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Pennington v. Fluor Corp.

United States District Court, D. South Carolina, Rock Hill Division

July 17, 2018

Harry Pennington III and Timothy Lorentz, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
Fluor Corporation, Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc., SCANA Corporation, and South Carolina Electric & Gas Company, Defendants.

          ORDER AND OPINION

         This matter is before the court pursuant to Plaintiffs Harry Pennington III and Timothy Lorentz's Motion for Class Certification, on behalf of themselves and all others similarly situated (collectively, “Plaintiffs”) (ECF No. 21). Defendants Fluor Corporation, Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc. (collectively, “Fluor Defendants”), SCANA Corporation (“SCANA”), and South Carolina Electric & Gas Company (“SCE&G”) (collectively, “SCANA Defendants”) filed responses in opposition (ECF Nos. 37, 123, 124). For the reasons set forth below, the court GRANTS Plaintiffs' Motion for Class Certification (ECF No. 21).

         I. BACKGROUND RELEVANT TO THE INSTANT MOTION

         This case arises out of the decision on July 31, 2017, to stop all construction at the V.C. Summer Nuclear Station (“VC Summer”) in Jenkinsville, South Carolina. (ECF No. 41 at 2 ¶ 4.) As a result of that decision, Plaintiffs allege that approximately 5, 000 employees were laid off who had been working and/or receiving assignments at VC Summer. (Id. at 5 ¶ 23.) Until their respective terminations, Plaintiffs further allege that Pennington worked directly for Fluor Daniel at VC Summer as a Heavy Equipment Operator and Lorenz was employed by Westinghouse Electric Company LLC (“WEC”) as a Project Manager. (Id. at 4 ¶¶ 14, 15.) However, at the same time, for purposes of the WARN Act, Plaintiffs allege that they were employees of SCANA Defendants. (Id. at 2 ¶¶ 1, 2.) To this point, Plaintiffs generally allege that SCANA Defendants were the single employer together with Fluor Defendants and/or WEC of all individuals working at VC Summer. (Id. ¶ 6; see also Id. at 3 ¶ 7, 19 ¶ 103 & 22 ¶ 118.)

         In their Amended Complaint, Plaintiffs allege that in 2008, SCANA Defendants entered into an agreement with WEC for the purpose of constructing “two AP-1000[1] nuclear reactors known as VC Summer 2 and 3.” (ECF No. 41 at 6 ¶ 31.) Plaintiffs allege that as the general contractor “WEC was generally responsible for the design, manufacture, and procurement of the nuclear reactor, steam turbines, and generators.” (Id. at 7 ¶ 34.) Plaintiffs further allege that in or around 2015, Fluor Corporation was brought in as a subcontractor to WEC to “provide staffing for craft (manual labor) employees and [] take primary responsibility for on-site construction” to include “responsibility for the craft, field engineers, and project controls personnel including the costs and scheduling of personnel.” (Id. ¶¶ 37, 38.) At the same time, WEC “generally accepted liability for the cost overruns on the Summer Project, by agreeing to build it for a ‘fixed-price' at SCANA [Defendants]' option, ” which option was exercised in May 2016 thus “capping [] costs for the Summer Project at close to $14 billion.” (Id. ¶¶ 39, 40.)

         Plaintiffs allege that “[i]n early 2017, WEC experienced cash shortfalls related to the Summer Project and a deepening liquidity crisis, ” which eventually led to WEC and its subsidiaries fil[][ing] [] voluntary petitions for relief under Chapter 11 of Title 11 of the United States Bankruptcy Code in the Southern District of New York” on March 29, 2017. (ECF No. 41 at 8 ¶¶ 44, 45.) Plaintiffs allege that as a result of WEC's bankruptcy “SCANA [Defendants] became financially accountable for the ongoing costs and plan of completion” for the VC Summer Project. (ECF No. 71 at 10.) Moreover, Plaintiffs assert that SCANA Defendants took over complete control of the VC Summer Project as demonstrated by the following post-bankruptcy conduct:

• “SCANA [Defendants] began paying Fluor's payroll directly to Fluor” (ECF No. 41 at 10 ¶ 57);
• SCANA Defendants “reassigned Fluor and WEC employees in a line of supervision interspersed with SCANA's own managers to whom Fluor and WEC employees would report at various levels” (id. at 11 ¶ 61);
• “SCANA [Defendants]'[] ground-level overseers attended all significant construction events, such as crane lifts and major concrete placements, and they attended the continual meetings across the site that took place throughout the day between Fluor and WEC and their respective crews dealing with the operational nuts-and-bolts of the constructions tasks” (id. ¶ 64);
• “SCANA [Defendants]'[] input into day-to-day operations became proactive, intrusive, and decisional, in keeping with its assumption of CEO-type control and leadership” (id. at 13 ¶ 72);
• “SCANA [Defendants'] field monitors, who had previously been silent, became vocal in directing Fluor/WEC personnel” (id. ¶ 73);
• “SCANA [Defendants] gave specific orders and directions concerning virtually all facets of the project, including construction, and safety - particularly concerning anything that would cause a delay or add cost” (id. ¶ 75);
• SCANA [Defendants] used their authority to “set the levels of craft personnel needed to perform assignments” or determine whether to hire highly skilled employees for specialized jobs (id. at14 ¶¶ 76, 77, 80);
• SCANA [Defendants] controlled the work schedules of employees of WEC and Fluor to include whether they worked overtime, the number of overtime hours, their days off or days designated as holidays (id. at 15 ¶¶ 82-84); and
• SCANA [Defendants] provided the facilities, equipment, tools [heavy construction equipment] and materials necessary to complete the work (id. ¶¶ 85, 86).

         Plaintiffs allege that after SCANA Defendants gained control of the VC Summer Project, they recognized by “at least March 2017, [that] mass layoffs and shutdowns were almost inevitable at the Summer Project in mid-summer.” (ECF No. 41 at 17 ¶ 91.) Subsequently, on July 31, 2017, SCANA Defendants sent WARN Act correspondence to the Director of Business Services for the South Carolina Department of Employment and Workforce containing the following relevant information:

         This notice is provided in compliance with the Worker Adjustment Retraining and Notification Act and ...


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