United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
retaliation suit, Plaintiff Kevin Wilson alleges that his
former employer, Defendant Entergy Nuclear Operations, Inc.
(“Entergy”), terminated him in retaliation for
participating in a lawsuit alleging a violation of the Fair
Labor Standards Act (“FLSA”) and for providing
information as part of an internal investigation. [ECF No. 1
(“Complaint” or “Compl.”)
¶¶ 1, 40-41]. He alleges that his termination
violated the FLSA, Massachusetts General Laws ch. 151, §
19 (“Wage Act”) and the Energy Reorganization Act
(“ERA”). [Id. ¶¶ 43, 45].
Currently pending before the Court is Entergy's motion
for summary judgment. [ECF No. 34]. For the reasons set forth
below, summary judgment is DENIED.
following facts are either uncontroverted pursuant to Federal
Rule of Civil Procedure 56 and Local Rule 56.1,
stated in the light most favorable to Mr. Wilson, the
operates Pilgrim Nuclear Power Station (“Pilgrim
Station”), a nuclear power station located in Plymouth,
Massachusetts. [ECF No. 9 ¶ 6]. Entergy employed Mr.
Wilson in the security department at Pilgrim Station between
January 1, 2007 and July 9, 2015. [Id. ¶ 7].
Entergy hired Mr. Wilson as a nuclear security officer and
promoted him to the position of security shift supervisor
(“SSS”) in 2011. [Id. ¶¶ 8-9].
January 28, 2014, Mr. Wilson was one of sixteen SSSs from
Pilgrim Station who filed an FLSA lawsuit against Entergy
alleging misclassification (“FLSA Litigation”).
[ECF No. 36 (“SOF”) ¶ 39]. The FLSA
Litigation was one of eight similar misclassification
lawsuits filed around the country. [SOF ¶ 43]. Mr.
Wilson was a named plaintiff, and his name appeared in the
case caption. [SOF ¶ 40]. Managers at Entergy, including
security superintendent Richard Daly, security manager Philip
Beabout, and human resources manager Brenda Gailes knew that
a group of SSSs had filed a lawsuit. [SOF ¶ 41; ECF No.
46 ¶¶ 12-14]. The FLSA Litigation was settled on or
around June 1, 2015, and the action was dismissed on November
5, 2015. [SOF ¶ 49].
March 4, 2015, Entergy received an anonymous complaint
concerning compliance with armory procedures and the exchange
of weapons by SSSs. [SOF ¶ 51]. Entergy retained Morgan,
Lewis & Bockius LLP to conduct an investigation into the
allegations (“Armory Investigation”). [SOF ¶
51]. The Armory Investigation concluded that procedural
violations had occurred and were a common practice among
security personnel but that there was no evidence of
deliberate or willful violations. [SOF ¶¶ 51, 53].
Mr. Wilson did not file the anonymous complaint that
triggered the Armory Investigation. [SOF ¶ 52]. As a
result of the finding that security personnel had violated
Entergy's policy regarding the exchange of weapons, all
SSSs had $500 deducted from their discretionary bonuses. [SOF
¶ 54]. The Armory Investigation did not implicate Mr.
Daly, Mr. Beabout, Ms. Gailes, director of performance
improvement Dave Noyes, or senior human resources
representative Brandy Green. [SOF ¶ 56].
spring of 2015, Entergy conducted an investigation into how
an Excel workbook containing the salary of all employees at
Pilgrim Station was transmitted to some of the SSSs. [SOF
¶ 7]. The investigation involved a review of email
activity for all SSSs who had received an email with the
Excel workbook attached. [SOF ¶ 8]. During this review,
the investigators revealed that Mr. Wilson had forwarded the
Excel workbook and confidential information belonging to
Daniel Nugent, a fellow employee, to his personal email
account. [SOF ¶ 8].
Tranchina and Gillian Taylor, both from Entergy's
Internal Audit Services department, were assigned to
investigate the forwarding of Mr. Nugent's personal
information (“Nugent Investigation”). [SOF ¶
10]. Their investigation revealed that, on December 16, 2014,
Mr. Wilson had sent a scan of Mr. Nugent's documents from
a Xerox scanner to his Entergy email account. [SOF
¶¶ 11-13]. Two days later, on December 18, 2014,
Mr. Wilson used his Entergy e-mail account to send a copy of
Mr. Nugent's driver's license and Social Security
card to his personal email account . [SOF ¶¶ 9,
11]. Based on differences in the scans attached to the
December 16 and December 18 emails, the investigators
concluded that Mr. Wilson had made two different scans of Mr.
Nugent's documents. [SOF ¶ 12]. Mr. Nugent, who was
interviewed as part of the investigation, explained that Mr.
Wilson had assisted him in submitting documents to Human
Resources as part of an onboarding process. [SOF ¶ 16].
Mr. Wilson's distribution of Mr. Nugent's personal
information was a violation of Entergy's Protection of
Information Policy, which Mr. Wilson was aware of at the
time. [SOF ¶¶ 1-6, 14]. Mr. Wilson agreed that
sending Mr. Nugent's personal information to his personal
account was a violation of Entergy's Protection of
Information Policy. [SOF ¶ 30].
consensus meeting following the conclusion of the Nugent
Investigation, Ms. Gailes, Mr. Beabout, Mr. Daly, Mr. Noyes,
and Ms. Green decided to terminate Mr. Wilson's
employment. [SOF ¶ 33]. The parties dispute whether the
attendees of the consensus meeting considered Mr.
Wilson's participation in the FLSA lawsuit or his
participation in the Armory Investigation. See [SOF
¶ 34; ECF No. 45 ¶ 34; ECF No. 46 ¶¶
63-74]. Following the consensus meeting, Entergy's
Executive Review Board (“ERB”) reviewed the
decision to terminate Mr. Wilson and found the proposed
termination to be legitimate and non-retaliatory. [SOF
¶¶ 35-36]. Entergy terminated Mr. Wilson effective
July 9, 2015 “for sending confidential information
belonging to a co-worker without [a] legitimate need to do so
in the performance of Entergy business.” [SOF ¶
December 15, 2015, Mr. Wilson filed an administrative
complaint with the Occupational Safety and Health
Administration (“OSHA”) at the U.S. Department of
Labor alleging that his termination violated the ERA. [Compl.
¶ 37]. On February 28, 2017, Mr. Wilson notified OSHA
that he intended to file an action for de novo
review pursuant to 29 C.F.R. § 24.114 because more than
one year had passed since he had filed his administrative
complaint and the Secretary of Labor had not yet issued a
final order. [Id. ¶¶ 38-39].
16, 2017, Mr. Wilson filed the Complaint in this Court. [ECF
No. 1]. Entergy answered on July 17, 2017, and amended its
answer on July 18, 2017. [ECF Nos. 7, 9]. On October 11,
2018, fact discovery closed, and on November 8, 2018, Entergy
filed its motion for summary judgment. [ECF Nos. 29, 34]. On
December 10, 2018, Mr. Wilson filed an opposition to the
motion for summary judgment. [ECF No. 44]. ...