Contractor Can’t Duck WARN Suit In Nuke Plant Shutdown

Law360—Rick Archer
July 13, 2018

A South Carolina federal judge Friday rejected a Fluor Corp. attempt to escape a suit alleging that it failed to give workers sufficient Worker Adjustment and Retraining Notification Act notice before a Westinghouse Electric Co. nuclear reactor project shut down last year.

U.S. District Judge J. Michelle Childs rejected the subcontractor’s motion on the pleadings, saying references plaintiff’s counsel made at a February hearing regarding the role SCANA Corp. played in the shutdown of the Virgil C. Summer Nuclear Generating Station project did not waive their right to present evidence about Fluor’s role.

“Moreover, the factual references to SCANA defendants in plaintiffs’ counsel’s statements also do not appear to contradict the allegations of the amended complaint wherein plaintiffs allege that SCANA defendants were the single employer together with Fluor defendants and/or [Westinghouse] of all individuals working at VC Summer,” Judge Childs said.

The case stems from the 2017 shutdown of the Virgil C. Summer project in Jenkinsville, South Carolina. SCANA hired Westinghouse to build the ambitious $14 billion project that would have been the first new nuclear power plant on U.S. soil in decades, but delays and severe cost overruns ultimately scuttled the project and toppled Westinghouse itself.

The project’s collapse led to abrupt layoffs of roughly 5,000 workers, and Harry Pennington III filed suit in 2017 alleging SCANA, Westinghouse and subcontractor Fluor failed to give 60 days of notice required by the WARN Act.

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Judge Childs also rejected Fluor’s argument the closure was an “unforeseeable business circumstance” that excused it from the 60-day requirement, saying it had not identified the circumstance or provided evidence it had provided WARN-compliant notice when employees were informed of the layoffs.

“It’s premature for a defendant with the burden of an affirmative defense to make a motion on the pleadings for the affirmative defense,” Pennington counsel Jack Raisner said in a phone interview Friday.

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In May Judge Childs rejected a motion by SCANA seeking to dismiss the claims against it.

Pennington is represented by Lucy C. Sanders of Bloodgood & Sanders LLC and Jack Raisner and René S. Roupinian of Outten & Golden LLP.

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The suit is Harry Pennington III v. Fluor Corp. et al., case number 0:17-cv-02094, in the U.S. District Court for the District of South Carolina.