EEOC Opposition to Motion to Dismiss

8/18/2019 EEOC Opposition to Motion to Dismiss

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

EQUAL EMPLOYMENT OPPORTUNITY )

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

Plaintiff, )

) Filed: December 21, 2015v. )

)

DAY & ZIMMERMANN NPS, INC., ))

Defendant. )

)

______________________________________________________________

PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S

OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COMPLAINT

ORAL ARGUMENT REQUESTED

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


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iv

I. INTRODUCTION……………………………………………………………………1

II.

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

III. ARGUMENT ...............................................................................................................4

A. The Facts Alleged in the Complaint State a Claim Against DZNPS

for Violation of Section 503(a) of the ADA. ...........................................................4

1. Publication of an employee’s disability discrimination

charge, along with the details of the medical restrictions

placed on the employee as a result of his disability, is a

materially adverse action because it could dissuade areasonable person from making a charge of discrimination. ....................5

a. DZNPS ignores the appropriate standard

for determining that an action is “materially

adverse” for purposes of a retaliation claim. .......................5

b. Federal courts, applying the Burlington North

standard, have repeatedly recognized that

publication of information related to an

employee’s administrative charge may be

materially adverse, satisfying the adverse action

element of a retaliation claim. ..............................................8

2. Plaintiff has pled sufficient facts to satisfy the causation

element of its Section 503(a) claim. .......................................................12

B. The Facts Alleged in the Complaint State a Claim Against DZNPS

for Violation of Section 503(b) of the ADA. .........................................................15

1. Defendant’s letter constituted interference with rights

secured by the ADA. ...............................................................................16

2. An employee need not be actively exercising his or her

ADA-protected rights to be a victim under Section 503(b). ...................18

3. EEOC has alleged a causal connection between Defendant’s

interference and the enjoyment of rights protected by the ADA. ...........20



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C. DZNPS’s Post-Hoc Justifications for Its Conduct Do Not Merit

Dismissal of the Complaint Pursuant to Federal Rule 12(b)(6). ............................22

D.

An Employer’s Rights to Communicate With Its EmployeesAre Not Absolute. ..................................................................................................25

1. Defendant’s right to communicate with its employees, as

protected by the First Amendment or otherwise, does not

relieve it of its obligations under the ADA. ............................................25

2. No court has recognized an absolute litigation privilege

that insulates employers from claims of retaliation under

the employment discrimination laws. .....................................................29

E. EEOC’s Damages Request and Demand for a Jury Trial Are Appropriate. ..........32

1. EEOC may seek monetary relief for Marsh pursuant to

Plaintiff’s section 503(a) claim. ..............................................................33

2. EEOC is entitled to a jury trial on its section 503(a) claim. ...................36

3. EEOC may seek injunctive relief for Defendant’s violation

of section 503(b). ....................................................................................37

CONCLUSION .............................................................................................................................39



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TABLE OF AUTHORITIES

Cases

Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009) ............................................... 32

Amar v. New York City Health & Hosps. Corp., No. 14-2502, 2015 U.S. Dist. LEXIS 77718

(S.D.N.Y. June 15, 2015) .......................................................................................................... 14

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 3

Austen v. Catterton Partners V, LP, 831 F. Supp. 2d 559 (D. Conn. 2011) ................................. 26

Bachelder v. Am. W. Airlines, Inc., 259 F. 3d 1112 (9th Cir. 2001) ............................................. 16

Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009) ........................ 34, 35

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................ 3, 4

Bingham v. Oregon Sch. Activities Ass’n, 24 F. Supp. 2d 1110 (D. Or. 1998) ............................ 16

Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) ........................................................................ 26

Booth v. Pasco Cty., Fla., 829 F. Supp. 2d 1180, 1192 (M.D. Fla. 2011) ...................................... 9

Breimhorst v. Educ. Testing Serv., No. Civ.A. 99–3387, 2000 WL 34510621 (N.D. Cal. Mar. 27,

2000) ................................................................................................................................... 19, 20

Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003) .................................................. 15, 16, 18

Brown v. Daikin America, Inc., 756 F.3d 219 (2d Cir. 2014) ................................................... 4, 22

Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) .......................................................................... 6

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ........................... 2, 6, 7, 8, 10, 33

CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) ................................................................ 34

Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) ..................................................... 24

City of Austin Police Ret. Sys. V. Kinross Gold Corp., 957 F. Supp. 2d 277 (S.D.N.Y. 2013).... 23

Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225 (D. Kan. 2007) .................... 16



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Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d 81 (D. Conn. 2006) ........................................... 6

Gomez-Perez v. Potter, 553 U.S. 474 (2008) ............................................................................... 35

Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000) ................................................... 14

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) ................................................ 13

Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481 (7th Cir. 2015) ........................... 6, 8, 13, 24

Gulf Oil Comp. v. Bernard, 452 U.S. 89 (1981) ........................................................................... 27

Halliburton, Inc. v. Admin. Review Bd., 771 F. 3d 254 (5th Cir. 2014) ................................... 8, 10

Hashimoto v. Dalton, 118 F. 3d 671 (9th Cir. 1997) .................................................................... 17

Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) ............................................................................. 7, 8

Hollis v. Dep’t of Metal Health & Addictive Servs., No. 14-516, 2015 U.S. Dist. LEXIS 121668

(D. Conn. Sept. 11, 2015) ......................................................................................................... 14

Hopkins v. Bridgeport Bd. of Educ., 834 F. Supp. 2d 58 (D. Conn. 2011) .............................. 8, 13

Howard v. City of New York, 602 Fed. Appx. 545 (2d Cir. 2015)................................................ 14

Husser v. New York City Dep’t of Educ., No. 12-CV-6095 MKB JO, 2015 WL 5774741

(E.D.N.Y. Sept. 30, 2015) ............................................................................................... 7, 10, 13

In re Initial Pub. Offering Sec. Litig., 499 F. Supp. 2d 415 (S.D.N.Y. 2007) .............................. 27

Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp. 2d 351 (E.D.N.Y. 2008) ................ 33

Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005)........................................ 34, 37

John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ............................................................. 26

Johnson v. Meachum, 839 F. Supp. 953 (D. Conn. 1993) ............................................................ 22

Joseph v. Leavitt , 465 F.3d 87 (2d Cir. 2006)................................................................................. 6

Kleiner v. First Nat. Bank of Atlanta, 751 F. 2d 1193 (11th Cir. 1985) ....................................... 27

Kramer v. Banc of Am. Sec. LLC, 355 F.3d 961 (7th Cir. 2004) .................................................. 32



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Lee Pharmaceuticals v. Mishler, 526 F.2d 1115 (2d Cir. 1975) .................................................. 37

Lewis v. Boehringer Ingelheim Pharm., Inc., 79 F. Supp. 3d 394 (D. Conn. 2015) ....................... 6

Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) ....................... 20, 32, 36

Marchuk v. Faruqi & Faruqi, LLP, No. 13-1669, 2015 U.S. Dist. LEXIS 9806 (S.D.N.Y. Jan.

28, 2015) ..................................................................................................................................... 7

McMahan v. UMG Mfg. & Logistics, Inc., No. 1:06-cv-1149, 2008 WL 906152 (S.D. Ind. Mar.

31, 2008) ................................................................................................................................... 19

McMiller v. Precision Metal Products, Inc., No. 3:13-CV-577 VAB, 2015 WL 4886460 (D.

Conn. Aug. 17, 2015) .................................................................................................................. 7

Mendez v. Enecon Northeast Applied Polymer Sys., No. 14-6736, 2015 U.S. Dist. LEXIS 90794

(E.D.N.Y. July 13, 2015) .......................................................................................................... 26

Mogenhan v. Napolitano, 613 F. 3d 1162 (D.C. Cir. 2010) ............................................... 8, 11, 24

Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778 (3d Cir. 1998) ......................................... 15

Muller v. Costello, 187 F. 3d 298 (2d Cir. 1999).......................................................................... 32

Munck v. New Haven Sav. Bank, 251 F. Supp. 2d 1078 (D. Conn. 2003) .................................... 18

New York Univ. Med. Ctr. v. NLRB, 156 F.3d 405 (2d Cir. 1998) ................................... 16, 17, 20

Nieman v. RLI Corp., No. 12-1012, 2012 U.S. Dist. LEXIS 25378 (C.D. Ill. Feb. 28, 2012), .... 31

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .................................................... 17, 20, 27, 28

Norflet v. John Hancock Fin. Serv., Inc., 422 F. Supp. 2d 346 (D. Conn. 2006) ......................... 38

O’Hazo v. Bristol-Burlington Health Dist., 599 F. Supp. 2d 242................................................. 14

Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74 (E.D.N.Y. 2013) ................................................... 30

Oorah, Inc. v. Schick, 552 Fed. Appx. 20 (2d Cir. 2014) ............................................................. 37

Piesco v. City of New York, 933 F.2d 1149 (2d Cir. 1991) ........................................................... 12



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Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85 (2d Cir. 2010) ................. 5, 10, 13

Ray v. Ropes & Gray LLP, 961 F. Supp. 2d 344 (D. Mass. 2013) ............................... 9, 10, 25, 28

Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143 (4th Cir. 2012) .................................................. 28

Ridgeway v. Royal Bank of Scto. Group, No. 11-976, 2013 U.S. Dist. LEXIS 67822 (D. Conn.

May 13, 2013) ........................................................................................................................... 22

Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11 (2d Cir. 2012) ......................... 4, 6

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ....................................................................... 8, 35

Rolfe v. Lawrence & Mem'l Hosp., No. 3:10-CV-80 RNC, 2013 WL 5435507 (D. Conn. Sept.

30, 2013) ................................................................................................................................... 10

Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th Cir. 1995) ........................................................ 19

Seguin v. Marion Cnty Health Dep’t, No. 13-96, 2014 U.S. Dist. LEXIS 112110 (M.D. Fla. Aug.

13, 2014) ................................................................................................................................... 22

Sista v. CDC Ixis North Am., Inc., 445 F.3d 161 (2d Cir. 2006) .................................................... 4

Smith v. United States, 508 U.S. 223 (1993) ................................................................................ 36

Spector v. Bd. of Trustees of Community-Technical Colleges, 463 F. Supp. 2d 234 (D. Conn.

2006) ......................................................................................................................................... 31

Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998) ...................................................................... 6

Stoddard v. Eastman Kodak Co., 309 Fed. Appx. 475 (2d Cir. 2009) ......................................... 14

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ........................................................................ 3

Tepperwien v. Entergy Nuclear Operations, Inc., 663 F. 3d 556 (2d Cir. 2011) ..................... 6, 29

Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447 (S.D.N.Y. 2008) ............................. 30

Trachtenberg v. Dep’t of Educ., 937 F. Supp. 2d 460 .................................................................... 4

Turner v. The Saloon, Ltd., 595 F.3d 679 (7th Cir. 2010) ............................................................ 19



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Urtubia v. B.A. Victory Corp., 857 F. Supp. 2d 476 (S.D.N.Y. 2012) ......................................... 27

Vess v. Scott Med. Corp., No. 11-2549, 2013 U.S. Dist. LEXIS 39812 ....................................... 22

Walker v. Braes Feed Ingredients, Inc., No. 02-9236, 2003 U.S. Dist. LEXIS 6873 (N.D. Ill.

Apr. 22, 2003) ........................................................................................................................... 28

Walker v. City of Lakewood, 272 F.3d 114 (9th Cir. 2001) .......................................................... 18

Weight Watchers of Philadelphia, Inc. v. Weight Watchers Int’l, Inc., 455 F.2d 770 (2d Cir.

1972) ......................................................................................................................................... 26

Wheeler v. Natale, 137 F. Supp. 2d 301 (S.D.N.Y. 2001) ............................................................ 12

Wiggins v. DaVita Tidewater, LLC, 451 F. Supp. 2d 789 (E.D. Va. 2006) .................................. 28

Wray v. Nat’l R.R. Passenger Corp., 10 F. Supp. 2d 1036 (E.D. Wis. 1998) .............................. 19

Statutes

42 U.S.C. § 12112 ......................................................................................................................... 28

42 U.S.C. § 12117 ................................................................................................................... 33, 38

42 U.S.C. § 12203 ................................................................. 1, 2, 3, 5, 7, 15, 18, 20, 21, 32, 33, 35

42 U.S.C. § 1981 ........................................................................................................................... 34

42 U.S.C. § 2000e-5 ................................................................................................................ 34, 38

Civil Rights Act of 1991 ............................................................................................................... 35

Conn. Gen. Stat. Ann. § 31-128f .................................................................................................. 23

Regulations

29 C.F.R. § 1601.22 ................................................................................................................ 10, 23

Rules

Fed. R. Civ. P. 12(b)(6)........................................................................................................... 22, 26

Other Authorities

EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of



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Employees Under the Americans With Disabilities Act (ADA) ................................................ 9

Mark C. Weber, Workplace Harassment Claims under the Americans with Disabilities Act: A

New Interpretation, 14 Stan. L. & Pol’y Rev. 241 (2003) ........................................................ 35



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I. INTRODUCTION

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

upon American workers. These include the right to communicate freely with the Equal

Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing the

ADA, and the right to file a charge of discrimination with EEOC. To ensure that employees’

retain their freedom to exercise these rights, the ADA contains broad prohibitions against

retaliation. In addition to prohibiting discrimination against one who has “opposed any act or

practice made unlawful by this chapter or because such individual made a charge, testified,

assisted or participated in any manner in an investigation, proceeding, or hearing under [the]

chapter,” 42 U.S.C. § 12203(a) (“section 503(a)”), the statute prohibits interference, coercion and

intimidation. 42 U.S.C. § 12203(b) (“section 503(b)”). Specifically, the ADA makes it

“unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or

enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her

having aided or encouraged any other individual in the exercise or enjoyment of any right

protected by this chapter.” Id.

The right to file a charge of disability discrimination with EEOC is among those

protected by the ADA’s anti-retaliation provision. Moreover, employers may not interfere with,

or chill, employees’ right to communicate with the Commission. As alleged in the Complaint,

Day & Zimmermann, NPS (“DZNPS”) has violated both the ADA’s anti-retaliation clause (§

503(a)) and its interference provision (§ 503(b)). After Charging Party, Gregory Marsh

(“Charging Party” or “Marsh”), filed his charge of discrimination with the Commission, and

after EEOC sought contact information from DZNPS for witnesses, Defendant sent a letter to all

146 employees who had worked at the job site during the period in question with the subject line:

“Information Requested by Equal Employment Opportunity Commission.” The letter was on



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Defendant’s letterhead and signed by Lisa Ann Cooney, the company’s Senior Labor &

Employment Counsel. In the letter, DZNPS:

Stated that EEOC was requiring it to provide a list of all electricians it employed

at the worksite during the period relevant to the charge, including contactinformation and dates of employment;

Identified Marsh, by name, as having filed a charge of disability discriminationand explained that EEOC sought information in conjunction with the investigation

of that charge;

Identified Marsh’s union local;

Identified the medical restrictions placed on Marsh’s ability to work (that “he

could not work in an area that had radiation, or be around radiation, chemicals orexposure”);

Identified the accommodation Marsh had requested;

Informed the witnesses of their right to refuse to speak to the EEOC’s

investigator; Offered the witnesses the option to have counsel for Defendant present whilespeaking to EEOC;

Provided the name and telephone number of DZNPS’s outside counsel at LittlerMendelson.

See June 17, 2014 Letter from Lisa Ann Cooney, attached as Exhibit A to Defendant’s Motion

(ECF No. 13-1, at 46).

By publicizing the content of Marsh’s charge of discrimination – including that the

charge alleged disability discrimination, the nature of Marsh’s medical restrictions, the form of

accommodation he sought, and the union local of which he was a member – DZNPS violated §

503(a) of the ADA. This conduct – taken in direct reaction to Marsh’s act of filing a claim with

EEOC and EEOC’s investigation of that charge – would dissuade a reasonable worker from

reporting discrimination to the Commission and from pursuing a charge. See Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006). DZNPS’s letter sent a clear message to its

146 recipients that complaints to EEOC about Defendant would be met with widespread

publication of both the fact of the charge and of personal details (such as a requested disability

accommodation). The letter’s statement that employees could refuse to speak with the



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Commission, or could request the presence of Defendant’s counsel at any meeting, left no

mistake that DZNPS’s preference was that employees decline to participate in EEOC’s

investigation entirely. This conduct is the very type of interference with ADA-protected rights

that is prohibited by § 503(b). The intended effect of Defendant’s letter was to chill the

employees’ freedom to exercise and enjoy their statutory rights under the ADA, including the

right to communicate with EEOC, to participate in the investigation of a charge, or to file a

charge of their own.

As set forth below, Defendant’s motion should be denied. The conduct described in

Plaintiff’s Complaint sets out a violation of §§ 503(a) and 503(b) of the ADA. The ADA, when

properly read in conjunction with the incorporated sections of Title VII, as amended by the Civil

Rights Act of 1991, provides compensatory and punitive damages for violations of § 503(a) and

guarantees the right to a jury trial. Furthermore, the injunctive relief for violations of § 503(b),

as sought here, is appropriate.

II. LEGAL STANDARD

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

accepting all factual allegations in the Complaint as true, and drawing all reasonable inferences

in plaintiff’s favor.” Galiano v. Fid. Nat’l Title Ins. Co., 684 F.3d 309, 311 (2d Cir. 2012). In a

discrimination action, the plausibility standard described in Ashcroft v. Iqbal, 556 U.S. 662

(2009) applies in conjunction with the standard for pleading employment discrimination. See

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (affirming holding in Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 508 (2002), that employment discrimination plaintiffs are not subject

to a heightened pleading standard). A plaintiff need not plead facts establishing a prima facie

case to survive a motion to dismiss; it is enough to plead facts that give rise to an inference that



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the employee was subject to discrimination. See Brown v. Daikin America, Inc., 756 F.3d 219,

228-29 (2d Cir. 2014) (reversing district court’s dismissal of Title VII claims).

III. ARGUMENT

A. The Facts Alleged in the Complaint State a Claim Against DZNPS for Violation of

Section 503(a) of the ADA.

Retaliation claims under § 503(a) of the ADA employ the same prima facie case as

retaliation claims under Title VII: EEOC must demonstrate that (a) Marsh engaged in protected

activity; (b) DZNPS was aware of his protected activity; (c) DZNPS “took adverse action

against” Marsh; and (d) a causal connection existed between the protected activity and the

adverse action. Sista v. CDC Ixis North Am., Inc., 445 F.3d 161, 177 (2d Cir. 2006). The

Complaint alleges facts as to each of these elements, setting forth a plausible claim to relief. See

Twombly, 550 U.S. at 556 (complaint must plead “enough fact[s] to raise a reasonable

expectation that discovery will reveal evidence of [plaintiff’s claim].”); Trachtenberg v. Dep’t of

Educ., 937 F. Supp. 2d 460, 466 (pleading elements of prima facie case “provide an outline of

what is necessary to render a plaintiff’s employment discrimination claims for relief plausible.”)

(internal citations omitted). EEOC alleges – and Defendants cannot dispute – that Marsh filed a

charge of discrimination with the Commission in October 2012. Compl., ¶ 17(b). There is no

question that filing a charge of discrimination with EEOC constitutes protected activity. See

Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 25 (2d Cir. 2012). Nor is there

any question that DZNPS was aware of this protected activity, satisfying the second element of

the claim. See Compl., ¶ 17(c) – (j).1 Further, EEOC has alleged sufficient facts to support its

claim that DZNPS took adverse action against Marsh, specifically that Defendant publicized

1 The content of Defendant’s June 17, 2014 letter confirms DZNPS’s knowledge of Marsh’s protected

activity at the time Defendant took adverse action against Charging Party.



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Marsh’s disability discrimination charge, including facts about the medical restrictions placed on

his ability to work as a result of his disability and the specific accommodation Marsh had sought,

identified Marsh by name as the source of the charge, and identified him as a member of his

union local. See Compl., ¶¶ 17(e) – (h); 18.

DZNPS argues that EEOC’s § 503(a) claim should be dismissed because the conduct at

issue – Defendant’s June 17, 2014 letter – can never rise to the level of a materially adverse

action for purposes of a retaliation claim. DZNPS further argues that Plaintiff has failed to state

sufficient facts to satisfy the causation element of the claim. As set forth below, DZNPS is

incorrect with respect to both of these arguments, and its motion to dismiss EEOC’s § 503(a)

claim should be denied.

1. Publication of an employee’s disability discrimination charge, along with the

details of the medical restrictions placed on the employee as a result of hisdisability, is a materially adverse action because it could dissuade a reasonable

person from making a charge of discrimination.

DZNPS asserts that EEOC has failed to state a claim for violation of § 503(a) because it

has not alleged sufficient facts to indicate that Marsh suffered any adverse action as a result of

the company’s conduct. D’s Br. at 11-17; 26-29. DZNPS contends that while the publication of

details of an employee’s disability discrimination charge may cause a “bruised ego,” it cannot

constitute a materially adverse action for the purposes of a retaliation claim. See D’s Br. at 27.

Despite its effort to minimize the harmful effect of its retaliatory conduct, DZNPS grossly

misstates the standard for finding an action materially adverse under § 503(a).

a.

DZNPS ignores the appropriate standard for determining that an action

is “materially adverse” for purposes of a retaliation claim.

Because of the similarity between the language in § 503(a) of the ADA and Title VII’s

anti-retaliation provision, courts have interpreted the analogous provisions uniformly. See, e.g.,

Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85, 90 (2d Cir. 2010). Importantly,



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courts will apply to ADA retaliation claims the standard for adverse action adopted by the

Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), a case

interpreting Title VII. See Lewis v. Boehringer Ingelheim Pharm., Inc., 79 F. Supp. 3d 394, 413

(D. Conn. 2015) (noting that adverse actions in the retaliation context of the ADA are “defined

more broadly than the discrimination context”); Gomez v. Laidlaw Transit, Inc., 455 F. Supp. 2d

81, 89 (D. Conn. 2006). Under the standard announced in Burlington Northern, an action need

not affect the terms and conditions of employment to be “materially adverse” for the purposes of

a retaliation claim. Burlington Northern, 548 U.S. at 67. Rather, an adverse action exists if “a

reasonable employee would have found the challenged action materially adverse, which in this

context means it well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Id. at 69 (internal citations omitted).2

As the Second Circuit has noted, when determining whether or not conduct alleged to be

retaliatory is “materially adverse,” “[c]ontext matters, as some actions may take on more or less

significance depending on the context.” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.

3d 556, 568 (2d Cir. 2011); see also Rivera, 743 F.3d at 26-27 (reversing, in part, district court’s

award of summary judgment and finding that supervisor’s comment that filing an EEOC charge

2 Despite this clear and well-established precedent, DZNPS relies extensively on cases decided prior to

Burlington Northern in support of its argument that EEOC has failed to plead sufficient facts to give rise to an

inference that Marsh suffered an adverse action. See D’s Br. at 26-28 (citing Burlington Indus. v. Ellerth, 524 U.S.

742, 761 (1998); Dawson v. County of Westchester, 373 F.3d 265, 272-73 (2d Cir. 2004); Steffes v. Stepan Co., 144

F.3d 1070, 1075-76 (7th Cir. 1998) (refusing to recognize an absolute litigation privilege insulating all conduct

taken during course of litigation from scope of Title VII’s anti-retaliation provision and stating that “some actions

taken in the course of litigation could conceivably constitute retaliation.”); EEOC v. K&J Mgmt., Inc., No. 99-8116,2000 U.S. Dist. LEXIS 8012, at *12 (N.D. Ill. June 7, 2000)). Although the factual circumstances in Steffes are

similar to the instant case, it is of little persuasive value as the Seventh Circuit in Steffes did not have the benefit of

the Supreme Court’s decision in Burlington Northern, eight years later. Cf. Greengrass v. Int’l Monetary Sys. Ltd.,

776 F.3d 481, 485 (7th Cir. 2015) (discussed below, infra, pp. 8-9). And while Joseph v. Leavitt , 465 F.3d 87, 89-90

(2d Cir. 2006), cited by Defendant, was decided three months after Burlington Northern, it did not consider the

standard for establishing an adverse employment action for purposes of a claim of retaliation, and the case’s

discussion of what constitutes an adverse action under other theories of discrimination is irrelevant to the case at bar.



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“could get [him] fired” constituted adverse action under Burlington Northern standard). “There

is also no bright-line test for determining what constitutes an adverse employment action.”

McMiller v. Precision Metal Products, Inc., No. 3:13-CV-577 VAB, 2015 WL 4886460, at *8

(D. Conn. Aug. 17, 2015). Moreover, “the scope of actions that may be materially adverse for

purposes of a […] retaliation claim is broader than those actions prohibited by [the statute’s]

anti-discrimination provisions and ‘extends beyond workplace-related or employment-related

retaliatory acts and harm.’” Husser v. New York City Dep’t of Educ., No. 12-CV-6095 MKB JO,

2015 WL 5774741, at *14 (E.D.N.Y. Sept. 30, 2015) quoting Hicks v. Baines, 593 F.3d 159, 165

(2d Cir. 2010) (discussing retaliation claims under the analogous provision of Title VII).

Under this standard, a jury could conclude that Defendant’s June 17, 2014 letter

constitutes an adverse action under § 503(a)’s retaliation provision. The letter was sent to 146

members of Marsh’s union local, it identified Marsh by name and as a member of Local 35, it

stated that the basis of his charge was disability discrimination, and it disclosed the medical

limitation placed on Marsh by his doctor because of his disability. Compl. ¶ 17 (d)–(h). As

described in Burlington Northern, such an action “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Id. The message sent by

DZNPS was clear: those who file charges with EEOC risk having the fact of their filing, and the

circumstances of their complaint, including sensitive medical information, broadly exposed to

members of their union local, on which they rely for future job referrals. Such conduct

constitutes an adverse action under § 503(a).3

3 Defendant’s reliance on Marchuk v. Faruqi & Faruqi, LLP, No. 13-1669, 2015 U.S. Dist. LEXIS 9806

(S.D.N.Y. Jan. 28, 2015), is curious, as the case is both readily distinguishable from the instant action and fails to

conform to binding Second Circuit precedent. First, Marchuk was decided on a motion for judgment as a matter of

law, after a jury trial. 2015 U.S. Dist. LEXIS 9806 at *1-2. Second, the Marchuk court’s decision to dismiss a Title

VII retaliation claim, to the extent it relied on the fact that the complained of adverse action occurred after plaintiff’s

employment with defendant terminated, see id. at *13-14, is in direct contradiction of Second Circuit law “that Title



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b. Federal courts, applying the Burlington Northern standard, have

repeatedly recognized that publication of information related to an

employee’s administrative charge may be materially adverse, satisfying

the adverse action element of a retaliation claim.

The D.C. Circuit, applying the Burlington standard to a retaliation claim brought by a

federal employee under the analogous Rehabilitation Act, held that where the employee’s

supervisor “posted her EEO complaint on the [agency] intranet, where her fellow employees

could and did access it,” the adverse action element was met. Mogenhan v. Napolitano, 613 F.

3d 1162, 1166 (D.C. Cir. 2010) (reversing district court’s grant of summary judgment and

finding that a jury could “believe that broadcasting an EEO complaint would have such an effect

– and so chill a reasonable employee from further protected activity.”). Other courts have

similarly held that publicly identifying an employee as the individual making a charge against

the employer is materially adverse and may constitute an adverse action for the purposes of a

retaliation claim.4 In Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 485 (7th Cir. 2015),

the Seventh Circuit held that the employer’s act of naming EEOC claimants in publicly available

VII’s anti-discrimination and anti-retaliation provisions ‘are not coterminous’; anti-retaliation protection is broader

and ‘extends beyond workplace-related or employment-related retaliatory acts and harm.’” Hicks v. Baines, 593

F.3d 159, 165 (2d Cir. 2010) (“Prior decisions of this Circuit that limit unlawful retaliation to actions that affect the

terms and conditions of employment … no longer represent the state of the law.”) (internal citations omitted)

(emphasis added). As the Supreme Court has held in the Title VII context, the statute’s prohibition on retaliation

applies to former, as well as current, employees. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding

that Title VII protects former employees from post-employment retaliation); see also Hopkins v. Bridgeport Bd. of

Educ., 834 F. Supp. 2d 58, 66 (D. Conn. 2011) (failure to provide employment references constitutes adverse action

for purposes of ADA retaliation claim). EEOC’s compliance manual recognizes that informing a prospective

employer about an individual’s protected conduct is one example of post-employment retaliation. EEOC

Compliance Manual, Section 8-II.D.2.

4 See also Halliburton, Inc. v. Admin. Review Bd., 771 F. 3d 254, 262 (5th Cir. 2014) (applying Burlington

Northern standard to retaliation claim brought under § 806 of Sarbanes-Oxley Act to find that employer’s

publication of complainant as whistleblower who filed complaint with SEC was conduct that would dissuade a

reasonable worker from filing a complaint). As the Fifth Circuit stated there: “when it is the boss that identifies one

of his employees as the whistleblower who has brought an official investigation upon the department, as happened

here, the boss could be read as sending a warning, granting his implied imprimatur on differential treatment of the

employee, or otherwise expressing a sort of discontent from on high.” Id.



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[employer] from publicizing the determination.” 961 F. Supp. 2d. at 359-60 citing 29 C.F.R. §

1601.22 (requirement to keep investigation confidential applies only to EEOC).5 Despite this,

the court was not persuaded by the employer’s argument that it had a right to disseminate the

determination letter:

[I]nsofar as Ropes claims that it was free to disseminate thedetermination letter containing sensitive information about Ray

because it was ‘not private,’ the argument proves too much. Even

in the absence of any non-disclosure obligation, Title VII prohibitsan employer from responding to protected activity by taking an

action that would ‘dissuade a reasonable worker from making or

supporting a charge of discrimination.’ … The threat of

dissemination of derogatory private information, even if true,

would likely deter any reasonable employee from pursuing acomplaint against his employer.

Id. at 360 citing Burlington Northern, 548 U.S. at 68 (internal quotations and citations

omitted).

Finally, determining what constitutes an adverse action under the Burlington Northern

standard is driven by an analysis of the specific facts. See, e.g., Husser, 2015 WL 5774741, at

*15 (whether or not employer’s conduct was materially adverse was a “fact-intensive, context-

specific” question for the jury). For example, in Ragusa, the Second Circuit reversed the district

court’s grant of summary judgment for the employer, holding that a reasonable jury could

conclude that increasing plaintiff’s teaching load in a manner that would make it more difficult

for her to succeed during her probationary period was materially adverse. Ragusa, 381 Fed.

Appx. at 90. Similarly, in Rolfe v. Lawrence & Mem'l Hosp., No. 3:10-CV-80 RNC, 2013 WL

5435507, at *6 (D. Conn. Sept. 30, 2013), the court held that the employer’s reassignment of a

5 In Ray, EEOC issued an initial determination letter, finding no cause, and a second determination letter,

finding reasonable cause on Ray’s retaliation claim. Ray, 961 F. Supp. 2d at 359. Plaintiff shared with Harvard

Law School, his alma mater, the EEOC’s second determination letter and advocated that the law firm be banned

from participating in on-campus recruiting as a result. Id. Defendant disseminated the Commission’s earlier

determination letter, which was unfavorable to Ray, to the legal news website, “Above the Law.” Id.



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nurse to “float” to other units more often after her complaint could constitute an adverse action

under the ADA, despite the fact that “floating” was part of the nurse job description. As such, an

evaluation of whether or not Defendant’s conduct was “materially adverse” is not appropriate at

the motion to dismiss stage, where the only facts in the record are those in the Complaint.

In an effort to achieve dismissal of Plaintiff’s claims, DZNPS asserts that it “simply

alerted the Witnesses that it disclosed their contact information to the EEOC.” D’s Br. at 16.

This is a gross misstatement of the facts alleged here. As stated in the Complaint, DZNPS’s

letter went beyond informing witnesses that the employer had shared their contact information

with EEOC; it identified Charging Party by name, it identified him as the individual who had

filed the charge, it identified his union local, it indicated that he had a disability and described

the medical restrictions placed on him as a result. See Compl., ¶ 17(e)-(h). Importantly,

Defendant’s letter demonstrated to the recipients what happens to DZNPS employees who

communicate with EEOC: the details of their non-public communications with the Commission,

including sensitive information, are publicized widely. See Halliburton, 771 F. 3d at 262 (where

employer identifies complaining worker, conduct can be understood to send a message of

disapproval to company employees); Mogenhan, 613 F. 3d at 1166.6 If all DZNPS had done was

6 Defendant opens its brief arguing that, by filing this litigation, EEOC has done more to publicize Marsh’s

protected conduct than DZNPS did. D’s Br. at 1-2. This argument ignores the proper focus of both this litigation

and claims under the ADA generally. It is the employer’s conduct , and not that of the Commission, that is at issue

here. See, e.g., EEOC v. Dolgencorp, LLC, No. 13-cv-04307, 2015 WL 2148394, at *4 (N.D. Ill. May 5, 2015)

(EEOC’s policies regarding background checks not relevant to litigation alleging defendant’s own background

check practices violated Title VII); EEOC v. OhioHealth Corp., 2:13-cv-780, 2014 WL 5323068, at *4-5 (S.D.

Ohio, Oct. 17, 2014) (denying request for discovery, noting that “EEOC’s own internal policies or practices as anemployer” were not relevant to the litigation); EEOC v. JBS USA, LLC, No. 8:10CV318, 2012 WL 169981, at *6

(D. Neb. Jan. 19, 2012) (case against company did “not involve questions of whether the EEOC failed to

accommodate the religious practices of its employees”). DZNPS effectively suggests that EEOC should refrain

from enforcing the ADA – including bringing claims to seek relief for identified, disabled individuals – or suffer

accusations of being a publicity-hungry hypocrite. Unsurprisingly, this tactic is consistent with the very conduct

that resulted in this litigation; namely, attempting to shame those who seek to hold DZNPS accountable for its

violations of the ADA.



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notify employees that their contact information had been shared with EEOC, the parties likely

would not be before this Court. Because Plaintiff has pled sufficient facts to satisfy the

materially adverse action element of a retaliation claim, Defendant’s motion should be denied.

2. Plaintiff has pled sufficient facts to satisfy the causation element of its section

503(a) claim.

EEOC alleges that DZNPS took adverse action against Marsh because of his filing of a

charge of discrimination. Compl., ¶ 17. In March 2014, the Commission sought witness contact

information from DZNPS. Id. at ¶ 17(c). Three months later, DZNPS sent its June 17, 2014

letter identifying Marsh and revealing the details of his charge and medical restrictions. Id. at ¶

17(d). In addition, the substance of the letter revealed private, confidential information about the

Charging Party, including information about his medical condition. Id. at ¶ 17(e)-(h). These

facts are sufficient to establish the elements of causation for purposes of overcoming

Defendant’s motion to dismiss. See Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (2d Cir.

1994) (denying motion to dismiss where allegations “provide a chronology of events from which

an inference can be drawn that actions” were motivated by plaintiff’s protected conduct).

“Circumstantial facts in a retaliation claim can suggest an improper motive sufficient to

withstand a motion to dismiss.” Wheeler v. Natale, 137 F. Supp. 2d 301, 305 (S.D.N.Y. 2001).

Because the question of causation, in a retaliation claim, is essentially a question of motive, such

issues are not appropriately resolved on a motion to dismiss, particularly where, as here, there are

sufficient facts to support the causation element. See Piesco v. City of New York, 933 F.2d 1149

(2d Cir. 1991) (without a factual inquiry into defendant’s motives, “those intent on punishing the

exercise of […] rights could easily mask their behavior behind a complex web of post hoc

rationalizations.”) (internal citations omitted).



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DZNPS contends that the year and a half between when Marsh filed his initial charge of

discrimination and when Defendant sent its June 17, 2014 letter is sufficient, by itself, to defeat

causation and warrant dismissal. D’s Br. at 30. But Defendant’s analysis misconstrues the

timeline, including important, intervening events. Although Marsh’s original charge was filed in

October of 2012, just three months elapsed between the date of EEOC’s first request for witness

contact information and Defendant’s letter publicizing Marsh’s charge and details about his

disability and medical condition. See Compl., ¶ 17(c)-(d).

As the Seventh Circuit recently found, in analyzing a claim under Title VII’s anti-

retaliation provision, the starting point for the relevant timeframe is not limited to the date of the

filing of the charge. See Greengrass, 776 F.3d at 486. In Greengrass, the court held that the

three months between when the employer received EEOC’s request to interview witnesses –

which signaled the agency’s “intention to seriously pursue” the charge – and the adverse action

was evidence of suspicious timing and causation. Id. Thus, the temporal proximity between

EEOC’s request for additional information, including witness contact information, and

Defendant’s letter is further evidence of a causal link between Marsh’s protected conduct and

DZNPS’s retaliation. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)

(“Though this Court has not drawn a bright line defining, for the purposes of a prima facie case,

the outer limits beyond which a temporal relationship is too attenuated to establish causation, we

have previously held that five months is not too long to find the causal relationship”); Ragusa,

381 Fed. Appx. at 90; Husser, 2015 WL 5774741, at *16 (jury could infer causation where

adverse action occurred within three months of report, issued by investigating state EEO agency,

that supported plaintiff’s complaint and created consequences for employer); Hopkins, 834 F.



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Supp. 2d at 67 (three month lapse between protected conduct and adverse action sufficient to

show temporal proximity).

Additionally, DZNPS focuses myopically on temporal proximity and relies on cases

holding that, where temporal proximity, alone, is alleged to establish causation, the timing

between the protected conduct and the adverse action must be very close. See Hollis v. Dep’t of

Metal Health & Addictive Servs., No. 14-516, 2015 U.S. Dist. LEXIS 121668, at *15 (D. Conn.

Sept. 11, 2015) (“to establish causation indirectly through relying solely on temporal proximity,

the protected activity and the retaliatory action must have occurred very close in time.”).7 This

focus is inappropriate here, however, for temporal proximity between EEOC’s request for

witness contact information and Defendant’s letter is not the sole basis for inferring causation.

EEOC also includes allegations about the content of DZNPS’s letter, which included sensitive

information about Marsh’s disability, medical restrictions and union affiliation. Compl., ¶ 17(e)-

(h). That these details were included in the letter is evidence of a retaliatory animus on

Defendant’s part, and is additional factual information from which causation can be inferred.

See Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (evidence of animus

7 Because of this, the remaining cases cited by DZNPS on this point are distinguishable, as all relied solely

on temporal proximity to establish the causation element. See Howard v. City of New York, 602 Fed. Appx. 545, 549

(2d Cir. 2015) (at summary judgment, plaintiff offered only temporal proximity of ten months between protected

activity and adverse action as evidence of causation); Stoddard v. Eastman Kodak Co., 309 Fed. Appx. 475, 480 (2d

Cir. 2009) (affirming summary judgment “where there is nothing other than […] temporal proximity invoked to

establish a retaliatory intent, the causal relationship is not established.”); O’Hazo v. Bristol-Burlington Health Dist.,

599 F. Supp. 2d 242, 262 (granting summary judgment to employer where more than 11 months lapsed between

protected conduct and adverse action, and plaintiff put forth no other evidence of causation in support of retaliationclaim); Amar v. New York City Health & Hosps. Corp., No. 14-2502, 2015 U.S. Dist. LEXIS 77718, at *30

(S.D.N.Y. June 15, 2015) (dismissing retaliation claim where only connection that could be inferred from pleadings

was time between protected conduct and adverse action). Importantly, all of the cases cited by Defendant in support

of its causation argument were decided on a motion for summary judgment, with the exception of Amar, which was

dismissed pursuant to Rule 12(c), and where the parties had attached numerous documents (including personnel

related materials) to the pleadings. See 2015 U.S. Dist. LEXIS 77718, at *12-15. As such, these cases do little to

support Defendant’s request for dismissal on a motion pursuant to Federal Rule 12(b)(6).



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against employee may be sufficient to establish causation); Farrar v. Town of Stratford, 537 F.

Supp. 2d 332, 355 (D. Conn. 2008) (where plaintiff presented other evidence – beyond temporal

proximity –demonstrating causal connection between protected conduct and adverse action,

causation should be resolved by jury). As such, Defendant’s motion to dismiss EEOC’s § 503(a)

claim should be denied.

B. The Facts Alleged in the Complaint State a Claim Against DZNPS for Violation of

Section 503(b) of the ADA.

Section 503(b) of the ADA prohibits interference with the rights protected by the statute.

See 42 U.S.C. § 12203(b). This section “arguably sweeps more broadly” that Section 503(a), the

language of which mirrors Title VII almost identically. See Mondzelewski v. Pathmark Stores,

Inc., 162 F.3d 778, 789 (3d Cir. 1998). Recognizing that §§ 503(a) and 503(b) contain

distinctive language, and provide unique protections, many federal courts have concluded that

that ADA interference claims should not be analyzed under the Title VII burden-shifting analysis

but, instead, guided by the treatment of similar language in the Fair Housing Act (“FHA”),

National Labor Relations Act (“NLRA”) and Family Medical Leave Act (“FMLA”). See, e.g.,

Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003). Thus, § 503(b) is violated when

an employer engages in conduct that tends to chill employees’ freedom to exercise rights

protected by the ADA. Any employee’s rights under the ADA may be interfered with,

regardless of whether the employee is disabled or is actively engaged in asserting rights

protected under the statute (e.g., seeking an accommodation). To establish a violation of Section

503(b) there must be a causal connection between the employer’s conduct and the ADA rights

with which that conduct interferes. As set forth below, Plaintiff has pled sufficient facts to

establish these elements here, and dismissal is inappropriate.



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1. Defendant’s letter constituted interference with rights secured by the ADA.

Section 503(b) prohibits interference with rights protected by the ADA; interference is

understood as “any conduct that tends to chill an employee’s freedom to exercise his statutory

rights.” Brown v. City of Tucson, 336 F. 3d 1181, 1191 (9th Cir. 2003) (internal citations

omitted); see also Bachelder v. Am. W. Airlines, Inc., 259 F. 3d 1112, 1123-24 (9th Cir. 2001)

(discussing FMLA’s interference language in light of interpretation of Section 8(a)(1) of the

NLRA and finding that “attaching negative consequences to the exercise of protected rights

surely ‘tends to chill’ an employee’s willingness to exercise those rights.”).8 As one district

court held, conduct that “clearly operates to dissuade disabled [individuals] from exercising their

rights” under the act constitutes interference. Cf. Bingham v. Oregon Sch. Activities Ass’n, 24 F.

Supp. 2d 1110, 1118 (D. Or. 1998) (in claim under Section 504 of ADA, school athletic

association rule that discouraged disabled students from challenging application of rule as

violative of ADA, violated public policy).

Analyzing the language of National Labor Relations Act (“NLRA”), the Second Circuit

has repeatedly held that interference under Section 8(a)(1) of that statute occurs “if, under all the

existing circumstances, the conduct has a reasonable tendency to coerce or intimidate employees,

regardless of whether they are actually coerced.” New York Univ. Med. Ctr. v. NLRB, 156 F.3d

405, 410 (2d Cir. 1998). In that context, assessment of the employer’s statements to the workers

“must take into account the economic dependence of the employees on their employers, and the

necessary tendency of the former, because of that relationship, to pick up intended implications

8 Under the FMLA, courts have held that where “an employer provides a powerful disincentive” for

exercising FMLA rights, such as taking leave, it constitutes interference under that statute. See Coleman v. Blue

Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1245 (D. Kan. 2007).



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of the latter that might be more readily dismissed by a more disinterested ear.” Id. citing NLRB

v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

Applying this reasoning here, there can be no question that DZNPS’s June 2014 letter

constitutes interference with rights conferred by the ADA, including the right to file a charge of

discrimination and the right to participate in EEOC’s investigation of that charge. The intent of

Defendant’s letter was clear; by disclosing Charging Party’s identity, the nature of his charge and

sensitive medical information to 146 members of his union local, the employer sought to shame

Marsh and to discourage others from either participating in EEOC’s investigation or filing

charges of their own.

9

DZNPS made clear that a consequence of communication with EEOC

was that the company would widely publicize the individual’s protected conduct, including

sensitive information that could potentially interfere with the individual’s future job prospects.

DZNPS contends that the Complaint should be dismissed for failure to allege a “distinct

and palpable injury” as a result of Defendant’s interference. D’s Br. at 22. First, EEOC submits

that this is not, in fact, a requirement of a § 503(b) claim. Defendant relies on the decision by the

Ninth Circuit in Brown v. City of Tucson, 336 F.3d 1181, 1193 (9th Cir. 2003). Although the

9 Defendant argues that EEOC’s Complaint should be dismissed because Marsh had already filed his charge

(and, as such, his right to do so could not be interfered with) and because there is no evidence that any of the

witnesses were discouraged from speaking with EEOC as a result of Defendant’s letter. See D’s Br. at 23-25. But

this argument ignores the proper focus of the inquiry: whether the employer’s conduct would have a reasonable

tendency to chill protected conduct. See New York Univ. Med. Ctr., 156 F.3d at 410. As with retaliation under §

503(a), the employer’s efforts to interfere need not be successful to violate the act. Cf. EEOC v. L.B. Foster, 123

F.3d 746, 754 n.4 (3d Cir. 1997) (“an employer who retaliates cannot escape liability merely because the retaliation

falls short of its intended result.”) citing Hashimoto v. Dalton, 118 F. 3d 671, 673 (9th Cir. 1997) (“There is little

question that the dissemination of adverse employment references can constitute a violation of Title VII if motivated

by discriminatory intent. Thus, it is beside the point that [the employer’s] dissemination of the negative jobreference was not the reason Hashimoto did not get the job with the Army.”). DZNPS similarly argues that EEOC

cannot assert claims under both § 503(a) and § 503(b) for Marsh because such claims are duplicative. See D’s Br. at

24-25. But EEOC has done no such thing here. Plaintiff alleges that, by sending its June 17, 2014 letter, DZNPS

retaliated against Marsh for his charge; in other words, it sought to punish him – by publicizing sensitive, private

information to his fellow union members – for his protected conduct. Compl., ¶ 18. EEOC also alleges that this

conduct sought to interfere with Marsh’s right to continue to communicate with EEOC because of the chilling effect

of the letter. Id. at ¶ 19.



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Brown court’s decision, which reviewed a summary judgment ruling, provides much helpful

guidance for interpreting § 503(b), its conclusion that a plaintiff must demonstrate that she has

suffered a “distinct and palpable injury” lacks any foundation in either the text of the ADA or in

case law interpreting the statute. See 336 F.3d at 1193 citing Walker v. City of Lakewood, 272

F.3d 114, 1123 (9th Cir. 2001) (considering whether an independent fair housing services

provider had standing to sue city for retaliation for engaging in advocacy efforts). Second, even

applying the limited language of Brown (explaining that the injury could consist of either the

giving up of ADA rights “or from the threat itself”), EEOC has alleged sufficient facts to state a

claim under § 503(b). See id. Here, it is the chilling effect of the implied threat contained in

Defendant’s letter – that communication with the EEOC will lead to publication of sensitive and

personal information – that is the injury alleged. See Compl., ¶ 19.

2. An employee need not be actively exercising his or her ADA-protected rights

to be a victim of interference under Section 503(b).

Unlike § 503(a), the text of § 503(b) “does not expressly limit a cause of action to the

particular employee that engaged in protected activity.” Fogleman v. Mercy Hosp., Inc., 283

F.3d 561, 570 (3d Cir. 2002). The Fogleman court, relying on similar language in the NLRA,

noted that “action taken against the third party employee can have the effect of coercing the

employee [from] engaging in protected activity, and may also coerce other employees of the

company from engaging in protected activity in the future.” Fogleman, 283 F.3d at 571, n.5.

Additionally, there is broad agreement among federal courts that one need not be disabled within

the meaning of the statute to be entitled to the benefit of Section 503(b)’s protections. See, e.g.,

Munck v. New Haven Sav. Bank, 251 F. Supp. 2d 1078, 1087 (D. Conn. 2003) (husband who

sought reasonable accommodation on his wife’s behalf and was later terminated stated claim for

violation of ADA’s interference provision) (citing cases); Turner v. The Saloon, Ltd., 595 F.3d



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679, 690 (7th Cir. 2010) (employee need not be disabled under ADA to assert claim for

retaliation under the statute); McMahan v. UMG Mfg. & Logistics, Inc., No. 1:06-cv-1149, 2008

WL 906152, at *8 (S.D. Ind. Mar. 31, 2008) (Section 503(b)’s protections extend to worker who

alleged he was terminated for informing his co-worker that he believed the employer was

discriminating against her because of her disability).10

Here, EEOC alleges that DZNPS interfered with the rights of Marsh and each of the 146

witnesses who received a copy of the June 17, 2014 letter. Importantly, § 503(b) prohibits an

employer both from interfering with an employee who exercises rights under the statute and from

interfering so as to prevent an individual from exercising ADA-protected rights. See Breimhorst

v. Educ. Testing Serv., No. Civ.A. 99–3387, 2000 WL 34510621, at *7 (N.D. Cal. Mar. 27,

2000) ( “The plain words of the statute ... preclude a party from intimidating or coercing another

party not to exercise his rights under the ADA, as well as barring interference against a person

who has exercised his rights under the ADA.”) (emphasis in the original). A jury could easily

conclude that Defendant’s goal in sending the letter was to intimidate Marsh with respect to the

10 DZNPS argues just the opposite: that to establish a violation of § 503(b), a plaintiff must demonstrate that

she was exercising a right protected by the ADA when the coercion took place. D’s Br. at 21. Notably, Defendant’s

argument relies on a single case that pre-dates the analysis laid out in the cases cited above. See Wray v. Nat’l R.R.

Passenger Corp., 10 F. Supp. 2d 1036, 1040 (E.D. Wis. 1998) (noting the lack of case law interpreting § 503(b)

when considering interference claim in public accommodation context). In support of its conclusion, the Wray

court, like DZNPS, cited Roth v. Lutheran Gen. Hosp., 57 F.3d 1446 (7th Cir. 1995). But the only claim before the

court in Roth was retaliation under § 503(a), and nowhere in the decision does the Seventh Circuit suggest that a

plaintiff must demonstrate that the coercion occurred while she was exercising a right guaranteed by the statute to

prove interference under § 503(b). See 57 F.3d at 1459-60. Similarly, the holding in Doe v. Kohn Nast & Graf,

P.C., 866 F. Supp. 190, 197 (E.D. Pa. 1994) (refusing to dismiss § 503(b) claim where plaintiff alleged that

employer asked him to leave the company because it discovered that he planned to file a lawsuit allegingdiscrimination on the basis of HIV status), also cited by DZNPS, does not support Defendant’s argument. To the

extent the Kohn Nast court’s ruling could be read in such a limited way, that holding is plainly over-ruled by

Fogleman. See 283 F.3d at 571, n.5. Even if the Court were to accept Defendant’s position, which it should not,

because the ADA provides – at all times – the right to file a charge with the Commission and a right to communicate

with the Commission, any action taken by an employer to chill those rights is interference with the ability of the

worker to enjoy the rights conferred, whether or not the interference happens at the precise moment when the worker

is exercising those rights.



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exercise of his ADA rights, including continued participation in EEOC’s investigation, and to

similarly intimidate the witnesses from participating in EEOC’s investigation, or making a

charge of their own, in the future. See Fogleman, 283 F.3d at 571, n.5; Breimhorst, 2000 WL

34510621, at *7 (plaintiffs’ complaint that defendant’s practice of “flagging” test scores of

disabled students who received reasonable accommodations with the words “SCORES

OBTAINED UNDER SPECIAL CONDITIONS” interfered with test-takers’ rights to seek

reasonable accommodations and stated a claim for interference under § 503(b)).

3. EEOC has alleged a causal connection between Defendant’s interference and

the enjoyment of rights protected by the ADA.

The final element of a claim for retaliation under the ADA is whether “a causal

connection exists between the protected activity and the adverse action, i.e., that a retaliatory

motive played a part in the adverse employment action.” Lovejoy-Wilson v. NOCO Motor Fuel,

Inc., 263 F.3d 208, 223 (2d Cir. 2001). In other words, the causation element asks the ultimate

question in a § 503(a) retaliation claim: whether the employer’s conduct was intended to retaliate

against the employee. Similarly, a plaintiff seeking to enforce § 503(b) must demonstrate

causation. But here, the appropriate question is whether the employer’s conduct could

reasonably be understood as an effort to interfere with rights protected by the ADA. Cf. Gissel

Packing, 395 U.S. 575, 619 (in NLRA interference claim, ultimate question is whether the

listener could reasonably have understood employer’s communication as threatening or

coercive); N.Y.U. Med. Ctr., 156 F.3d at 410 (communications are threats that violate NLRA’s

interference section if they “are motivated by or conditioned upon an employee’s participation

in” protected conduct).

Here, EEOC has pled sufficient facts from which a connection can be inferred between

DZNPS’s interfering conduct – the June 2014 letter – and the protected rights of the letter’s



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recipients. Defendant’s letter explicitly referenced Marsh’s charge and the attendant EEOC

investigation. Compl., ¶ 17(e). Further, the letter was designed to influence the conduct of the

recipients with respect to their own communications with EEOC – both as to whether to speak

with the investigator and the substance of those communications. See id., ¶ 17(g)-(j). For

purposes of § 503(b), it is irrelevant that DZNPS’s letter was sent to all 146 witnesses prior to

EEOC’s contacting them in the course of its investigation of Charging Party’s claim; individuals

need not be actively involved in asserting rights under the ADA to be protected by § 503(b). See

Fogleman, 283 F.3d at 571, n.5 (rejecting the view that a claim under § 503(b) is limited “to

those individuals who have themselves engaged in protected activity under the ADA”); Doe v.

Kohn Nast & Graf, P.C., 866 F. Supp. 190, 197 (E.D. Pa. 1994) (where plaintiff alleged that his

employer asked him to resign because it learned that he planned to file a lawsuit alleging the

employer failed to renew his contract on the basis of plaintiff’s HIV positive status, employee

stated claim under § 503(b).).

Finally, DZNPS suggests that, in order to make out a claim for interference under §

503(b), EEOC must demonstrate that each and every recipient of Defendant’s June 2014 letter

felt threatened or coerced by Defendant’s conduct. D’s Br. at 23-24. At the outset, it is

important to note that Defendant does not cite a single case arising under § 503(b) of the ADA in

support of this contention. See id. For that reason, alone, Defendant’s motion should be denied;

Plaintiff’s claim should not be dismissed for failure to allege facts in support of an element that

no court has recognized as integral to the cause of action.11

But, more importantly, EEOC has

11 To the extent DZNPS argues that EEOC must show that the letter’s recipients could reasonably have

understood the letter as threatening or coercive, EEOC does not dispute this. But that is a question for a jury, and

even DZNPS does not cite to a case where similar claims under the FMLA were dismissed pursuant to Rule

12(b)(6), as it seeks to do here. See D’s Br. at 22-23, citing Ridgeway v. Royal Bank of Scto. Group, No. 11-976,

2013 U.S. Dist. LEXIS 67822, at *57-58 (D. Conn. May 13, 2013) (denying summary judgment where there “are

triable issues of fact as to whether [plaintiff] was prejudiced by incorrect and misleading information he received



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pled facts to support a claim that a reasonable person, receiving Defendant’s letter, would be

deterred from exercising the rights they enjoy under the ADA. Specifically, EEOC alleges that

DZNPS disclosed personal, private information about an employee who filed a charge with the

Commission to the employee’s entire union local, implying that communications with EEOC

were not confidential, that the employer would learn of them, and that the employer would

publicize – without reasonable justification – the contents of that communication. See Compl. ¶

¶ 17, 19. As such, Defendant’s motion should be denied.

C. DZNPS’s Post-Hoc Justifications for Its Conduct Do Not Merit Dismissal of the

Complaint Pursuant to Federal Rule 12(b)(6).

Defendant’s request for dismissal is laced with arguments about the reasonableness of its

actions. As an initial matter, on a motion to dismiss, the alleged “reasonableness” of

Defendant’s conduct cannot be considered where the facts, as pled, suggest an improper motive.

See Brown v. Daikin Am. Inc., 756 F.3d 219, 230-31 (2d Cir. 2014) (“Whether there existed non-

pretextual, non-discriminatory explanations for the defendants’ employment decisions – a

question as to which the defendants bear the burden of production – it is not properly decided on

a motion to dismiss for failure to state a claim.”) (internal citations omitted); Johnson v.

Meachum, 839 F. Supp. 953, 958 (D. Conn. 1993) (denying motion to dismiss government

officials on qualified immunity grounds because whether officials could establish that their

conduct was “objectively reasonable” required a “focus on the particular facts of the case,” and

could not be resolved on a motion to dismiss). Furthermore, dismissing Plaintiff’s complaint on

[from employer]”); Seguin v. Marion Cnty Health Dep’t, No. 13-96, 2014 U.S. Dist. LEXIS 112110, at *27 (M.D.

Fla. Aug. 13, 2014) (granting summary judgment where plaintiff “failed to present any evidence that … the

Department discouraged her from exercising her rights under the [FMLA]”); Vess v. Scott Med. Corp., No. 11-2549,

2013 U.S. Dist. LEXIS 39812, at *8-9 (denying summary judgment on FMLA interference claim where jury could

conclude that employer’s phone calls to plaintiff while on leave constituted interference with rights guaranteed by

statute).



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the basis of Defendant’s proffered explanations for its conduct would require the Court to

assume the employer’s credibility without the benefit of a factual record or admissible evidence.

This is plainly inappropriate on a motion pursuant to Federal Rule 12(b)(6).

For example, DZNPS argues that the content of its letter was reasonable because it had an

obligation to inform the witnesses that it had provided their contact information to EEOC. See

D’s Br. at 6. Specifically, DZNPS argues that because a state statute – that does not apply to

EEOC investigations – generally protects information contained in personnel files from

disclosure, it was reasonable for Defendant to inform the witnesses of Marsh’s charge, its basis

and the facts asserted in it. D’s Br. at 6, n.3.

12

But it will be for a jury to decide whether

Defendant’s conduct was reasonable, particularly where DZNPS could have informed the

witnesses of this disclosure without identifying the basis of the charge as disability

discrimination, and without providing information about Charging Party’s medical restrictions.

Moreover, to allay any concerns on the witnesses’ part, DZNPS could have affirmatively

informed its employees of the confidential nature of EEOC investigations. See 29 C.F.R. §

1601.22. Of course, it did not do this.

DZNPS contends that revealing Marsh’s name and the medical restrictions placed upon

him by his disability “was reasonable for the Witnesses to understand what the EEOC wanted to

interview them about.” D’s Br. at 12, n. 6. But there are no facts before the Court indicating

why EEOC requested the contact information for these witnesses, nor are there any facts before

12

See Conn. Gen. Stat. Ann. § 31-128f (protecting disclosure of “individually identifiable informationcontained” in personnel files and making explicit exception to law for information requested pursuant to a

government investigation). DZNPS urges the Court to take judicial notice of this statute, as well as other materials

extraneous to EEOC’s Complaint. While the Court may take judicial notice of, for example, state law, it may not

take judicial notice of the impact of that law on DZNPS, nor may it infer what effect that law may or may not have

had on Defendant’s motivations here. See City of Austin Police Ret. Sys. V. Kinross Gold Corp., 957 F. Supp. 2d

277, 288 (S.D.N.Y. 2013) reconsideration denied June 6, 2013 (causal connection posited by party to judicially

noticed fact was “plausibly subject to dispute” and, as such “not appropriate for judicial notice.”).



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the Court indicating that DZNPS knew what EEOC’s motivations were. Similarly, DZNPS

argues that dismissal is warranted because an employer must be able to conduct its own

investigation of the charge, which necessarily requires “disclosing the identity of the charging

party [and] the nature of the allegations.” D’s Br. at 13. First, as explained above, the steps an

employer takes to investigate a charge of discrimination must always be balanced against the

prohibition against retaliation in the ADA; nothing in that statute (or in Title VII) grants an

employer complete immunity to disclose information broadly if that disclosure is undertaken for

a retaliatory purpose. See, e.g., Greengrass, 776 F.3d at 485; Mogenhan, 613 F.3d at 1166.

Second, there is nothing in EEOC’s Complaint suggesting that this employer made the

disclosures at issue here as part of its own, internal investigation. As such, Defendant’s

theoretical argument is no basis for dismissal of EEOC’s Complaint.13

Even where defendants have argued that their response to a charge of discrimination was

part of their ordinary practice, courts will not dismiss a claim for retaliation where there is

evidence to suggest the conduct was retaliatory. For example, in Franklin v. Local 2 of the Sheet

Metal Workers Int’l Ass’n, 565 F.3d 508, 521 (8th Cir. 2009), the Eight Circuit reversed

summary judgment for the union on the plaintiffs’ retaliation claims. There, the plaintiffs

alleged that the union local’s practice of publicizing to its members the plaintiffs’ names, claims

and the related costs of defending those claims was retaliatory. 565 F.3d at 521. The union

countered that it had an obligation to inform its members of litigation-related costs and had

13 DZNPS contends – without citing any admissible evidence – that Charging Party’s union, Local 35,

reviewed and approved Defendant’s June 17, 2014 letter before it was sent to the witnesses and that, because of this,

the letter cannot be the basis of a claim for retaliation. See D’s Br. at 6, n. 4. This allegation is plainly beyond the

scope of EEOC’s Complaint and, as such, should not be considered for purposes of resolving Defendant’s motion.

See Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002) (“[W]hen a district court considers certain

extra-pleading materials and excludes others, it risks depriving the parties of a fair adjudication of the claims by

examining an incomplete record.”).



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always done so, entitling it to summary judgment. Id. The court rejected this argument:

“Although Local 2's prior practice and obligation to disclose expenses may justify what Local 2

did, the degree of Local 2's disclosures raises credibility issues and a potential reasonable

inference of retaliation.” Id. Simply put, where arguments concerning the alleged

reasonableness of a defendant’s motives are rarely sufficient to merit summary judgment,

Defendant’s unsubstantiated assertions of reasonableness here cannot justify dismissal of the

Complaint, and DZNPS’s motion should be denied.14

D. An Employer’s Rights to Communicate With Its Employees Are Not Absolute.

In support of its effort to win dismissal of EEOC’s claims, DZNPS argues that an

employer’s right to communicate with its employees – as protected by the First Amendment and

the litigation privilege – insulate it from liability under the ADA, even where the effect of that

communication is retaliatory. See D’s Br. at 14-18. These arguments reflect a dangerous, and

deeply flawed, view of the ADA’s prohibition on retaliation. Moreover, no court has ever held

that an employer can escape the requirements of its obligation not to retaliate against workers on

the basis of any of the rights or privileges cited by Defendant.

1. Defendant’s right to communicate with its employees, as protected by the FirstAmendment or otherwise, does not relieve it of its obligations under the ADA.

Incredibly, DZNPS suggests that EEOC’s complaint should be dismissed because its First

Amendment right to communicate with witnesses insulates it from a finding of retaliation. D’s

Br. at 14-17. At the outset, it is obvious that the ADA – like Title VII, the ADEA and other civil

rights statutes – imposes limitations on an employer’s First Amendment rights. Certainly,

14 See Ray, 961 F. Supp. at 360 (defendant law firm’s argument that it publicized EEOC determination letter

to “ensure an accurate picture of the EEOC proceedings” was not sufficient to permit summary judgment on

retaliation claim because it was “open to a jury to find that Ropes would not have respondent to Above the Law in

the way it did but for” plaintiff’s protected conduct).



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DZNPS would not suggest that an ADA complaint alleging that a disabled plaintiff’s employer

repeatedly referred to her as “cripple” should be dismissed, pursuant to Rule 12(b)(6), because to

conclude otherwise would improperly infringe on the employer’s right to free speech. Cf.

Bonnell v. Lorenzo, 241 F.3d 800, 820 (6th Cir. 2001) (granting summary judgment to employer

on professor’s claim that school violated his free speech rights by terminating him over use of

language that violated the employer’s sexual harassment policy).15

In support of this argument, DZNPS relies on a series of cases dealing with

communications with Rule 23 class members. See D’s Br. at 14-16.16

Even in the class action

litigation context, however, where the speech usually occurs after civil litigation is publicly filed,

courts routinely restrict or limit defendants’ communications with putative class members,

15 DZNP’s reliance on John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), is misplaced. The Mukasey

case reviewed the constitutionality of a provision of the Patriot Act, 18 U.S.C. § 2709, which prohibited electronic

communication service providers from disclosing that they had received a request from the FBI for information

about a subscriber. 549 F.3d at 864. The question before the Mukasey court was whether the requirements of the

law constituted a content-based prior restraint on speech, in violation of the First Amendment. Id. at 873-74. Here,

however, there is no such prior restraint on speech. EEOC’s allegation in the complaint is not that DZNPS violated

some confidentiality provision. Rather, EEOC alleges that the reason DZNPS publicized Marsh’s charge – and

certain details from it – was to retaliate against Marsh for his protected activity.16 These cases are distinguishable, chiefly, because, here, there has been no prior restraint on Defendant’s

speech and, furthermore, in none of the cases cited by DZNPS was there an allegation that the communication with

class members was based on a retaliatory motive. See, e.g., Austen v. Catterton Partners V, LP, 831 F. Supp. 2d

559, 568-69 (D. Conn. 2011) (imposing limitations on counsels’ ability to communicate with putative Rule 23 class

members and recognizing the inherent coercion that m

EEOC Opposition to Motion to Dismiss

Documents