Magnuson v. Exelon Corp.

658 F.Supp.3d 652

Brian MAGNUSON, Plaintiff, v. EXELON CORPORATION and Exelon Generation Company, LLC,¹ Defendants.

Case No. 4:21-cv-04142-SLD-JEH

United States District Court, C.D. Illinois, Rock Island Division

Signed February 28, 2023

Robin B. Potter, Robin Potter & Associates, Chicago, IL, Frank T. Newell, Michael Kanovitz, Loevy & Loevy, Chicago, IL, Stephani Ayers, Thad M. Guyer, T.M. Guyer and Ayers & Friends, PC, Medford, OR, for Plaintiff.

Brian Hayes, Kenneth A. Jenero, Melissa Gold, Richard R. Winter, Steven L. Gillman, Tammy Eason, Holland & Knight LLP, Chicago, IL, Sarah R. Marmor, Scharf Banks Marmor LLC, Chicago, IL, for Defendant Exelon Generation Company, LLC.

Brian Hayes, Richard R. Winter, Holland & Knight LLP, Chicago, IL, Brian O'Connor Watson, Lucas T. Rael, Riley Safer Holmes & Cancila LLP, Chicago, IL, for Defendant Exelon Corporation.

ORDER

SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Exelon Generation Company, LLC's ("ExGen") partial motion to dismiss, ECF No. 88; Defendant Exelon Corporation's motion to dismiss, ECF No. 91; ExGen's motion for leave to file a reply, ECF No. 96; and Exelon Corporation's motion for leave to file a reply, ECF No. 97. For the following reasons, ExGen's motion to dismiss is GRANTED; Exelon Corporation's motion to dismiss is partially GRANTED and otherwise MOOT; ExGen's motion for leave to file a reply is GRANTED; and Exelon Corporation's motion for leave to file a reply is GRANTED.

BACKGROUND²

ExGen operates nuclear power plants in multiple states, including Illinois, pursuant to licenses from the U.S. Nuclear Regulatory Commission ("NRC"). Exelon Corporation is ExGen's parent company.

Plaintiff began working at ExGen's Quad Cities Nuclear Power Station (the "Quad Cities Station") in 1983. Initially a laborer, he later obtained a Senior Reactor Operator License and was promoted to Operations Shift Manager in 2006. In that role, he oversaw an operations crew; developed expertise in reactor systems and emergency preparedness; and was responsible for ensuring compliance with state and federal regulations.

The NRC requires nuclear plants to adopt Corrective Active Programs, which are "system[s] by which a utility finds and fixes problems at the plant." First Suppl. Compl. ¶ 15, ECF No. 79 (explaining that Corrective Action Programs "include[ ] a process for evaluating the safety significance of the problems, setting priorities in correcting the problems, and tracking them until they have been corrected"). Issue Reports ("IRs")—written notifications of safety issues entered into a Corrective Action Program—are a way in which safety concerns are reported to the NRC, which reviews IRs implicating actual or potential regulatory violations as a matter of course.

I. Events Preceding December 16, 2015 Occupational Safety and Health Administration ("OSHA") Complaint

On or about April 13, 2015, Plaintiff reported safety and regulatory violations to the NRC in reference to an IR referred to as IR 2484352. IR 2484352 "contributed to and/or resulted in" the NRC issuing a Violation of Technical Specifications as documented in a July 30, 2015 inspection report. Id. ¶ 17.

On June 15, 2015, Plaintiff's crew underwent training involving a simulated nuclear accident. During the training, Operations Director Hal Dodd gave the crew a directive—"to wait for the reactor to depressurize 50 pounds" before taking remedial action in an emergency—that Plaintiff believed would dangerously "increase[ ] the risk of a core melt sequence and uncontrolled release of radiation." Id. ¶¶ 18, 20. After learning that Dodd intended for him to include the directive in a remediation plan, Plaintiff expressed his concerns to Site Vice President Scott Darin. Plaintiff refused to include the directive in the plan.

On June 17, 2015, Plaintiff learned from a Training Instructor that Dodd had directed the Training Instructor to suppress critical examination information from the training. That led Plaintiff to believe Dodd was "bullying and intimidating his crew contrary to NRC rules and standards mandating ExGen to ensure a Safety Conscious Work Environment." Id. ¶ 23. On June 18, 2015, Dodd falsely claimed that he had not given the directive, becoming angry and threatening Plaintiff.

Plaintiff told management he would submit an IR to the NRC to resolve the lack of clarity regarding emergency response protocol. On June 23, 2015, he initiated IR 2518572, documenting his safety concerns related to the training as well as the qualifications of certain non-licensed and/or non-certified employees in potential violation of federal regulations.

On June 25, 2025, ExGen removed Plaintiff's security clearance, inactivated his NRC license, suspended him, and required him to undergo a psychological evaluation. An ExGen manager informed Plaintiff the evaluation was due to having submitted an "emotionally-driven IR." Id. ¶ 48 (quotation marks omitted). Plaintiff was cleared to return on July 9, 2015, but his security clearance was not restored until August 18, 2015 and he was not permitted to return to work until August 19, 2015. The eight-week gap in his security clearance adversely affected his record.

On August 6, 2015, Plaintiff filed a claim with the NRC related to IR 2518572, referencing "compelling evidence [the] training department had been intimidated and suppressed." Id. ¶ 29 (quotation marks omitted). On August 24, 2015, he initiated IR 2545522, which pertained to "inconsistent and conflicting information the directive [sic] regarding the June 2015 [training] and in ExGen's . . . response to IR 2518572." Id. ¶ 30.

Upon returning to work, Plaintiff was demoted to Unit Supervisor. He eventually was reassigned to the training department, where he had no supervisory authority, few assignments, and no paid overtime. First assigned to work in a small windowless room, he later was moved to what coworkers called "The Cubical [sic] of Shame." Id. ¶ 58 (quotation marks omitted).

On December 16, 2015, Plaintiff filed an OSHA complaint reporting the discrimination against him. OSHA informed ExGen of Plaintiff's complaint.

II. Events Preceding April 28, 2017 OSHA Complaint

From April 2016 to October 2016, Plaintiff identified additional nuclear safety concerns and initiated a series of IRs and reports to the NRC related to those concerns. On April 15, 2016, he initiated IR 2656377, "identif[ying] . . . failures allowing a degraded Primary Containment Isolation Valve and safety system to be placed in service, an actual or potential regulatory violation." Id. ¶ 34. On August 29, 2016, he initiated IR 2709786, "expos[ing] the failure to take corrective actions in response to the progressive fouling of all essential cooling water piping," which "impaired the ability of safety systems to mitigate a nuclear accident." Id. ¶ 35. On September 14, 2016, he reported actual or potential regulatory violations related to ExGen's response to IR 2709786. On October 7, 2016, he "expanded further" on IR 2709786 and was prompted to initiate IR 2725625. Id. ¶ 37. And on October 28, 2016, he initiated four IRs related to the safety of "the Ultimate Heat Sink, an essentialsystem [sic] for assured water supply and atmospheric conditions to absorb reactor decay heat." Id. ¶ 38.

On November 1, 2016, Plaintiff reported to Darin that a crew member who had failed a training was passed while Plaintiff was failed despite passing. The next day, ExGen revoked Plaintiff's security clearance, removed him from his position, and put him on involuntary leave without pay. ExGen informed Plaintiff that, to return to work, he would be required to apply for open positions like a new hire and sign a commitment pledging to change certain behaviors. Plaintiff refused to do so.

On April 28, 2017, Plaintiff filed his second complaint with OSHA based on the ongoing discrimination.

III. Events Preceding July 24, 2020 and August 21, 2020 OSHA Complaints

"In November 2017, ExGen reinstated Plaintiff to employment." Id. ¶ 66. However, he was assigned to a new position involving substantially less responsibility located 100 miles away from the Quad Cities Station. As a result, "Plaintiff was not in a firsthand direct position to identify and report safety issues in plant operations." Id. ¶ 67.

Then, in July 2019, Defendants began acting with "re-energized animus toward Plaintiff" due to his disclosures of "persistent and material misrepresentations to the public and [state and federal] regulators as to the safety and financial viability of ExGen," id. ¶ 68, which "indicated that [ExGen] made false claims to the Illinois legislature for passage of the Future Energy and Jobs" Act, Illinois Senate Bill 2814, id. ¶ 44. According to media reports, ExGen committed to keeping the Quad Cities Station and another plant open for another ten years in exchange for subsidies. Plaintiff's disclosures "implicated significant financial, regulatory and political consequences" threatening ExGen's ability to do so. Id. ¶ 45. Because Defendants "knew of these issues prior to making their commitment," Plaintiff "reasonably believed" that Defendants made false claims in exchange for the subsidies, favorably influencing shareholder value. Id.

On or about July 25, 2019, ExGen informed the NRC that Plaintiff no longer required licensure, causing him to lose his Senior Reactor Operator License. On November 7, 2019, Plaintiff filed his initial complaint in this action.

At some point, Defendants began a "targeted investigation" into Plaintiff's conduct, which Plaintiff learned of via email from Exelon Corporation Senior Physical Security Specialist Vince Genualdi on June 2, 2020. Id. ¶ 71. Defendants demanded Plaintiff sign a gag provision admitting he had exported ExGen documents to lawyers and regulators. On July 22, 2020, Plaintiff responded via email expressing his "understanding . . . that the NRC, [Securities Exchange Commission ("SEC")], and [Department of...