Entergy VY asks for new trial in benefits lawsuit


BRATTLEBORO >> Entergy is asking a federal judge for a new trial in a case in which a jury concluded the owner and operator of Vermont Yankee nuclear power plant in Vernon failed to pay security specialists more than $500,000 in overtime wages.

According to documents filed with the U.S. District Court for the District of Vermont, Entergy's attorneys contend the jury's decision, rendered on Sept. 18, "is against the weight of the evidence." Geoffrey J. Vitt, of Vitt Brannen & Loftus in Norwich, also wrote that the court's instructions to the jury "were erroneous, and those errors were not harmless." Finally, wrote Vitt, he believes attorneys for the four men who filed suit in 2012 "improperly offered evidence and argument regarding the non-exempt status of employees of Wackenhut as a basis for the jury to find Entergy wrongfully treated Plaintiffs as exempt."

David Banford, Scott McGratty, Robert Miller and Gary Stratton, have been employed by Entergy since 2009 as security shift supervisors. Before that, they worked at Yankee as employees of Wackenhut. They are part of a team that provides a front-line defense to protect the plant against potential threats of radiological theft or terrorism, according to a press release from the two law firms representing the four men.

Steve Robinson, of Diamond & Robinson, located in Montpelier, claimed Entergy owed the four men for more than 5,500 hours of overtime, or about $535,000. "Not only did Entergy fail to pay its employees overtime, but the jury concluded that its actions constituted a willful violation of the law," he told the Reformer in October.

The case hinged on whether the employees were supervisors who were exempt from overtime pay. The jury concluded that even though the four men were shift supervisors, they were "first responders" who did not exercise the discretion and the authority to independently react to security situations at the plant and therefore were not exempt from overtime pay. The jury found Entergy had willfully violated federal labor law for failing to pay them for the overtime. If the decision is upheld, there could be another 15 shift supervisors who may qualify for overtime pay, said Joshua Diamond.

In the response to Entergy's motions, Diamond wrote that Entergy presented no evidence at trial that during or after the transition from Wackenhut to Entergy, did Entergy evaluate the job duties of the security specialists to determine if they were exempt or non-exempt.

"Defendant now seeks to invade the jury's rightful prerogative and overturn the verdict largely because the jury did not agree with its theory of the case," wrote Diamond. "There was substantial, disputed evidence in this case for a jury to reasonably conclude that Defendant did not meet its burden in demonstrating the claimed exemption ..."

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Diamond also noted that a judge "should be particularly loath to disturb the jury's verdict in this case because that verdict ultimately depended on the jury's assessment of which wtiniesses were most credible in their conflicting descriptions of the security shift supervisor's duties."

In late October, Vitt filed a motion in opposition to a settlement award. Because Entergy's attorneys believe the judgment was erroneous, the judge should at least "decline to award liquidated damages because Entergy acted in good faith by treating Plaintiffs as exempt supervisors." If the judge is not willing to do so, wrote Vitt, he should consider conducting a new trial.

The jury's decision was erroneous, wrote Vitt, because the job descriptions of the four men "met the executive, administrative or combination exemptions and did not qualify them as 'first responders.'" Vitt also wrote that each of the plaintiffs understood that their jobs required they work "a fluctuating schedule ... but receive the same pay." And, despite the jury's finding that Entergy had "willfully violated federal labor law," there was no evidence presented at trial to back up that conclusion.

"The jury's willfullness finding was based on incomplete instructions ... Plaintiffs advanced, and the jury apparently adopted, a legally incorrect theory." Evidence presented by the defense demonstrated "Entergy assigned myriad management and administrative responsibilities to Shift Supervisors," who, in turn, were "executing their leadership duties as instructed," wrote Vitt.

The four men were also paid more than the security specialists they supervised, he wrote, with base salaries ranging between $60,000 and $72,000. In addition, Vitt noted, the four men received together more than $190,000 in bonuses between 2009 and 2013. "Plaintiffs could not have participated in the (Management Incentive Plan) and received these substantial additional sums had they been classified as non-exempt and paid overtime," wrote Vitt.

Vitt also criticized the judge's decision to refuse Entergy's request "to instruct the jury on examples of ... exempt duties" and his failure to give the jury "the full meaning of the legal terms ... crucial to the decision ... This allowed the Plaintiffs to argue their improper legal construction of the first responder regulation to the jury," he wrote. Telling the jury that while the plaintiffs were Wackenhut employees they were paid hourly "is irrelevant and should have been excluded" and also warrants a new trial, wrote Vitt.

Vitt told the Reformer that under court procedures, he is required to raise the issues where he believes the court erred and ask the judge to consider setting aside the settlement or initiating a new trial. Depending on the judge's decision, then the attorneys from either side can appeal the decision to the Second Circuit Court of Appeals if they are not satisfied.

Contact Bob Audette at 802-254-2311 ext. 160.


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