Re: NRC Finding of Employment Discrimination

[Jim Muckerheide <jmuckerheide@delphi.com>]

William V Lipton wrote:
> 
>  This illustrates the importance of carefully reviewing all
> safety concerns from your employees and avoiding even the appearance of
> discrimination.

Neither seem at issue here. The findings are of actual "intolerable working
conditions," "threats of termination," "isolation," and on.  Nothing about
"reviewing safety concerns" (whether or not valid). 

We can't get paranoid about "appearances" of discrimination. Fortunately, the
legal/regulatory policies have become much more substantial in dealing with
actual vs. "perceptual" issues of things like "discrimination," including the
actual record of complaints and statements objecting to actions.  

Now if we could equivalently deal with the false "perceptions" being fostered
that any dose is harmful, we could solve the radiation-phobia problem.  Can we
get NCRP held to that standard?  

Regards, Jim
muckerheide@mediaone.net
========================

> 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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