NRC Finding of Employment Discrimination

[William V Lipton <liptonw@dteenergy.com>]

"If at first you don't succeed..."

-------- Original Message --------
Subject: NRC Finding of Employment Discrimination]
Date: Wed, 27 Dec 2000 09:26:00 -0500
From: William V Lipton <liptonw@dteenergy.com>
To: RADSAFE@ROMULUS.EHS.UIUC.EDU

Let me try resending this.  Somehow, the message was cut off.
Bill


-------- Original Message --------
Subject: NRC Finding of Employment Discrimination
Date: Wed, 27 Dec 2000 09:19:03 -0500
From: William V Lipton <liptonw@dteenergy.com>
To: RADSAFE@ROMULUS.EHS.UIUC.EDU

The attached notice from today's (December 27, 2000) Federal Register
involves a finding of employment discrimination by the NRC.  (I removed
some redundant material to save space.  Although it is not my intent to
take any statements out of context, I recommend that you read the entire
notice.)  This illustrates the importance of carefully reviewing all
safety concerns from your employees and avoiding even the appearance of
discrimination.

The opinions expressed are strictly mine.
It's not about dose, it's about trust.

Bill Lipton
liptonw@dteenergy.com



In the Matter of Department of Veterans Affairs Medical Center
Philadelphia, Pennsylvania; Order Imposing a Civil Monetary Penalty

[material removed]

Appendix

Evaluations and Conclusion

    On July 20, 2000, a Notice of Violation and Proposed Imposition
of Civil Penalty (Notice) in the amount of $5,500 was issued to the
Licensee for a violation involving the discrimination of a research
nurse for engaging in protected activities. The violation was based
on the NRC review of the decision, dated April 16, 1999, of the U.
S. Merit Systems Protection Board (MSPB). The MSPB had, in part,
concluded that the research nurse was subjected to intolerable
working conditions for raising safety concerns. Based on the MSPB
finding and a predecisional enforcement conference (PEC) with PVAMC
on May 17, 2000, the NRC concluded that the intolerable working
conditions constituted discrimination against the research nurse for
raising safety concerns.
    The Licensee responded to the Notice in a letter, dated August
29, 2000. In its response, the Licensee denied that the violation
occurred and requested that the NRC withdraw the violation and
rescind the proposed civil penalty. The NRC's evaluation and
conclusion regarding the Licensee's response are as follows:

1. Restatement of the Violation

    10 CFR 30.7(a) states, in part, discrimination by a Commission
Licensee against an employee for engaging in certain protected
activities is prohibited. Discrimination includes discharge and
other actions that relate to compensation, terms, conditions, or
privileges of employment. The protected activities are established
in Section 211 of the Energy Reorganization Act of 1974, as amended,
and in general are related to the administration or enforcement of a
requirement imposed under the Atomic Energy Act or the Energy
Reorganization Act.
    10 CFR 30.7(a)(1)(i) provides that protected activities include,
but are not limited to, providing the Commission or his or her
employer information about alleged violations of either the Atomic
Energy Act or the Energy Reorganization Act named in 10 CFR30.7(a)or
possible violations of requirements imposed under either of those
statutes.
    Contrary to the above, between April 1997 and May 1998, a former
research nurse was subjected to a hostile work environment for
engaging in a protected activity. Specifically, after the individual
raised (to the FDA in April 1997 and the NRC in June 1997) issues
regarding the inadequacy of the human subjects consent forms used by
the participants in a research study (as required by 10 CFR 35.6 and
10 CFR 35.7), she was isolated by her supervisor and there were
significant negative changes to her working conditions.

Summary of the Licensee's Response

    The Licensee, in its response, denied that the violation
occurred. In particular, the Licensee denied that a supervisor
retaliated against the former research nurse by creating a hostile
work environment because that employee identified safety issues.
    While denying the creation of a hostile work environment for the
former research nurse because she raised safety concerns, the
licensee agreed that the working relationships and atmosphere in the
clinical research laboratory were not optimal in 1997 and 1998.
However, the Licensee contended that the nurse's raising of safety
concerns did not contribute to this poor environment. In support of
this contention, the Licensee responded to the specific examples
that were used to describe the hostile work environment as listed in
the NRC letter, dated July 20, 2000, transmitting the Notice.
Specifically;
    1. Threats of dismissal of the nurse by her supervisor--The
Licensee noted that the supervisor denied that he threatened to
dismiss the research nurse, although they had one conversation where
he warned the nurse that one of the two nurses (under that
individual's supervision) ``may have to go'' unless they could work
together.
    2. Isolation of the nurse from her supervisor--The Licensee
noted that it was the supervisor's recollection that the research
nurse voluntarily, without permission or request from her
supervisor, moved her work space from her shared office to an exam
room in late 1996 or early 1997. The Licensee also stated that it
was the supervisor's contention that the research nurse kept the
door closed and locked of her own volition, thus creating her own
isolation from the staff.
    3. Failure to include the nurse in work discussions--The
Licensee noted that although the supervisor held unscheduled,
informal morning meetings with the two nurses to discuss work and
non-work related topics, the research nurse in question had informed
the supervisor she did not want to participate in non-work related
discussions. The Licensee also indicated that the supervisor had
stated that the research nurse was not required to attend the
meetings after her statement, but that she should have been able to
hear the discussions if the doors to the offices were open. The
Licensee concluded that the research nurse was not part of the work
discussions because she chose to not attend those discussions.
    4. Accusation of criminal activity by the nurse in May 1997--The
Licensee denied that criminal charges were filed against the
research nurse. Rather, the Licensee contends that a preliminary
police report was filed regarding missing files and the report
stated that it was not clear if the files ``had been taken by one of
the employee (sic)'' (the research nurse) who was on annual leave at
the time the report was filed.
    5. Insubordination during an FDA inspection--The Licensee agreed
that the supervisor considered the research nurse's actions during
the FDA audit (namely, volunteering information to the FDA auditors)
as insubordination. However, the Licensee stated that the supervisor
did not stop the nurse from talking about issues to the regulatory
agencies. The Licensee further stated that no action (intimidation,
threats, or impedance from making future disclosures) was taken
against the research nurse after the FDA audit.
    Principally for these reasons, the Licensee requested that the
violation be withdrawn and the civil penalty be rescinded.

NRC's Evaluation of the Licensee's Response

    The NRC has carefully reviewed the Licensee's response to the
Notice of Violation and Proposed Imposition of Civil Penalty and has
concluded after further review, including review of the MSPB
finding, that the violation did occur as stated in the Notice in
that the employee was subjected to a hostile work environment as a
result of raising safety concerns. The Licensee did not provide any
new or compelling information in its response to change the NRC's
conclusion that the violation occurred.
    In determining whether a hostile work environment existed, the
NRC relied heavily on the MSPB finding in this area. The MSPB

[[Page 81905]]

finding indicates that based on the testimony of Dr. Dunkman and his
demeanor during testimony, the Administrative Judge (AJ) was
persuaded that he was extremely upset with the appellant for having
his study temporarily suspended. During the PEC the staff also
observed that Dr. Dunkman still appeared upset with the complainant
for this action and did not seem to have an understanding that
telling her she should not give an FDA inspector information was
wrong. The testimony and the June 9, 1997 memo that Dr. Dunkman
authored made it clear to the AJ that he found her disloyal and
tried to get rid of her. Accordingly, the AJ found that the
protected disclosures did contribute significant changes to her
working conditions, i.e., her working conditions became intolerable.
    The Licensee contends the specific areas cited did not
constitute a hostile work environment. Specifically, that (1) the
supervisor denied threatening to dismiss the research nurse, (2) the
research nurse was not isolated by her supervisor but isolated
herself, (3) it was the research nurse's own decision to not attend
routine meetings, (4) no criminal charges were filed against the
research nurse regarding the missing files, and (5) no action
(intimidation, threats, or impedance from making future disclosures)
was taken against the research nurse after the FDA audit wherein she
volunteered information to the FDA.
    The NRC has determined, based on the MSPB finding and
information gathered at the PEC, that the protected disclosures
resulted in the complainant's supervisor becoming increasingly angry
at her and did contribute to significant changes to her working
conditions, i.e., her working conditions became intolerable. The NRC
recognizes that the research nurse may have isolated herself from
her supervisor and the other nurse in the laboratory. Nonetheless,
it was clear that the supervisor failed to address that isolation or
include her in work related discussions with the other nurse. In
addition, he made statements that could reasonably be construed as a
threat of dismissal, he labeled the nurse as ``insubordinate'' for
volunteering information to a regulatory agency, and he tried to
terminate her after she raised safety concerns.
    The Licensee's response also provided a number of reasons for
its disagreement with the MSPB conclusion that the termination of
the research nurse was also discriminatory. Since the termination
was not part of the violation cited by the NRC in the Notice, dated
July 20, 2000, there is no need for the NRC to respond to those
Licensee's contentions.
    The Licensee also stated that there was an error on page 2 of
the NOV in the following statement; ``Specifically, after the
individual raised (to the FDA in April 1997 and to the NRC in June
1997) issues regarding the inadequacy of the consent forms used by
the participants in a research study, there were significant
negative changes to her working conditions.'' The Licensee contends
that neither the supervisor nor the management at PVAMC knew about
the FDA audit until June 1997. The NRC acknowledges that the
Licensee may not have known about issues raised to the FDA until
June 1997, but the nurse first made protected disclosures to the
Licensee in February 1997. Therefore, this information does not
change the NRC's conclusion that the Licensee created a hostile work
environment between April 1997 and May 1998, which was based, in
part, on the nurse's engagement in protected activities.

2. NRC Conclusion

    The NRC has concluded that this violation occurred as stated in
the Notice and the Licensee did not provide a sufficient basis for
withdrawing the violation or for rescinding the civil penalty.
Accordingly, the proposed civil penalty in the amount of $5,500
should be imposed.

[FR Doc. 00-33011 Filed 12-26-00; 8:45 am]
BILLING CODE 7590-01-P
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