Banford et al v. Entergy Nuclear Operations, Inc.

Filing 215

OPINION AND ORDER granting in part and denying in part 195 Motion for Judgment Incorporating Jury Verdict ; granting in part and denying in part 198 Renewed Motion for Judgment as a Matter of Law; denying 201 Motion for New Trial. The Court orders the parties to recalculate Mr. Miller and Mr. Stratton's damanges using the FWW method and to submit that revised calculation to the Court within 14 days. Signed by Judge William K. Sessions III on 2/11/2015. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DAVID BANFORD,
ROBERT MILLER,
GARY STRATTON, and
SCOTT MCGRATTY
Plaintiffs,
v.
ENTERGY NUCLEAR
OPERATIONS, INC.
Defendant.

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Case No. 2:12-cv-131

Opinion and Order
Plaintiffs David Banford, Robert Miller, Gary Stratton and
Scott McGratty brought this suit against Defendant Entergy
Nuclear Operations, Inc. (“Entergy”).

The Plaintiffs challenged

their designation as exempt employees for purposes of overtime
pay under the Fair Labor Standards Act (“FLSA” or “the Act”) and
a related state statute.

After a four-day trial, the jury found

that 1) Entergy had misclassified each Plaintiff as exempt, 2)
Entergy’s misclassification was willful, and 3) there was not an
understanding between Entergy and each of the Plaintiffs that
their salaries would cover all hours in the workweek above and
below forty hours.
The parties have filed post-trial motions.

Plaintiffs move

for a judgment order incorporating the jury verdict.

ECF No.

195.

Entergy renews its motion for judgment as a matter of law

or, in the alternative, moves for a new trial.

ECF Nos. 198,

201.
For the reasons described in detail below, the Court grants
Entergy’s motion for judgment as a matter of law on the
fluctuating workweek issue with respect to Plaintiffs Miller and
Stratton only.

The Court denies Entergy’s motion for judgment

as matter of law in all other respects and denies Entergy’s
motion for a new trial.

Accordingly, the Court denies

Plaintiffs’ motion with respect to Plaintiffs Miller and
Stratton on the fluctuating workweek issue only.

The Court

grants Plaintiffs’ motion for judgment incorporating the jury
verdict in every other respect.
I.

Relevant Background
Vermont Yankee Nuclear Power Plant (“Vermont Yankee”) is

operated by Entergy.

The plant previously relied on The

Wackenhut Corporation (“Wackenhut”) to provide independent
security services.

In around 2009, Vermont Yankee brought its

security staff in house.

The Plaintiffs were previously

employed by Wackenhut, and some performed functions while
Wackenhut employees similar to those they perform now that they
are employed by Entergy.

Wackenhut classified its employees in

similar roles as non-exempt and they received time-and-a-half
for overtime.
2

The Plaintiffs are four Security Shift Supervisors (“SSS”)
at Vermont Yankee.

Five SSS’s work with a minimum of four

Security Officers (“SO”) and together the SO’s and SSS’s
comprise a security “shift.”

All the SSS’s and SO’s wear a

uniform and carry the same weaponry during the shift.

Each

shift works for twelve hours at a time, either days or nights.
The shift is responsible for round-the-clock security at Vermont
Yankee.

The SO’s are the lowest rung of the security hierarchy

and the SSS’s are one level above the SO’s.

The SSS’s are

supervised by Security Operations Supervisors (“SOS”).

The SO’s

are members of a union but the SSS’s and SOS’s are not.
SSS’s usually work four twelve-hour days in a row followed
by four days off.

This means that some weeks they work for at

least forty-eight hours and some they work less than forty.
This four on/four off schedule was the same schedule that
Wackenhut used.

During their four days on, SSS’s divide their

time between four roles: Central Alarm System (“CAS”) Operator,
Secondary Alarm System (“SAS”) Operator, Field Support
Supervisor (FSS), and Lead Shift Supervisor (LSS).

While in the

CAS/SAS role SSS’s use computers and video monitors to observe
activity in the plant.

SAS is essentially duplicative of CAS

and operates as redundant backstop.

The FSS has a variety of

duties that include making rounds and checking on the SO’s for
alertness.

The FSS must also be ready to respond to a
3

contingency.

Finally, the LSS is the lead SSS for the day and

oversees the shift while also performing a variety of clerical
duties.
role.

During a four-day period SSS’s spend one day in the LSS
On the other three days they rotate between CAS, SAS, and

FSS.
Vermont Yankee leadership developed a Security Plan, which
is a set of procedures that have been designed to address the
different types of scenarios that might lead to an armed
intrusion or attack, often referred to as a contingency event.
Procedure 0904 is a document that implements aspects of the
Vermont Yankee Security Plan.

The Security Plan and Procedure

0904 could not be introduced into evidence or discussed with
specificity during the trial because they both contain what is
referred to as safeguards information or SGI.

SGI is any

information that federal law prohibits disclosing that relates
to security issues at nuclear power plants.

See 42 U.S.C. §

2167.
Vermont Yankee is now in the process of being
decommissioned, which means that there will be an accompanying
reduction in force.

In other words, many individuals will no

longer have jobs as the security needs of the plant change.
Entergy has classified the SSS’s as exempt employees.

They

are paid a fixed salary and do not receive any extra pay if they
work more than forty hours in a week.
4

However, SSS’s are

eligible to participate in the Management Incentive Program
(“MIP”), through which they earn yearly bonuses that depend on a
variety of factors.
The parties stipulated to the number of overtime hours the
Plaintiffs worked as well as each Plaintiff’s respective weekly
salary.

Based on the jury’s verdict and the parties’

stipulation, the Plaintiffs have calculated their damages to
total $535,406.35, which includes liquidated damages.
II.

Entergy’s Motion for Judgment as a Matter of Law
A. Legal Standard
Entergy renews its mid-trial motion for judgment as a

matter of law under Federal Rule of Civil Procedure 50.

To

succeed on a Rule 50 motion, the moving party must show that,
after a full hearing on an issue at trial, “there is no legally
sufficient evidentiary basis for a reasonable jury to resolve
the issue in favor of the non-moving party.”

Cross v. New York

City Transit Authority, 417 F.3d 241, 247 (2d Cir. 2005)
(internal quotation omitted).

In reviewing a Rule 50 motion, a

court must “‘draw all reasonable inferences in favor of the
nonmoving party’” and “‘may not make credibility determinations
or weigh the evidence.’”

Id. (quoting Reeves. v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 150 (2000)).
A movant’s burden in securing Rule 50 relief is
“particularly heavy” after a jury has deliberated and returned
5

its verdict.

Id. at 248.

A Rule 50 motion must be denied

unless “‘the evidence is such that, without weighing the
credibility of the witnesses or otherwise considering the weight
of the evidence, there can be but one conclusion as to the
verdict that reasonable [persons] could have reached.’”

Id.

(quoting Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d
Cir. 1993)).

In other words the court may only grant a Rule 50

motion in this posture if there is “‘such a complete absence of
evidence supporting the verdict that the jury’s finding could
only have been the result of sheer surmise or conjecture, or . .
. [there is] such an overwhelming amount of evidence in favor of
the movant that reasonable and fair minded men [and women] could
not arrive at a verdict against him.’”

Id. (quoting Song v.

Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)).
Judgment as a matter of law on an issue as to which the
movant bears the burden of proof is “rare.”

Broadnax v. City of

New Haven, 415 F.3d 265, 270 (2d Cir. 2005) (internal quotation
omitted).
B. Discussion
Entergy raises several arguments as to why the jury’s
verdict should be set aside and the Court should enter judgment
as a matter of law in its favor.

The Court addresses each

argument with Entergy’s “particularly heavy” burden in mind.
Cross, 417 F.3d at 248.
6

1.

Fluctuating Workweek

Plaintiffs filed a pre-trial motion in limine that sought
to preclude the use of the fluctuating workweek (“FWW”) method
for determining damages.

The Court addressed the propriety of

the FWW method after the parties submitted their proposed jury
instructions.

The Court held that applying the FWW method in a

mischaracterization case is appropriate only if the jury makes
certain factual findings or the parties stipulate to those
facts.

ECF No. 179 at 2-3.

The parties stipulated to some of

these factual predicates, so the only issue for the jury was to
determine the nature of the agreement between the parties.
Specifically the jury was asked “whether Entergy and the
Plaintiff agreed that the Plaintiff’s salary would cover all
hours in the workweek above and below 40 hours.”
(jury verdict form).

ECF No. 182

The jurors were instructed that in

determining the nature of the employment agreement that they
“must consider whether the Plaintiffs knew that their hours
would fluctuate and whether the Plaintiffs agreed that their
fixed salary would cover all the hours they worked.”

ECF No.

181 at 21 (jury charge); see also ECF No. 179 at 17 (FWW
opinion).
Applying the FWW method is appropriate if it is clear that
the Plaintiffs’ overtime premiums would have been calculated
using the FWW method if the Plaintiffs had been properly
7

characterized.

There is no dispute that Entergy intended that

each Plaintiff’s salary would cover all hours worked regardless
of their number.

Mr. Patrick testified that he was involved in

hiring the Plaintiffs.

ECF No. 191, 167:14-16.

He stated that

the SSS’s would receive the same pay regardless of whether they
worked more or less than forty hours in a week, even if they
took a sick day or a vacation day.

ECF No. 191, 163:12-164:6.

He also testified that Entergy would not dock an employee’s pay
if he were to miss a scheduled day of work but did not have any
leave time remaining.

ECF No. 191, 164:13-16.

Finally, Mr.

Patrick testified that he uses standard language when
interviewing all candidates for SSS positions.
167:25-168:2.

ECF No. 191,

He claimed that he tells candidates that the SSS

job is a salaried position but certain circumstances may require
them to work an extra shift without reimbursement.

ECF No. 191,

168:2-11.
There is no evidence in the record that undermines this
summary of Entergy’s side of the understanding.

The Court’s

analysis, therefore, depends on evaluating each Plaintiff’s
state of mind.

Without a clear understanding on both sides,

there can be no meeting of the minds required to apply the FWW
method as a matter of law.
As the jury was instructed, and consistent with its FWW
opinion, ECF No. 179 at 17, the Court must consider whether the
8

Plaintiffs knew that their hours would fluctuate and whether
they agreed that their fixed salary would cover all the hours
they worked.

The Court finds that there is no legally

sufficient evidentiary basis for a reasonable jury to resolve
these questions in favor of Mr. Miller or Mr. Stratton.

Neither

Mr. Miller nor Mr. Stratton offered live testimony at trial.
The Plaintiffs simply did not present any evidence with respect
to Mr. Miller and Mr. Stratton’s respective states of mind. 1
Entergy, on the other hand, submitted excerpts of each
Plaintiff’s deposition testimony that were read to the jury
during its case.

The only evidence regarding Mr. Stratton’s

understanding of his hours and compensation was an
acknowledgement that he would be receiving a salary and a bonus.
ECF No. 191, 57:22-58:3.

Mr. Miller’s only testimony was that

he knew that he would no longer be in the union and that he
would be getting a fixed biweekly amount of pay.
61:12-24.
was fixed.

ECF No. 191,

This suggests that they both knew that their salary
There is simply no testimony from either Mr. Miller

or Mr. Stratton that rebuts Mr. Patrick’s testimony that he gave
them the standard “spiel” when they were hired informing them
that they would receive a salary and would not be reimbursed for
1

Mr. Banford testified that he observed Mr. Stratton and Mr.
Miller perform their job duties and that the duties he described
accurately reflected what they do as well. ECF No. 189, 183:24184:11. This testimony, however, does not establish their
respective states of mind.
9

an extra shift.

ECF No. 191, 167:25-168:11.

It was therefore

unreasonable for the jury to conclude Mr. Miller and Mr.
Stratton did not understand that their salary would cover all
the hours that they worked because the Plaintiffs presented no
evidence to the contrary.

Applying the FWW method to calculate

their damages is appropriate.
Accordingly the Court will enter judgment as a matter of
law on this issue with respect to Mr. Miller and Mr. Stratton.
This decision only affects the amount of their damages.

The

Court will require the parties to recalculate Mr. Miller’s and
Mr. Stratton’s damages using the FWW method.
Mr. Banford and Mr. McGratty present a somewhat more
complicated case.

Some evidence suggests that Mr. Banford and

Mr. McGratty knew that their hours would fluctuate above and
below forty hours and that they would be receiving a steady
salary no matter how many hours they worked.
198:9-18; ECF No. 190, 58:15-16, 61:7-8.

See ECF No. 189,

However, the evidence

is not clear as to whether Mr. Banford and Mr. McGratty agreed
that their fixed salary would cover all the hours they worked
regardless of their number.

Mr. Banford testified that he

thought that if he worked a day of overtime he could take
another day off within that time period “as a kind of comp
time.”

ECF No. 189, 177:9-13.

This suggests he thought he

might be compensated in some way if he worked an extra day
10

during the shift when he was not scheduled to work.

A

reasonable jury could also have inferred that his expectations
were simply not on the same page as Entergy’s when he testified,
that he was “sold a false bill of goods.”

Id. 177:13.

Likewise, a reasonable jury could have inferred that Mr.
McGratty did not agree that his salary would cover all the hours
he worked regardless of their number.

Mr. McGratty testified

that there was no discussion as to whether his salary would
cover overtime hours and he had no understanding about overtime
when he was hired.

ECF No. 190, 58:17-19, 58:24-59:1.

Mr.

McGratty also stated that if his leave time was exhausted and he
did not come to work that his pay would be docked.
88:7-12. 2

ECF No. 190,

This suggests that he thought he might receive less

than his usual salary under some circumstances.
The parties stipulated to the number of hours the
Plaintiffs worked and the amount that they were paid each week.
Entergy argues that because Plaintiffs were consistently paid
the same amount but their hours fluctuated from week to week
that this is sufficient to find an “implied understanding
2

This belief was supported to some degree by testimony from Mr.
Spitzfaden. Mr. Spitzfaden, in a portion of his deposition that
was read to the jury, stated that he also thought that Entergy
would probably deduct pay from someone who had used up all of
their accrued leave and then worked less than forty hours in a
week. ECF No. 191, 157:25-159:17. Mr. Spitzfaden then
clarified that he would have to check with Entergy’s legal
department.
11

established by this course of conduct” as a matter of law.
No. 200 at 5.

ECF

The Court agrees that it is appropriate for

factfinders to consider implicit factors when evaluating whether
there was a meeting of the minds, but simply demonstrating a
fixed salary and variable hours is insufficient, standing alone,
to prove each Plaintiff knew and agreed that his salary would
cover all hours worked as a matter of law.

Mr. Banford’s and

Mr. McGratty’s testimony about their respective states of mind
was sufficient for a reasonable jury to conclude there was no
meeting of the minds between Entergy and these two Plaintiffs. 3
A reasonable jury could have found that even if both generally

3

The cases Entergy cites to support its argument that an implied
understanding existed between the parties are largely
distinguishable or have already been rejected by the Court as
inapplicable in its FWW opinion. In Urnikis-Negro v. Am. Family
Prop. Services, 616 F.3d 665, 667 (7th Cir. 2010) and Ransom v.
M. Patel Enterprises, Inc., 734 F.3d 377, 382 (5th Cir. 2013)
both courts credited testimony suggesting the agreement was
explicit rather than implicit. In both Rushing v. Shelby County
Government, 8 F. Supp. 2d 737 (W.D. Tenn. 1997) and Zoltek v.
Safelite Glass Corp., 884 F. Supp. 283 (N.D. Ill. 1995) the
district courts found that the undisputed facts demonstrated
that employees had impliedly consented to be paid at a fixed sum
regardless of the hours worked. Here testimony from Mr. Banford
and Mr. McGratty contradicts the notion of an implied
understanding because it suggests that their understanding was
different from Entergy’s. These two cases are not sufficient to
persuade the Court that there was an implicit agreement in this
case as a matter of law. Finally, the Court has already
rejected the applicability of Valerio v. Putnam Associates,
Inc., 173 F.3d 35 (1st Cir. 1999). See ECF No. 179 at 13 n.3.
The U.S. DOL Opinion Letter 2009-3 relies on Valerio to support
its reasoning.
12

knew their hours might fluctuate, neither understood that his
salary would cover all the hours he worked regardless of their
number.

Therefore, judgment as a matter of law on this issue is

warranted, but only with respect to Mr. Miller and Mr. Stratton.
2.

Willfulness

A violation is “willful” within the meaning of 29 U.S.C. §
255(a) if “the employer either knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the
statute.”

Parada v. Banco Industrial De Venezuela, C.A., 753

F.3d 62, 71 (2d Cir. 2014) (internal quotation omitted).

If an

employer acts unreasonably but not recklessly, its action should
not be considered willful.
conduct is not willful.

Id.

Moreover, merely negligent

U.S. 128, 133 (1988).

McLaughlin v. Richland Shoe Co., 486
The Plaintiff bears the burden of proof

on the issue of willfulness.

Parada, 753 F.3d at 71.

A reasonable jury could have concluded that Entergy’s
mischaracterization of the Plaintiffs as non-exempt was willful.
There is no evidence in the record suggesting that Entergy knew
its classification of the SSS’s was prohibited by the FLSA.
However, there was sufficient evidence to support a finding that
Entergy showed a reckless disregard as to whether its conduct
was prohibited by the FLSA.

This finding is supported by three

categories of evidence.

13

First, during the transition from Wackenhut to in-house
security, Entergy conducted no analysis as to whether or not
certain employees’ move from a non-salaried, non-exempt status
to salaried, exempt status was appropriate.

Mr. Banford

testified that he had reason to believe that Entergy was aware
of how he got paid at Wackenhut because it was “common sense”
that since Entergy hired Wackenhut “[t]hey knew the pay
structure.”

ECF No. 189, 176:10-16.

Mr. Spitzfaden testified

that he was in charge of compliance with the FLSA.
153:17-20.

ECF No. 191,

He was aware that Entergy started taking security

forces from Wackenhut and converting them to in-house security
force.

ECF No. 191, 153:21-25.

However, he was not aware that

some employees were moving from non-exempt to exempt categories.
ECF No. 191, 154:1-18.

Moreover, Mr. Spitzfaden testified that

he was not asked to analyze whether a conversion of some of
those workers was appropriate under the terms of the FLSA even
though he was responsible for oversight.
25.

ECF No. 191, 154:19-

This suggests Entergy was willfully ignorant when it

brought its security force in house.

This demonstrates

recklessness disregard sufficient to support a finding of
willfulness.
Next, Mr. Banford’s testimony suggested that the Plaintiffs
ended up receiving smaller bonuses than they were promised.
jury could have inferred that Entergy acted recklessly with
14

A

respect to their exemption status in order to pay them less than
they might have made if they were properly characterized.

Mr.

Banford testified that he was afraid that his salary was too low
and that he earned more as an officer.
178:4.

ECF No. 189, 177:24-

Mr. Patrick told him that he had never seen a bonus fall

below fifteen percent.

ECF No. 189, 178:19-21.

However, Mr.

Banford testified that one year the majority of supervisors got
between five and seven percent but he received something closer
to three percent.

He testified that he also received less than

fifteen percent in other years.

ECF No. 189, 178:24-179:2.

Mr.

McGratty also testified that he was promised a bonus of fifteen
percent during his interview.

ECF No. 190, 58:15-16.

Finally, the jury could have found that Entergy’s
representations about the nature of the overtime Plaintiffs
would be performing were not borne out in practice.

For

example, Mr. Banford testified that he applied for the SSS
position because he was “told that . . . it would be minimal
overtime” but “none of this took place.”

ECF No. 189, 177:7-13.

The jury also could have considered the charts presenting the
total number of hours and numbers of hours over forty each
Plaintiff worked.

Defs.’ Exs. Y, Z, AA, BB.

These charts

reveal that the number of overtime hours fluctuated widely over
time and even totaled more than 20 hours in some weeks.
the first year, there does not appear to be any kind of
15

After

regularity in the Plaintiffs’ schedules with respect to either
the number of work hours or overtime hours.

This suggests the

understanding that the Plaintiffs’ schedule would be consistent
did not take place in practice.
This evidence of Entergy’s willful ignorance and
disingenuousness with respect to its promises to the Plaintiffs
could have lead a reasonable jury to conclude that Entergy acted
recklessly in classifying the Plaintiffs as exempt.

Therefore,

judgment as a matter of law on this issue is not warranted. 4
3.

FLSA Exemptions

Entergy argues that the Plaintiffs in this case were
properly classified as exempt because they were covered by the
executive exemption, 29 C.F.R. § 541.100, the administrative
exemption, 29 C.F.R. § 541.200, or a combination of both, 29
C.F.R. § 541.708.
To demonstrate the executive exemption applied, Entergy had
to prove 1) that the Plaintiffs’ primary duty was the management
of the enterprise in which they were employed or of a
4

The Plaintiffs argue that their overtime claims brought under
Vermont law are subject to a six-year statute of limitations
pursuant to 21 V.S.A. § 384. Entergy disputes this. A willful
violation of the FLSA extends the statute of limitations to
three years. 29 U.S.C. § 255(a). In light of the fact that the
Court has declined to overturn the jury’s willfulness finding as
a matter of law, the Court need not decide what the state
statute of limitations is because all of the Plaintiffs’ claimed
damages accrued within three years of the date they filed suit.
16

customarily recognized department or subdivision thereof, 2) the
Plaintiffs customarily and regularly directed the work of two or
more other employees, and 3) the Plaintiffs had the authority to
hire or fire other employees or their suggestions and
recommendations as to the hiring, firing, advancement,
promotion, or any other change of status of other employees was
given particular weight. 5

29 C.F.R. § 541.100.

To demonstrate the administrative exemption applied,
Entergy had to prove 1) the Plaintiffs’ primary duty was the
performance of office or non-manual work directly related to the
management or general business operations of the employer or the
employer’s customers, and 2) the Plaintiffs’ primary duty
included the exercise of discretion and independent judgment
with respect to matters of significance. 6

29 C.F.R. § 541.200.

An employer bears the burden of proving that its employees
fall within an exempted category.

Ramos v. Baldor Specialty

Foods, Inc., 687 F.3d 554, 558 (2d Cir. 2012).
a. Primary Duty
Both exemptions require the factfinder to consider and
decide the nature of the Plaintiffs’ primary duty.

An

employee’s primary duty is the principal, main, major or most
5

The parties stipulated that the Plaintiffs were compensated on
a salary basis at a rate not less than $455 per week.
6

Id.
17

important duty.

Determining what the employee’s primary duty is

depends on all the facts of a particular case with the major
emphasis on the character of the employee’s job as a whole.

29

C.F.R. § 541.700.
At trial the Plaintiffs argued that their primary duty was
to act as first responders while Entergy argued that the
Plaintiffs’ primary duty was either management or administration
or a combination of both.

The parties largely agreed about the

various activities SSS’s perform each day.

However, they

presented sharply conflicting evidence about how those
activities should be characterized and understood and which
activity should be viewed as the most important and therefore
primary duty.
The jury did not need to find that the Plaintiffs’ primary
duty was to act as first responders in order to find that the
Plaintiffs were not exempt.

Entergy could have failed to carry

its burden of proof even if the jury did not agree with the
Plaintiffs’ theory that the SSS’s are in fact best understood as
first responders.

The jurors needed only to find that the

Plaintiffs’ primary duty was not management or administration.
That would have been sufficient to find that the Plaintiffs were
not exempt.

There was a substantial amount of evidence

suggesting that the Plaintiffs’ primary duty was something other

18

than management or administration as defined by the regulations
for each of the roles the Plaintiffs perform.
i.

CAS/SAS

Plaintiffs spend fifty percent of their time in the CAS/SAS
role.

The Plaintiffs emphasized that the CAS/SAS function is

best characterized as surveillance, and therefore a type of
first responder activity.

Several witnesses provided evidence

suggesting that this was the case.

For example, Mr. Banford

testified that the purpose of watching the monitors is
surveillance and that he spent relatively little time tracking
or evaluating the SO’s.

ECF No. 189, 71:10-12, 77:1-6.

He also

testified that he cannot be distracted with other duties because
surveillance is the main focus of CAS.

ECF No. 189, 98:25-99:4.

Next, Mr. McGratty testified that CAS/SAS entails doing
surveillance from the camera feeds and assessing alarms.
No. 190, 67:13-22.

ECF

Mr. Copperthite agreed that to comply with

NRC regulations Vermont Yankee has to have a robust surveillance
program.

ECF No. 191, 40:11-14.

Mr. Copperthite also testified

that a component of CAS/SAS is surveillance.

He even agreed

that he previously said one of the primary duties of a CAS/SAS
Operator is surveillance.

ECF No. 191, 41:9-43:4.

This was a

significant admission from a defense witness that the jury could
have reasonably credited.

19

Even Mr. Wilson agreed that surveillance is a component of
CAS/SAS although he did not agree that it was a significant one.
ECF No. 190, 157:6-18.

Finally, Mr. Parker used the term

surveillance in his deposition but refused to use the term at
trial because he said he thought it was a legal term with
significance.

ECF No. 191, 130:9-24.

When pressed he agreed

that what the SSS’s do includes surveillance.
131:2-5.

ECF No. 191,

The jury could have found Mr. Parker’s testimony that

CAS/SAS was not surveillance less credible in light of his
deposition.
Entergy emphasized that the CAS/SAS role should be viewed
as command and control, and therefore a type of management or
administrative activity.

However, based on the evidence

described above, a reasonable jury could have found that
Plaintiffs spend as much as fifty percent of their time in a
role in which their main function is to observe the plant rather
than manage other employees.
ii.

FSS

The Plaintiffs spend twenty-five percent of their time in
the FSS role.

They emphasized this role requires the SSS’s to

be at the ready to act as first responders in the event of a
contingency.

Several witness’s testimony supported this

characterization.

Mr. Banford testified that the primary role

of the FSS is to stand by ready to respond to a contingency.
20

ECF No. 189, 110:9-10.

Mr. LeClaire agreed that in the event of

a contingency that the FSS would respond with Security Officers
and they are armed to use force as needed.
12.

ECF No. 189, 237:3-

Mr. Dagg testified in deposition testimony read to the jury

that the FSS is the first to respond, along with the SO’s.
No. 190, 205:25-206:3.

ECF

In other deposition testimony that was

read to the jury, Mr. Copperthite stated that the FSS is ready
to be called into action and to be a first responder just like
anybody else on the security force.

ECF No. 191, 44:14-25.

Mr.

Parker agreed that in the FSS role that he is one of the first
responders.

ECF No. 191, 123:21-124:4.

Mr. Parker also

testified that he is acting as a first responder when going into
the field and directing the work of subordinates.

ECF No. 191,

125:24-126:4.
Entergy emphasized that the role of the FSS is, like
CAS/SAS, to exercise command and control, or in other words to
manage, in the event of contingency.

A reasonable jury could

have concluded that Plaintiffs spend as much as a quarter of
their time in the field, poised to respond to contingencies
rather than managing other employees.
iii.

LSS

Plaintiffs spend the final twenty-five percent of their
time in the LSS role.

The LSS role includes some clerical

duties and a fair amount of paperwork.
21

Plaintiffs acknowledged

the LSS role included these duties but maintained that they take
a back seat during a contingency and are therefore not the most
important aspect of the LSS role.

Mr. Banford testified that

his main function as an LSS is to be a point of contact between
security and management in the case of a contingency.
189, 83:10-12.

ECF No.

Mr. McGratty testified that when he was in the

LSS role during practice drills that he did surveillance and
made phone calls to the list of people that had to be informed.
ECF No. 190, 72:22-12.

He testified he does not give orders as

an LSS because the officers are trained the same way the SSS’s
are and already know what to do.

ECF No. 190, 73:18-24.

Entergy, on the other hand, once again emphasized the
command and control aspects of the LSS role.

A jury could have

viewed the LSS’s role in a potential contingency as the primary
duty of the LSS rather than the day-to-day clerical tasks.
However, even if the jury were to conclude that the LSS is a
more managerial or administrative role than the CAS/SAS
Operators and the FSS, the jurors still could have reasonably
concluded that these clerical tasks do not represent the primary
duty of the SSS’s overall since the Plaintiffs only spend a
quarter of their time in this role.

22

iv.

Other Testimony Regarding Plaintiff’s
Primary Duty

Plaintiffs emphasized that their primary duty was not
management by highlighting the differences between their duties
and the duties of the SOS’s who, they argue, actually manage the
shift.

For example, various witnesses testified that SOS’s and

up: make the master schedule (ECF No. 189, 146:10-20), approve
vacation requests (ECF No. 189, 157:6-9), discipline direct
reports (ECF No. 189, 165:17-22; ECF No. 190, 63:1-3, 210:5-14),
issue temporary post orders and compensatory measures when
something is broken or out of the ordinary (ECF No. 189, 168:12169:10; ECF No. 190, 69:14-20), reviews SSS evaluations of SO’s
on the team and provide guidance if necessary (ECF No. 189,
230:2-4; ECF No. 190, 215:23-216:11), make sure all the team
members maintain their qualifications (ECF No. 189, 234:5-7; ECF
No. 190, 209:7-16), handle budgeting and drafting policies and
procedures (ECF No 189, 167:16-168:8; ECF No. 190, 35:15-21,
64:10-11, 65:1-6), participate in corrective action review
groups (ECF No. 190, 37:17-24), handle grievances (ECF No 190,
39:17-18), and spot check the SO’s time sheets (ECF No. 190,
208:23-25).

Moreover, SSS’s do not grant disability leave, set

salaries, make decisions about whether SO’s should get a bonus,
create job descriptions for SO’s, review the scope of their

23

duties, or provide on-the-job training for SO’s.

ECF No. 189,

170:4-23; ECF No. 190, 69:21-22, 70:20-71:5.
Unlike SOS’s the SSS’s are armed.

Plaintiffs emphasized

that they are armed in order to act as first responders.
Testimony of various witnesses supported Plaintiffs’ theory.
For example, Mr. Banford testified that the SSS’s are armed to
fight off intruders and terrorists.

ECF No. 189, 58:5-7.

Mr.

LeClaire testified the purpose of arming up is to provide a
first response to an armed intrusion.

ECF No. 189, 235:4-6.

Mr. Ryan testified that the shift is the first line of defense
for various types of attacks.

ECF No. 190, 29:1-3.

Mr. Wilson

acknowledged that security force members are responsible for
dealing with an armed intrusion and that they are very wellarmed for that reason.

ECF No. 190, 104:19-105:3.

Even Mr.

Patrick agreed that he relies on the SSS to get out there to
deal with contingencies and to “be a first response” to those
situations.

ECF No. 191, 185:21-25.

He agreed that the reason

the SSS have weapons is to meet an intruder with deadly force
even if that is not their main purpose.

ECF No. 191, 190:3-6.

Defendants, on the other hand, emphasized that the SSS are
supervisors.

Mr. Wilson led the jury through a long list of

activities that the SSS’s perform but the SO’s do not perform,

24

suggesting that SSS’s are more like SOS’s than SO’s. 7

However,

the jury could have reasonably credited the Plaintiffs’ theory
that even though some of the SSS’s daily tasks might be somewhat
administrative or managerial that their primary duty is actually
some other aspect of their job, such as surveillance or being
prepared to respond in the event of a contingency.

The jury

could have also concluded that these clerical tasks represent
only a minority of how the Plaintiffs spend their time.
The jury did not have to find the Plaintiffs were first
responders to necessarily find that the Plaintiffs were not
7

The list includes: having direct reports; performing annual
evaluations on direct reports; performing monthly one-on-ones
with direct reports; administering job performance measurement
tests; determining if remediation is necessary and if so what
remediation should be instituted for a failure to adequately
perform a test; having the power to certify; having the
authority to order a compensatory post; having the authority to
supervise SO’s during the arming and disarming process; having
the authority to assess fitness for duty; having the authority
to coach individuals on positive and deltas and record the same;
having the authority to participate in academic review boards;
having the authority to deal with on-the-job training and task
performance evaluation; administering physical fitness tests;
ordering equipment be tested, ordering searches of vehicles,
packages, materials, and people; being marc trained; performing
duties as alarm station operators and assigning security
officers to respond to alarms; documenting completed controls in
the 24 log and entering them into the matrix; issuing badges and
recording visitors; taking devices off line and initiating
compensatory measures; modifying key card badge access areas;
conducting hourly attentiveness checks; performing background
checks; verifying the eligibility of the SO’s every shift;
conducting inventory of security keys and weapons in the armory;
initiating and submitting work orders to repair broken
equipment; verifying and calibrating the explosive detector;
making the post rotation schedule; and directing the security in
force-on-force drills. ECF No. 190, 136:10-142:6.
25

exempt, but there was sufficient evidence presented for the jury
to find that the Plaintiffs are first responders.

A reasonable

jury could have inferred that the entire power plant is the
field in which they might respond, especially since some
testimony suggested that there is another secured headquarters
miles away from which security operations are sometimes
directed.

There is simply no case law or regulation mandating

that surveillance must be limited to the security officers
manning stations on the fence line, in towers, or patrolling in
the Bearcat.
b. Other Elements of the Exemptions
Even assuming arguendo that the nature of the Plaintiffs’
primary duty was uncontested, a reasonable jury could have
concluded that Entergy still did not meet its burden of proof on
other aspects of the exemptions.
i.

Authority to Hire and Fire

First, the jury could have reasonably concluded that the
Plaintiffs did not have the authority to hire or fire other
employees, nor were their suggestions and recommendations with
respect to such decisions given particular weight.
There does not appear to be any dispute that ordinarily
SSS’s are not involved in the hiring process.
189, 229:14-16; ECF No. 191, 198:13-18.

See e.g., ECF No.

While there have been a

few occasions during which SSS’s were involved in a termination
26

decision to some extent, the jury could have credited testimony
suggesting that Plaintiffs did not actually have the authority
required by the regulation.
For example, Mr. Banford testified that he was involved in
a review board when one of his direct reports had numerous
failures qualifying with firearms.

He felt uncomfortable giving

an opinion about his direct report’s future at Vermont Yankee
because he was not a qualified arms instructor.

Mr. Banford

testified that he felt a lot of pressure to participate.
No. 189, 163:15-165:10.

ECF

When the review board decided to

terminate Mr. Banford’s direct report he refused to sign the
letter terminating his employment.

ECF No. 189, 210:6-10.

Historically discipline had been handled by Mr. Dagg, an SOS,
and this was the first time Mr. Banford had been asked to get
involved in this type of matter, well after the lawsuit had been
filed.

ECF No. 189 218:3-13.

The jury might have concluded

that this was an exceptional situation that was somehow
motivated by the lawsuit rather than the normal course of
business.
Mr. McGratty similarly testified that he had no role in
hiring, firing, or making disciplinary decisions.
62:9-20.

ECF No. 190,

He also testified that his SOS would tell him what to

do for discipline.

ECF No. 190, 63:1-3.

If an SO failed a job

performance test, Mr. McGratty testified that he would take that
27

SO off the shift and then call an SOS and Mr. Patrick to see
what to do from there.

However, he does not have the authority

to decertify the officer.

ECF No. 190, 72:1-7.

Mr. Patrick’s testimony supports this view to some extent.
He testified that the participants in the meeting that
recommended terminating Mr. Banford’s direct report did not
include any SSS’s before the recommendation made its way to the
executive review board.

ECF No. 191, 195:13-196:9.

He also

testified that the decision to fire another SO was made by folks
above Mr. Patrick’s pay grade.

ECF No. 191, 197:11-16.

Mr. Parker testified about another SO who was fired named
Larry Brouillet.

Mr. Brouillet did not have his required

equipment and was decertified and disarmed by another SSS who is
not a party to this suit.

ECF No. 191, 79:9-20. However, Mr.

Patrick testified that when Mr. Brouillet was terminated that
there were no SSS’s at the meeting where the initial consensus
to fire him was reached.

ECF No. 191, 191:16-194:20.

Mr. Ryan

testified that before an employee can be terminated or suspended
there needs to be an executive review board and while it is
theoretically possible that an SSS could present at one of these
that no SSS has ever presented.

ECF No. 190, 46:5-47:5.

Vermont Yankee faces an upcoming reduction in force.

The

SSS’s, however, have not been directly involved in any decisions
about the reduction in force except to participate in drills.
28

See ECF No. 189, 167:12-15; ECF No. 190, 45:4-25, 64:2-4; ECF
No. 191, 198:3-12.
In the light most favorable to the Plaintiffs, SSS’s do not
have the authority to hire or fire other employees nor are their
suggestions given particular weight because they are not usually
included in the process.

A jury could have viewed Mr. Banford’s

one-time requested participation as an attempt by Entergy to
give the impression his suggestions were given particular weight
after the commencement of the lawsuit.
ii.

Discretion and Independent Judgment

Next, a reasonable jury could have concluded that
Plaintiffs did not exercise discretion and independent judgment
with respect to matters of significance.

There was a

significant disagreement between the parties about the amount of
discretion and independent judgment that the SSS’s actually had.
Mr. Banford, on the one hand, testified that he has
essentially no discretion because every aspect of his job is
governed by procedure.

See, e.g., ECF No. 189, 76:21-25 (no

discretion in dispatching officers to investigate alarms),
80:13-15 (extensive procedures explain how to address a
contingency), 86:9-15 (no discretion in completing paperwork);
90:12-14 (arming up governed by procedure), 105:10-12 (no
discretion in checking visitor badges), 110:19-24 (no discretion
in how to deploy during contingency), 114:5-9 (checking
29

equipment is proceduralized), 154:20-155:12 (no discretion in
following procedure when suspicious item found), 160:22-25 (no
discretion in deciding to whom to offer overtime), 172: 3-18
(directing site resources and requesting additional personnel
driven by procedure), 192:21-24 (response to armed intrusion
driven by procedure).

He also testified that there are

disciplinary consequences if he does not follow procedures.

ECF

No. 189, 82:22-25.
Mr. McGratty similarly agreed that work at Vermont Yankee
is governed by extensive procedures that cover every aspect of
what he does.

ECF No. 190, 65:7-21.

He testified that command

and control does not involve any independent discretion or
judgment.

ECF No. 190, 68:13-18.

Mr. McGratty also testified

that in deciding what compensatory measures to put in place he
exercises no judgment and that every circumstance he has had for
five years has been covered by procedure.

ECF No. 190, 80:5-25.

Finally, Mr. McGratty testified that he has never been asked to
depart from procedures in how he might respond to an armed
contingency and he has been trained not to depart from it.

ECF

No. 191, 204:23-205:4.
Testimony from defense witnesses also supports this theory.
For example, Mr. Ryan testified that he expects the shift to
follow procedures.

ECF No. 190, 32:24-33:1.

Mr. Copperthite

testified that he would expect that members of the security
30

shift would follow procedures on a regular and customary basis.
ECF No. 191, 35:23-25.

Even Mr. Wilson’s testimony suggested

that the idea behind extensive training is to “instill the
knowledge of the procedures without being able to refer to
them,” implying that procedures actually do constrain the SSS’s
behavior during a contingency even if there is not enough time
to refer to them.

ECF No. 190, 93:8-15.

Plaintiffs also presented evidence that during the event
that came closest to a real contingency at Vermont Yankee-an
incident in which a suspicious object was found-one of the
critiques of the investigation that followed was that no one
bothered to check the procedure to determine the appropriate
steps the individuals involved should have taken.

ECF No. 190,

50:13-16; ECF No. 191, 38:7-10.
Entergy obviously attempted to discredit the notion that
the SSS’s duties do not involve any discretion and several
witnesses testified that SSS’s actually do use some independent
judgment.

However, there was ample evidence for the jury to

find the opposite.

It was up to the jury to determine whether

the testimony about the Plaintiffs’ relative discretion or lack
of discretion was credible in light of all the evidence
presented.

Entergy cannot demonstrate that a reasonable jury

could reach only one conclusion.

Therefore judgment as a matter

of law on this issue is not warranted.
31

III. Entergy’s Motion for a New Trial
A. Legal Standard
In the alternative to its motion for judgment as a matter
of law, Entergy argues the Court should order a new trial
pursuant to Federal Rule of Civil Procedure 59.

A district

court may grant a motion for a new trial if it concludes that
the jury has reached a seriously erroneous result or the verdict
is a miscarriage of justice.
237, 245 (2d Cir. 2003).

Manley v. AmBase Corp., 337 F.3d

A new trial may be granted even if

there is substantial evidence supporting the jury’s verdict.
Id.

Moreover, unlike when deciding whether to grant a Rule 50

motion, courts are free to weigh the evidence and examine it
through their “own eyes.”

Meloff v. New York Life Ins. Co., 240

F.3d 138, 147 (2d Cir. 2001).

The Court also need not view the

evidence in the light most favorable to the verdict winner.

Id.

However, Second Circuit “precedent counsels that trial
judges must exercise their ability to weigh credibility with
caution and great restraint, as a judge should rarely disturb a
jury’s evaluation of a witness’s credibility and may not freely
substitute his or her assessment of the credibility of the
witnesses for that of the jury simply because the judge
disagrees with the jury.”

Raedle v. Credit Agricole Indosuez,

670 F.3d 411, 418 (2d Cir. 2012) (internal citations and
quotations omitted).

Jury verdicts should be disturbed with
32

great infrequency.

Id.

Moreover, it is “well-settled that Rule

59 is not a vehicle for relitigating old issues, presenting the
case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple’ . . . .”

Sequa

Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).
B. Discussion
Entergy raises several arguments as to why a new trial is
warranted in this case.

The Court addresses each in turn with

this standard in mind.
1.

The Weight of the Evidence

Entergy argues that the jury’s decisions that the FWW
damages model does not apply and that Entergy acted willfully
are contradicted by or lacking any support in the evidence.
Therefore, the jury’s verdict is seriously erroneous.
Similarly, Entergy argues Plaintiff’s claim that they were
exempt first responders rested on arguments that were wrong as a
matter of law.
Plaintiffs argue that Entergy is asking the Court to simply
reach a different conclusion than the jury.

The parties

presented conflicting evidence about the questions the jury was
asked to answer.

It was up to the jury therefore to determine

whose account was credible.

Even when weighing the evidence

here, the Court does not conclude that the jury reached a
seriously erroneous result or that the verdict was a miscarriage
33

of justice.

The evidence presented was sufficient to sustain

the jury’s verdict and the Court finds no reason to disturb the
jury’s credibility determinations in this case by ordering a new
trial.
2.

Jury Charge

“A jury instruction is erroneous if it misleads the jury as
to the correct legal standard or does not adequately inform the
jury on the law.”

Bank of China v. NBM LLC, 359 F.3d 171, 176

(2d Cir. 2004) (internal quotation omitted).

An instruction

must allow the jury to adequately assess evidence on which a
party relied.

Id.

When jury instructions, taken as a whole,

give the jury a misleading impression or an inadequate
understanding of the law, a new trial is warranted.

Plagianos

v. Am. Airlines, Inc., 912 F.2d 57, 59 (2d Cir. 1990).

An

erroneous instruction requires a new trial unless the error is
harmless, meaning the error did not influence the jury’s
verdict.

Bank of China, 359 F.3d at 176.

The jury charge is

adequate, however, when taken as a whole it is correct and
sufficiently covers the case so that a jury can intelligently
determine the questions presented to it.

Hathaway v. Coughlin,

99 F.3d 550, 552 (2d Cir. 1996).
As an initial matter, the Court notes that it took great
care in drafting the jury charge in this case.

First, the Court

prepared a draft of the charge that attempted to incorporate
34

language requested by both sides while simultaneously
recognizing that if every suggestion were adopted it would be
extremely lengthy and likely confusing.

The Court also looked

at Sand’s Modern Federal Jury Instructions as a guide to help
streamline and summarize some of the longer and more cumbersome
suggestions.

The Court excluded language that was superfluous

or obvious and generally sought to avoid including any
instruction that might suggest to the jury how it should view
the evidence one way or another.

The Court also excluded some

arguments that could be made in summation in order to avoid
putting the Court in the role of advocate for either side’s
theory of the case.
The parties received the draft at the end of the third day
of the trial and the Court held a charge conference at the
beginning of the fourth day.

The Court considered objections

from both sides and ultimately granted many of the parties’

35

requests to change particular language. 8

Entergy now renews

several objections it made during the charge conference in its
motion for a new trial.
a. Entergy’s Burden Regarding the Exemptions
First, Entergy objects to the Court’s inclusion of the
phrase “plainly and unmistakably” in its charge and argues that
this language elevated its burden of proof above a preponderance
of the evidence with respect to the exemptions.

A party’s

evidentiary burden describes, in essence, the quantity of
evidence that a proponent is required to present in order to
8

The Court agreed to: 1) change the phrase “eligible employees”
to “non-exempt employees” in the general description of the
FLSA, 2) delete a sentence about how overtime pay usually works
in the general description of overtime, 3) delete a sentence
describing the exemptions as “narrowly construed against
Entergy,” 4) delete a sentence stating if the record is unclear
as to an exemption, Entergy will have failed to satisfy its
burden, 5) clarify that the executive exemption applies if the
Plaintiff’s suggestions and recommendations as to hiring,
firing, advancement, promotion or other changes of status of
other employees are given particular weight, 6) add an
instruction defining the phrase “department or subdivision,” 7)
add an instruction delimiting factors to consider when
determining whether employee’s suggestions and recommendations
are given “particular weight,” 8) add a sentence clarifying that
work that is directly and closely related to the performance of
management work is also considered exempt work, 9) add the
phrase “or non-manual” to describe the administrative exemption,
10) explain that the same considerations regarding primary duty
in the executive exemption also apply to the administrative
exemption, 11) explain that an employee’s decisions need not be
final nor their authority unlimited and the fact that decisions
are subject to review does not defeat a finding of discretion
and independent judgment, and 12) change the word “may” to
“should” in a description of the combination exemption. See ECF
No. 192, 3:2-38:4.
36

prevail on an issue.

To prove something by a preponderance of

the evidence, the proponent must introduce a quantum of proof
sufficient to push the factfinder over the line from less likely
or equally likely to more likely than not.

The “plainly and

unmistakably” rule, on the other hand, is an essential part of
the applicable legal standard that describes the quality of the
evidence that is required to find an employee is exempt.

It

describes the kinds of things that the exemptions cover.

The

jury must consider both the quantity and quality of evidence
when evaluating it and must therefore be instructed on both
concepts.

However, including an instruction about how to

understand what quality of evidence should persuade the jury
does not affect the employer’s burden with respect to the
quantity of evidence it is required to introduce.
The Court clearly instructed the jury that Entergy’s
evidentiary burden was a preponderance of the evidence.

The

Court first discussed the nature of the preponderance standard
with the jury during the voir dire process and in its
preliminary instructions.

In its charge, the Court refers to

the preponderance standard several times.

First, in a section

describing the difference between direct and circumstantial
evidence, the Court explained that “the law makes no distinction
between direct and circumstantial evidence, but simply requires
that you find the facts in accordance with the preponderance of
37

all the evidence in the case, both direct and circumstantial.”
ECF No. 181 at 5.

Next, the Court included an extensive

description of the preponderance standard in a general section
entitled “Burden of Proof,” including language stating, “To
prove something by a preponderance of the evidence means to
prove that something is more likely true than not true.

A

preponderance of the evidence means the greater weight, or
logic, or persuasive force of the evidence.”

ECF No. 181 at 7.

Finally, the Court reminded the jury about the preponderance
standard either immediately before or immediately after the two
instances it referred to the “plainly and unmistakably” rule in
its charge.

Taken as a whole, the charge is clear that the

evidentiary burden is at all times the preponderance of the
evidence and that the quantity of evidence required was only
enough to make that fact more likely true than not.
If the Court had not included the plainly and unmistakably
language, its instruction would have given the jury only half of
the understanding required to make an intelligent decision as to
whether Entergy properly characterized the Plaintiffs as exempt.
The Supreme Court has “held that [FLSA] exemptions are to be
narrowly construed against the employers seeking to assert them
and their application limited to those establishments plainly
and unmistakably within their terms and spirit.”

Arnold v. Ben

Kanowsky, Inc., 361 U.S. 388, 392 (1960) (emphasis added); see
38

also Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558
(2d Cir. 2012); Bilyou v. Duchess Beer Distributors, Inc., 300
F.3d 217, 222 (2d Cir. 2002).

The “plainly and unmistakably”

language finds its origins in A.H. Phillips, Inc. v. Walling,
324 U.S. 490, 493 (1945).

There the Court noted that the FLSA

was “designed to extend the frontiers of social progress by
insuring all our able-bodied working men and women a fair day’s
pay for a fair day’s work.”

Id. (internal quotation omitted).

Exemptions from such “humanitarian and remedial legislation”
must therefore be narrowly construed.

Id.

To extend an

exemption “other than [to] those plainly and unmistakably within
its terms and spirit is to abuse the interpretative process and
to frustrate the announced will of the people.”

Id.

The Second Circuit has described the “exemption question”
as a mixed question of law and fact with essentially two
components.

Ramos, 687 F.3d at 558.

The question of how

employees spend their time is a question of fact, while the
question of whether their particular activities excluded them
from overtime benefits of the FLSA is a question of law.

Id.

In addressing this second aspect of the question, the exemptions
must be “narrowly construed” and the employer bears the burden
of proving its employees fall within an exempted category of the
FLSA.

Id.; see also Meza v. Intelligent Mexican Marketing, 720

F.3d 577, 581 (5th Cir. 2013) (“The employer must prove facts by
39

a preponderance of the evidence that show the exemption is
‘plainly and unmistakably’ applicable.”);

Maestas v. Day &

Zimmerman, LLC, 664 F.3d 822, 926 (10th Cir. 2012)

(“It is the

employer’s burden to prove that an employee falls ‘plainly and
unmistakably’ within a FLSA exemption.”); Cleveland v. City of
Los Angeles, 420 F.3d 981, 988 (9th Cir. 2005) (“[T]he
[employer] has the burden to prove that Plaintiffs meet each
element of the § 207(k) exemption . . . and that Plaintiffs fit
‘plainly and unmistakably’ within the terms and spirit of the
exemption.”); Spinden v. GS Roofing Products Co., 94 F.3d 421,
426 (8th Cir. 1996) (“The burden is on the employer to prove
that this exemption applies by demonstrat[ing] that their
employees fit plainly and unmistakably within the exemption’s
terms and spirit.”) (internal quotation omitted)); Friedrich v.
U.S. Computer Services, 974 F.2d 409, 412 (3d Cir. 1992) (“It is
the employer’s burden to affirmatively prove that its employees
come within the scope of the overtime exemption, and any
exemption from the Act must be proven plainly and
unmistakably.”).
In dicta the Supreme Court has described its “plainly and
unmistakably” rule as one “governing judicial interpretation of
statutes and regulations.”
63 (1997).

Auer v. Robbins, 519 U.S. 452, 462-

Indeed, the vast majority of decisions in which

courts refer to the rule come from motions for summary judgment
40

or bench trials.

In this case, however, it was the jury that

decided the ultimate exemption question.

There are relatively

few cases describing how a jury, rather than a court, should be
instructed to evaluate whether employees are exempt.
The Second Circuit has noted, however, that mixed questions
of law and fact, common to FLSA claims, “are especially wellsuited for jury determination.”

Ling Nan Zheng v. Liberty

Apparel Co., 617 F.3d 182, 185 (2d Cir. 2010) (internal
quotation omitted).

A recent Supreme Court case confirms that

it is appropriate to submit mixed questions to juries.
Financial, Inc. v. Hana Bank, 135 S. Ct. 907 (2015).

See Hana
(“[T]he

application-of-legal-standard-to-fact sort of question . . .,
commonly called a ‘mixed question of law and fact,’ has
typically been resolved by juries.” (quoting United States v.
Gaudin, 515 U.S. 506, 512 (1995)).

Although juries are

factfinders, “the jury’s constitutional responsibility is not
merely to determine the facts, but to apply the law to those
facts and draw the ultimate conclusion . . . .”
U.S. at 514.

Gaudin, 515

A mixed question may be submitted to the jury only

if the jury is instructed to the applicable legal standards.
Simms v. Village of Albion, N.Y., 115 F.3d 1098, 1110 (2d Cir.
1997).
The “plainly and unmistakably” language is an essential
part of the applicable legal standard that courts deciding the
41

exemption question are required to consider in order to
effectuate congressional intent.

A jury must be properly

instructed to do the same because this language is consistent
with Congress’s remedial and humanitarian purpose in enacting
the FLSA.

Omitting this language from the charge would have

resulted in a failure to instruct the jury on relevant and
binding law.
Entergy contends that the “law questions” were answered by
the Court’s instructions to the jury so the “plainly and
unmistakably” canon of construction should not have been used
for the jury’s determination of the “fact question.”
200 at 20.

ECF No.

Thus, according to Entergy, the “plainly and

unmistakably” language should not have been included in the
charge at all.

Entergy’s argument is undermined by the case law

and is belied by Entergy’s requested instruction.

The “fact

question” as its described in Ramos would only require the jury
to answer how the employees spent their time.

Neither Entergy

nor the Plaintiffs requested that the jury only determine how
the Plaintiffs spent their time.

Rather both parties requested

instructions on all of the elements of each exemption.

The

mixed question here is not easily separated into its component
parts because each element of the exemption requires the jury to
resolve some sort of factual dispute (for example, the nature of
the employee’s primary duty).

The jurors necessarily decided
42

both aspects of the question in rendering their verdict and so
they were required to consider both the quantity and quality of
Entergy’s evidence just as a court would in the same position.
Lederman v. Frontier Fire Protection, Inc., 685 F.3d 1151
(10th Cir. 2012) is not dispositive here because the trial
court’s erroneous instruction in Lederman is distinguishable, as
is the Lederman court’s description of the exemption question.
In Lederman the trial court instructed the jury that an
“employer seeking an exemption from the overtime requirements of
the FLSA bears the burden of proving that the particular
employee fits plainly and unmistakably within the terms of the
claimed exemption.”

Id. at 1154 (emphasis added).

The trial

court left jurors with the impression that the defendant’s
burden in terms of quantity was not, therefore, a preponderance
of the evidence.

In reversing the trial court, the Tenth

Circuit found it relevant that the instruction “spoke explicitly
in terms of the burden of proof.”

Id. at 1159.

In this case the Court did not instruct the jury to
consider the evidence under a higher burden than the
preponderance of the evidence standard.

Id. at 1158-59.

The

two sentences in which the phrase “plainly and unmistakably”
appears in the charge do not contain the word burden.

Moreover,

the charge states Entergy “must prove that one or more of the
exemptions apply by a preponderance of the evidence.”
43

ECF No.

181 at 10.
Lederman is also distinguishable because the Tenth Circuit
did not describe the exemption question as a mixed question of
law and fact in the same terms that the Second Circuit has.
Rather, it states that “[o]nce a court finds the employer is
eligible to claim the exemption, the factfinder reviews the
disputed facts to determine if the exemption is met.”
1158.

Id. at

This is subtly different from the two aspects of the

exemption question the Second Circuit described in Ramos.

Even

though Lederman is ostensibly describing the legal standard in
the context of jury instructions, this language seems to suggest
a Court would first evaluate the exemption as a matter of law in
the summary judgment context.
The Lederman court seemed primarily concerned with
addressing an apparent inconsistency in Tenth Circuit case law
and resolving once and for all that the evidentiary burden of
proof is a preponderance of the evidence, not “clear and
affirmative evidence.”

Id.

This Court is in perfect agreement

with the Lederman court on that point.

Lederman does not,

however, explain what a proper instruction would have been, only
that the instruction as given left the jury with a misleading
impression.

The Court’s charge properly instructed the jury on

the two aspects of the exemption question without improperly
elevating Entergy’s burden of proof.
44

At least one other district court in this circuit has given
a similar instruction when applying Second Circuit precedent.
The Perkins court noted that the defendant only had the burden
of proving the exemptions applied by a preponderance of the
evidence.

However, “[i]n recognition that the exemptions are

meant to be construed narrowly, as instructed by the Supreme
Court and the Court of Appeals for the Second Circuit, the court
incorporated the ‘plainly and unmistakably’ language into its
instructions to the jury.”

Perkins v. So. New England Telephone

Co., No. 3:07-CV-967 JCH, 2012 WL 517286, at *4 (D. Conn. Feb.
14, 2012). 9

The Perkins court’s charge instructed:

You should consider the exemptions from overtime that SNET
asserts as narrow exemptions from the presumption that
plaintiffs are entitled to overtime compensation. That is,
these exemptions are limited to employment positions which
plainly and unmistakably come within the terms and spirit
of the federal and state law. If you find that SNET has
not proven that the plaintiffs fall within the specific
terms of the exemption as I describe them, you must find
that Plaintiffs are entitled to overtime compensation. If,
however, you find that SNET has overcome this presumption
and proven that the plaintiffs fall within the specific
terms of the exemption as I describe them, you must find
that the plaintiffs are not entitled to overtime
compensation.
ECF No. 209-1 at 25.

The Perkins court did not refer to the

preponderance burden in this section of the charge, although it
did in other sections of the charge discussing the exemptions.

9

The case ultimately settled so the Second Circuit never
reviewed this instruction.
45

If the Court had deleted the phrase “plainly and
unmistakably” as Entergy requested, the Plaintiffs would have
been prejudiced by an incomplete statement of the law.

The

Court’s instruction appropriately incorporated the two concepts
of quantity and quality.

Therefore a new trial is not warranted

on the basis of this instruction.
b. Fluctuating Workweek Model
Next, Entergy argues that the Court’s instructions on the
FWW model failed to adequately instruct the jury on aspects of
the law that were relevant based on the evidence, namely 1) that
there need not be an express or written agreement, 2) an
agreement may be implied by the parties’ course of conduct, and
3) that the Plaintiff’s subjective beliefs about the hourly
requirements were not determinative.
Entergy proposed the following language be added to the
charge:
The parties’ understanding need not be written or even
explicit, and the Plaintiff’s subjective beliefs about what
his position might entail are not determinative; rather,
the parties conduct is sufficient and you may find such an
understanding if the evidence shows that Plaintiff clearly
knew his salary remained the same each workweek, but was
required to work differing hours each week.
ECF No. 200-1 at 13. Instead the Court instructed the jury: “In
evaluating what the understanding between the parties was you
[may] take all factors into account, both explicit and
implicit.”

ECF No. 181 at 21.
46

Generally the Court avoided commenting on the evidence in a
way that seemed to suggest that the jury should reach one result
or another.

Entergy’s proposed instruction put too much

emphasis on the possibility of finding an implied agreement and
would have been unfair to the Plaintiffs because it might have
suggested that the Court believed that there was an implied
agreement.

The Court’s instruction was sufficient to instruct

the jury that it could consider whether an implied agreement
existed and Entergy was free to argue that such an agreement did
exist in its summation.

That counsel for Entergy did not

specifically argue that the facts supported finding an implied
agreement is no fault of the Court’s instruction.
c. Willfulness
Entergy argues that language in the instruction on
willfulness permitted the jury to find Entergy acted willfully
under a negligence standard rather than the higher standard the
law requires.

The Court’s instruction on willfulness came right

from Sand’s Modern Federal Jury Instructions and is entirely
consistent with federal law.

See, e.g., Pollis v. New School

for Social Research, 132 F.3d 115, 119 (2d Cir. 1997) (noting
that a violation is willful if the employer “either knew or
showed reckless disregard for the matter of whether its conduct
was prohibited by the statute”).

Entergy now argues language

referring to failures to act permitted the jury “to adopt
47

Plaintiffs’ negligence theory.”

ECF No. 200 at 23.

However,

Entergy did not object to the instruction’s reference to
failures to act during the charge conference, so any argument
regarding this specific language is waived.
Entergy did request that the Court add the following
language to its instruction on willfulness: “An employer does
not act willfully if it makes a mistake, or is negligent, in its
determination that an employee is exempt from the overtime laws.
Put differently, a finding that Entergy should have known of the
Plaintiff’s exempt status is not sufficient for a willfulness
finding.”

ECF No. 200-1 at 14.

This language was not necessary

to enable the jury to adequately understand the question it was
being asked to answer and would have put undue emphasis on
Entergy’s theory of the case.

The Court’s instruction was

entirely appropriate.
d. First Responder
Entergy raises several arguments as to why the Court’s
instruction on the Department of Labor’s first responder
regulation was inadequate.

The Court notes at the outset that

this was a highly contested area of law and that crafting a
balanced and accurate instruction would necessarily mean that
neither side would get the exact language it requested.
A significant portion of the language in the charge came
from the first responder regulation itself.
48

The Court included

the list of examples of first responder activities from 29
C.F.R. § 541.3(b)(1).

Other language in the charge came

directly from descriptions in Mullins v. City of New York, the
most thorough opinion on the regulation from the Second Circuit.
653 F.3d 104 (2d Cir. 2011).

For example, the charge states

“individuals performing first responder functions are not exempt
under the administrative or executive exemption even if they
also direct the work of other employees in the conduct of such
‘first responder’ duties.”

ECF No. 181 at 19.

Mullins

similarly states that the Secretary of Labor (whose opinion
regarding the regulation the court adopted) stated that “field
law enforcement work does not become management simply because
the police officer ‘directs the work of other employees’ while
performing this work.”

653 F.3d at 115.

Likewise, the Charge

instructs, “Certain managerial tasks such as directing
operations at a crime, fire, or accident scene when performed by
high-level personnel who typically do not engage in front-line
activities would still be considered management.”
at 19.

This is nearly a direct quote from Mullins.

ECF No. 181
653 F.3d at

116.
Mullins also makes clear that the first responder
regulation is still concerned with understanding what the
employee’s primary duty is.

653 F.3d at 115 (“The Secretary

does not, as a result, eliminate the primary duties test.”).
49

The Court therefore instructed the jury that the determining
factor was the employee’s primary duty “based on the totality of
the circumstances.”

ECF No. 181 at 19; see also 29 C.F.R. §

541.700 (“Determination of an employee's primary duty must be
based on all the facts in a particular case, with the major
emphasis on the character of the employee's job as a whole.”).
Mullins also suggests that a potential distinction between
work done in the field and work done remotely is a factor to
consider in determining whether an individual’s primary duty is
indeed management or other exempt work.

Compare 653 F.3d at 114

(“[T]he example provided in section 541.3(b)(2) simply
illustrates the first responder regulation’s essential
principle: the performance of non-exempt field law enforcement
work that involves supervision of other officers does not
transform that non-exempt work into exempt management.”)
(emphasis added) with id. at 115 (“[C]ertain managerial tasks
such as ‘directing operations at crime, fire, or accident
scenes’ when performed by high-level personnel who typically did
not engage in any front-line activities would still be
considered ‘management.’”) (emphasis added).

The Court thus

instructed the jurors that they could consider the location
where an employee performs his duties as an important factor but
as one of many circumstances that they may take into account.
ECF No. 181 at 20.

However, that such activities occur “in the
50

field” is not the dispositive element.

653 F.3d at 115.

The

Court therefore instructed the jury not to decide on that basis
alone.
Entergy argues that the court should have defined “legal
terms of art” such as “first response,” “surveillance,” and
“investigate” rather than let the jury use a colloquial
definition.

ECF No. 200 at 25-36.

However, the authorities

Entergy previously cited and now cites in its motion to support
its definitions come largely from the summary judgment context,
which are necessarily fact-dependent.

Neither the regulations

nor binding case law provides definitions for any of these
terms, nor is there any authority suggesting that colloquial
understanding of these words is inappropriate or inconsistent
with the meaning of the regulation.
With respect to Entergy’s requested instruction regarding
“surveillance” in particular, if the Court had adopted Entergy’s
definition it would have significantly undermined the
Plaintiffs’ case.

Moreover, such an instruction was not

warranted based on existing case law.

Entergy asked the Court

to add the following language: “It is also important to note
that the term ‘performing surveillance’ refers to field
operations by law enforcement personnel in which they, alone or
in cooperation with others, go into the field to observe
criminal activity.”

ECF No. 200-1 at 13.
51

Entergy’s argument

that this is the “only interpretation of surveillance consistent
with the plain language of the regulation” is simply
unpersuasive.

ECF No. 200 at 13.

The regulation itself does

not define surveillance and there is no evidence that a
colloquial meaning would be inconsistent with the Department of
Labor’s intent.
e. Highly-Regulated Workplace
Finally, Entergy argues the Court did not give the jury
adequate legal tools to weigh the credibility of Plaintiffs’
testimony that in any situation, even in an active armed attack,
that they would read or refer to a dense procedure document to
determine their actions.
The Court instructed the jury:
The overtime exemptions are not available for employees who
simply apply well-established techniques or procedures
described in manuals or other sources to determine the
correct response to an inquiry or set of circumstances.
However, reliance upon manuals, does not, in itself,
preclude exemption. An employee may be exempt even if his
discretion is circumscribed by a manual as long as that
employee makes independent judgments.
ECF No. 181 at 10.
Entergy requested that the Court include the following
language:
The fact that Entergy’s operations at Vermont Yankee,
including its security operations, are heavily regulated by
the federal Nuclear Regulatory Commission should not alone
cause you to find Plaintiffs did not exercise discretion
and independent judgment as to matters of significance.
Many industries and employers are subject to extensive
52

governmental regulations and rules that channel and
constrain the conduct of employees in those industries.
The question for you to answer is not the extent of
regulation that applies to Entergy’s Vermont Yankee
Security Operations but, instead, you must determine
whether the Plaintiffs exercise discretion and independent
judgment. Even in a highly regulated workplace, an
employee may exercise discretion and independent judgment
if they make independent choices and have discretion to
take actions within the scope permitted by the regulations,
exercise discretion in applying those regulations as part
of their duties, or make independent choices and exercise
discretion to address situations and issues that arise that
are not specifically addressed by the regulations. In
addition, in evaluating whether an employee’s exercise of
independent judgment and discretion relates to matters of
significance, you may consider that compliance with
governmental safety and security regulations is important
for companies in the nuclear industry and the public.”
This language was not necessary to properly instruct the
jury and advocated too strongly for the Defendant’s theory of
the case.

As described above there was a substantial conflict

in the testimony about the SSS’s discretion and Entergy concedes
that “it was up to the jury to weigh the credibility of that
assertion.”

ECF No. 200 at 26.

The language Entergy requested

above fell outside the regulatory definitions and
interpretations of the administrative exemption.

The cases

Entergy cited to support its request did not require the Court
to adopt this precise language.
3.

Evidence Regarding Wackenhut

Entergy moved in limine to preclude the Plaintiffs from
offering any evidence or argument concerning their duties and
non-exempt classification at Wackenhut.
53

The Court stated at a

motions hearing that it would allow Plaintiffs to present
evidence about their own employment and compensation at
Wackenhut only for purposes of demonstrating their understanding
and state of mind upon being hired at Entergy.
36-37.

ECF No. 194 at

Entergy argues that the Plaintiffs crossed the “delicate

line” the Court set out in its pre-trial ruling because they
were permitted to argue and offer evidence that Entergy should
have treated Plaintiffs as exempt because Wackenhut had.
Entergy waived any objections that it did not raise at
trial.

Of the testimony Entergy now claims was improper, it

objected in only a few places during the trial.

First, Entergy

claims it was improper that Mr. Banford testified that roles he
performed at Wackenhut were the same as the SSS role at Entergy,
that employees in those roles were paid hourly, and that Entergy
knew of that pay structure.

However, counsel for Entergy only

objected when Mr. Banford was asked how much he earned at
Wackenhut.

The Court overruled the objection.

The amount Mr.

Banford was previously paid was relevant to his state of mind in
evaluating his compensation at Entergy.
Second, Mr. Dagg testified that he was previously a
Security Officer at Wackenhut and he worked at both CAS and SAS
for Wackenhut.

Entergy objected when counsel for Plaintiffs

asked Mr. Dagg whether CAS/SAS is now done exclusively by SSS’s.
The Court admonished counsel not to go too far but permitted
54

this question about who performs CAS/SAS now.

Counsel did not

ask Mr. Dagg about how he was paid at Wackenhut or whether he
was exempt or non-exempt.

This single question about which

employees perform CAS/SAS now does not suggest that the
positions are necessarily equivalent nor does it cross the line
the Court had envisioned.

The questions that follow are about

the amount of time each SSS performs CAS/SAS functions.
Third, Entergy objected when Mr. Spitzfaden was asked if
former Wackenhut workers were switched from nonexempt union
positions to exempt nonunion positions when the security force
went in house.

The Court overruled the objection because this

question went to the heart of Plaintiffs’ willfulness theory.
It was highly relevant whether Mr. Spitzfaden, as the person in
charge of FLSA compliance, knew whether the employees were
moving from non-exempt to exempt status.

This evidence was not

offered to prove Wackenhut’s non-exempt classification was
correct.
Finally, Entergy objected when Counsel for Plaintiffs asked
Mr. Patrick whether Wackenhut employees were being paid
overtime, which the Court sustained.

There is no reason to

think that sustaining Entergy’s objection before Mr. Patrick
answered caused Entergy any prejudice.
All of the Court’s rulings conformed with its pre-trial
ruling on Entergy’s motion in limine and were consistent with
55

the Court’s broad discretion in choosing whether to admit
evidence.
None of Entergy’s arguments have persuaded the Court that a
new trial is warranted here.

Accordingly, Entergy’s motion for

a new trial is denied.
IV.

Plaintiffs’ Motion for a Judgment Order Incorporating the
Jury Verdict
A. Legal Standard
Since the Court will deny Entergy’s motions for the reasons

stated above, the only question remaining is whether Plaintiffs
are entitled to liquidated damages pursuant to 29 U.S.C. §
216(b).

A district court is generally required to award

liquidated damages equal in amount to actual damages.

Barfield

v. New York City Health and Hospitals Corp., 537 F.3d 132, 151
(2d Cir. 2008).

Double damages are the norm and single damages

are the exception.

Id.

However, courts retain discretion to

deny liquidated damages where the employer shows that, despite
its failure to pay appropriate wages, it acted in subjective
“‘good faith’” with objectively “‘reasonable grounds’” for
believing that its acts or omissions did not violate the FLSA.
Id. (quoting 29 U.S.C. § 260).
To establish subjective good faith, an employer must show
that it took “active steps to ascertain the dictates of the FLSA
and then act to comply with them.”
56

Id. (quoting Herman v. RSR

Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)).

The Second

Circuit has described the employer’s burden in meeting this
standard as a “heavy” one.

Id.

B. Discussion
As discussed above, the jury reasonably found that
Entergy’s violation of the FLSA was willful, meaning Entergy
showed reckless disregard for the matter of whether its conduct
was prohibited by the statute.

Opinions from other district

courts in this circuit suggest a finding of willfulness
necessitates finding a corresponding lack of good faith.

For

example, in Yu Y. Ho v. Sim Enterprises, Inc., No. 11 Civ.
2855(PKC), 2014 WL 1998237, at *17 (S.D.N.Y. May 14, 2014) the
court noted that although the defendants did not attempt to
establish good faith, that even if they had they would have been
unsuccessful because their violations were willful.

Likewise,

in Lanzetta v. Florio’s Enterprises, Inc., No. 08 Civ. 6181(DC),
2011 WL 3209521, at *6 (S.D.N.Y. July 27, 2011) the court stated
that “once the employer’s willfulness has been established . . .
the FLSA seem[s] to require that a plaintiff be awarded
liquidated damages.”
One district court even suggests that the Second Circuit
has “squarely held” that a district court may not find good
faith after a jury has concluded that the employer willfully
violated the FLSA.

Scott v. City of New York, No. 02 Civ.
57

9530(SAS), 2009 WL 1138719 (S.D.N.Y. April 27, 2009).

However,

the case the Scott court cites, Pollis v. New School for Social
Research, 132 F.3d 115 (2d Cir. 1997), merely states that the
evidence was sufficient to support the jury’s finding of a
reckless or willful violation and that the resulting
compensatory award should be doubled pursuant to the FLSA’s
liquidated damages provision.
It is unclear from the Pollis opinion whether the court’s
statement applies to all willful violations or simply to the
willful violation in that case.

However, the court does cite

two other opinions with approval that suggest that courts are
bound to award liquidated damages when the jury finds the
violation was willful.

See Brinkman v. Dep’t of Corr. of State

of Kan., 21 F.3d 370, 373 (10th Cir. 1994) (“The same
willfulness standard for the statute of limitations issue
applies to the liquidated damages issue . . . .”);

EEOC v. City

of Detroit Health Dep’t, Herman Kiefer Complex, 920 F.2d 355,
358 (6th Cir. 1990) (“Since the jury determined that the City’s
violation of the Equal Pay Act was willful, and since the
district court was, in determining whether the violation was in
good faith and with reasonable grounds, presented with the same

58

issue, the district court was bound by the jury finding.”) 10

The

Court feels obligated to follow suit and hold that a finding of
willfulness necessitates an award of liquidated damages.
Even if the Court were not bound to find a lack of good
faith based on the jury’s finding of willfulness, liquidated
damages are nevertheless appropriate here.

Similar to the

defendants in Reich v. Southern New England Telecommunications,
121 F.3d 58 (2d Cir. 1997) and Barfield v. New York City Health
and Hospitals Corp., 537 F.3d 132 (2d Cir. 2008), Entergy took
no active steps to ascertain the dictates of the FLSA in this
case.

Barfield, 537 F.3d at 150 (explaining that “good faith”

requires an employer first take active steps to ascertain the
dictates of the FLSA and then move to comply with them); Reich,
121 F.3d at 71 (same).

Entergy cited nothing in the record,

much less proffered that it attempted to ascertain the dictates
of the FLSA with respect to the SSS’s exemption
characterization.

The only testimony from anyone responsible

for ensuring compliance with the FLSA was Mr. Spitzfaden’s
testimony.

He stated no one asked him to analyze whether a

conversion of the workers would be appropriate.

Nor did Mr.

Spitzfaden undertake such an analysis unprompted of his own
10

In its opposition to the Plaintiffs’ motion, Entergy does not
cite any legal authority demonstrating a court is permitted to
find good faith when the jury properly found the violation was
willful.
59

accord.

Entergy may not have intentionally violated the FLSA

and may have honestly believed its employees were exempt but
there is no evidence it took any steps at all to see that its
characterization was appropriate.

Therefore even if the Court

were not obligated to find a lack of good faith when faced with
the jury’s willfulness finding, it would nevertheless find a
lack of good faith here.
Conclusion
The Court grants Entergy’s motion for judgment as a matter
of law on the fluctuating workweek issue with respect to
Plaintiffs Miller and Stratton only.

The Court denies Entergy’s

motion for judgment as matter of law in all other respects and
denies Entergy’s motion for a new trial.

Accordingly, the Court

denies Plaintiffs’ motion with respect to Plaintiffs Miller and
Stratton on the FWW issue but grants Plaintiffs’ motion for
judgment incorporating the jury verdict in all other respects.
The Court orders the parties to recalculate Mr. Miller and
Mr. Stratton’s damages using the FWW method and to submit that
revised calculation to the Court within 14 days of the date of
this Opinion and Order.
Dated at Burlington, in the District of Vermont, this 11th
day of February, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
60