ML20149E598
| ML20149E598 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/20/1997 |
| From: | Dockery J, Mcnulty W NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | |
| Shared Package | |
| ML20149E532 | List: |
| References | |
| FOIA-97-169 2-96-027, 2-96-27, NUDOCS 9707180240 | |
| Download: ML20149E598 (14) | |
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Title:
TURKEY POINT NUCLEAR PLANT:
DISCRIMINATION AGAINST INSTRUMENTATION AND CONTROL TECHNICIAN FOR RAISING SAFETY CONCERNS REGARDING CALIBRATION OF TEST EQUIPMENT Licensee: Case No.: 2-96-027 Florida Power and Light Company Report Date: March 20, 1997 P.O. Box 14000 Juno Beach, Florida 33408-0420 Control Office: OI:RII g . ..
Docket Nos.: 507250; 50 251 Status: CLOSED Reported by: Reviewed and Approved by:
i V H i Jame ). Dockery,'5pecial Agent _ William J. McNuitV, Director Offi of InvestigationsM Office of Investigations Fiel Office, Region II Field Office, Region II DARNING NU DI ,P NTHE PL C R .ORTfSbuSS O S OF T1 JIDE.NtC El h T' THOR I 0FF I
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SYNOPSIS This investigation was initiated by the U.S. Nuclear Regulatory Commission. l Office of Investigations. Region II, on July 9,1996, to determine whether the ~,
l Florida Power and Light Company (FPL) illegally discriminated against a former instrumentation and calibration specialist at the FPL Turkey Point Nuclear 1
Plant.
The evidence developed in thts investigation does not substantiate the allegation that FPL illegally discriminated against the employee in question.
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TABLE OF CONTENTS EA9ft 1
SYN 0PSIS................................................................ ,
DETAILS OF INVESTIGATION................................................
Appl i cabl e Regul ati ons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5' 5
Pur>ose of Investigation..........................................
Bac(ground........................................................ 5 6
Interview of A11eger.............................................. 6 Revi ew of Documentati on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Coordination with Regional Legal Counse1. . . . . . . . . . . . . . . . . . . . . . . . . . 6 6
Coordination with NRC Staff.......................................
Summa ry o f D0L Acti vi ti es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Allegation: Alleged Discrimination Against ROSS for Raising Safety Concerns at TPNP......................................... 7 Evidence.................................................... 7 Agent's Analysis............................................ 8 Concl u s i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 13 L I ST OF EX H I B ITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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- DETAILS OF INVESTIGATION J
Acolicable Reaulations
- i. 10 CFR 50.5: Deliberate misconduct
. 10 CFR 50.9: Employee protection
' Purnose of Investiaation This investigation was initiated by the U.S. Nuclear Regulatory Commission (NRC), Office of Investigations (0I), Region II (RII), on July 9,1996 L
(Exhibit 1), to determine whether supervisors or management at the Florida
- Power and Light Company (FPL) Turkey Point Nuclear Plant (TPNP) illegally discriminated against Michael L. ROSS, a former instrumentation-and control
- specialist (I&C).
! Is.t*around ,
b 'On June 21, 1996, attorney Frank J. McKE0WN, Jr., submitted "...a formal com)1aint from my client Michael L. ROSS pursuant to Section 211 of the ERA"
'- (Ex11 bit 2) to the V.S. Department of Labor (DOL) Wage and Hour (W&H) i Division, Washington, D.C. ROSS alleged in his complaint that in 1994, while he was an I&C at TPNP, he was denied training and/or certification, was
"... subject to a hostile work environment..." and to harassment "...by my !
- fellow employees and management who referred to me as ' stupid' and also referred to my religion which is Jewish." The adverse treatment was alleged by ROSS to be "...a direct result of..." his refusal to "... falsify readings :
and data sheets He was also "... pertaining to calibration of measurement and test equ E else was in training," a task ROSS found humiliating." '
ROSS claimed that in early 1995 he described the alleged adverse treatment and falsification of calibration records to the NRC senior resident inspector
- (SRI) at TPNP. ;
ROSS further claimed that at a later, unspecified date the "... harassment intensified and now included cartoons of [ROSS] (Exhibit 3) being ) laced on .
- bulletin boards and in every drawer of [his] desk and in [his] loccer." ROSS attempted to re TPNP. Speakout" programport without"...these success. He activities..." to the was also accused by aSafety fellow I&C Departmen of going to the TPNP Human Resources Department "...to get some of them fired, which was false."
Finally according to ROSS, "After all this I was called in, lost my access and my. Job." ,
i 1 L A copy of ROSS' complaint was also forwarded to NR!. RII and referred to 01.
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< Interview of Alleoer (Exhibit 4)
ROSS was interviewed by OI on February 13, 1997 (Exhibit 4). During the interview ROSS reiterated and, to some extent, clarified the allegations I contained in his DOL complaint. _
The testimony provided by ROSS to 0I in support of his 00L complaint did not anear to support a crima facie showing that protected activity motivated Such a showing F L's decision to tace adverse employment action against ROSS.
is the threshold burden of proof and production on the complainant in "whistleblower proceeding" as established by the Secretary of Labor's decision j in Kettl v. Gulf States Utilities Company (92 ERA 033 - May 31,1995).
l Review of Documentation ;
ROSS was deposed by FPL legal counsel in preparat.on for DOL 3roceedings. The 10SS' specific :
j deposition afforded FPL counsel the opportunity to determine charges and evidence supporting his complaint against theLike licensee. A l
. transcript of the deposition of ROSS was reviewed by OI.
his testimony l
' to 01, ROSS' deposition testimony does not support a orima facie showing that the licensee illegally retaliated against ROSS for engaging in protected activity. ROSS' civil deposition is available for review in 01 Case l j ;
- File 2 96 007. l l
l Extensive documentary evidence related to ROSS and his employment relationship !
with FPL was provided to 01 by the licensee through legal counsel. Copies of '
documentation pertinent to this investigation are appended as exhibits to this
- report.
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Coo ination with PRC Staff The NRC SRI at TPNP, Thomas P. JOHNSON, was contacted by OI on August 19, 1996 (Exhibit 5), and January 28, 1997 (Exhibit 6). SRI JOHNSON advised that although he had spoken with ROSS on several occasions since early 1995 ROSS never alleged any falsification issues or health / safety concerns and i specifically never mentioned or referenced any issue related to the falsification of calibration reccrds of pressure instruments. In conversations with ROSS prior to March 1996 ROSS only had questions and comments about training and qualification related to the Measuring and Test Equipment process, and about fitness for duty policies and work environment l
(Exhibit 5). All of ROSS' conversations with SRI JOHfjSON took place by telephone, not in person or in the NRC office on site. None of ROSS' statements to SRI JOHNSON justified the initiation of a formal allegation, nor did SRI JOHNSON deem it necessary to discuss anything raised by ROSS with TPNP management. Consequently, SRI JOHNSON had no reason to believe that any TPNP Case No. 2-96 027 6 NO OR P L DIS OS E WI T AP R VA F i hl ., FFICE NVE IG TlO , EINll
~su)ervisor or manager knew, or cared, that ROSS had any discussions on any l j
su) ject with the NRC prior to his discharge (Exhibit 6). '
i ROSS did not make any allegations about the falsification of calibration '
records to the NRC until March 4,1996 (Allegation RII 96 A 0142), well.after '
4 his discharge. That allegation was inspected and addressed by RII technical staff in Inspection Report Nos. 50 250/96 11 and 50 251/96 11. ROSS' allegation regarding falsified calibration data was determined by RII staff to be unfounded (see referenced inspection report).
9 ^ v of DOL Activities
.ROSS' DOL complaint was submitted to.and initially considered by the 00L W&H Division. The complaint was found by W&H to be time barred under the statutory 180 day filing limitation. ROSS has appealed that finding and the matter has been accepted for hearing by, and is pending before, a 00L Administrative Law Judge.
i .A11eaatka: Alleged Discrimination Against ROSS for Raising Safety Concerns -
- at TPNP i
flAfacq i At 01 request FPL provided 0I with its official legal response to ROSS' DOL c.nplaint and documentation to support the licensee's contention that TPNP
.nanagement did not discriminate against ROSS for engaging in protected i activity. Exhibit 7.is a " position statement" prepared on the licensee's behalf by legal counsel in response to the D0L notification to FPL that the
- complaint had been filed.
E As chronicled in Exhibit 7, according to the licensee ROSS had a history of strained and.somewhat unusual relations with his FPL coworkers dating back'to approximately 1992. During September 1995 there were a series of perceived slights and/or conflicts with coworkers during which ROSS made various comments indicating that he was being targeted for personal and religious harassment. During one such conversation with a coworker on or about Seatember 14, 1995. ROSS made a statement to the effect that he sometimes felt li(e he wanted to bring an "Uzi" (fully automatic sub machine gun) to work.
The coworker reported this statement to Steve FRANZIONE, the I&C supervisor on September 16, 1995.
FPL Fitness For Duty Policy NP-400 stipulates that:
Com)any and contractor employees demonstratina or evidencina either lac ( of reliability, stability, or trustworthiness will not be allowed access or work at the nuclear olant. Psycholocical testina, observation of >erformance, drug / alcohol abuse testing and E
background chects may be used to ensure the fitness for duty of emoloyees (Exhibit 7, p. 31 - emphasis added). ,
ROSS was confronted by TPNP.I&C and Human Resources managers on September 16, t .
1995, tnd admitted to making the comment regarding bringing an "Uzi" into the plant. Management made the determination, in accordance with the FPL fitness Case No. 2 96-027 7 OT P IC DI OS WITOT P OF ,
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l for duty policy quoted above, that ROSS' unescorted plant access should be suspended, that he should be referred to the 3 roper authority for l
psychological evaluation and, if indicated, s1ould receive oppropriate treatment until such time as his unescorted plant access could be reinstated.
! ROSS was effectively suspended, with pay, until he received the necessary ,
j diagnosis and treatment.
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ROSS reluctantly submitted to separate diagnostic examinations by a contract j psfchologist and a psychiatrist. The psychologist. Dr. Dennis L. JOHNSON,
- concluded that ROSS exhibited:
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l The psychiatrist, Salo SHAPIRO, M.D., who examined ROSS concluded that: .
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b Furthermore, Dr. SHAPIRO noted: b 3
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i According to the licensee, ROSS refused to undergo the prescribed treatment and was told on November 3,1995, that he had 45 days to find a position with FPL that did not require unescorted nuclear access (Exhibit 7, p. 29). He was l
eventually discharged on December 29, 1995, when he failed to find a position
' for which he was qualified and" continued to decline the necessary
- psychological treatment (Exhibit 7, p. 30). .
FPL legal counsel further asserted that, although TPNP management was not aware of ROSS' engagement in " protected activity," the licensee would have been forced by regulation and procedure to suspend ROSS' unescorted plant access regardless of the protected activity (Exhibit 7, pp.18-21).
Aoent's Anal _ysis f Extending ROSS th' benefit of the doubt, it is acce)ted as a given that he engaged in " protected activity" in early 1994 when le claims he had two minor l
differences of opinion with Hal BLEHH and Larry SLOAN, wth non supervisory coworkers in the I&C calibration laboratory. The differences of opinion werc
) over the correct steps in the calibration of a Heise gauge.
f ROSS' DOL complaint implies that he further "In early 1995 [he]engaged a in, dvised Mr. Tom Johnson l
communicating with the NRC when:
Nuclear Regulatory Commission, Senior Resident Inspector...of these problems including the falsification of calibration records..." (Exhibit 2). SRI l .
l JOHNSON specifically refuted to OI that ROSS ever made any reference to ,
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- falsification of calibration records or that he (JOHNSON) conducted any ins)ection of the matter until after ROSS filed his complaint with DOL in 1996 (Ex11 bits 5 and 6).
The evidence indicater, that ROSS' " protected activity" regarding falsification ~.
of Heise calibration records and contact with the NRC did not become concerns of any significance to him until after his discharge by FPL.
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' ROSS described the two incidents in early 1994 wherein he voiced his opinion to coworkers about how the Heise instruments should be calibrated. The first incident was one on one with a single coworker, BLEHM, and did not result in any supervisory or management involvement. By his own admission, there was no major confrontation between ROSS and BLEHM, no angry words were exchanged, and there were no witnesses (Exhibit 4, pp. 12-16). The second incident cited by ROSS, which occurred in the calibration lab, involved him and a coworker, SLOAN. ROSS infers that his first line supervisor, John HALVERSON, and possibly (coworkers) BLEHM and Sonny ARASHIRO, mit have overheard his statements of concern to SLOAN about the Heise calibration procedure. ROSS supports his su) position that his supervisor was aware of his calibration concerns with t1e mere assertion that, "It's a quiet room. If Larry'says something, you hear it." However, ROSS did not testify that HALVERSON or any other supervisor or manager was upset or ever expressed any interest in ROSS' Likewise, concern about the calibration procedure (Exhibit 4. pp. 15 18).
i ROSS never thought the calibration issue was significant enough to escalate j . the matter to the attention of higher management.
- As noted in ROSS' complaint and 0I testimony, the perceived conflicts he 1 describes regarding proper instrument calibration occurred in both instances l between ROSS and coworker oeers who had no supervisory or managerial authority over ROSS and were not subsequently in a position to discriminate against him cr, rohibited by the Energy Reorganization Act (ERA) Section 211 and 10 CFR
- 50. .
ROSS transferred out of the I&C calibration laboratory in early 1994. When his unescorted plant access was suspended, over a year later, ROSS was working in the I&C itto2 under different supervision. ROSS does not articulate any evidence that lis concerns about Heise instrument calibration were significant to, or even known by, his I&C shop supervisor in September 1995.
The implication by ROSS that FPL management may have retaliated against him for voicing concerns to SRI JOHNSON is refuted by ROSS' own testimony. He never went to JOHNSON's office and only communicated with JOHNSON by telephone because ROSS "... definitely wouldn't like walk down the hallway and walk into his office, no way. No way would I be seen doing something like that..."
(Exhibit 4, pp. 61 62). None of his coworkers or management ever. mentioned the NRC or his contacts with SRI JOHNSON to ROSS and he could not articulate any certain knowledge that management was aware of his telephonic discussions with SRI JOHNSON.(Exhibit 4, p. 65).
SRI JOHNSON corroborated ROSS' testimony and was emphatic in his belief that FPL management could have had no knowledge that ROSS had ever communicated with him on any issue until after ROSS was discharged. Prior to his discharge ROSS had never raised any issue under NRC jurisdiction to SRI JOHNSON.
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Consequently, SRI JOHNSON never had any reason to conduct inspection activity or discuss any issue with FPL management that could have been identified by management with ROSS (Exhibits 5 and 6).
ROSS infers, but could not articulate, a connection between his protected ~
activity and any displeasure on the part of management over his engagement in that activity. There is no evidence that any FPL supervisor or manager knew (or cared) that ROSS had engaged in activity protected under 10 CFR 50.7 or Section 211 of the ERA until ROSS filed his complaint with 00L.
The suspension of ROSS' unescorted access at TPNP clearly altered the terms, conditions and/or privileges of his em)loyment. However, ROSS admitted to Dr. JOHNSON, when examined by the psyclologist shortly after the event, that he had made comments to FPL coworkers to the effect that he felt like getting an Uzi (Exhibit 7, p. 24). ROSS also admitted to OI that in September 1995, he told coworker Joe HYSZKIEWICZ "I feel like buying an Uzie[ sic]." And, when confronted about the statement by TPNP management and security on September 16, 1995, he admitted making reference to an Uzi within the plant,*
in front of coworkers (Exhibit 4, pp. 98 and 117118). .
FPL management was well within NRC required fitness for duty guidelines in suspending ROSS' unescorted access to TPNP pending the completion of counseling to ensure his professional examination and, if deemed necessary mental and emotional stability. ROSS did not acce ,de to the ~re~quirements for reinstatement within the time period specified by management. Without access authorization ROSS could not return to work at TPNP and was consequently discharged.
FPL fitness for duty mlicy under NP 400 (Exhibit 7, p. 31) and the requirements of 10 CF1 26.27(b)(1) and 10 CFR 73.56(b)(1) clearly mandated that FPL managers take action to ensure ROSS did not constitute a threat to any personnel or equipment at TPNP, efter ROSS' fellow workers expressed their i concern about his statements and behavior. The action taken against ROSS, I I
suspension of unescorted access, was appropriate under the circumstances and totally unrelated to his subsequently professed " protected activity."
There is no evidence that the suspension of ROSS' unescorted access at TPNP l
was a pretext for FPL management's retaliation against ROSS for engaging in '
3rotected activity. On the contrary, within a week before the suspension of lis access, ROSS had been selected by FPL management for training as an assistant nuclear plant operator (ANPO), a position that could lead to greater responsibility and compensation than ROSS enjoyed as an I&C specialist. By i j
ROSS' own admission "...the ANP0 position is the entry position for a career '
path and that career would have significantly more money..." (Exhibit 4.
pp. 38 39). It is not credible that management would select ROSS for a position of greater responsibility at TPNP while at the same time conspiring to discriminate against him for engaging in protected activity.
ROSS engaged in behavior and made comments that are inappropriate in any work FPL place, but which are egregiously inappropriate within^a nuclear plant.
management res3onded accordingly by temporarily suspending ROSS' unescorted plant access w111e his suitability for access was evaluated. ROSS' eventual discharge by FPL resulted from his failure, within a specified time period, to Case No. 2 96 027 10 l l E DI O E N i N il
follow a course of action acceptable to his em)1 oyer to assure his fitness for duty. FPL management's discharoe of ROSS is t1erefore a personnel matter, not a regulatory issue.
The connection articulated by ROSS between his engagement in protected ',
activity, and the subsequent alleged retaliatory revocation of his plant
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access several months'later, is tentative at best. In sharp contrast, the connection between ROSS' (admitted) inappropriate threatening behavior in the work place, and the licensee's revocation of his plant access within two days of that behavior, is vivid to the point of being incontrovertible as the-true justification for the neg..ive personnel action (sus)ension of unescorted access) against ROSS. Contrary to his allegation, t1e suspension of ROSS was not "...a direct result of..." his refusal to "... falsify readings and data sheets pertaining to calibration of measurement and test equipment."
Conclusion The evidence developed in this investigation does not substantiate the allegation that FPL illegally discriminated against ROSS. ,
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LIST OF EXtilBITS I
Exhibit No. Description !
1 Investigation Status Record, dated July 9,1996. l 2 June 21,1996,- Covcr Letter and 00L Complaint by ROSS to the 00L W&H Division.
3 Pen and Ink " Cartoon" captioned "Joses Parting of the I and Sea."
4 Transcript of Interview of ROSS, dated February 13. 1997.
5 Correspondence (with attachments) between TPNP SRI JOHNSON and Special Agent Dockery on August 19, 1996.'
6 Correspondence between SRI JOHNSON and Dockery on -
4 January 28 & 29, 1997.
7 FPL " Position Statement" regarding ROSS' D0L Complaint with supporting documentation.
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