that I have read the above charge and that ills true to
the best of my kno-Medge, information and belief.

1 declare under penalty of perjury that the above is true and correct.

SIG~RE OF COMPLAINANT
,

'(;

ar.

~

/,_,.. AoAI?A.

~~~J3~J( ~;;t:l;:.,~ 10- CD- d-O I:/
SUB
(mon

Rl
AND
day, yeBr)

Svt""

T;

Mt:;,ATE

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 52 of 71

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Boston Area Office
Jo!m F. Kcnnl!rJy F~Jcrul HutlJmg

lnll"rnct·

Gnvcrnmcnl Ct<ntcr. ltuum·Pi
!lustllH, MA 0220J-050(•
T'ull Fn:c Number {!Ht!"!l 4tJ!l./~IJ75
Bushln [)nccr Owl (6 J 71%5-41.:0:\

www.~t!"U£..£!.l.!'

Boston D1rccr Ltnc
TT\'
FA.X

!im.illLJ!!.!i}t~~\.'!.1.~:.£\1 ~

(017) :iO~·J:!lJO
1617) .;j(,j.J2U-1
{td7J :i(,) • .lf%

WHAT A !'OSITION STATEMENT SHOULD INCLt:UE
PAI!T 1- GENERAL INFORMATION

I.

Nnme und Address of Organi:r.utinn
Stute the correct numc und uddrcss of the- specific Jnstullution ciJurgcs. If the address is a post ollicL'
box, includt• the street uddress us well.

2.

lhmreseni:Jtive of On:anlz:Hion
Stutc lhc nume, title, business uddrcss, uud business telephone number of the pcrsor1 with, or through
whom, there should be communications relating to this mutter.

3,

Kind of Business

Bricny identify the primary function of the establishment charged (e.g. nutomobilc assembly. retail
sales of nu.m's clothing, bunking and lrust services, etc.).
4.

Number of Emplovees

State the number of persons {including supervisors and mangers) employed at the specific
installation charged and by the organization as n whole on tile most recent payroll dute. If the total
number of employees Is over 50, approximations arc acceptnblc.
PART" II- RESPONSE TO THE CHARGE

J.

Pro\'lde an .. answer" to the charge by telling your versions of the facts. Provide rele,·unt background
history to help the reader understand your point of view, including who, what, when, where, why &
how.

11.

E<plain and provide copies of any policies and procedures tlrar apply to !he slrua!ion. E.g., if !lw
charging party claims harassment based on national origin, and wage discrimination. provide copies
of any policies you hnvc on notional origin discrimination, and your wage/compensation guidelines.

Ill.

If the uction you look was no I consistent with your policy, explain why you deviated from your polic.\'
in this lnsumce.

IV.

Provide sufficient inform:11ion to illustrate why you did what you did. E.g., if you failt>d to pr·omutc
charging party, tell us what the promotion criteria was for the job(s) in 'luestion, nnd specificully
how the churgin~.: pany failed ·ro meet f he -l'Titl'li-u~ or wns lc!!-s !l'nitable than -other ·applklfnts--und/or

lhc pcrson(s} promoted.
\'

If :applicahlc, provide comparutlve data on simibrly-situarcd employees. For C":t:tmplc, if chaq~ing
pnrty claims she.• wns nnt promoted hecnm;e or her national origin, provide the national nriJ!In of

those

~clcclcd

and of those who applied (or were eligible) who were not sclc.•cted.

\'I.

Explain in del nil all clcclrlmiL' datu m.uintaim·d by th~ Rcspundc.·nt. \'ou should iududc t•cfcrcuc.·cs
rhut include but not ht! lintilcd to tlwlucatlon or the data, how thl' dnta an• stnrcd. ;tnd name(.~i) of tht•
,,crson who manaw: tlw data. Exr•lain In clct:tU how the clcctrunk data arc maintain~d.

VII.

Pro\'idc any urhcr infornwtion you tllink will help

J:.,,d .. , .,,.,. J \ 1 'Ill o1. , l'l ''h

c~plain ~·uur

pusitiun.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 53 of 71

EXHIBITC

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 54 of 71

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Boston Area Office

lntcmcJ' www eeoc.goy
BmaU: infn@rrnr gov

March 4, 2014

John F. Kennedy Fedetal Building
Govcmmcnt Ccnla', Room 475 ·
ao.ton. MA 02:!03.0506
ToU Fr= Number. (866) 408-8075
Boston DiRe~ Dial: (617) 565-4805
Boston Direct Line: (617) S6S..3200
TTY: (617) 565-3204
FAX: (617) 565·3196

Jennai S. Williams

Littler Mendelson, PC
One Century Tower
265 Church Street, Suite 300
New Haven, CT 06510
RE:

Marsh v. Day and Zimmerman, NPS
EEOC Charge# 846-3023-02424

Dear Ms. Williams:
The above referenced matter has been assigned to me for completion of investigation. After
having reviewed the materials previously submitted by the parties, I have determined that
additional information is required. Accordingly, please submit responses to the following on or
before March 18, 2014.
1) Provide a listing of all individuals employed by DZNPS at the Millstone Nuclear Power
plant as Electricians during the fall2012 outage at Millstone. For each individual
identified during the relevant time frame, provide the following information.
a)
b)
c)
d)
e)

Name
Job title
Dates of employment
Last known home address
Last known telephone number

. 2) Provide a complete copy of Mr. Marsh's personnel file.
3) Provide copies of any and all documentation (e-mails, notes, discussions, etc.) relating to
Mr. Bohan's assessment that there was no way for Mr. Marsh to perform the Electrician's
job without posing a risk to his safety and health.
Please feel free to provide any additional documentation that you deem relevant to the
Commission's investigation of this matter. Should you have any questions, I may be contacted
at (617)-565-3213 during normal business hours.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 55 of 71

EXHIBITD

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 56 of 71

U.S.

EEOC FORM 131 (11108)

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Commission
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Clllmo To Btt AQI!rlowd

DAY & ZIMMERMANN NPS
1827 Fraedom Road
Lancalltllr, PA 17801

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Marsh

Ia Fling on Behllll of Other(a)

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NOTICE OF CHARGE OF DISCRIMINATION
(Soe tho llnOiosad for sddltlonli lnfonnatlon)

Thle Ia notice that a charge of employment dlscrknilatfon has been flied against your organization under:

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0

Tho -

0
2. 0
1.

3.

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Tile VII of the Clvtl Rights Act (l1tle VIQ

The Equal Pay Act (EPA)

The Age Dltta1mlnaUon In Emp~ Act (AOEA)

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The Amotlcona with Dlsob- Act (ADA)

The Genetic Jnfonnatlon Nondllorinlnollon Act (GINA)

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cllodcad below apply our honcling of IIlia charge:
No aotlon II required by you at thltt line.
Pleeae call the EEOC RtpnmentatJve Jilted below coneemlng lhe 1lnther handing olthla chlrgo.

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pravlda by 22-SEP-14 a etatamant of your poaltlon on the luuea ccventd by lhlt cllorgo, With co plea of any tupp0rt1ng

- . , t o the EEOC ReprNontatlvo illod below. Y o u r - will bll plaood In lhellle and contklered 11 wo Jn-ugo1e lhe chargo.
A prompt rupotH to thlo requoo1 wll make I
conclude our lnVNtlgatlon.

4.

0

5.

0

•-to

Plouo r.pond fuPy by to lhe encloHd requeat for Information and Hnd y o u r - to lhe EEOC Repmantatlve llot.d below. Your
reeponH will be pJaced In lhe lie and conoldanad 11 wo iwettlga the cllargo. A prompt nooponae to lhll r.queat wil moke l oulor Ia
conoludto our lnveltlgllllon.

EEOC hlo a Madllllon prognrn ltlat glvN par1leo an opportunlly to raaoJve the 1 - olo cllarga wtlhcU1-slve lnveltlgollon or
upern:tltula oiiUOIJICOI. If you would like to partlclpata, ploaao aay so on the
and respond by

•-form

to
II you .t!.Q.HCI Wish to lly Madlatlon, you mutt mpond to any r.queat(o) made above by lhe dote(a) apeclfted there.

For IUrthar Jnq~ on lhll mabr, pleue UH lhe charge ni.VIIber ohown obow. Your pool!lon lllllmont, your AllponH tD our r.q..t for lnfonnallon,
or any lnqt.Uy you m.y have ahou\:1 ba dlredad to:
8\lnn M. eo.ola,
lnvutlgator

Ttlophono

Encloaunt(a):

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Rote

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Bo.ton Area Offtce
John F. Kennedy Fed Bldg
Govemmentetr, Room 475
Bo.ton, MA 02203
Fax: (617) 565-3198

(817) 5611-3213

[;8J Copy of Charge
vr

Color

II t=ru:n DISCRIMINATION

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ea

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Religion

D

Nllfona! 0!1g!n

See enclo.ed copy of charge of discrimination.

Dolo

Nama/ Title or,

September 8, 2014

Area Office Director

IOI!Iclal

Feng K. An,

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Age

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Rtlllldon

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Genollclnlonndon

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other

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 57 of 71

CHARGE OF DISCRIMINATION

Charge Preaanted To:

Agency(les) Charge No(s):

FEPA

AMENDED

EEOC

846-2013-02424

Th!a fom1 ~ lllf1cled by the Pl1vecy Act oi1D74. See enclcud Pl1vecy Act
statement and other lntonnallon beloro completing ~ tonn.

and EEOC
Home Phone pnd. AnN Codo)

429-8768

09-29-1985

City, state and ZIP CO<II

64 Laurel Lane, Ashford, CT 08278

Phone No.

N<L - · -

DAY & ZIMMERMANN NPS

500 or More

481-5800

City, StaiB and ZIP

1827 Freedom Road, Lancaster, PA 17801
Phone No. (lm:lude Allfe Cod•)

Namo

City,

Stme!Add"""

'

--~" ~-~

.,;,

'

-----···

DISCRIMINATION BASED ON (Chock epproprlele box(aa).)

DRACE D
D

COLOR

RETALIATION

D

D
AGE

SEX

00

D

RELIGION

DISABILITY

D

D

OATE(S) DISCRIMINATION TOOK PLACE
Eartlul
leta&l

10-01-2012

NATIONALORIGIN

10-01-2012

GENE11C INFORMATION
CONTINUING ACTION

OnlER (Spe<lfyl
THE PARTICULARS ARE (If a-one/ pepor Is needed, ellach ...... llhHt(o)):

-AMENDMENT TO CHARGE 848-2013-02424In October 2012, I filed charge# 846-2013-02424 with the EEOC, alleging that I had been
discriminated against by Respondent based on my disability.
After I filed my charge and the EEOC began its investigation, Respondent sent a letter to all the
electricians identified as witnesses, approximately 150 people, including my former co-workers and
members of my local. The letter sent specifically Identified me by name, Included the fact that I had
filed a disability discrimination charge, and that the EEOC was seeking information in connection
with its Investigation of my original charge.

1want thla charve filed with both tho EEOC and lha State or local Agency, Wany. I
wiU advlee the agenclea WI change my addreaa or phone number and I Will
cooparl!e fu!ly w1t11 them In tho prooelling of my charvaln accortlane& wltl1 thelr

lawear or amnn !hall have read the
the beat of my knowledge, lntormauon end

and that ft JalnJe to

K~NARE
co~ ~4...susscruaeo

.

TOBEFOREMETHISOATE

(month, day,

.f'·cfl.~-/L/

BEVEALYO. FERENC!

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 58 of 71

CHARGE OF DISCRIMINATION

Charge Presented To:

~

Th!BI'l>nn Ia af!octed by !he PrlVIIO)' Act of1974. Seaendcaed Privacy Act
Stallment and other lnlannation blllonl ccl11!lletlng !hit !ann.

FEPA
EEOO

Connecticut Comm. On Human Rl~hts & Opportunities

Agency(les) Charge No(s):
AMENDED

846-2013-02424
and EEOC

StaiB or /oCai AQem:y, II MY

radiation, chemicals or exposure.
I believe that the letter which was sent by Respondent Is clearly retaliatory towards me and the fact
that I flied a charge. Respondent disclosed to approximately 150 people (Including members of my
union local) not only the facts of my chllt'ge, but also Information about my disability snd medical
condition. I also believe that Respondenfs Jetter could have a chilling ~t on potential Interviews
that the EEOC may wish to conduct with Individuals who received the letter, and could discourage
others from filing charges with the EEOC.
I therefore charge that Respondenfs actions have viQiated the Americans )IVith Disabilities Act of
1990, as amended, and the applicable laws of the State of Connecticut.

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~

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:- SEP a· 5 20t4 ·

1want lhls chsruaiUad with both lha EEOC and lha Slam or local Agency, wany. I
wllladvlaelhe Bll"ndea KI chanll" my addresa or phone numbar and I will
coopemle fully with them In lha prot8Slllng or my charueln aa:ordance with their

procedures.
I declare under penally of perjury that the above Ia true and correct.

Datu

NOTARY· Wilen nfC8SUIY tor Stl!lli and Lo<al Agency Requ/ll>monto

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 59 of 71

• CP Encloau"' INilh eeoc Form 5 (11/0&)

PRIVACY ACT STATEMENT: Under the Privacy Act of 1974, Pub. Law 93-579, authority to request
personal data and its uses are:
1.

FORM NUMBERITITLEIDATE. EEOC Fonn 5, Charge of Discrimination {11/09).

2.

AUTHORITY. 42 U.S.C. 2000e-5(b), 29 U.S.C. 211, 29 U.S.C. 626, 42 U.S.C. 12117, 42 U.S.C. 2000ff-6.

3. PRINCIPAL PURPOSES. The purposes of a charge, taken on this fonn or otherwise reduced to
writing (whether later recorded on this fonn or not) are, as applicable under the EEOC antidiscrimination staMes (EEOC staMes), to preserve priVate suit rights under the EEOC statutes,
to Invoke the EEOC's jurisdiction and, where dual-filing or referral arrangements exist, to begin
state or local proceedings.
4. ROUTINE Uses. This fonn is used to provide facts that may establish the existence of matters
covered by the EEOC statutes (and as applicable, other federal, state or local laws). lnfonnation
given will be used by staff to guide Its mediation and Investigation. efforts and, as applicable, to
detennine, conciliate and litigate claims of unlawful discrimination. This funn may be presented·to
or disclosed to other federal, state or local agencles as appropriate or necessary in carrying out
EEOC's functions. A copy of this charge will ordinarily be sent to the respondent organization
against which the charge Is made.
5. WHETHER DISCLOSURE IS MANDATORY; EFFECT OF NOT GMNG INFORMATION. Charges must be
reduced to writing and should Identify the charging and responding parties and the actions or
policies complained of. Without a written charge, EEOC will ordinarily not act on the complaint.
Charges underTitle VII, the ADA or GINA must be sworn to or affinned (eHher by using this fonn
or by presenting a notarized statement or unsworn declaration under penalty of perjury); charges
under the ADEA should ordinarily be signed. Charges may be clarified or amplified later by
amendment. It is not mandatory that this fonn be used to make a charge.
NOTICE OF RIGHTTO REQUEST SUBSTANTIAl. WEIGHT REVIEW
Charges filed at a state or local Fair Employment Practices Agency (FEPA) that dual-files charges
wHh EEOC will ordinarily be handled first by the FEPA. Some charges filed at EEOC may also be
first handled by a FEPA under worksharlng agreements. You will be told which agency wm handle
your charge. When the FEPA Is the first to handle the charge, Hwill notify you of its final
resolution of the matter. Then, if you wish EEOC to give Substantial Weight Review to the FEPA's
final findings, you must ask us in writing to do so within 15 davs of your receipt of Hs findings.
Otherwise, we will ordinarily adopt the FEPA's finding and close our file on the charge.
NOTICE OF NON-RETALIATION REQUIREMENTS
Please notify EEOC or the state or local agency where you filed your charge If retaliation Is
taken against you or others who oppose discrimination or cooperate in any Investigation or
lawsuit concerning this charge. Under Section 704(a) of Title VII, Section 4(d) of the ADEA,
Section 503(a) of the ADA and Section 207(f) of GINA, HIs unlawful for an employer to
discriminate against present or fonner employees or job applicants, for an employment agency to
discriminate against anyone, or for a union to discriminate against its members or membership
applicants, because they have opposed any practice made unlawful by the statutes, or because
they have made a charge, testified, assisted, or participated in any manner In an Investigation,
proceeding, or hearing under the laws. The Equal Pay Act has similar provisions and Section
503(b) of the ADA prohibits coercion, intimidation, threats or interference with anyone for
exercising or enjoying, or aiding or encouraging others in their exercise or enjoyment of, rights
under the Act.

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 60 of 71

EXHIBITE

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 61 of 71
EEOC Sues Day &Zimmermann NPS for Unlawful Retaliation over Discrimination Charge

10127/2015

U.S. Equal Employment Opportunity Commission

PRESS RELEASE
9-28-15

EEOC Sues Day & Zimmermann NPS for Unlawful Retaliation over
Discrimination Charge
Power Industry Contractor Punished Worker for Filing Disability Bias Charge, Federal Agency Asserts
BOSTON -Day & Zimmennann NPS, a provider of staffing services to the power Industry, unlawfully retaliated
against a worker who filed a discrimination charge with the U.S. Equal Employment Opportunity Commission
(EEOC) and sought to interfere with the rights of employees to communicate with EEOC, the federal agency
claimed in a lawsuit filed today.
According to EEOC's suit, Gregory Marsh, an electrician hired by Day & Zimmennann NPS to work during a power
plant shutdown, filed a charge with EEOC alleging discrimination under the Americans with Disabilities Act (ADA).
Day & Zimmennann NPS publicized Marsh's charge, including his name and details about the medical restrictions
on his ability to work, to 146 members ofhls union local, EEOC said. By publicizing Marsh's charge in this manner,
Day & Zimmennann NPS sought to interfere with the rights of workers and witnesses to communicate freely with the
EEOC and to file charges ofthelrown, EEOC charged.
This alleged conduct violates the ADA's prohibitions against retaliation and Interference with the rights guaranteed
under the statute. EEOC filed suit in U.S. District Court for Connecticut (EEOC v. Day & Zlmmennann NPS, Inc.,
Civil Action No. 3:15-cv-1416) after first attempting to reach a pre-litigation settlement through Its conciliation
process.
"Charges and communication with employees are critical to EEOC's role as primary enforcer of the nation's fair
employment practices laws because they inform the agency of employer practices that might violate those laws,"
EEOC Trial Attorney Sara Smolik explained. "For this reason, the right to communicate with EEOC is protected by
federal law. When an employer punishes those who exercise that right, the employer is effectively seeking to
silence employees who have infonmation about potential violations of the law. When Day & Zimmermann NPS
publicized Mr. Marsh's EEOC charge to his colleagues and witnesses, It sent a clear message of intimidation to the
workforce."
"The agency's Strategic Enforcement Plan identified 'preserving access to the legal system' as one of EEOC's six
enforcement priorities," EEOC District Director Kevin Berry added. 'The importance of employees' ability to file
charges with EEOC and to participate in its processes, free from fear of adverse consequences, cannot be
overstated. Any action that confinms that fear and makes it harder for employees to come forward, Increases the
risk that discrimination will go without remedy."
EEOC's New York District Office oversees New York, North em New Jersey, Connecticut Massachusetts, Rhode
Island, Vermont, New Hampshire and Maine. EEOC enforces federal laws prohibiting employment discrimination.
Further lnfonmatlon about the commission is available on its website at www.eeoc.gov.

htf;J://Www 1.eeoc.govl/eeoc/newsroam/releaseJ9.28-15.cfm ?rerderfor prt nt= 1

1/1

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 62 of 71

EXHIBITF

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 63 of 71
1012812015

U.S. EEOC on Twitter; "#EEOC Sues Day &Zimmermam NPS for Retaliation. Power Industry Contractor Punished Worker for Disability Bias Charg ...

X
~ u.s.eeoce
w

+.!. Follow

@EEOCNews

#EEOC Sues Day & Zimmermann NPS for
Retaliation. Power Industry Contractor
Punished Worker for Disability Bias Charge
ow.ly/SNxJ6
RETWEETS

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Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 64 of 71

EXHIBIT G

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 65 of 71
Day & Zimmermann Punished Worker For ADA Charge: EEOC- Law360

11/3012015

LAW3~
Portfolio Media. Inc. 1 860 Broadway, 6th Floor 1 New York, NY 10003 I www.law360.com
Phone: +1 646 783 7100 I Fax: +1 646 783 7161 1 customerservlce@law360.com

Day & Zimmermann Punished Worker For ADA
Charge: EEOC
By Ben James

Law360, New York (September 28, 2015, 8:54 PM ET) --The U.S. Equal Employment
Opportunity Commission slapped Day & Zimmermann NPS Inc. with a retaliation suit
Monday in Connecticut federal court, accusing the power industry contractor of publicizing
an electrician's Americans with Disability Act charge and medical restrictions to punish him
and intimidate other workers.
The EEOC says Day & Zimmermann ran afoul of the ADA when it responded to Gregory
Marsh's disability bias charge in June 2014 by sending a letter to nearly 150 of Marsh's
fellow union members who worked or used to work for the company and were potential
witnesses in the agency's investigation.
The letter included Marsh's name and details about medical restrictions on his ability to
work, according to the agency, which added that the company's purpose was to interfere
with workers' and witnesses' rights to communicate freely with the EEOC and file their own
charges.
Communication between the EEOC and employees is crucial to the workplace bias
watchdog's role, and that's why the right to communication with the EEOC is legally
protected, EEOC trial lawyer Sara Smolik said in a statement.
"When an employer punishes those who exercise that right, the employer is effectively
seeking to silence employees who have information about potential violations of the law,"
Smolik said. "When Day & Zimmermann NPS publicized Mr. Marsh's EEOC charge to his
colleagues and witnesses, it sent a clear message of intimidation to the workforce."
The agency's complaint says the letter to members of Marsh's union local violated the
AEDA's ban on retaliation. Day & Zimmermann has engaged in unlawful employment
practices involving electricians at the Millstone Power Station in New London, Conn. since at
least June 2014, according to the agency.
Marsh, an electrician and member of Local 35 of the International Brotherhood of Electrical
Workers, was hired at the Millstone plant in September 2012, and the next month he lodged
an EEOC charge claiming the company failed to reasonably accommodate his disability and
unlawfully terminated him, the lawsuit says.
In March 2014 the EEOC asked for information from Day & Zimmermann as part of its
investigation, and the company sent out the letter that triggered the suit before giving the
agency the information, the complaint says.
The letter identified Marsh, said he had filed a disability bias charge, listed his medical
restrictions and identified the accommodation he requested, the EEOC says.
http://www.law360.com/artlcles/7080891print?section=employment

112

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 66 of 71
11/3012015

Day & Zimmermann Punished Worker For ADA Charge:

EEOC~

law360

In addition, the letter - on Day & Zimmermann Group Inc. letterhead - told recipients
they had the right to refuse to speak to the EEOC investigator and gave them the option to
have the company's counsel present when speaking to the agency.
"The intent of the employer's letter was to punish Marsh for his charge of discrimination
and to interfere with Marsh and the recipients' exercise and enjoyment of rights protected
by the ADA," the EEOC's complaint says.
A representative for Day & Zimmermann could not be immediately reached for comment.
The EEOC is represented by Robert Rose, Raechel Adams, Sara Smolik, P. David Lopez,
James Lee and Gwendolyn Reams.
Counsel information for Day & Zimmermann was not immediately available.
The case is EEOC v. Day & Zimmermann NPS Inc., case number 3:15-cv-01416, in the U.S.
District Court for the District of Connecticut.
--Editing by Brian Baresch,
All Content© 2003-2015, Portfolio Media, Inc.

http://wwwJaw360.com/articles/708089/print?section=employment

212

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 67 of 71
1113012015 EEOC Sues Day & Zlmm..-mam NPS Ia UrtawfiA Retallallon "'"' Dlscrlmlralon Clwge J U.S. Equal EmJ:loymont Opportlrlty Canmlsslon (EEOC ...

JDSUPRP\
BUSINESS ADVISOR

EEOC Sues Day &Zimmermann NPS for
Unlawful Retaliation over Discrimination
Charge
9/29/2015 by U.S. Equal Employment Opportunity Commission (EEOC)

Like

G

I G+1

0

Power Industry Contractor Punished Worker for Rllng Disability Bias Charge,
Federal Agency Asserts
BOSTON- Day & Zimmermann NPS, a provider of staffing services to the
power industry, unlawfully retaliated against a worker who filed a
discrimination charge with the U.S. Equal Employment Opportunity
Commission (EEOC) and sought to interfere with the rights of employees to
communicate with EEOC, the federal agency claimed in a lawsuit filed today.
According to EEOC's suit, Gregory Marsh, an electrician hired by Day &
Zimmermann NPS to work during a power plant shutdown, filed a charge with
EEOC alleging discrimination under the Americans with Disabilities Act (ADA).
Day & Zimmermann NPS publicized Marsh's charge, including his name and
details about the medical restrictions on his ability to work, to 146 members of
his union local, EEOC said. By publicizing Marsh's charge in this manner, Day &
httpJ/www.jdsupra.com~~-sl-x;-sues-day-zimm..-mam-ll>S·fa'-43851/

1/4

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 68 of 71

11/30/2015 EEOC Sues Day &Zimmermann NPS for Unlawful Retaliation over Discrimination Charge I U.S, Equal Employment Opportunity Commission (EEOC .. ,

Zimmermann NPS sought to interfere with the rights of workers and witnesses
to communicate freely with the EEOC and to file charges of their own, EEOC
charged.
This alleged conduct violates the ADA's prohibitions against retaliation and
interference with the rights guaranteed under the statute. EEOC filed suit in
U.S. District Court for Connecticut (EEOC v. Day & Zimmermann NPS, Inc., Civil
Action No. 3:15-cv-1416) after first attempting to reach a pre-litigation
settlement through its conciliation process.
"Charges and communication with employees are critical to EEOC's role as
primary enforcer of the nation's fair employment practices laws because they
inform the agency of employer practices that might violate those laws," EEOC
Trial Attorney Sara Smolik explained. "For this reason, the right to
communicate with EEOC is protected by federal law. When an employer
punishes those who exercise that right, the employer is effectively seeking to
silence employees who have information about potential violations of the law.
When Day & Zimmermann NPS publicized Mr. Marsh's EEOC charge to his
colleagues and witnesses, it sent a clear message of intimidation to the
workforce."
'The agency's Strategic Enforcement Plan identified 'preserving access to the
legal system' as one of EEOC's six enforcement priorities," EEOC District
Director Kevin Berry added. "The importance of employees' ability to file
charges with EEOC and to participate in its processes, free from fear of adverse
consequences, cannot be overstated. Any action that confirms that fear and
makes it harder for employees to come forward, increases the risk that
discrimination will go without remedy."
EEOC's New York District Office oversees New York, Northern New jersey,
Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and
Maine. EEOC enforces federal laws prohibiting employment discrimination.
Further information about the commission is available on its website at
www.eeoc.gov.
http:l/www.jdsupra.comflegalnew-s/eeoc·sues-day.zimmermann-nps·for-43851/

214

Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 69 of 71
11/3012015 EEOC Sues Day & Zimmermann NPS for Unlawful Retaliation over Discrimination Charge 1 U.S. Equal Em payment Opportunity Commission (EEOC ...

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in oil
situations and should not be acted upon without specific /ega! advice based on particular situations.
~)U.S.

Equal Employment Opponunity Commission {EEOC) 2015 I Attorney Advertising

WRITTEN BY:

w
~

U.S. Equal Employment Opportunity Commission (EEOC)

PUBLISHED IN:
Bias

Disability
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Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 70 of 71
11f30/2015 EEOC Sues Dey & Zimmermann NPS for Unlawful Retaliation over Discrimination Charge I U.S. EquaJ Employment Opportunity Commission (EEOC ..

EEOC

Employment Discrimination

Retaliation

Civil Rights

Labor & Employment

U.S. Equal Employment Opportunity Commission (EEOC) on:

Ia
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Find a qualified source for your story "
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Case 3:15-cv-01416-VAB Document 13-1 Filed 11/30/15 Page 71 of 71

CERTIFICATE OF SERVICE

I hereby certify that on November 30, 2015, a copy of the foregoing was filed
electronically and served by mail on anyone unable to accept electronic filing. Notice of this
filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or
by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic
Filing. Parties may access this filing through the Court's CM/ECF system.
Additionally, on November 30, 2015, a copy of the foregoing was hand-delivered to the
following counsel for record for the Plaintiff:
Robert D. Rose
Raechel L. Adams
Sara Smolik
Trial Attorneys
Equal Employment Opportunity Commission
Boston Area Office
John F. Kennedy Federal Building
Room 475
Boston, MA 02203-0506

Is/ Stephen P. Rosenberg
Stephen P. Rosenberg