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Wilson v. Entergy Nuclear Operations, Inc.

United States District Court, D. Massachusetts

September 16, 2019

KEVIN WILSON, Plaintiff,
v.
ENTERGY NUCLEAR OPERATIONS, INC., Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         In this 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.

         I. BACKGROUND

         A. Factual Background

         The following facts are either uncontroverted pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1, [1] or stated in the light most favorable to Mr. Wilson, the non-movant.

         Entergy 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].

         On 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].

         On 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].

         In the 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].

         Nick 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].

         At a 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 ¶ 37].

         B. Procedural History

         On 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].

         On May 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]. ...


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