Flores v. Entergy Nuclear Operations, Inc.

• Decision Date: 31 May 2018
• Docket Number: 16–CV–7207 (CS)
• Citation: 313 F.Supp.3d 511
• Parties: Harold A. FLORES, Plaintiff, v. ENTERGY NUCLEAR OPERATIONS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

313 F.Supp.3d 511

Harold A. FLORES, Plaintiff,

v.ENTERGY NUCLEAR OPERATIONS, INC., Defendant.

16–CV–7207 (CS)

United States District Court, S.D. New York.

Signed May 31, 2018

Amy L. Bellantoni, The Bellantoni Law Firm, PLLC, Scarsdale, New York, Counsel for Plaintiff

Jonathan M. Kozak, Benjamin J. Yeamans, Jackson Lewis P.C., White Plains, New York, Counsel for Defendant

OPINION & ORDER

Seibel, U.S.D.J.

Before the Court are the motion for summary judgment, (Doc. 37), and motion for sanctions, (Doc. 31), of Defendant Entergy Nuclear Operations, Inc. ("Entergy"). For the reasons stated below, both motions are GRANTED.

I. BACKGROUND

The facts set forth below are taken from the parties' Local Rule 56.1 Statements and supporting materials, and are undisputed unless otherwise noted.

Defendant operates the Indian Point Energy Center ("IPEC"), a power generating nuclear facility located in Buchanan, New York, under a license issued by the U.S. Nuclear Regulatory Commission ("NRC"). (Doc. 46 ("P's 56.1 Stmt. & Resp.") ¶¶ 1–2.) Former Defendant Daniel Gagnon has been employed by Defendant since 2008 as the Security Manager at IPEC. (Doc. 12 ¶ 8.) Former Defendant Wayne Griffin has been employed by Defendant since 2011 as the Supervisor of Access Authorization/Fitness for Duty at IPEC. (Id. ¶ 10.)

Plaintiff Harold Flores is employed by Defendant as an armed Nuclear Security Officer ("NSO") at IPEC. (P's 56.1 Stmt. & Resp. ¶ 1.) He was initially hired in April 2005, and with the exception of a break in employment between May 2013 and October 2014, has held the same position since then. (Id. ¶ 7.) As an NSO, his responsibilities include but are not limited to: patrolling; controlling entry processing of individuals into protected areas; conducting personnel and vehicle searches; securing, protecting and assisting at scenes of accidents, fires and similar events; and conducting operational tests of intrusion detection and contraband detection systems. (Id. ¶ 8.)

A. NRC Regulations

As a nuclear plant operator, Defendant is required to adhere to numerous regulations promulgated by the NRC. (See id. ¶¶ 3–5.) These regulations mandate, among other things, that Defendant maintain a fitness-for-duty ("FFD") program and an unescorted access authorization ("UAA") program. See 10 C.F.R. §§ 26.21, 73.56 (2018).

The FFD program is designed to "[p]rovide reasonable assurance" that employees are "trustworthy and reliable" and "are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties." Id. § 26.23(a), (b). Those subject to the FFD program include all persons who are granted UAA to protected areas of a nuclear power reactor and perform security duties as an armed security officer. Id. § 26.4(a)(5).

The NRC further mandates that a licensee have an access authorization program that "provide[s] high assurance" that any persons granted UAA to sensitive areas of the plant "are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security, including the potential to commit radiological sabotage." Id. § 73.56(c). If the licensee discovers potentially disqualifying FFD information relating to one of its employees, "to maintain the individual's authorization, ... the licensee's ... designated reviewing official [must] complete[ ] a review of the circumstances associated with the [potentially disqualifying FFD] information." Id. § 26.69(d)(1). The reviewing official may require an appropriate professional to undertake a "determination of fitness" to see if "the individual is fit to safely and competently perform his or her duties." Id. § 26.69(d)(2). One type of potentially disqualifying FFD information is "information demonstrating that an individual has [u]sed, sold, or possessed illegal drugs." Id. § 26.5. In the event that an individual's potentially disqualifying information is drug-related, "[i]f the reviewing official determines that maintaining the individual's authorization is warranted, [the licensee, shall] implement any recommendations for treatment and followup drug and alcohol testing from the determination of fitness, which may include the collection of urine specimens under direct observation, and ensure that the individual complies with and successfully completes the treatment plans." Id. § 26.69(d)(3).

B. Plaintiff's Employment Prior to Termination

Between November 2007 and May 2013, Plaintiff was counseled, warned, reprimanded or suspended twenty-three times as a result of repeated performance issues, mostly tardiness and absenteeism. (Id. ¶¶ 10–33.)

On April 18, 2013, Plaintiff was arrested and charged with criminal possession of a controlled substance in the seventh degree. (Id. ¶ 34.) As a result of the arrest, Plaintiff's New York State pistol permit was suspended, rendering him unqualified to perform his job as an armed NSO. (Id. ¶ 36.)¹ In light of Plaintiff's inability to work as an armed NSO following his arrest, and as a result of Plaintiff's prior extensive disciplinary record, Gagnon and the Security Supervisor decided to terminate Plaintiff's employment on May 9, 2013. (Id. ¶ 37; Doc. 42 ("Kozak MSJ Aff.")

Ex. HH at 2.) The decision was confirmed in a memorandum from Gagnon to Flores dated May 16, 2013. (P's 56.1 Stmt. & Resp. ¶ 38; Kozak MSJ Aff. Ex. II.) Plaintiff does not dispute that his employment was terminated on May 16, 2013, although he contends that he was not aware of that fact at the time. (P's 56.1 Stmt. & Resp. ¶ 39.)

On or about May 13, 2013, Plaintiff provided an affidavit in support of co-worker Kendric Lever's then-pending discrimination lawsuit against Defendant. (Id. ¶ 41.)² According to Plaintiff, Lever gave Plaintiff a prepared affidavit, which Plaintiff then signed. (Id. ¶ 42.) Plaintiff never told anyone at Entergy that he provided an affidavit in support of Lever's claim, nor does Plaintiff believe that Gagnon or Griffin had any reason to know that he provided the affidavit at the time of his termination. (Id. ¶ 43.)

C. The Settlement of Plaintiff's Termination Grievance

As a NSO at IPEC, Plaintiff was and is a member of Local 456 of the International Brotherhood of Teamsters (the "Union"). (Id. ¶ 44.) On May 31, 2013, through his Union representative, Plaintiff grieved the termination. (Id. ¶ 45; Kozak MSJ Aff. Ex. JJ.) Plaintiff, through his attorney, served Defendant with a notice of intention to arbitrate on August 2, 2013, (Kozak MSJ Aff. Ex. KK at 2), and arbitration was scheduled for January 31, 2014, (P's 56.1 Stmt. & Resp. ¶ 47). In the meantime, on October 8, 2013, the charge against Plaintiff for criminal possession of a controlled substance was dismissed. (Id. ¶ 48.)

On January 31, 2014, Plaintiff and Defendant reached a settlement agreement (the "Settlement Agreement"), which fully and finally resolved the dispute and provided Plaintiff with a path to return to work as a NSO with his prior seniority, as long as Plaintiff accomplished certain enumerated preconditions. (Id. ¶¶ 49–50.) Pursuant to the Settlement Agreement, Plaintiff was required to obtain a valid Westchester County pistol permit by July 1, 2014 and meet all access requirements established by Defendant's access authorization department in accordance with company policy. (Id. ¶ 51.) The Settlement Agreement also provided that if Plaintiff satisfied these conditions, Defendant would reinstate Plaintiff to the NSO position, and the period from his termination until his reinstatement would be considered an unpaid leave of absence except for May 17, 2013, which would be considered a one-day unpaid disciplinary suspension. (Id. ) But if Plaintiff failed to comply with its terms, he would not be reinstated. (Id. ) Plaintiff spoke with his attorney before entering into the Settlement Agreement, understood and agreed to its terms, and voluntarily signed it. (Id. ¶ 52; P's Depo. at 144:21–23.)

D. Plaintiff's Reinstatement

Plaintiff secured his pistol permit on July 3, 2014, two days after the July 1, 2014 deadline. (Kozak MSJ Aff. Ex. OO.) As a result, Defendant initially declined to reinstate Plaintiff. (Id. ) But on September 3, 2014, Plaintiff obtained a judicial ruling from the Westchester County Court retroactively backdating Plaintiff's pistol permit to June 30, 2014. (Id. ) Plaintiff was ultimately reinstated as a NSO in or about October 2014. (P's 56.1 Stmt. & Resp. ¶ 56.)

E. Recommendations from an Independent Substance Abuse Expert

Because of Plaintiff's arrest, an independent substance abuse expert, Dr. Paul T. Seidenschnur, evaluated Plaintiff on May 2, 2013 to determine his FFD pursuant to Defendant's policy and NRC Regulations. (Id. ¶ 62.)

In his May 2, 2013 report, Dr. Seidenschnur concluded that Plaintiff engaged in "risky behavior" and "used questionable judgment" with respect to the events leading up to his arrest for criminal possession of a controlled substance. (Id. ¶ 63; Kozak MSJ Aff. Ex. PP at 3.) Nonetheless, Dr. Seidenschnur concluded that Plaintiff was "indeed fit for duty as long as he [wa]s compliant with the following recommendations:" (1) participate in five to eight sessions of a psycho-educational program addressing alcohol and drug consumption practices and their effect; (2) regularly indicate compliance with the treatment; and (3) participate in intensified random follow-up drug testing (a minimum of twenty-nine tests over three years). (P's 56.1 Stmt. & Resp. ¶ 63; Kozak MSJ Aff. Ex. PP at 3.)

On October 2, 2014, Dr. Seidenschnur modified his recommendation, in light of the dismissal of Plaintiff's 2013 criminal charge, reducing the number of psycho-educational program sessions to three to five and reducing the number of drug tests to a minimum of twelve. (Kozak MSJ Aff. Ex. QQ.) Griffin communicated these recommendations to Plaintiff by letter dated October 9, 2014. (P's 56.1 Stmt....