Case 1:21-cv-10593-PBS Document 132 Filed 06/08/23 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
______________________________________
)
BRIAN FLEMING, )
Plaintiff, )
) Civil Action
v. ) No. 21-10593-PBS
)
U.S. DEPARTMENT OF HOMELAND SECURITY, )
ET AL., )
Defendants. )
______________________________________)

MEMORANDUM AND ORDER

June 8, 2023

Saris, D.J.

This is an employment dispute involving the Boston Sector of

the United States Coast Guard. Plaintiff Brian Fleming, a watchman,

brings claims against the Department of Homeland Security,

specifically the U.S. Coast Guard and Alejandro Mayorkas in his

official capacity, under Title VII of the Civil Rights Act of 1964

(Counts One, Two, Three, and Six), 42 U.S.C. § 2000e-3, the

Rehabilitation Act of 1973 (Count Four), 42 U.S.C. § 12112, and

the Americans with Disabilities Act (ADA) of 1990 (Count Five), 42

U.S.C. § 12102(3). The parties have cross-moved for summary

judgment (Dkts. 67, 85). After hearing, the Court rules as follows.

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I. Retaliation and Hostile Work Environment

The Court denies the motions for summary judgment on the

retaliation and hostile work environment claims (Counts One, Two,

Three, and Six) on the grounds that there are multiple disputed

issues of material fact. Under Plaintiff’s version of events, in

August 2019, Fleming reported to his supervisor that enlisted

minority watchstanders were being discriminated against as

reflected in watch duty assignments, performance awards, and

discipline. In response to Fleming’s reporting discriminatory

behavior, which is protected activity, Defendants allegedly

retaliated against him by giving him two letters of counseling in

January 2020, temporarily suspending his Operations Unit

Certification, and taking other adverse employment actions. He

also claims Defendants retaliated against him within days of his

contacting an Equal Employment Opportunity (EEO) official on

January 27, 2020, by requiring him to undergo a recertification

process.

The Defendants dispute this allegation of retaliation by

arguing that Fleming had multiple employment infractions

justifying the discipline and that Defendants did not know about

the EEO activity until after the letters of counseling had been

sent. Plaintiff denies he engaged in any misconduct.

Plaintiff has put forth sufficient evidence to meet his burden

of proving pretext. See Fennell v. First Step Designs, Ltd., 83

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F.3d 526, 535 (1st Cir. 1996) (“[O]n summary judgment . . . a court

may often dispense with strict attention to the burden-shifting

framework, focusing instead on whether the evidence as a whole is

sufficient to make out a jury question as to pretext[.]”). In some

circumstances, close temporal proximity between protected activity

and discipline is sufficient to establish a genuine issue of fact

as to causation. See Abril-Rivera v. Johnson, 806 F.3d 599, 609

(1st Cir. 2015) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S.

268, 273-74 (2001)). Here, the gap of five months is not strong

evidence of pretext. Nonetheless, Plaintiff points to direct

evidence that his supervisor referred to him as an “agitator” and

suggested that employees who spread gossip and misinformation,

making efforts to “actively undermine” their chain of command could

be investigated for acts of “sedition.” Dkt. 111 ¶ 124, at 50.

Defendants’ statements support a claim of retaliatory motivation.

The Defendants’ primary argument in support of summary

judgment is that these disciplinary actions were not “adverse”

because they did not create tangible harm. But Plaintiff points

out that the requirement for recertification resulted in an

elimination of overtime opportunities, amounting to $22,000 lost

in differential pay. See Henderson v. Mass. Bay Transp. Auth., 977

F.3d 20, 40 (1st Cir. 2020). Moreover, courts have held that the

collective effect of multiple disciplinary actions, if

sufficiently severe or pervasive, can constitute adverse action.

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See Billings v. Town of Grafton, 515 F.3d 39, 54 n.13 (1st Cir.

2008).

II. Inquiry Into Well-Being

The Court allows Defendants’ motion for summary judgment on

Count Four. The ADA and the Rehabilitation Act prohibit employers

from “mak[ing} inquiries of an employee as to whether such employee

is an individual with a disability or as to the nature or severity

of the disability,” unless the inquiry is shown to be “job-related

and consistent with business necessity.” 42 U.S.C.

§ 12112(d)(4)(A). The two “Letters of Counseling” suggested that

Defendants were “troubled” by Fleming’s behavior, because he could

potentially “need help with personal, family, or job-related

problems[.]” Dkt. 111 ¶ 40, at 22. Similarly, the “Letter of

Reprimand” stated: “While I am disappointed by your behavior, I am

also concerned about your health and well-being.” Id. ¶ 95, at 41.

The Human Resources Senior Specialist, Todd Merrick, also

testified that when the second letter of counseling was issued,

there was discussion of mental health, including questions about

Fleming’s child; Merrick thought this conduct was “a bit invasive,

or actually very invasive.” Dkt. 88 at 15. Plaintiff argues that,

in this context, these questions about his well-being rise to the

level of an impermissible inquiry.

The Equal Employment Opportunity Commission (EEOC)

Enforcement Guidance is helpful in interpreting the ADA. See

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Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 673 (1st Cir.

1995); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)

(“[W]hile not controlling upon the courts by reason of their

authority, [administrative interpretations by the enforcing

agency] . . . constitute a body of experience and informed judgment

to which courts and litigants may properly resort for guidance.”)

According to the EEOC, examples of questions that are not likely

to elicit information, and are therefore not prohibited, include

asking generally about an employee’s well-being (e.g., asking an

employee who looks tired or ill if s/he is feeling okay or how

s/he is doing following the death of a loved one) and

non-disability-related impairments (e.g., asking an employee how

he broke his leg). See EEOC, Enforcement Guidance on Disability-

Related Inquiries and Medical Examinations of Employees Under the

Americans with Disabilities Act. Similarly, recommending that

Plaintiff contact the employee assistance program (EAP) does not

violate the ADA. See Jenkins v. Med. Lab’ys of E. Iowa, Inc., 880

F. Supp. 2d 946, 962 (N.D. Iowa 2012) (“EAP counseling cannot be

classified as a medical examination or inquiry.”); Hannah P. v

Coats, 916 F.3d 327, 338 (4th Cir. 2019) (“EAP is intended to be

used as a voluntary counseling service, and not as a mandatory

medical examination that would violate the Rehabilitation Act.”).

In short, Plaintiff’s claim fails because expressing concern about

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an employee’s general health and well-being is not an impermissible

inquiry.

III. Perception of Mental Health Disability

Plaintiff claims Defendants violated the ADA by regarding him

as someone who has a mental health problem and needs anger

management.

There is evidence that, as of November 2019, Defendants

perceived Fleming as having acute mental health issues relating to

family problems (i.e., his child’s health).

Both the November 1, 2019 draft and January 23, 2020 final

version of the first “Letter of Counseling” contain the following

language:

a. On 27 August 2019, a Chief Petty Officer directed

you to leave the watch floor due to your incendiary
behavior towards a First Class Petty Officer.
Specifically, you were yelling at him from across the
watch floor, pointing your finger at him in an agitated
manner, and approaching him aggressively.
. . . .
3. While the above incidents are concerning, they
are not isolated. You have been previously counseled for
yelling or using profane language on the watch floor.
. . . .
You must remain calm and composed in response to
provocative comments. . . . When you become agitated
with a Coast Guard member or the public, seek assistance
from me . . . .
. . . .
6. While I am troubled by this behavior, I am also
concerned about your health and well-being. . . . I
encourage you to communicate any personal issues you may
be experiencing to me so I can provide support as
necessary.

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Dkt. 70-14 at 1-2; 70-8 at 2-3 (emphases added). Defendants’

concerns about Fleming’s anger outbursts continued: the

February 27, 2020 Diaz Investigation Report recommended that

Fleming “be enrolled in anger management classes to prevent verbal

outbursts towards co-workers.” Dkt. 70-37 at 33.

In general, the ADA definition of impairment “does not include

common personality traits such as poor judgment or a quick temper

where these are not symptoms of a mental or psychological

disorder.” 29 C.F.R. app. § 1630.2(h). See Weaving v. City of

Hillsboro, 763 F.3d 1106, 1114 (9th Cir. 2014) (“[A] ‘cantankerous

person’ who has ‘[m]ere trouble getting along with coworkers’ is

not disabled under the ADA.”); Watson v. City of Mia. Beach, 177

F.3d 932, 935 (11th Cir. 1999) (finding characterizations such as

“paranoid,” “oppositional,” and “threatening” to be evidence of

“serious personality conflicts” with coworkers, not rising “to the

level of a mental impairment”); Stewart v. Cnty. of Brown, 86 F.3d

107, 111 (7th Cir. 1996) (holding that an “excitable,” “emotionally

or psychologically imbalanced” individual was not disabled under

the ADA).

Suggestions of anger management counseling do not generally

support a claim of discrimination based on a perceived disability.

See Brunke v. Goodyear Tire and Rubber Co., 344 F.3d 819, 822 (8th

Cir. 2003); see also Cody v. CIGNA Healthcare of St. Louis, Inc.,

139 F.3d 595, 599 (8th Cir. 1998) (“Employers need to be able to

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use reasonable means to ascertain the cause of troubling behavior

without exposing themselves to ADA claims[.]”).

No reasonable juror could find that Defendants perceived and

took adverse action against Fleming because of a specific mental

health disability that “substantially limit[ed] one or more major

activities.” ADA Amendments Act of 2008, Pub. L. No. 110-325,

§ 2(a)(4)-(6), 122 Stat. 3553.

ORDER

The Court ALLOWS Defendants’ motion for summary judgment

(Dkt. 67) on Counts Four and Five. Otherwise, the motion is DENIED.

The Court DENIES Plaintiff’s motion for summary judgment

(Dkt. 85).

SO ORDERED.

/s/ Patti B. Saris

Hon. Patti B. Saris
United States District Judge