ML20202H135
| ML20202H135 | |
| Person / Time | |
|---|---|
| Site: | Cook  |
| Issue date: | 02/12/1998 |
| From: | Fitzpatrick E INDIANA MICHIGAN POWER CO. |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| References | |
| AEP:NRC:1184D3, NUDOCS 9802200300 | |
| Download: ML20202H135 (7) | |
Text
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Po er Compa:y 500 Cacle Dove Buttunan. MI 491071395 INDIANA MICNIGAN POWER February 12, 1998 AEP:NRC 1184D3 Docket Hoc.: 50-315 50-316 U. S. Nuclear Regulatory Commission ATTN:
Document Control Desk Mail Stop O-P1-27 Washington, D. C.
20555-0001
- Gentlemen:
Donald C. Cook Nuclear Plant Unita 1 and 2 RESPONSE TO NOTICE OF VIOLATION CIVIL PENALTY (U.S. DEPARTMENT OF LABOR CASE NO. 92-ERA-37)
This lettor is in response to a letter f rom A.
D.
Beach dated September 25, 1996, regarding deferment of payment of a civil penalty in the matter of U.S. Department of Labor (DOL) Case No.
92-ERA-37, pending the outcome of a petition for review of the DOL action in the 11.B. Court of Appeals for the Sixth Circuit (American Nuclear Pesources, Inc. v. United States DeDartment of Labor, File No. 96-3825).
On Jar.uary 29, 1998, the Sixth Circuit Court of Appeals issued a de;*sion in this case.
/
/
In accordance with the NRC's September 25, 1996, request, I am forwarding a copy of the Court's decision as an attachment to this letter.
The Court, ruling on merits of the case, reversed the prior decisions of the administrative law judge and DOL in SDraque
- v. American Nuclear Resources. Inc. (ANR), Case No. 92-ERA-37.
The key portion of the Court's decirion is found at page B of its opinion, where the Court stated, "Sprague's conduct falls outside the scope of ERA protection', and " lacks a sufficient nexus to safet) concerns". Further, the Court held on page 9 of the opinion that, "even if the ERA does protect Sprague's conduce, ANR did not fire Sprague because he complained about safety".
In short, the Court concluded that sprague did not engage in protected activity and that even if he had, ANR terminated Sprague for lawful reasons.
The NRC's letter of September 25, 1996, also indicated that we could respond to the proposed penalty within 30 days after the ruling from the Sixth Circuit Court of Appeals, if the ruling upholds the various orders from the DOL.
In light of the Court's reversal of DOL Case No. 92-ERA-37 and ruling that there was no whistla. blower discrimination in the Sprague case, we respectfully request that the notice of violation and proposed imposition of civil penalty - $25,000 issued to Indiana Michigan Power Company on August 5, 1993, be withdrawn.
7 Sincerely, g
[
I E. E. Fitzpatrick Vice President Attachment a,aia
/jen 9002200300 900212 PDR ADOCK 05000315 0
U. 8. Nuclear Regulatory Commission AEP:NRC 1184D3 Page 2 c:
J. A. Abramson A. B. Beach J. Lieberman MDEQ - DW & RPD NRC Resident Inspector J. R. Sampson l
l l
l
IEECOHMEh0ED FOR RAL-TEXTKfBUCA TCN Pursuant to Sixth Circuit Rule 24 ELECTROMC OTATION: 1T.J8 FED Apn OO;s5P (6th Cr.)
Fde Name-98a0025aO6 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AMERICAN NUCLEAR RESOURCES, INC.,
Petitioner, i
F.
i UNTED STAES DEPARTMENT OF LABOR, Re3P0"0'"L On Peabon for Remw ofan Order ofthe Umted States Departmera of Labor No. 92-ERA-37 i
i t
Argued. October 20,1997 Decaded and Filed: January 29,1998
\\
Befoi-c SILER, BATCHELDER, and GIBSON,' Circuit 4
t 6
i The Honorable John R. C,ibson, Orcuit Judge of the Uniecd States I
Court of Appeals for the Eighth Orcuit, sWteng by W l
I
2 American Nuclear v. United No 96-3825 No. 96-3825 American Nuclear v. United 3
States Dep't ofLabor States Dep*t ofLabor Twr mcidents hastened Sprague's termination. On March 19, same Radiation Protection employees (RPs) sprayed the COUNSEL ca6ty's walls to prevent airborr= radiation.
The RPs e adently waited too long to spray, however, and their delay let th cles contaminate Sprague. Afterwards, Sprague ARGUED: Kevin M. McCarthy, MILLER, CANFIELD enter Emanuel s office and started complannng about "the PADDOCK & STONE, Kalamazoo, Michigan, for Petitioner' Lois R. Zuckerman, U.S. DEPARTMENT OF LABOR, stupid RP s w what eey were do, g,, even though m
OFFICE OF TIE SOLICITOR, Washington, D.C., for the RPs did not work or ANR. ANR contends that Sprague Respondent. ON BRIEF: Kevin M. McCarthy, MILLER, was yelling, though he denies this. The next day, March 20, S rague underwent a full body count to measure tus P
CANFIELD, PADDOCK & STONE, Kalamazoo, Michigan, for Petitioner. Lois R. Zuckerman, William J. Stone, U.S.
radiation level. While most tests took two minutes, Sprague s t k two hours. His results were abnormally high. During DEPARTNENT OF LABOR, OFFICE OF THE SOLICITOR, Washington, D.C., for Respondent.
the testing, Sprag,ae became upset at the RPs. Emanuel stated he scream [edl at the RPs for an hour, though Sprague contends that he kept his temper. After the test, Sprague requested a copy of the body count, but the RPs refused and OPINION instead gave him an exposure report that contained the same information in a more readable format. Later that same day, still less than two weeks after Spry;ue started, Emanuel SILER, Circuit Judge.
Petitioner, Amican Nuclear decided to terminate his employment.
Resources, Inc. ("ANR"), seeks to reverse a Secretary of S rague later filed a complaint with the Department of Labor decision holding it liable for back pay and attorney's P
Labor and alleg whistleblower prov,ed that his termination violated the fees. The Secretary held that ANR violated the Energy isions of the Energy Reorganization Act Reorganization Act by discharging an employee, Gregory Sprague, because he reported a safety violation. Because the
(" ERA"),42 U.S.C. Q 5851. An admimstrative lawjudge and Act does not protect Sprague's conduct, we REVERSE.
the Secretary of Labor ruled in Sprague's favor. Both found that ANR termir-M Sprague because he questioned the RPs I
about safety and,.setore, violated the ERA. Pursuant to 42 ANR is a contractor at a nuclear power plant in Michigan.
On March 11, 1992, Sprague started at ANR as a tool accountability technician. Along with others, he monitored the reactor containment area to prevent objects from falling into the reactor cavity. Sprague, however, quickly developed interpersonal problems at ANR. His supervisor, Georgina Emanuel, testified that he was inde and abrasive. One of his After mnk that day, Sprague contacted the Nuclear Regulatory co-workers found him "somewhat pushy" and tried to avoid Commission (NRC) and requested a of the his full count In him whenever possible.
the litiganon below, the parties diguted timing of Eman-
's decmon to terminate Sprague, but 0 = appeal the pm.u..iut.wA that Emanuel decided to terminate Sprague benne he contacted the NRC.
4 American Nuclear v. United No. 96-3825 No. 96-3825 American Nuclear v. United 5
States Dep *t ofLabor States Dep*t ofLabor U.S.C. $ 5851(c), ANR now appe-Is and contends that Sprague solely because of his interpersonal problems.jt fired whistleblower statutes affecting other industries, is designed to protect workers who report safety concerns and to encourage nuclear safety generally. Courts interpret the II 4
statute broadly to implement its " broad, remedial purpose" Mackowiak v. University Nuclear Sys., Inc.,735 F 2d 1159, We review the Secretary's legal conclusions de now-1163 (9th Cir.1984).
although we defer somewhat to the agency because it ts charged with administer 6g the statute. 5 U.S.C. g 706(2)(A);
ne statute expftcitly protects a few acts, such as testifying Chenon U.S.A., Inc. v. NaturalResourcesDefense Council in a safety ;nvcusing. 42 U.S.C. G S85I(a)(1}(E). %c Inc.,467 U.S. 837 (1984). We will uphold an interpretation statute also includes a catch-all pwvision that protects
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if " based on a permissible constmction of the statute."
employees "in any other action [ designed] to carry out the Chenon,467 U.S. at 843. On the other hand, we review fact go,p of[the safetystatutes]." Id. at Q 5351(a)(1)(F). To findings to ensure that substantial evidence supports them-state a claim under the ERA, an employee must establish that Moon v. Tim,v,-t Driwes, Inc., 836 F.2d 226, 229 (6th Cir-the employer retaliated because the employee % qui in a 1987). Substantial evidence is "such relevant evidence as a protected activity. Barthk v. UmsedStateeDep's ofLabor,73 reasonable mind might accept as adequate to support a F.3d 100,103 & n. 6 (6th Cir.1990). If an "mployer conclusion." Id This court reviews the application oflaw to retaliates for both legitimate and illegitimate reasons, criurts fact under the same substantial evidence standard. Turnbull apply the " dual motive" test, under which the employer must Cone Baking Co. v. N.LRB.,778 F.2d 292,295 (6th Cir.
show that it would h,ve retaliated even if the protected 1985).
activity had not occurred. Mackowiak,735 F.2d at 1163-r.
The employer bears the risk if the two motives prove III Amended in 1992 the ERA protects workers from retaliatory discharge.3 The statute, patterned after other codify earlier cost hs See sone & rehster Eng'g Corp. v.
IIerman,115 F.3d 1568,1575 (IIth Cir.1997) (noting that Congress
" ratified"' court dee= y vidi.g internal r==49s).
7hc amendments * *.w:.im lustory states that the new stature amends the laer
- - ine4 of Labor as "to explicitly'* protect certain acimties. RR. Rn. No. 102-474 (VIII)
ANR*s Pention for Review named only the Dubs Sprague are not (1992). 7heamendments c. *iuiI preocct threeactmoes that most court respondent. Parties to an agency proceeding suc f
proper ic.pv>=~6, although they may mcwe to intervene. Od, Gemical dcasions already protected. - 42 U.S C 6 5851(aXIXA),(B),(C). For
& Atomic Work-rt local Union No. 6-418 v. XLRB.,694 F.2d I2g9 e.yk, { 5851(aXIXA) protects an emr*oyce who " notified his
=E u ofan alleged [sansj violaeon." Before the ---- - L-r.almost 1298 (D.C. Cir.1982). Here, Sprague filed a myvii brief, but he J
never mowd to intervene. Acconimgly, this amrt ignores Sprague's emy arcut also p.oettled these intemmi safety c@ See Bechtel brief.
Construe. Co. v. Secretary ofLabor,50 F.3d 926,931 (1Ith Cir. I995)
(noting that almost all cincets agreed) 3 Because the amendments essentrally codify the law ing 42 U.S.C. 6 5851, amendedby Pub. L No. 102-486,106 5 tat. 2776.
prose led m = h that we would reach the same resu t under Becaum Sprague filed his
. Iaint before the...~.m.m.ots took effect, the current statuee. The Sixth Cirant y.ukdui internal complaints even the pre-1992 versio t of the governs here. Pub. L No. 102-486 W the h knes v. 7'eaw ValleyAnth.,948 F.2d 258, f 2902(i). Unless otherwise noted, this opimon cites to the current 264 (6th Cir.1991). Moreover, one case based on post-a---:. * - ; law, one & ebster, stmsed thaw post-a M.~.1 N mutmues to t
ofdeh g protected activities, the amendments essentially praect ordy certam-
6 American Nuclear v. Umted No 96-3825 No 96-3825 American Niaclear v. UmscJ 7
States Dep *t ofLabor States Dep's ofLabor inseparable. Id at i164. See also Pogue v. UnitedStates em sloyee's acts, however, because the " meeting.. was Dep*t of Labor 940 F.2d 1287 (9th Cir.1991) (where inc uded in a series of communications to employer 1
employee filed seven internal safety complaints but often representatives... [that} were, mutually reinforcing." Id. at 1575.ynder the circumstances, behaved disrespectfully, applying the test in favor of the a
employee).
Moreover, an employer may terminate an employee who l
Therefore, a court first must determme whether the ERA behaves ina opriately, even if that behavior relates to a l
protects the employee' acts. Building on the Act's language, legitimate ety concern. Dunham v. Brock,794 F.2d 1037,
)
cou:ts have held that the ERA protects many types of acts that 1041 (5th Cir.1986). In Durnham, the employee filed a safety implicate sa ety. For example, the ERA protects an employee report with the Neclear Regulatory Commission.
The r
who files internal reports concerning r gulatory violations.
employer suspected as inuch but also thought, legitimately, Jones v. Tennessee Valley Auth.,948 F.2d 258,264 (6th Cir.
that the employee often acted in a disrupt;ve and dominant 1991). Although the old version of j 5851 fails to protect manner Id. at 1039. To address this problem, the uuy'vyu internal reports explicitly, courts rmtect internal reports to held a counseling session with the employee. The employee advance the statute's pelicy g h Eg., Bechtel Construc.
swore at his employer and refused to change his behavior. He Co. v. Secretaryoflabor,50 E b 46,931 (11th Cir.1995).
dared the employer to fire him. Holding for the employer, the court noted that an"otherwise ected ' provoked employee' Despite this generally broad reading, courts fimit the ERA is not automatically absol from abusing his status and to protect only certam types ofacts. To constitute a protected overstepping the defensible bounds ofconduct." Id. at 1041.
safety report, an employee's acts must implicate safety The employee's cavalier attitude, abusive language, and definitively and specifically. Id. In Bechtel, a carpenter defiant conduct J'ustified his discharge. Id. at 1040-41. See disagreed with his foreman about the procedures for also Lockert v. UnitedStates Dep *r ofiabor, 867 F.2d 513, protecting radioactive tools.
The court protected the 519 (9th Cir. 1989) (employee's disobedience iustified carpenter s acts because he " raised particular, repeated discharge, especially where he failed to establish disparate concerns about safety procedures," which were" tantamount treatment or that he had made an unusually large or serious to a complaint." Id. The court also noted, however, that number orcomplaints).
" general m' quiries regarding safety do not constitute protected activity." Id.
Here, this court first must consider whether the ERA protects Sprague's conduct. A negative answer ends the The ERA does not protect every incidental inquir analysis because generally "an employer may fire an superficial suggestion that somehow, in some way, y or employe,e for any reason at all, so long as the reason does not may possibly implicate a safety concern. Stone & WebsterEng*g violate a Congressional statute." Kahn v. United States Corp. v. He man,115 F.3d 1568,1574 (1Ith Cir.1997). In Secretaryoflabor,64 F.3d 271,280 (7th Cir.1995). ANR Stone & Web:ter, a case decided on post-amendment law, the employee held a weeldy safety meetmg at which he discussed fire safety with his fellow ironworkers. The co art noted that 4
Section 5851 does not protect every act... under the see atso rarrsar Gar & Bec Co. v. Brock, 780 F.2d 1505.1506 (10th auspices of safety, and that,[w]histleblow,mg must occur cir.1985) (proicctmg an empkye a quality control inspector, who filed reports of continuous safety pia--); Afockomak,735 F.2d at 1:62 through prescribed channels." Id. The court protected the (v. As-g an estpkye do filed ineemat cornplaints and reponed safety pm.s to NRC) l i
i..p..
i
8 Americars Nuclear v. United No. 96-3825 No. 96-3825 American Nuclear v. Umted 9
States Dep't ofLabor States Dep*t ofLabor argues that Sprague's acts never amounted to an internal concrete and continuing. For er. ample,in Stone & Webster, safety complaint, and that therefore Sprague's conduct should the employee held weekly meetings about fire safety; in l
receive no protection. ANR asserts that the ERA protects Bechtel, the employee complained about the proceduies for only acts that allege a vic!ation of nuclear r 14ory laws.
inandling radioactive tools; and in Pogne, the employee had The government, on the other hand, argues t Sprague's p.ared seven internal reports idwifyir.g specific safety j
questions about the RPs expressed a "particular safety p
In contrast, S prague complained atmut an isolated I
concern" about the body count that was " tantamount to a mcident involving a wal spraying, not a procedural hazard.
complaint that the correct safety procedure was not being A single act or inquiry may, of course, fall under the ERA's observed, and thus constituted protected activity" The scope, but that act must bear a closer nexus to safety than Secretary of Labor, relying on Bechtel, found that Sprague's Sprague's conduct.
questions " constituted protected internal activities, since the RPs were responsible for Sprague's radiological safety as an Finally, even if the ER A does protect Sprague's conduct, ANR employee."
ANR did not fire Sprague because he complained about safety. Emanuel testified that she fired Sprague because of SpraBue's conduct falls outside the scope of ERA his interpersonal problems. Sprague complained primarily protection. His conduct lacks a sufficient nexus to safety about the RPs' incompetence, but the RPs did not work for concerns. Sprague did the following things that possibly ANR. No one could attribute the RPs' errors to ANR.
implicate safety: he complained about "the stupid RP's not Therefore, Sprague's complaints alleged no safety breach by knowing what they were doing" after t waited too long to ANR. Nothing in the record indicates how Sprag c's conduct spray; he grew angry at the RPs while t administered his could force ANR to change its procedures or mcur extra costs.
full body count test; and, after the test, he asked the RPs for An emqoyerwould hardly retaliate over sr 5 an insignificant a copy of the body count, even though he received e more sleight.
understandable exposure report.
REVERSED.
Syrague, however, never alleged that ANR was violating nucJ ear laws or regulations. He never alleged that ANR was ignoring safety procedures or assuming unacceptable risks.
He simply asked for a document, one that he had no right to receive and one that contained little useful information. The government contends that Sprague's general complaints about
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the RPs had larger safety imphcations, but the record refutes that position. While Sprague's complair% resulted in one set of additional body counts on the RPs, ' ose tests ultimately revealed no safety problem or health hazard. Sprague's conduct never led anyone to change, probe, or even question ANR's safety procedures.
In cases where courts protected the employee's acts, the
'ANRalso w.y; w that the Secretary of Labor denied it due process employee typically alleged a safety concern that was both and that the Secretary failed to wiw Niness requirernent.
w we = we need not ress %
L
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