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Silver v. Entergy Nuclear Operations, Inc.

United States District Court, S.D. New York

November 15, 2017

BRIAN SILVER, Plaintiff,
v.
ENTERGY NUCLEAR OPERATIONS, INC., DANIEL GAGNON and WAYNE GRIFFIN, Defendants.

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

          Patrick M. Collins, Esq., Christina M. Schmid, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C. New York, New York Counsel for Defendants Entergy Nuclear Operations, Inc., Daniel Gagnon, and Wayne Griffin

          Benjamin H. Banta, Esq., Entergy Services, Inc. New Orleans, Louisiana Counsel for Defendant Entergy Nuclear Operations, Inc.

          OPINION AND ORDER

          CATHY SEIBEL, U.S.D J.

         Before the Court is the Motion for Summary Judgment of Defendants Entergy Nuclear Operations, Inc. (“Entergy”), Daniel Gagnon, and Wayne Griffin (collectively “Defendants”). (Doc. 60.) For the reasons set forth below, Defendants' motion is 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.

         Entergy operates the Indian Point Energy Center (“IPEC”), a nuclear power plant under license from the U.S. Nuclear Regulatory Commission (“NRC”). (Doc. 64 (“P's 56.1 Stmt. & Resp.”) ¶ 1.) Plaintiff Brian Silver was employed there as an armed nuclear security officer from 2008 until his termination on February 24, 2014. (Id. ¶ 22, 136.) This case arises out of Defendants' decisions to revoke Plaintiff's security access and terminate his employment after Plaintiff experienced a hallucinatory episode on December 22, 2013.

         A. NRC Regulations

         As a nuclear power plant operator, Entergy is required to adhere to numerous regulations promulgated by the NRC. (Id. ¶ 2.) These regulations mandate, among other things, that Entergy maintain a fitness-for-duty (“FFD”) program and an access authorization program. See 10 C.F.R. §§ 26.23, 73.56 (2008).

         The FFD program is designed “to provide 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 unescorted access authorization (“UAA”) to protected areas of a nuclear power reactor and perform security duties as an armed security officer. Id. § 26.4(a)(5). Where an employee's fitness is questionable, the nuclear power plant operator is required to immediately remove that employee from duty. Id. § 26.77.

         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). Accordingly, an individual seeking UAA must undergo a psychological evaluation designed “to assist in determining [that] individual's trustworthiness and reliability.” Id. § 73.56(e). Once an individual obtains UAA, further psychological evaluations may be administered to reassess that person's fitness for duty, trustworthiness, and reliability. Id. § 73.56(e)(6). The access authorization program also entails a mandatory behavior observation program (“BOP”) requiring those subject to the BOP to report any observed behaviors that may negatively affect the security of the facility or constitute an unreasonable risk to public health or safety. Id. § 73.56(f)(1)-(3). “If [a] reviewing official has a reason to believe that [a] reported individual's trustworthiness is questionable, the reviewing official shall either administratively withdraw or terminate the individual's [UAA] while completing the re-evaluation or investigation.” Id. § 73.56(f)(3).

         B. Entergy's Policies

         Entergy has a written FFD Program, (Doc. 66 (“Schmid Aff.”) Ex. C), and a written UAA Program, (id. Ex. D). Under the FFD policy, “‘when there are indications that an individual . . . may be in violation of Entergy's FFD program or is otherwise unable to safely and competently perform his or her duties, '” a process is initiated called a determination of fitness for duty. (P's 56.1 Stmt. & Resp. ¶ 12 (quoting Schmid Aff. Ex. C at 51).) In accordance with NRC regulations, this determination “‘must be made by a licensed or certified professional who is appropriately qualified . . . to evaluate the specific fitness issues presented by the individual.'” (Id. ¶ 13 (quoting Schmid Aff. Ex. C at 51.)) If a licensed psychologist conducts an in-person clinical interview of an individual and determines that individual is untrustworthy, unreliable, or a potential risk to that individual's self or others, that individual's UAA shall be denied for one year. (Id. ¶ 16; see Id. ¶¶ 263-64.) Although there is no NRC regulation that mandates this one-year denial period, it is consistent with industry standards. (Id. ¶¶ 17, 264.)

         C. Plaintiff's Employment Period with Entergy

         In 2008, Entergy hired Plaintiff as an armed nuclear security officer at IPEC. (Id. ¶ 22.) This position required, among other things, obtaining and maintaining a valid license to carry firearms, meeting the requirements of NRC psychological testing regulations, satisfying NRC requirements to obtain UAA to the nuclear facility, and complying with Entergy's FFD Program. (Id. ¶¶ 23, 25.) Plaintiff was aware of these requirements and understood he was subject to periodic psychological evaluations and for-cause drug testing pursuant to the FFD Program. (Id. ¶¶ 25-29.)

         On or about March 5, 2013, Plaintiff sought treatment from a licensed psychiatrist, Thomas Van Aken, M.D., to address personal and financial issues. (See Id. ¶ 42.) Plaintiff reported a long-term history of anxiety and “an element of depression, ” for which Dr. Van Aken prescribed the drug Tofranil. (Id. ¶¶ 44, 47.) Approximately one month later, Plaintiff elected to stop taking that medication, and Dr. Van Aken prescribed the drug Neurontin, which is also known as gabapentin, to treat Plaintiff's anxiety. (See Id. ¶¶ 47-48.) Dr. Van Aken considered Neurontin a safe drug based, in part, on the fact that he had never seen patients experience major side effects from it, nor did he recall learning from patients or medical literature that Neurontin caused major side effects like hallucinations. (Schmid Aff. Ex. M at 27:3-18, 67:12-16.)

         After not having seen Dr. Van Aken since April 2013, Plaintiff returned to the psychiatrist in October 2013, [1] reported that he had ceased taking Neurontin, and requested a prescription for Adderall to treat his Attention Deficit Disorder. (P's 56.1 Stmt. & Resp. ¶¶ 75-76, 167-68.) Plaintiff next returned to Dr. Van Aken on December 17, 2013, at which time Plaintiff reported that he had resumed taking Neurontin. (Id. ¶ 80.)

         Then, on December 22, 2013, while he was at home and off duty, Plaintiff believed he saw an Entergy supervisor and two children going through his belongings in his living room. (Id. ¶¶ 89-90.) He called Entergy's security department several times as well as the New York State Police to report the unauthorized intrusion into his home. (Id. ¶¶ 91-92.) The responding police officers found Plaintiff in a confused and disoriented state. (Id. ¶ 92.) Eventually, however, Plaintiff realized that he had imagined the episode. (Id. ¶ 93.) The next day, he called in sick and went to see a doctor about his hallucination. (Id. ¶¶ 94-95.) He also received a call from Entergy instructing him to report to IPEC the next day for a for-cause drug test and evaluation. (Id. ¶ 97.)

         On December 24, Plaintiff reported to IPEC and met with Defendant Griffin, Entergy's Supervisor of Access, Fitness for Duty and Medical at IPEC, who suspended Plaintiff's UAA. (Id. ¶¶ 98-99, 175.) Plaintiff was upset and crying during the meeting. (Id. ¶ 98.) Due to the behavioral concern stemming from the December 22 hallucination incident, Defendant Griffin directed Plaintiff to report for a “for cause” test as well as an in-person psychological assessment with Dr. Laurence Baker, a psychologist, regarding Plaintiff's fitness for duty. (Id. ¶¶ 98-99, 193.)

         That same day, Plaintiff met with Dr. Baker, who conducted a clinical interview and administered a standard written psychological test called the Millon Multiphasic Personality Inventory. (Id. ¶ 100.) Dr. Baker observed that Plaintiff was “uneasy” and “anxious, ” as “[a]lmost anybody in that situation would appear, ” as well as “highly emotional, ” “obviously upset, ” “off-and-on teary, ” “resentful and demanding, ” “troubled, ” “over-reactive, ” and “hypersensitive to criticism.” (Id. ¶¶ 101, 108, 111; Schmid Aff. Ex. G at 51:2-8.) Plaintiff disclosed financial pressures, his history of alcohol and substance abuse, his hallucination, and his unreliability with his medications. (P's 56.1 Stmt. & Resp. ¶¶ 102, 104-05, 109.) Plaintiff also told Dr. Baker that he believed the Neurontin caused his hallucination. (Id. ¶ 200.)

         Ultimately Dr. Baker concluded that Plaintiff “did not seem to be in a stable situation at that moment, ” and that Plaintiff's level of anxiety was “beyond the interview-based anxiety.” (Id. ¶ 107) (alteration and internal quotation marks omitted). Accordingly, he told Plaintiff he did not think he should return to work, and Plaintiff agreed. (Id. ¶ 103.) Dr. Baker then wrote a report stating his opinions that Plaintiff was not fit for duty as an armed nuclear security officer and that Plaintiff's UAA should be revoked. (Id. ¶¶ 110, 116.) Dr. Baker did, however, believe that with treatment Plaintiff could return to fit-for-duty status. (Id. ¶ 212; Doc. 65 (“Bellantoni Decl.”) Ex. 7 at 66:19-20.)

         Dr. Baker's report also recommended that Plaintiff be put on short-term disability. (P's 56.1 Stmt. & Resp. ¶ 116.) During an annual audit in early January 2014, however, Defendant Griffin informed Dr. Baker that his role was to make a determination as to Plaintiff's trustworthiness and reliability, not to make a recommendation as to whether he should receive short-term disability. (Id. ¶¶ 119-21, 175.) Defendant Griffin then directed Dr. Baker to complete a standard-form Psychological Assessment Report, which Dr. Baker completed on or about January 7, 2014, indicating that Plaintiff had “not been found to be acceptable for access authorization at a nuclear facility.” (Id. ΒΆΒΆ 122-23.) Dr. Baker then revised his initial written report to delete his reference to ...


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