ML20205K314
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| Site: | Millstone  |
| Issue date: | 03/23/1999 |
| From: | Choiniere P AFFILIATION NOT ASSIGNED |
| To: | NRC OFFICE OF ADMINISTRATION (ADM) |
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| FOIA-99-158 NUDOCS 9904130101 | |
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-lFUi IFiE: FOIA/PA 99-158
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>i 9904130'01 990407 1
( [ }s,
United States Nuclear Regulatory Commission Report of Review MILLSTONE UNITS 1,2, AND 3:
Al egations of Discrimination in NRC Office of Investigations Case Nos.1-96-002,1-96-007,1-97-007, and Associated Lessons Learned Millstone Independent Review Team March 12,1999
)
ogajo9othe on
REPORT OF REVIEW OF ALLEGATIONS IN NRC OFFICE OF INVESTIGATIONS CASE NOS. 1-96-002,1-96-007,1-97-007, AND ASSOCIATED LESSONS LEARNED in accordance with Chairman Jackson's January 28,1999 tasking memorandum and the Chairman's February 9,1999 memorandum establishing a charter for the Millstone Independent Review Team (MIRT), we have conducted a review of Office of Investigations (OI) Case Nos. 1-96-002,1-96-007, and 1-97-007, all of which were described or referenced in the Office of the Inspector General (OlG) Event inquiry, Case f
No.99-01S (Dec. 31,1998) [ hereinafter OlG Report). Based on that review, we have j
concluded the following:
1.
With respect to Case No. 1-96-002, as described in Attachment 2, the available evidence is sufficient to support the conclusion that the two allegers were the subjects of discrimination in violation of 10 C.F.R. 9 50.7.
2.
With rJspect T Case No. 1-96-007, as described in Attachment 3, the available evidence is insufficient to support the conclusion that the three allegers were the subjects of discrimination in violation of section 50.7.
3.
With respect to Case No. 1-97-007, as is described in Attachment 4, the available evidence is sufficient to support the conclusion that the alleger was the subject of discrimination in violation of section 50.7.
Further, although we find there is an adequate basis for a finding of discrimination in two of these three cases, we recommend that no enforcement action be taken. Our conclusion in this regard is based on the utility's apparently successful response to the remedial requirements already imposed by the agency to correct discrimination at the Northeast Utilities System (NU) Millstone facility.
In section 11 of this report, we summarize the results of our review of each of the three cases and, having concluded there is a sufficient evidentiary basis for proceeding in two of these cases, in section ill explain our recommendation r9garding appropnate enforcement action.
In addition, based on our review of the Ol investigative materials for these cases and the information provided in connection with background interviews conducted by the MIRT with individuals frcm the Office of the General Counsel (OGC), the Office of Enforcement (OE), 01, and OlG, we have concluded there are certain " lessons learned" that can be drawn relative to the investigative and enforcement processes that were utilized in these cases. These are set forth in section IV of this report. Moreover, as requested in the Chairman's January 28,1999 memorandum, and as an introduction to our discussion regarding the merits of the individual Ol cases, in section I of this report we provide a discussion of the " standard of review" for initiating enforcement cases 1
B
- 1. EVIDENTIARY STANDARD OF REVIEW I
1 Before providing our analysis of the particular 01 cases, we outline the general standard I
of review we consider appropriate for reaching a decision about whether there is an adequate evidentiary basis to proceed in connection with each of these cases. It should be noted, however, that this is not the equivalent of a determination about whether to actually proceed with an enforcement action. Although a determination about whether there is an adequate evdentiary basis to sustain a discrimination allegation may be a substantial factor in making a decision to proceed with an enforcement action, that enforcement decision also involves consideration of the exercise of enforcement discretion, with all of its policy and resource implications.
- A.
Four Elements for Review in Discrimination Cases We discussed with both OE and OGC the standard they currently use to determine when an enforcement case should be instituted relative te :laimed violations of section 50.7. We were provided with a copy of guidance recently prepared by OGC for use by the staff in determining whether discrimination occurred in violation of l
section 50.7. In that memorandum, a copy of which is included as Attachment 1, OGC i
describes an analytical framework for determining whether discrimination occurred, pertinent parts of which we summarize below.
As this guidance is relevant to the three cases we were asked to review,2 four elements are of criticalimportance:
1.
Did the employee engage in protected activity?
To answer this question requires a determination about whether the employee took j
some action to raise or advance a nuclear safety concern. As the OGC memo notes, I
^ activities might include instituting an NRC or Department of Labor (DOL) proceeding, documenting safety concerns, or an internal or external expression of safety concerns.
2.
Was the employer aware of the protected activity?
l This element necessitates a finding that the employer knew about the employee's nuclear safety concern or a:tivities to advance the concern. An employer would not be i
liable for violating section 50.7 if an employee failed to articulate a safety concern in a way that brought it to the employer's attention.
8 As the OGC memo notes, other elements, such as whether the individual who is the subject of the c', aimed discrimination is an " employee," may be involved; however, they are not at issue in the 01 cases we reviewed.- L7
product of a reasonable inference drawn from other proven events or circumstances in the case.
In so describing what is often the central supporting material in discrimination cases, it should not be supposed that because the information is circumstantial, the cases are somehow rooted in weak or deficient evidence. All cases, including a criminal case that must be proven with the highest degree of certainty,i.e., beyond a reasonable doubt,
!egitimately can be based wholly on circumstantial evidence. Indeed, such evidence, often the result of a painstaking exercise in drawing inferences (or more specifically reasonable inferences) based on the factual circumstances that are presented, can be as convincing as the " smoking gun."
One other comment is appropriate regarding the nature of circumstantial evidence.
Based as it is upon the ability to draw " reasonable inferences,"it is a somewhat subjective notion. 'As is often said, " reasonable people can differ." Thus, there is room for judgments to diverge about the extent to which any given circumstance or set of circumstances is sufficient to create an inference about the fact in issue, i.e., in section 50.7 discrimination cases, whether there is a sufficient causal nexus between the protected activity and the adverse action.
2.
Evidentiary Basis for Enforcement Action With this background, the question remains about the basis on which a decision should be made whether there is sufficient evidence to institute an enforcement action in a section 50.7 discrimination case, particularly with regard to the problematic fourth element. This being said, there appear to be four possible " burden of proof" constructs within which to frame a decision about whether there is sufficient evidence to conclude that a violation of section 50.7 occurred. In ascending order of difficulty these are: (1) the prima facie case; (2) preponderance of the evidence; (3) clear and convincing evidence; (4) beyond a reasonable doubt. And in the context of a discrimination case re!ative to the question of whether an adverse action was taken because of a protected activity, they might be summarized as follows:
a.
Prima facie case -- is there evidence that shows temporal proximity between the protected activity and the adverso action (as this standard is utilized in DOL discrimination cases, described further below, this is usually one year),
b.
Preponderance of the evidence -- it is more likely than not (more than a 50-50 case) that the adverse action was pretextual or that protected activity was a " contributing factor"in the adverse action.
c.
Clear and ccnvincing evidence -- is there evidence that shows with reasonable certainty oi a high probability that the adverse action was pretextual or that the protected activity was a " contributing factor" in the adverse action.
I l
\\.
e Accordingly, in assessing these and other discrimination cases, we believe the appropriate " evidentiary" standard should be:
Whether, based on all the available evidence, there is information I
sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the ev!dence.
In the context of this standard, as the OGC memorandum suggests, Attachment 1, at 2 i
n.1, we would consider the "available evidence" to include all the information accessible I
to those making the enforcement decision, regardless of whether it would be considered admissible in an adjudicatory hearing.' Further, we note that, because this standard is based on a " reasonable expectation" of what can be shown, there is room for differing informed judgments about when the requisite expectation has been fulfilled.
C.
Additional Considerations l
Having outlined this general standard, we think two additional, related poin3 require some mention.
1.
Evidentiary Basis to Charge Cornpany v. Individual Company Officials From the information gathered as part of the OlG investigation, there seems to be some uncertainty about whether there is a difference in the evidentiary standard when enforcement action is being considered against a company, as opposed to the company employees who are alleged to have been the actors in the adverse action. There.is a suggestion that, for the latter, there should be a somewhat higher standard, going more toward the clear and convincing side of the evidentiary spectrum. As far as we can ascertain, however, the applicable statutory or regulatory provisions regarding discrimination do not distinguish between the company and its emp!oyees in terms of culpability or liability. Accordingly, in both instances, the evidentiary standard must be the same.
What may lead to different treatment is the exercise of enforcement discretion. Even with a determination that there is an adequate evidentiary basis for finding a violation, as the Enforcemer t Policy indicates, the agency has wide discretion in determining when to act against companies or individua!s that violate its requirements. Relative to discrimination cases, any number of factors may be relevant to bringing charges against
' As the.OGC memorandum appears to recognize, see Attachment 1, at 3, making a decision based on "available" rather than " admissible" evidence does not relieve those entrusted with making the decision on whether to go forward from candidly considering the strength of that evidence, which should include possible admissibility problems. In the administrative context, however," admissibility"is a more flexibk concept that allows the use of evidence, such as hearsay, that would not be permitted in a judicial proceeding. See, e.a., Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863,25 NRC 273,279 (1987). -
II. ANALYSIS OF CASES A.
Case Review Process in accordance with the directive in Chairman Jackson's January 28,1999 memorandum, the review team evaluated three Ol cases involving discrimination silegations. Although all the team members and team advisors familiarized themselves with each of the cases, an individualized, in-depth review of each of the cases was conducted by a single team member or advisor who provided a report on his or her conclusions.
For these in-depth studies, the case reviewer had available the Ol case report; all supporting exhibits; the 01 investigative file for the case, which included correspondence and investigator notes; and the OE file for the case. in addition, relative to Case Nos.1 96-002 and 1-97-007, team personnel conducted interviews with the 01 investigators with principal responsibility for those cases to clarify questions about the scope of the investigation that was conducted. Further, relative to Case No.1-96-007, the in-depth review included consideration of the October 2,1996 NRC Task Force Report and associated attachments; a December 10,1997 01 investigator memarandum; the investigative report in another 01 case, No. 1-90-001, along with two interview reports conducted in connection with that case; and a February 4,1999 letter to Chairman Jackson from one of the allegers. Also in connection with that case, the team reviewed additional comparative information regarding the employees who were in the final pool considered for termination that OlG obtained from NU as part of the inquiry that resulted ir' the OlG December 1998 report. Finally, also considered in Case No.
1-96-002 were SECY-98-292, Proposed Staff Action Regarding Alleged Discrimination Against Two Employees at Northeast Utilities (EA 98-325) (Dec. 21,1998);
Commissioner vote sheets concerning that SECY paper; and letters dated January 19, January 27, February 9, and February 23,1999, from one of the allegers to OlG that were referred to the review team for its consideration.5 Besides this case specific information, team personnel also reviewed various " generic" documents in an attempt to acquire an understanding of the overall situation at Millstone during the relevant time period. These included: Confirmatory Order Establishing independent Corrective Action Verification Program (Effective immediately) (Aug.14, 1996); NRC Office of Nuclear Reactor Regulation, Millstone Lessons teamed Task Group Report, Part 1: Review and Findings (Sept.1996); Order Requiring Independent, Third-Party Oversight of Northeast Nuclear Energy Company's implementation of Resolution of Millstone Station Employees' Safety Concerns (Oct. 24,1996) [ hereinafter October 1996 Order); SECY-97-036, Millstone Lessons Learned Report, Part 2: Policy issues (Feb. 12,1997); SECY-98-090, Selected issues Related to Recovery of Mil! stone Nuclear Power Static lnit 3 (Apr. 24,1998); SECY-98119, Remaining issues Related to Recovery of Millstoi Nuclear Power Station, Unit 3 (May 28,1998); SECY-99-10, 5 OlG advised the team that the alleger was informed of the referral of the January 1999 letters.
.g.
I J
The cases before us involve allegations of discriminatory action in 1993,1995, and 1996, respectively. Thus, they called for an examination of events occurring in the period during which, according to the Commission order, there were significant deficiencies in the manner in which NU was treating employees who raised safety concerns.
Standing alone, that consideration could not be deemed dispositive in assessing the merit of the allegations at hand. Stated otherwise, it does not necessarily follow from l
the fact there may have been numerous instances of discriminatory action in the relevant time period that the individual allegers with whom we are concerned were among the victims.
At the same time, however, the revelations contained in the Commission order manifestly could be taken into account in circumstances where the Of investigation was found to have produced sufficient independent evidence to support an inference that a nexus existed between the alleger's dismissal or demotion and the protected activity in which he had previously engaged. More specifically, NU's unenviable track record in dealing with employees who had raised safety concerns could properly serve in such circumstances to buttress the independently drawn inference of improper management conduct. Additionally, although seemingly not the situation in any of the cases at hand, had the Ol record allowed a choice between equally plausible opposing inferences respecting the likelihood that protected activity was ar influencing factor in the adverse personnel action, that track record might well have tipped the balance in favor of a finding of discrimination.
Against this backdrop, we provide the following synopsis of our review and conclusions regarding each of the three cases.'
C.
Case No. 1 96-002 01 Case No. 1-96-002 involved two supcrvisors who were demoted in the course of a
" reintegration,"i.e., reorganization, of NU's nuclear engineering functions in November 1993. Both employees maintained that their demotions, to the positions of senior and principal engineer, respectively, were prompted by the fact that they had raised and championed a variety of safety issues in the two years preceding the reorganization.
Indeed, just days before the announcement of the reorganization, both had raised controversial safety issues with the vice president who presided over the process that led to their demotions.
8 in connection with the foregoing discussion, we note that the totality of the record before us does not suppori the conclusion that discriminatory circumstances at NU were so " pervasive and regular" with respect to the individual allegers as to constitute a " hostile work environment" as that concept is outlined in the OGC guidance memorandum. See Attachment 1, at 2.
'D.
Case No. 1-96-007 Ol Case No.1-96-007 involved three individuals whose employment was terminated'in January 1996, along with ninety-nine other employees, as part of a workforce reduction
. program. Each employee alleged that his inclusion in the reduction was brought about by reason of his involvement in protected activity.
Employees under consideration for termination under the workforce reduction program were evaluated and ranked, on a matrix, with their peers in a number of specific areas of I
competence. With input from their supervisors, managers were responsible for completing the matrices and were ;o base their scores on the employee's last two performance reviews and a prediction of how the employee was likely to perform in the future organization. The review procedure in connection with the completed matrices
)
included an examination of those of certain employees who had raised safety concerns.
The purpose was to ensure that they had not been targeted specifically for reduction.
The three allegers were on this so-called "added assurance" review list.
In the case of the division in which each of the allegers was employed,it was ultimately determined that a total of four employees were to be terminated. On the basis of their low relative rankings on the matrices, the allegers were included in that group.
Because the matrices of the employees not terminated were destroyed in the interim, an inquiry into whether there was invidious disparate treatment of the allegers has been foreclosed. The 01 record, however, not only confirmed that the allegers had faired
- poorly in the evaluation process, but also negated any suggestion that their low rankings might have had discriminatory underpinnings. The content of their matrices was furnished by first and second-level supervisors without any discernible reason to provide the allegers with unjustifiable low evaluaticns in retaliation for their protected activity.
More important, peers of all three allegers confirmed the existence of performance shortcomings that readily justified the rankings that were given to them. There was some suggestion that the vice president in charge of the division in which they worked may have acted against them because of his knowledge either of the past involvement of two of the allegers with a well known Millstone whistloblower or as a result of his service on a board that reviewed the other alleger's appeal of his 1994 performance evaluation. In the totality of circumstances, however, we could not discern a sufficient basis for a finding that the protected activities of one or more of the allegers wa; a factor involved in their inclusion in the workforce reduction.
1 in this regard, we have considered the concerns expressed by the NRC Task Force and
]
the Ol investigator with principal responsibility for this case. On analysis of these concerns, our assessment of the record before us remains unaltered.
1 Consequently, we have concluded with respect to this case that, based on all the available evidence, there is not information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence.
1 Ill. ENFORCEMENT RECOMMENDATION The question remains as to whether enforcement action should be taken in either or both of the two cases in which we have concluded that NU management personnel discriminated against subordinates because they engaged in protrcted activities. If
.taken, that action could be directed against either or both the licensee and the I
discriminating managers.
Manifestly, the question is essentially one of the appropriate exercise of enforcement
' discretion and, as such, brings policy considerations into play. Moreover, some of those considerations -- for example, the best utilization of what are doubtless limited agency resources - clearly are beyond our ability to evaluate. We thus must confine ourselves to what can be said based upon our understanding of the philosophy undergirding the Commission's enforcement policy, as well as of significant developments occurring since the determined discriminatory actions took place in 1993 and 1995, respectively.
A.
Enforcement Policy Regarding Discrimination Cases A reading of the totality of the General Statement of Policy and Procedures for NRC Enforcement Actions, NUREG-1600, Rev.1 (May 1998),63 Fed. Reg. 26,630 (1998)
(hereinafter NUREG-1600), confirms the remedial nature of such actions. In the context of discriminatory misconduct such as that found to have occurred in the two cases here, the foundation of the enforcement policy appears to be the recognition that retaliation against employees who have raised safety concerns poses a significant actual or potential threat to the public health and safety. Accordingly, it is important where wrongdoing of that stripe has been uncovered that measures be taken designed to ensure that there is not a repetition on the part of the licensee and its managers.
Further, it is equally important that the message be clearly conveyed to other NRC licensees and their managers that retaliatory adverse personnel actions are a very serious matter and cannot and will not be tolerated by this agency.
B.
Relevant Factors in Implementing Policy 1
If this understanding is correct, the pivotal inquiry is into whether, in the circumstances at hand, enforcement action against NU and/or its offending managers is warranted in the furtherance of the dust purposes at the root of the enforcement policy as it applies to
' discrimination cases, in approaching this question, we have taken note of three.
documents of seeming relevance: (1) the previously discussed October 24,1996
~ Commission order in which NU was directed to take certain specific steps designed to
- rectify prior misconduct in the treatment of employees who had voiced safety concerns; (2) the transcript of an open Commission meeting held on January 19,1999, regarding possible closure of that order; and (3) the March 9,1999 staff requirements memorandum (SRM) approving the staff's recommendation to close out the October 1996 order.
j For its part, the NRC staff concurred in the Little Harbor judgment that the strictures of the October 1996 order were no longer required. Tr. at S-89 to S 120. And the three representatives of the Millstone Employees Ad-Hoc Group were generally positive respecting the effectiveness of the corrective measures taken in fulfillment of that order.
Tr. at S-128 to S-147.8 3.
Closure of October 1996 Order Subsequently, in apparent agreement with the appraisals of NU, the staff, Little Harbor, and the Millstone Employees Ad-Hoc Group,in a March 9,1999 SRM concerning SECY-99-10, the Commission approved the staff's recommendation to close the October 1996 order. In doing so, the Commission directed the staff to be vigilant in monitoring NU's performance in the ECP and SCWE areas to ensure any performance decline is detected early on.
C.
Timing of Enforcement Action As is apparent from the foregoing, over two years before the determination of wrongdoing that we now make in Cases Nos. 196-002 and 1-97-007, the Commission took action against NU that, in its effect, applied directly to such wrongdoing. This was, of course,-a very unusual sequence of events insofar as concerns the customary Commission response to allegations of discrimination flowing from protected activity.
Normally, the consideration of possible Commission enforcement action addressed to a particular alleged violation of the employee protection provisions of 10 C.F.R. s 50.7 does, as it must, abide a finding that the allegation is meritorious. Only upon such a finding can it be appropriately determined what, if any, sanction against the licensee and/or the offending managers should be imposed in the fulfillment of the purposes underlying the enforcement policy as applied to section 50.7 violations.
As seen, two factors turned the normal process on its head in this instance. First, by 1996 it had become clear to the Commission that there had been for many years an unhealthy NU environment respecting the treatment of employees engaged in protected activities. As a consequence, corrective action in the form of the NU implementation of a broad-scale remedial plan under independent third-party oversight was ordered in that year. Second, while the umbrella of the decreed corrective action extended to the allegations of 1993 and 1995 wrongdoing in Cases Nos. 1-96-002 and 1-97-007, respectively, it is not until 1999 that those allegations are being upheld. As of this time, the corrective action has been in progress for over two years and, according to all those involved in its implementation (NU), its oversight (Little Harbor), and its regulatory 8 Other witnesses, including representatives of the State of Connecticut Nuclear Energy Advisory Council and Friends of a Safe Millstone, expressed the view that it was desirable to continue Little Harbor oversight on an "on call" part-time basis. Tr.
at S-123, S 146. -
l escalated enforcement action within the past two years, see SECY-98-119, at 13-14, and, in these circumstances, would receive no credit for identification or corrective action," subject to the exercise of discretion,52 the civil penalty amount potentially would I
be the Severity Level ll base amount (S88,000) plus 100 percent.
For Case No. 1-97-007, because one of the NU officials involved was at the time a mid-level management official (a director, who was third-level supervisor), a Severity Level 11 civil penalty also potentially is involved. Again, because NU has been the subject of escalated action within the past two years and, in these circumstances, would be entitled to no credit for identification or corrective action, subject to the exercise of discretion, the civil penalty amount potentially would be the Severity Level 11 base amount plus 100 percent.
With respect to the individua!s involved, the agency previously has taken enforcement action against utility officials found to have been involved in discriminatory activities, by l
issuing either a notice of violation or an order banning the individual from licensed activities for a specified period." A review of significant enforcement actions between January 1990 and June 1998 reveals three instances in which utility supervisors, as
" The identification credit appears inappropriate in Case No. 1-96-002 because the agency, not NU, is identifying the violation. In connection with the corrective action credit, the enforcement policy statement indicates that in discrimination cases it should normally be considered only if the licensee " takes prompt, comprehensive corrective action that (1) addresses the broader environment for raising safety concerns in the workplace, and (2) provides a remedy for the particular discrimination at issue."
NUREG 1600, at 11,63 Fed. Reg. at 26,640. For Case No. 1-96-002, up to this point the licensee has not taken any action under the second element, and thus does not appear to qualify for this credit either.
22 in both cases, there may be significant questions about the appropriate use of limited enforcement resources. As we have previously noted, this is a matter about which we cannot make an informed judgment.
The' identification credit appears inappropriate in Case No. 1-97-007 as well because the agency, not NU, is identifying the violation. The corrective action credit also appears inapplicable because under element two -- provide a remedy for the particular discrimination -- although the utility did take action to reinstate the terminated employee through an intemal grievance process, that was as a result of a finding unrelated to discrimination. See suora note 9.
" Although the enforcement policy also indicates that a letter of reprimand may be issued to an individual to identify significant deficiencies in his or her performance of licensed activities, it is our understanding that use of this administrative action is in the process of being discontinued. j
4 IV. LESSONS LEARNED A.
Lessons Learned P.eview Process in seeking to draw lessons learned from the investigative and enforcement processes used with respect to these cases, and principally Case No.196-007 that was the focus of the December 1998 OlG report, in addition to review of the individual case information outlined in section ll.A. above, team personnel reviewed the January 27, 1999 rnemorandum from the Executive Director for Operations (EDO) outlining staff responses to Chairman Jacksor's January 7,1999 questions concerning the December 1998 OlG report, and conducted interviews with senior officials from OI, OE, and OGC about the general conduct of the agency's investigative and enforcement processes.
Team personnel also itad discussions with an OlG investigator who was involved in the preparation of the December 1998 report. In this regard, the team was given access to the transcribed interviews of various agency employees taken during the OlG inquiry that led to the Decamber 1998 report.
Based on the information gathered through this process, we provide the following suggestions and recommendations.
B.
Lessons Laarned 1.
Utilization of Millstone Task Force From what we have been able to gather, the decision to assemble the special task force to begin a review of the 1996 Millstone reorganization apparently was a sound one.
What is less clear, however, is whether there was a clear concept of the way in which that group's work was to be '..dized and incorporated into the existing investigative and enforcement processes. 7,e seemingly abrupt decision to halt their work, in combination with the bela,ed di'ection, some five months later, to prepare a report on their conclusions, seems to reflect there was not, at its conception, a plan for integrating the task force into the existing regulatory scheme. This is also reflected by the apparent lack o, any concerted effort to include appropriate task force members in all steps of the enforcement process, including the June 1998 final conference on Case No. 1-96-007.
A special task force like that established to review tt,e 1996 NU downsizing effort can serve a valuable purpose by bringing special expertise and insight into the investigative and enforcement processes. As the circumstances surroundirig that task force j
illustrate, however, failure explicitly to define the group's role in the existing agency processes from the outset can effective!y nullify its use:ulness by creating unnecessary misunderstandings and misperceptions about the validity of any results derived from those processes.
l a
Although acknowledged in the OlG report, it is wwth mentioning again that the lack of any investigatory summary here apparently had another, albeit again unintended, detrimentalimpact on the process. Of has a policy in its manual that governs the resolution of disputes between investigators and Ol managers. See 01 Procedures Manual at 32-33 (Aug.1996). As the O!G report indicatcs, however, that policy was not utilized to address the apparent conflict between the 01 investigator and the Field Office Director over the sufficiency of Case No.1-96-007 because the report did not contain a written conclusion. See OlG Report at 10. This is unfortunate, since a more direct confrontation of the problems of this case at an w!ier stage through this policy might have surfaced at a much earlier point the uncertainties that ultimately led to the position reversal that raised concerns about the overallintegrity of the eriforcement process.
4.
Enforcement Conference Process As we have noted, because they involve drawing inferences about the generally unexpressed motives of individuals, discriminatim cases are among the most difficult agency enforcement matters. Especially coni ing the critical nuestion of whether there is a sufficient " causal nexus" between the protected action and the adverse action, these cases require a careful analysis of the factual record -- determining what the relevant facts are and now they are to be weighted, compared, and contrasted -- to reach a conclusion.
Enforcement Guidance Memorandum (EGM) 99-001, which is included as Attachment 2 to the January 27,1999 EDO response, provides guidance intended to ensure that Enforcement Action (EA) Request and Enforcement Strategy Forms now used as status and briefing aids at staff enforcement conferences more accurately reflect what occurs during, and the outcome of, these conferences. This certainly addresses the recordkeeping concern identified by the OlG report. There is, however, another, perhaps more substantive concem, that appears to remain regarding the enforcement conference decisional process as it relates to discrimination cases.
From the most recent draft of Staff Requirements Memorandum (SRM) M990115,it appears the Commission is considering requested that in future enforcement papers to the Commission, the staff clearly state (1) the criteria i; used to determine whether a v alation occurred and the facts and analysis relied on to reach that conclusion; and (2) in the event of cifferences between OE and 01, the basis for OE's ultimate recommendation, including a suppouing analysis. We think, however, that particularly for the concededly difficult discrimination cases, consideration should be given to starting this " articulated :/ afytical process" at the inception of the enforcement process, not just when these matters reach the Commisden.
What we contemplate for discriminatica cases is a process, beginning at the enforcement panel stage, in v W5 there is some attempt by the major participants --
e.g.,01, OGC, and OE -- to si out briefly in writing the analytical framework for their tentative conclusions regarding a particular discrimination allegation. The construct we have described in section ll.A. above (supplemented to address other relevant factors)
F Case No. 1-96-007, such OGC participation is not as helpful as it might otherwise be.
Given the tact that at least one OGC enforcement attorney has reviewed the entire case file, the role of that office might extend far beyond simply venturing an opinion on whether an enforcement action would or would not be legally precluded. Rather, we know of no good reason why OGC should not provide OE with its considereo judgment as to whether an enforcement action is not only legally permissible, but also warranted under whatever evidentiary standard the Commission has adopted as a basis for taking such action.as On the basis of oral briefings we received with regard to the role OGC attorneys play in giving advice to OE and 01 in cases involving alleged violations of section 50.7, it appears that the situation indicated by the O13 investigation may now have changed.
Specifically, we have been given reason to believe that, at present, OGC enforcement attorneys may be assuming a more proactive rola in providing their views on the strengths and weaknesses of particular cases as illuminated by the record amassed in the course of the 01 investigation. If so, the process of reaching an informed judgment on whether a section 50.7 violation worthy of enforcement has occurred will have been benefitted.
We also note that, according to the information we were given by OI, approximately forty percent of the office's total caseload is discrimination cas'- with those case types making up sixty-five percent of the Figh-priority cases.
suse discrimination cases are so " fact intensive,"i.e., they require a careful deve.,.. tent and sifting of the facts to determine what reasonable inferences can be drawn, earlier involvement on the part of OGC attorneys (and perhaps OE personnel) may well be useful, arguably from the investigation's inception. In one of our oral briefings, OGC indicated that in the context of a planned office reorganization, it is considering assigning discrimination cases with the anticipation that the attorney who advises on the case during the investigative / enforcement process will be the attorney responsible for trying the matter should it go to an administrative hearing.22 This undoubtedly would help to ensure that evidentiary problems are explored thoroughly before any decision to bring enforcement action is made.83 8' OGC would not, of course, be called upon to pass upon such policy questions as whether it would be an appropriate exercise of prosecutorial discretion to forego an enforcement action in tha circumstances c. the particular case.
88 in this regard, we hope that the seeming need for enhanced interaction between Ol and OGC enforcement attorneys, particularly at the outset of the investigative p ocess, would not fall victim to historical concerns about Ol independence.
The need to maintain Ol independence is clear; however, more collaboration between OGC enforcement attorneys and Ol investigators to develop the factual construct for enforcement cases, particularly discrimination cases, seems highly desirable.
23 in scrutinizing a claim that a federal executive branch "whistleblower" has been (continued...)
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to reach a conclusion about disparate treatment. Given the similarity of this analysis to that which is regularly usad in the EEO context, continuing interaction between those in the agency who handle EEO cases and 01, OE, and OGC enforcement attorneys might provide those on the enforcement side with a better understanding of what is required.
- 7. Other Matters The MIRT also received unsolicited suggestions for revisions / improvements to the investigative and enforcement processes from an agency employee and a public interest group with a stated interest in Millstone. One commenter outlined a perceived problem with the job classification used for Of investigators, while the other suggested that O1 should again be made a Commission-level office. These appear to be matters that fa" outside of the scope of the review we were asked to undertake. Accordingly, absent some further Commission directive, we plan to offer no recommendations regarding either suggestion.
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' 4.
Particularly with recpect to 10 C.F.R. 9 50.7 discrimination cases, an
" articulated analytical process" should be incorporated into the enforcement conference process to the extent practicable.
5.
Particularly with respect to 10 C.F.R. 9 50.7 discrim,' nation cases, OGC enforcement attorneys, should take a more proactive role in the investigative process from its incer'i with the expectation that, to tl.e extent practicable, the attorney assigned to an Of case wculd be responsible for handling the case if it is adjudicated.
6.
Anticipating that electric industry deregulation and enhanced competition
'slll produce other large scale reorganization / downsizing efforts, the agency should endesvor to ensure that the utility retains all relevant documentary information regarding all those whose positions are implicated in the reorganization /downsi.png.
Respectfully Submitted by the Millstone Independent Review Team l
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G. Paul Bollwerk, lil Actino Chief Administrative Judge Atomic Safety and Licensing Board Panel 4
w/
Carolyn F.Tvans Regional Counsel NRC Region ll bad t%
Sara McAndrew Attorney Office of tne General Counsel March 12,1999.
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2 of 10 C.F.R. 50.7. Each alleger manifestly had engaged in protected activity; there was the requisite management awareness of that fact; and the alleger's termination or demotion was a 1
classic example of advctse personnel action.
Unsurprisingly, the difficult assessment concemed the fourth element: whether the required nexus existed between the protected activity and the adverse action. In approaching that question in each case, there was a recognition of the obvious: the fruits of the 01 investigation would not include any acknowledgment of licensee wrongdoing or, ir' sll likelihood, anything that might constitute direct evidence either in support or in refutation of the alleger's
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claims. Thus, the determination respecting whether the licensee's proffered explanation for the adverse action was genuine, or instead in whole or in part pretextual, would necessarily hinge j
upon the drawing of inferences from evidentiary disclosures that might well be in substantial I
conflict.
Such was the situation that confronted the review team as it embarked upon its assigned task. In carrying out that task, it had two marked advantages.
The first, presumably enjoyed whenever the results of an 01 investigation are in hand, stemmed from the completeness of the evidentiary record on which the inferences had to be based. There doubtless is no investigation that could not be taken a step further if time and resources permitted. In the three cases before the review team, however, the investigation was conducted by one or more Ol Special Agents with considerable thought and consummate thoroughness. Without being overbearing in their probing, the investigators identified and
' I would think that employees called upon to perform sciettrelated functions (as were all the allegers in the cases at hand) inevitably will find it necessary to raise safety issues from time to time in the fulfillment of their responsibilities. Of course, the extent to which they might choose to pursue these issues either internally or with the NRC will vary end might well affect the solicitude of superiors regarding a particular protected activity.
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4 likely appropriate response made an 180-degree turn as I gave the matter additional thought.)
And, even after allinvolved in this enterprise had made full use of the time available for study and reflection, there still was room in the instance of at least some of the allegers to be less than fully confident in the choice that had to be made between conflicting possible inferences.
I do not mean to suggest that the conclusions reached by the review team in its case studies are suspect. Once again, I think them totally supported by a cogent analysis based on a full consideration of the pertinent facts as disclosed by the 01 investigation. Accordingly, had a like conclusion founded on a like analysis come before me in my time as an adjudicator in this agency and later in the General Accounting Office, I would have had no hesitancy in upholding it. All that i do mean to convey is my belief that cases such as these do not lend themselves to certainty. Whenever the drawing of inferences from inconclusive facts is the order of the day, reasonable minds can and often will differ.' Thus, for example, while it may be contrary to the l
outcome of the review team's analysis (with which I am in full agreement), it does not follow that l
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the conclusion reached by the NRC Task Force F. Case No.1-96-007 is perforce flawed.5
- 2. In icio of the three cases examined (Nos. 1-96-002 and 1-96-007), the adverse action taken against the allegem was part of a broad-based restructuring or redu:: tion-in-force involving a significant number of NU employees. Inus, for example, the three allegers in Case No.
' This is especially so where the required inference relates to the state of mind of the j
management official (s) who took the cdverse action alleged to have been discriminatory.
j Of course, the Task Force may not have had at its disposal the time and rescurces 5
available to the review team.
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, approximately 90 employees who were identified by name as having raised safety concerns j
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with either the NU Employee Concerns Program (ECP) or its equivalent predecessor group at j
l Millstone from January 1990 to January 1906, five were included in the "added assurance" I
reviewlist. Of those five, three were selected fer termination. In addition, two employees who had raised safety concerns with the ECP were terminated even though they had not been on the "added assurance" review list.
Presumably, all 19 of the employees on the "added assurance" review list who survived -
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the workforce reduction were among the total of approximately 3,200 individuals subject to evaluation by the matrix process. Additionally, it may reasonably be assumed that, even if they did not turn up on that list, most of the retained persons who had brought safety concerns to the ECP similarly had been assessed as candidates for possible layoff.
The short of the matter thus is that,if the matrices of the several thousand employees who were evaluated but not terminated had been available to the Ol investigator and then examined, the results likely would not have justified the formidable time and effort that would have been involved in the examination. The investigator still would have been confronted with the fact that a vast majority of the employees who placed safety concernt before the ECP between 1990 and 1996 were not laid off and, in the more select group of employees receiving special "added assurance" review because of their perceived " sensitivity," almost 50% kept their jobs. This being so, it is difficult to see how a comparison of the matrbes of the three allegers in Case No.1-96-00 (all of whom were on the "added assurance" review list) with those of some or all of the retained employees might have assisted an informed determination on the likelihood that the allegers had been the victims of disparate treatment because of their protected activity.
8-positions and,indeed, one of them found himself subordinated to a nev<ly-created supervisor.
i-Given the fact that the allegers had solid prior performance appraisals in their supervieor roles -
- appraisals that, however, were not made available at the selection meeting -- this state of affairs manifestly placed a decided burden upon the management to demonstrate that the demotions had a tutally non-discriminatory basit This burden was not met.
The third case examined by the review team (No.1-97-007) did not involve a broad-scale reorganization or workforce reduction but, instead, a termination of a single individual--
the alleger -- for asserted lack of satisfactory supervisory performance. Although two instances of different treatment accorded other employees surfaced in the course of the 01 investigation, the review team found them of no probative value. Rather, the conclusion that the alleger's termination was at least partial:y motivated by his prior pmtacted activity was founded on the responsible management officials' failure to provide an acceptable basis for their claim that his supervisory capabilities and performance were poor beyond the possibility of remedy. Given the totality of the circumstances undermining the explanation offered, the review team found that explanation pretextual.
As i see it, the analytic framework utilized in these three cases has generic value. In a nutshell, while there well may be cases in which disparate treatment can be discerned and a Section 50.7 violation based thereon, I believe that, in most instances, the more useful
months ago', it is difficult to quarrel with the review team's conclusion that further enforcement action would have a punitive, rather than a remedial, flavor.
With the Commission's indulgence, I close this brief statement with a purely personal observation. I welcomed the opportunity to return, if but for a very short time, to the s.7ency in which I had served for the better part of two decades. And it was a particular pleasure to have renewed my association with Judge Bollwerk, a member of the Atomic Safety and Licensing Appeal Panel during my last years on that Panel, and to have become acquainted with the other members of the review team, i
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e See March 9,1999 SRM regarding SECY-99-010.
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UNITED STATES E
NUCLEAR REGULATORY COMMISSION o
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ATOhlC SAFETY AND UCENSING BOARD PANEL g
WASHINGTON, D.C. 20555-0001 March 31,1999 MEMORANDUM TO.
Chairman Jackson FROM:
G. Paul Bollwerk,111 b hM(iTE Acting Chief Administrative Judge
SUBJECT:
CLARIFICATION OF ENFORCEMENT DISCUSSION IN MARCH 19,1999 MILLSTONE INDEPENDENT REVIEW
-TEAM REPORT As a result of the discussions held with you and the Commission regarding the March 19, 1999 report of the Millstone Independent Review Team (MIRT), it became clear that une r,spect of the report's discussion required further clarification.
In addressing the enforcement options available to the Commission relative to Office of investigations Case Nos.96-002 and 97-d)7, the discussion in section Ill.D.1 of the MIRT report was confined to the question of the need for the imposition of a civil penalty or an enforcement order in those caser. For the reasons stated in that section, we concluded that any such need had been obviated by the Northeast Utilities System (NU) response to the agency's October 24,1996 order as that response had been detailed at a January 19,1999 Commission briefing.' That section was not intended to address the i
entirely separate question of the appropriateness of agency issuanue of a notice of violation (NOV) or a letter of reprimand to NU or any of the individual supervisors involved in those cases and, accordingly, should not be understood as recommending against issuance of an NOV or letter of reprimand.
cc: Commissioner Dieus Commissioner Diaz Commissioner McGaffigan
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Commissioner Memfield
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