ML20112J374
| ML20112J374 | |
| Person / Time | |
|---|---|
| Site: | River Bend  |
| Issue date: | 04/24/1996 |
| From: | Garde B GARDE, B.P. |
| To: | Shirley Ann Jackson, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML20112J367 | List: |
| References | |
| NUDOCS 9606200141 | |
| Download: ML20112J374 (7) | |
Text
-
GARDE IAW OFFICE
)y 230 NORTil MORRISON STRELT PlRNER GARDE' APPI1 TON, WISCONSIN 54911
- OF COUNSEL To liARDY & JOI(NS IIOUSTON. 'nIXAS (414) 730 5538 FAX (414) 7304841 Aho Admined in Texas April 24, 1996 Ms. Shirley Jackson Commissioner Nuclear Regulatory Commission Washington, D.C.
20555
Dear Ms. Jackson:
I am writing to bring to your attention the failure of the Nuclear Regulatory Commission ("NRC") to properly handle a claim of retaliatory discrimination which was confirmed by the NRC's own Office of Investigation ("0I").
As of the date of this letter, two different divisions of the NRC have issued inconsistent and conflicting determinations regarding illegal treatment of my
- client, I.
M.
" Mike" Malik.
- Moreover, my client and anyone speaking on his behalf was specifically excluded f rom participating in the recent determination by the NRC's Office of Enforcement
("OE") which has left Mr. Malik vulnerable to further acts of retaliation, which have already begun anew.
In April,
- 1994, Mr.
Malik filed a
complaint with the Department of Labor against nis employer,
- Entergy, which was settled by the parties in May, 1994.
The settlement provided that Mr. Malik would continue his employment free from retaliation or discrimination by his supervisor.
- However, in response to a subsequent complaint of discrimination, OI investigated and found that Mr. Malik had again been subject to retaliation through a new incident of discrimination.
On December 22, 1995, OI issued a letter to Entergy confirming that Mr. Malik, the Supervisor of In-House Events Analysis at Entergy's River Bend nuclear power plant, had been the subject of discrimination in connection with his January 1995 performance evaluation in retaliation for having j
engaged in protected activity.
This matter was then forwarded for review to the NRC's Of fice of Enforcement.
On February 7, 1996 the Of fice of Enforcement held a "predecisional enforcement conference" with Entergy at the Region IV offices in Arlington, Texas.
This conference was closed to anyone who wished to attend on Mr. Malik's behalf.
Prior to this closed meeting, both my client and I contacted the NRC offering to 1
i 9606200141 960606 PDR COMMS NRCC CORRESPONDENCE PDR l
6 ovide additional information, and seeking an opportunity to rebut any information which Entergy might provide the NRC but i
which had not been made available to us.
Our requests were rejected.
Moreover, although we filed a Freedom of Information request information for provided to the NRC by Entergy, that request was responded to only after the decision was issued, have paid in excess of and although we
$300.00 for " search time" connected with responding to this FOIA request, the majority of the documents we have received are the same documents we supplied to the agency.
Given the fact that Mr. Lieberman rejected information we offered to him to contradict Entergy's presentation, it was not surprising that he issued a decision reversing the finding of the Office of Investigation.
While it is not at all clear to me that a
"predecisional" enforcement conference in this circumstance should have been closed to Mr. Malik, there is no excuse for the agency failing to provide Mr. Malik an opportunity to supply evidence in support of his situation. Without that information the Director's conclusion that there were no violations of 10 CFR 50 7 in connection with Mr. Malik's negative performance evaluation is neither credible nor sustainable.
Even more illustrative of the effect of the agency's malfeasance in this situation is that than a week after the NRC's Director of Enforcement repudiated the less OI
- findings, Entergy gave Mr.
Malik yet another negative evaluation.
I have now been retained to represent Mr.
Malik in his complaint of retaliatory treatment and breach of contract Entergy.
against (See attached Complaint to the Department of Labor.)
so doing, debilitating agency " turf war" between the Staff and OI.it is neces In For years it has been the policy of the NRC p_gt to issue determinations regarding discrimination against employees.
This policy was based on the premise that the agency had no expertise in evidentiary matters where, like here, it is the credibility of witnesses and the weight of circumstantial evidence that leads a decisionmaker - whether judge or jury - to reach a determination on the motivations of the harassors.
With all due respect to Mr.
Lieberman and his staff, they are not experts in evaluating discrimination / retaliation cases.
The agency is not qualified to
)
issue decisions which cause serious personal and professional harm and remain vulnerable to company retribution.to employees like Mr. M Mr. Malik has been left in a very difficult situation as a direct result of the NRC's actions in this matter.
essentially abandoned a courageous employee who has assisted the The NRC has NRC with its efforts to ensure the safety of the nuclear power industry, in spite of adverse pressure from his management.
is no justification for the NRC's action toward Mr.
- Malik, There particularly in light of your assurance recently reported in TIME 2
f' 4
gazine that the NRC would not drop the ball again with respect to employees such as Mr. Malik.
I In light of your pledge, I am asking that you refer this matter to the Inspector General's cf fice for investigation.
I also request that the agency review it: policies in regards to these
" pre-enforcement meetings" where the subject of the conference is whether retaliation occurred to a licensee employee.
If the agency is going to enter into that arena, it simply must provide an opportunity for the employee to present his evidence.
Further, the agency should utilize only qualified and experienced Administrative Law Judges who are in a position to weigh and balance conflicting
- evidence, including credibility determinations, without being subjected to the type of lobbyi"3 and gx parte communications evident in this case.
I look forward to hearing from you shortly.
Sincerely, blEEcu k Billie Pirner Garde Attorney for Mike Malik Encl a/s 1
l 3
I UNITED STATES
(
DEPARTMENT OF LABOR i
L~
)
)
I.M. Malik,
)
)
Complainant,
)
)
vs.
)
96-ERA-
)
EN'I'ERGY and
)
Entergy Gulf States, Inc.,
)
)
Respondent.
)
)
)
ORIGINAL COMPLAINT This is a complaint of retaliation in the terms and conditions of employment of I.M.
Malik (herinafter referred to as
" Complainant") against his employer, Entergy and/or Entergy Gulf
- States, Inc.
(hereinafter referred to as
" Respondent"),
for violations of 42 U.S.C. Section 5851, as amended, ("the Act").
JURISDICTION Complainant is an emoloyee under the Act by virtue of his position as Supervisor, In House Events Analysis at the River Bend nuclear power plant located near St. Francisville, Louisiana.
Respondent, Entergy, is an emoloyer under the Act, as the licensed owner and operator of the River Bend nuclear power plant.
Entergy and Entergy Gulf States, Inc., is Complainant's employer.
Complainant engaged in the following forms of protected activity:
(1) On or about April 1994 Complainant previously filed a Section 211 complaint, which was settled by the parties;
p,.
(2)
Complainant assisted and participated in the DOL investigation of Section 211 complaints of others and provided i;
truthful information in connection with those DOL inquiries; (3)
Complainant has assisted and participated in several specific Nuclear Regulatory Commission ("NRC") investigations and inspections by the Office of Investigations and the NRC's Region IV office, as well as assisting in NRC escalated enforcement actions; (4) Complainant has continued to engage in internal protected activities by pointing out to his management the retaliatory treatment that he has been subjected to, as well as the continual problems with the Quality Assurance / Quality Control problems at River Bend.
l Respondent has knowledoe about all of the protected activities of the Complainant.
j Complainant has been subjected to the following forms of continued adverse actions in the terms and conditions of his employment:
(1) Complainant has received two negative, i.e.,
the lowest performance ratings possible from his superiors since the settlement of his earlier DOL complaint.
In January, 1995, f
Entergy gave the Complainant the lowest possible performance rating.
Complainant lodged a complaint about this rating with the NRC's Office of Investigation.
A second evaluation was issued April 3, 1996, and continues the retaliatory treatment toward Complainant by the Respondent; and 2
l 1
-. _ ~
- r 1
(2)
Complainant continues to be subj ected to a hostile a
I f..
wo:. king environment at River Bend, including, but not limited to being isolated and treated differently than other co-
- workers, being denied invitation or access to normally acheduled work meetings, being ridiculed in front of other employees, and otherwise being humiliated, embarassed and degraded in connection with his attempts to do his job professionally.
In subjecting Complainant to these conditions the Respondent has violated his rights to engage in protected activity and professional dissent without fear of reprisals.
Complainant has suffered harm as a result of the adverse actions taken against him, including harm to his reputation and
- career, physical and emotional stress and
- anxiety, and the continual stress of working in a hostile environment.
Complainant has also been required to file this Complaint and has incurred attorney's fees and expenses in bringing this action.
Complainant seeks all damages available to him, by law, including actual and compensatory damages, attorney's fees and
- expenses, expungement of the negative evaluations in his personnel file.
In the event that the Department concludes that his working environment cannot be remedied, Complainant seeks two years front
- pay, plus damages for his emotional distress as a means to transition to new employment.
In addition, he would seek the cost of providing all health benefits for two
- years, a
job 3
p
(.
- i
(
commendation, any necessary moving expenses to a place of new f
g employment, assistance in finding a new position, plus attorney's i
t fees and expenses.
REQUEST FOR INDEPENDENT INVESTIGATOR Complainant requests that this matter NOT be assigned to DOL OSHA investigator Rose Torrealba of the Houston, Texas office.
In the event that no other investigator is available for the investigation, Complainant requests that the Department issue its initial determination without investigation and submit the matter for hearing to the office of Administrative Law Judges.
Respectfully submitted, x
Billie Pirner Garde cc:
Garald Foster Supervisor Investigator 11(C)
U.S.
Department of Labor, 525 Griffin Street, #602 Dallas, Texas 75202 Joe Blount Entergy P.O.
Box 31995 Jackson, MS 39213 Russ Wise U.S. Nuclear Regulatory Commission 611 Ryan Plaza Drive Suite 1000 Arlington, TX 76011 4