ML21069A106
| ML21069A106 | |
| Person / Time | |
|---|---|
| Issue date: | 06/30/2020 |
| From: | NRC/OE |
| To: | |
| Gifford I | |
| Shared Package | |
| ML20188A203 | List: |
| References | |
| EA-20-006, EA-20-007, NRC-0945 | |
| Download: ML21069A106 (183) | |
Text
(202) 234-4433 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
+ + + + +
PRE-DECISIONAL ENFORCEMENT CONFERENCE RE TENNESSEE VALLEY AUTHORITY (TVA)
(DOCKET NOS. EA-2020-06 & EA-2020-07)
+ + + + +
TUESDAY JUNE 30, 2020
+ + + + +
The conference was convened at 8:00 a.m.,
George Wilson, Director, Office of Enforcement, presiding.
NRC STAFF PRESENT:
GEORGE WILSON, Director, Office of Enforcement NICOLE COLEMAN, Office of Enforcement ALEX ECHAVARRIA, Office of Investigations IAN GIFFORD, Office of Enforcement NICK HILTON, Office of Enforcement SARA KIRKWOOD, Office of the General Counsel MAURI LIMONCELLI, Office of the General Counsel SCOTT LUINA, Office of Investigations NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
2 CHRIS MILLER, Office of Nuclear Reactor Regulation MARK MILLER, Region II KENNETH O'BRIEN, Region III SARA PRICE, Region II, Regional Counsel DAVID SOLORIO, Office of Enforcement ANDY SHUTTLEWORTH, Office of Investigations SCOTT SPARKS, Region II CATHERINE THOMPSON, Office of Enforcement ALSO PRESENT:
GEORGE BARSTOW, Vice President of Nuclear Regulatory and Support Services, TVA MIKE BERNIER, Office of General Counsel, TVA MARY PAT BROWN, O'Melveny & Myers, on behalf of Respondent, TVA ALEX DURAN, O'Melveny & Myers, on behalf of Respondent, TVA SID FOWLER, Pillsbury Winthrop Shaw Pittman, on behalf of Respondent, TVA MEGHAN HAMMOND, Pillsbury Winthrop Shaw Pittman, on behalf of Respondent, TVA MICHAEL LEPRE, Pillsbury Winthrop Shaw Pittman, on behalf of Respondent, TVA NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
3 MICHAEL McBREARTY, Complainant TIM RAUSCH, Chief Nuclear Officer, TVA LAUREL RIMON, O'Melveny & Myers, on behalf of Respondent, TVA TIMOTHY WALSH, Pillsbury Winthrop Shaw Pittman, on behalf of Respondent, TVA BETH WETZEL, Complainant NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
4 CONTENTS Opening Remarks ..................................11
-- Director, Office of Enforcement Enforcement Policy Overview ......................14
- Office of Enforcement Staff Apparent Violation ...............................18
-- Office of Enforcement Staff External Presentation.............................23 Complainant Comments.............................137 External Response to Complainant Comments........139 Questions........................................142 Closing Remarks..................................178
- Director, Office of Enforcement NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
5 P R O C E E D I N G S 8:01 a.m.
MR. WILSON: Good morning, My name is George Wilson, I m the Director of the Office of Enforcement.
Before we get started, Ian Gifford will review details of today's video teleconference and answer any questions. Ian?
MR. GIFFORD: Thank you, George. I believe we've tested everyone's audio, it sounds good. I just want to walk you through some features of Webex during the meeting.
If you'd like to see a list of all participants, it should appear on the right-hand side of your screen. If you don't see the list of participants by name, you can click the blue participant icon in the top right corner and you'll see a list of everyone attending.
In order to control your own audio, you'll hover over your own name and you can select the mute or the video to turn on and off your video, or to turn on and off your mute.
I'm going to ask that everyone mute themselves during the meeting when they're not speaking so we can avoid any feedback. The host also NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
6 has the ability to mute the audio. If you've been muted by the host, you will not able to unmute yourself.
So, that's why we're asking you to control your own audio. If you've been muted by the host and you would like to say something, you can use the chat feature in the bottom right-hand corner.
If it's not available right now, you would select the blue chat icon and you can type a message to the host indicating that you would like to have your audio turned back on.
In addition to seeing the list of attendees, you also see a video box in the top right corner, where you'll have the video of the active speaker. If you would like to see all the other video feeds in addition to the active speaker in the bottom right corner under the list of attendees, there's three horizontal lines. You click the drop-down menu and you can switch from list view to thumbnail view, and that will give you all of the active video feeds that are being used. And you can scroll up and down to see them. On the screen you should see what that looks like.
You would have the larger box in the top right corner and then the smaller thumbnails under NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
7 it. During the presentation, if you would like to navigate to full-screen mode, you can click the bottom left-hand corner, it says full screen.
And that will show a large image of the PowerPoint slide. Then your audio controls will move to a drop-down menu, so you'll hover your mouse over the top center portion of your screen and a drop-down menu appears, where you can see mute.
You could also click participants, that will give you a video feed in the top right corner of the active speaker. You can select the bottom left-hand corner to expand that video feed if you'd like to make it larger. If you click the participants tab, you'll have that same video with all of the thumbnails that drop down under the active speaker box.
You can similarly expand that pop-out window, and if you're running a dual-monitor setup, you can actually drag that pop-up window to a second screen so that it doesn't cover any of the PowerPoint material.
If you're interested in prioritizing the video feed rather than looking at the PowerPoint material, in the top right corner of the active speaker video panel you'll see two arrows that point NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
8 to the top right and bottom left direction.
Click that and it will expand the video to take over the entire screen. Please note you will not be able to see the PowerPoint material at that point so we recommend using this during the Q&A portion after the caucuses.
But in the full screen mode for video, you'll see the active speaker and a large box, and under that you'll see the thumbnails of the video screens that are active. There are more than five video feeds that are active. You can scroll left and right using the left and right arrows that appear under the thumbnails.
If you would like exit the full-screen mode, in the top right corner there's exit full-screen view, and that will take you back to the default view where you have the PowerPoint slides as well as the video.
Thank you very much. Would you like continue, George?
MR. WILSON: Thanks, Ian. The purpose of today's teleconference is to obtain information that will be used to determine if a violation of discrimination occurred, which was contrary to the requirements of 10 CFR 50.7 on employee protection.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
9 It is important to note this pre-decisional conference is an important step in our enforcement process. We want to offer you an opportunity to make statements to us so that we can fully and thoroughly process potential non-compliance. Our role is not to debate the facts with you but to receive and process the information that is presented.
We will use today's information along with the information you submitted prior to the PEC to inform the final enforcement decision.
In a few moments, I'll go over the agenda and provide some meeting guidelines, but first, I'd like to begin with introductions.
Will those from the NRC please introduce yourselves?
MS. THOMPSON: Catherine Thompson, Office of Enforcement MR. SOLORIO: Dave Solorio, Office of Enforcement, Branch Chief.
MR. GIFFORD: Ian Gifford, Office of Enforcement.
MR. HILTON: Nick Hilton, Office of Enforcement.
MR. C. MILLER: Chris Miller, Office of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
10 Nuclear Reactor Regulation.
MR. SHUTTLEWORTH: Andy Shuttleworth, Office of Investigations.
MR. M. MILLER: Mark Miller, Region II.
MS. KIRKWOOD: Sarah Kirkwood, Office of the General Counsel.
MR. ECHAVARRIA: Alex Echavarria, Office of Investigations.
MS. LIMONCELLI: Mauri Limoncelli, Office of the General Counsel.
MR. LUINA: Scott Luina, Office of Investigations.
MR. SPARKS: Scott Sparks, Region II.
MR. O BRIEN: Ken O'Brien, Region III.
MS. COLEMAN: Nicole Coleman, Office of Enforcement.
MS. PRICE: Sara Price, Region II, Regional Counsel.
MR. WILSON: Participants from TVA, would you please introduce yourselves?
MR. BARSTOW: Good morning, George.
This is Tim Barstow, I'm the Nuclear Reg Affairs and Support Services Vice President.
With me I have Tim Rausch, TVA's Chief Nuclear Officer, and Mike Bernier, TVA OGC office.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
11 I'll ask my counsel to introduce themselves?
MR. WALSH: Thank you, Jim. I am Tim Walsh, from Pillsbury Winthrop Shaw Pittman, and on the phone today we have three attorneys from the law firm of O'Melveny & Myers. They are Laurel Rimon, Mary Pat Brown, and Alex Duran. And then also from Pillsbury we have Mike Lepre, Meghan Hammond, and Sid Fowler.
Thank you.
MR. WILSON: Concerned individuals, please introduce yourselves?
MR. McBREARTY: This is Michael McBrearty.
MR. WILSON: Beth?
MS. WETZEL: This is Beth Wetzel.
MR. WILSON: Court reporter, are you online? Thank you. Did we miss anybody? Okay, we'll continue.
The agenda for today's teleconference consists of opening remarks by myself, followed by an enforcement policy overview by Catherine Thompson.
And then an overview of the case specifics by Dave Solorio, the supervisor having oversight of the discrimination concern.
Following Mr. Solorio's overview of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
12 case specifics, you will be provided an opportunity to present information for the NRC's consideration.
The NRC staff looks forward to understanding your perspectives on these issues.
We'd also like to have you tell us if you believe there are errors in the understandings of the facts and circumstances, and to discuss any aggravating or mitigating circumstances that we should consider.
Following your presentation and comments from Mr. McBrearty and Ms. Wetzel, the NRC staff will caucus in a separate breakout room on Webex, and upon our return, we will ask additional questions as necessary.
You will also have access to a separate breakout room if you wish to use it. At the end of this teleconference, I will make closing remarks on behalf of the NRC and this meeting will be adjourned.
Now let's cover some of the meeting guidelines associated with this conference. In accordance with our normal practice, any written material you provide today will be placed in the NRC's document management systems in ADAMS but will be withheld from public disclosure until this matter is concluded.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
13 NRC representatives may ask questions as they deem necessary after the caucus. This meeting is being transcribed, therefore, it is important that all individuals speak clearly and identify themselves to assist the transcriber.
In case the transcriber has follow-up questions, please remain on the teleconference for a few minutes after the meeting adjourns.
The written transcript will provide NRC staff with a record of the information that was presented today and will be used in reaching our final Agency decision on the matters we have discussed.
This transcript is not normally released to the public, however, if requested under the Freedom of Information Act, release would be considered subject to redactions allowed by the Freedom of Information Act.
In accordance with the NRC enforcement policy and manual, this conference is closed to public observation because it involves the findings of an NRC Office of Investigations report that has not been publicly disclosed and involves personnel issues related to discrimination.
With the exception of the transcription already mentioned, no portion of this PEC shall be NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
14 recorded. In addition, information discussed in this PEC shall not be discussed in the public domain by any participant, NRC staff, TVA, or a concerned individual.
Today no final NRC decision will be discussed, made, or announced at this meeting. The parties will be informed in the writing if the NRC decides to take an enforcement action.
Based on the availability of the transcript and any other supplemental information you provide, we plan to make a final determination by the end of July.
Does anyone have any questions regarding the agenda or meeting guidelines that I just described?
Hearing none, at this time Ms. Thompson will provide an overview of the enforcement policy, followed by Mr. Solorio providing an overview of the case specifics.
Ms. Thompson?
MS. THOMPSON: We are conducting today's teleconference to obtain information related to an apparent violation of the NRC's employee protection rule, 10 CFR 50.7.
The NRC recommended TVA apparently NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
15 discriminated against a former TVA site licensing manager, Mr. McBrearty, and former manager of emerging regulatory issues, Ms. Wetzel, for engaging in protected activities.
TVA's actions resulted in Mr. McBrearty being placed on administrative leave and a termination of Ms. Wetzel.
To ensure a Safety Conscious Work Environment -- placed on employees being free to raise nuclear safety concerns regardless of the merits of the concern.
The NRC's authority is limited to taking an enforcement action against the licensee or contractor if we make a finding of discrimination.
As appropriate, enforcement actions include issuing a notice of violation, assessing a civil penalty, issuing an order by fine and NRC license, or in criminal cases, referring the case to the Department of Justice for prosecution.
Over the years, the NRC has made referrals to DOJ and they have prosecuted some cases.
Additionally, nuclear workers may seek personal remedy regarding discrimination cases via the Department of Labor.
Because the subject matter involves pre-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
16 decisional discrimination information and findings by the Office of Investigations, this teleconference is closed to the public.
Mr. McBrearty and Ms. Wetzel were invited to attend this teleconference and they are also on this teleconference. They will be given an opportunity to provide comments for NRC's consideration.
It is important to note that this teleconference is pre-decisional and is an important step in our enforcement process. We want to offer you an opportunity to make statements to us so that we can fully and thoroughly process the apparent violations. Our role is not to debate the facts with you but to receive and process the information that's presented today.
The teleconference will provide an opportunity for the NRC to ask clarifying questions and it will provide the opportunity to comment on the information that was provided in the conference letter, to provide or to present additional relevant information such as aggravating or mitigating circumstances, and to also discuss corrective actions that have been taken or are planned.
Additionally, it would be beneficial to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
17 the NRC staff for you to speak to permanent aspects of Section 6.10 of the NRC's enforcement policy.
For example, whether the adverse action against the employee had a widespread impact on other employees' willingness to raise concerns.
Presently, the concern is being processed in accordance with our guidelines as escalated enforcement.
In accordance with Section 6.10 of the enforcement policy, the issue might be dispositioned as a Severity Level I, II, or III violation. We will conduct an internal Agency panel to make a final decision.
In addition to what has previously been developed by NRC's Office of Investigations, we will consider information presented today. If the Agency determines that the violation of 10 CFR 50.7 occurred, you will receive a public notification of the Agency's enforcement action.
Additionally, the NRC will issue a press release. The possible outcomes for escalated enforcement actions include the issuance of a notice of violation, the issuance of an NOV with civil penalty, or the issuance of an order.
Additionally, a potential outcome is that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
18 no enforcement action is taken by the NRC. The civil penalty assessment process considers four decision points.
The outcome of the assessment process is limited to one of the following three results, no civil penalty, a base civil penalty, or a base civil penalty escalated by 100 percent.
The four decision points are based on whether this is a first willful violation in two years, whether credit can be granted for identification, whether credit can be granted for corrective action, and whether discretion to escalate or mitigate should be applied to the violation.
MR. SOLORIO: Good morning, at this time I will provide a summary of the apparent violation and then I'll turn things over to you.
Can you hear me, okay, Nathan?
MR. GIFFORD: Yes, we can hear you no problem.
MR. SOLORIO: Okay. The purpose of the NRC OI Investigation 2-2018-033 was to determine whether Mr. McBrearty was the subject of employment discrimination in violation of 10 CFR 50.7, employee protection.
The NRC determined that Mr. McBrearty was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
19 first subject to a harassment investigation and then placed on paid administrative leave on May 25, 2018, and constructively discharged in part for engaging in protected activities.
Between 2015 and 2018, Mr. McBrearty raised concerns numerous times to the Corporate Nuclear Licensing, which included a senior manager and corporate manager about TVA's regulatory non-compliance regarding two NRC non-cited violations. One, the multi-case circuit breaker service life NCV, and two, the removal of Kirk Key interlocks NCV. In addition, Mr. McBrearty raised numerous concerns about a chilled work environment to both the ECP and other TVA employees.
The purpose of the NRC OI Investigation 2-2019-015 was to determine whether Ms. Wetzel was the subject of employment discrimination for participating in a protected activity in violation of NRC's employee protection rule, specifically 10 CFR 50.7.
The NRC determined that Ms. Wetzel was subject to a harassment investigation, then placed on paid administrative leave on October 15, 2018, and terminated on January 14, 2019, in part for engaging in protected activity.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
20 Between 2016 and 2017, Ms. Wetzel raised numerous safety concerns, including violations of the Part 26 fatigue rule requirements at Watts Bar II, failure to adhere to the Fukushima requirements at Sequoyah, concerns regarding the Watts Bar surveillance extension request and failure to meet NRC commitments in Information Notice 2017-03 to identify Anchor/Darling double-disc gate valve susceptibility to failure at Browns Ferry.
Ms. Wetzel also raised concerns regarding a chilled work environment. The NRC staff reviewed the evidence gathered during the NRC OI investigations and determined that the actions taken against these former employees were in apparent violation of 10 CFR 50.7 and that the apparent violations were willful.
10 CFR 50.7(a) states in part, in the relevant part, that discrimination by a Commission licensee against an employee for engaging in certain protected activities is prohibited.
Discrimination includes discharge and other actions that relate to compensation terms, conditions, or privileges of employment. There are two apparent violations for 2018-33 ROI, Report of Investigation.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
21 On March 9, 2018, TVA corporate management apparently discriminated against Mr.
McBrearty for engaging in a protected activity.
Specifically, Mr. McBrearty engaged in a protected activity by raising concerns regarding a chilled work environment, filing complaints with Employee Concerns Program, and by raising concerns regarding the response to two non-cited violations.
After becoming aware of this protected activity, a corporate manager filed a formal complaint against Mr. McBrearty.
The former complaint initiated an investigation by the TVA Office of the General Counsel that resulted in Mr. McBrearty being placed on paid administrative leave for nearly three months, at which point he was constructively discharged.
This action was based, at least in part, on Mr. McBrearty engaging in a protected activity.
On May 25, 2018, TVA corporate management apparently discriminated against Mr. McBrearty for engaging in a protected activity.
Specifically, Mr. McBrearty engaged in a protected activity by filing complaints with the Employee Concerns Program. After becoming aware of this protected activity, a senior manager recommended NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
22 that Mr. McBrearty be placed on paid administrative leave for nearly three months, at which point he was constructively discharged.
This action was based, at least in part, on Mr. McBrearty engaging in a protected activity.
There are two apparent violations for 2-2019-015.
On March 9, 2018, TVA corporate management apparently discriminated against Ms.
Wetzel for engaging in a protected activity.
Specifically, Ms. Wetzel engaged in a protected activity by raising concerns of a chilled work environment. After becoming aware of this protected activity, a corporate manager filed a formal complaint against Ms. Wetzel.
The formal complaint initiated an investigation by the TVA Office of the General Counsel that resulted in Ms. Wetzel being placed on paid administrative leave followed by termination.
This action was based, at least in part, on Ms. Wetzel engaging in a protected activity.
Between October 15, 2018 and January 14, 2019, TVA corporate management apparently discriminated against Ms. Wetzel for engaging in protected activity.
Specifically, Ms. Wetzel engaged in a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
23 protected activity by raising concerns of a chilled work environment to a senior manager and TVA attorney during a TVA Office of the General Counsel investigation.
After becoming aware of this protected activity, the senior manager placed Ms. Wetzel on paid administrative leave and played a significant role in terminating her.
These actions were based, at least in part, on Ms. Wetzel engaging in a protected activity.
George?
MR. WILSON: Jim, we will turn it over to you.
MR. RAUSCH: Okay, this is Tim Rausch.
Can you hear me okay?
MR. SOLORIO: Somebody say yes?
MR. WILSON: Yes, we can.
MR. RAUSCH: Okay, thank you. So, good morning, I am Tim Rausch, I'm the Chief Nuclear Officer for TVA and I've been in this role since October of 2018.
Prior to my current role, I was the CNO for nine years for PPL and Talen Energy, overseeing Susquehanna Units I and II. Previously, I was the Site Vice President at Oyster Creek Nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
24 Generating Station.
I've had many individual contributor roles and leadership roles in virtually all aspects of commercial nuclear power over the last 36 years.
I'm proud to work in this industry for this company and among the TVA employees.
I want to start by saying a few words about what I heard last week sitting in on the pre-decisional enforcement conferences for Erin Henderson, , and Joe Shea.
I had hoped to be able to speak at those conferences and voice my support for Erin, David, and Joe, but I wasn't permitted to.
It was very informative to me to be present and see Erin, , and Joe deliver their presentation and listen to the PEC interaction. I heard comprehensive presentations and completely transparent stories from each of them.
It was difficult at times hearing their emotions come through. I haven't heard these series of facts in such detail and collectively before last week.
After hearing them, I'm each more confident that no retaliatory conduct occurred in these matters. There was no deliberate misconduct or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
25 careless disregard for any of the NRC's employee protection requirements.
TVA and I stand with Erin, and Joe. Based on what I've heard here in this painstaking detail, I firmly believe that we did not retaliate against Mr. McBrearty or Ms. Wetzel for any protected activity.
I didn't hear one thing that made me think for a second that they were motivated by any proper, much less illegal, intention.
Before I turn this over to the rest of our team, I want to say a few words about what we've heard from each individual.
In Erin Henderson's PEC we heard Erin explain that when she observed concerns about the potential ethical issue and when she thought others were mistreating her, she raised her concerns to the appropriate channel.
That's what we encourage our employees to do and that's what the NRC requires us to facilitate.
She is now being accused for retaliation for doing that, for raising concerns.
You asked her during her Q&A when the harassment towards her stopped, from where I'm sitting it's obvious it's still going on.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
26 I appreciate that Erin initiated these prophecies, but in no way was it her job or the job of any submitter to self-investigate and vet every statement before raising them.
It is the organization's role to investigate those concerns, not the individual. It also appeared to me last week that Erin's complaint is being misconstrued.
Erin and the others were repeatedly asked whether each separate incident in isolation constituted harassment. That wasn't what Erin suggested, nor is it what TVA concluded.
Erin alleged and TVA substantiated that she was subjected to multiple-year, multiple-event, multiple-person, cumulative pattern of conduct, not a single event.
Next, think about what it means for our workforce and for our industry if Erin issued a violation specifically for raising concerns.
The NRC's Safety Conscious Work Environment traits reference an environment for raising concerns, meaning environment where persons feel free to raise safety concerns without fear of retaliation, intimidation, harassment, or discrimination.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
27 Punishing Erin for expressing concerns would be wrong and contrary to the principles we teach our employees about raising concerns. And think about what it would convey to our workforce if TVA had received Erin s complaint and took no action.
I'm very concerned it would embolden others to act in a disrespectful, unprofessional, harassing manner towards their managers and other fellow employees.
Now, from we heard him describe the thoughtfulness and caution we expect from our leaders. He described a collective review and decision to place an employee on paid leave after an attorney who conducted an investigation found a long-tern pattern of inappropriate conduct.
also explained how his agreement with the collective recommendation was based on Mr.
McBrearty's disrespectful and unprofessional actions towards Ms. Henderson, not on any protected activity.
But he didn't simply ignore what he thought could possibly be construed as protected activity.
He did the opposite, he paused and pushed back on the OGC investigation to be certain that whatever conclusion the investigation ultimately NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
29 consideration to serious investigation findings and made a (audio interference), but not without first going through our ERB process, the very purpose of which is to evaluate whether a decision would be inappropriately based on protected activity.
You may now question whether the decision to terminate Ms. Wetzel was the correct one. I think it's abundantly clear from the presentations and the facts and the documents presented last week that it was not based on any intention to retaliate.
Now I would like to take a moment and tell you about these individuals. I've known for the better part of 15 years and I've also come to know Erin and Joe since I've started my tenure as CNO for TVA.
I've worked with each of them, they are not the type of people or leaders who retaliate against anyone for raising nuclear safety concerns.
Each of them is committed and dedicated to a strong nuclear safety culture and a strong Safety Conscious Work Environment, and I see that every day when I work alongside them.
Erin is currently a member of an elite group of professional women known as the Women's Leadership Cohort. Voted on by the nuclear NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
30 industry's executives, they participate in a Women in Nuclear executive development program.
The program is the first of its kind in our industry and aims to create strong female leaders through open dialog with chief executives, stakeholders, and other experts. And we are proud to have Erin represent our company in this forum.
As told you and I have witnessed, since 2012, he has presented to the Institute of Nuclear Power Operations at the senior nuclear plant manager development course 25 times about his personal experiences related to treating others with trust and respect and promoting a work environment where employees respect one another and everyone is comfortable raising concerns.
But what didn't tell you was that he didn't ask to make those presentations, he was asked by INPO and the industry to repeatedly come back and make his powerful presentation to that class.
As for Joe, he has served as a sponsor for TVA Nuclear Safety Review Board and our Nuclear Safety Culture Monitoring Panel during his term as VP of Nuclear Regulatory Affairs and Support Services.
He has also served on multiple industry NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
31 Working Groups including as a founding member of NEI's regulatory issues Working Group and the Chair of the NEI new plant working group.
All of this shows the sustained efforts in service of the nuclear industry and of nuclear safety. Before I turn it over to our team, I want to say one last thing.
You will hear today about a number of instances where we learned a lesson. In fact, we are implementing changes to the way we do things that are reflective of our willingness to be self-critical and our efforts to continuously improve.
However, I want to stress that while we have important lessons learned in how we handle these personnel matters, they do not show any wrongdoing by anyone in TVA and any of those shortcomings fall well short of a 50.7 violation.
Thank you for your time today, I'll speak to you again towards the end of the presentation and I'll now turn it over to Jim Barstow.
MR. BARSTOW: All right, thank you, Tim.
Good morning. As I stated in the introduction, My name is Jim Barstow, I'm the Vice President of Nuclear Regulatory Affairs and Support Services.
I have worked in the nuclear industry for NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
32 over 30 years, beginning with my service in the United States Navy. I have been with TVA since the fall of last year.
I have previously served in leadership roles in the areas of work management, performance improvement, licensing and regulatory affairs, work effectiveness, and radiation protection.
Additionally, I hold a senior reactor operator certification from Clinton Power Station.
I would like to note for relevance specific personal experience from 2005.
At that time, I was assigned to the Exelon management team as part of the operating agreement for Salem and Hope Creek through the period of when NRC had issued cross-cutting issues in the areas of Corrective Action Program and Safety Conscious Work Environment.
I had the responsibility at that time as the Fleet Corrective Action Program Manager and made many changes that resulted in satisfying ourselves and NRC that the program was effective and sustainable and would support a strong Safety Conscious Work Environment.
I bring this experience up only to provide context that my own personal exposure and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
33 understanding of issues similar to the ones we are going to be talking about today.
Thank you for the opportunity to make this presentation. I am eager to answer any questions you may have to the best of my ability.
Additionally, if a particular question is left answered by Counsel I may refer you to them.
To begin, I want to say emphatically and unequivocally that TVA is dedicated to maintaining a Safety Conscious Work Environment.
In preparing for this presentation, TVA thoroughly reviewed relevant documents, including TVA's internal investigation report, the NRC Office of Investigation report, witness transcripts, and the Department of Labor report relating to events and circumstances surrounding this pre-decisional enforcement contract.
Having done so, I am confident when I say to you without reservation that no retaliatory conduct occurred in this matter and there was no deliberate misconduct by TVA or the three individuals from whom you have heard in their own presentation.
Again, no person at TVA engaged in deliberate misconduct or reckless conduct with the intent to violate any rule, regulation, statute, or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
34 policy.
As a result of this internal review in preparation for this presentation, we have indeed found some areas that need managerial improvement.
As an organization, we could have done better, however, by no means did TVA or the three individuals retaliate against Mr. McBrearty or Ms.
Wetzel for any protected activity.
I'd like now to ask Mr. Walsh to briefly address some preliminary procedural matters and provide an overview of the structure of our presentation today before I continue.
MR. WALSH: Thank you, Jim. I am Tim Walsh with Pillsbury.
To start, there's one procedural matter I would like to address. Last week, Erin Henderson,
, and Joe Shea provided extensive information to the NRC supporting their cases.
TVA incorporates by reference all of the information they presented during their individual PECs and the evidentiary records they provided.
Their individual cases support TVA's case and, as Mr.
Barstow just stated, showed that no retaliation occurred.
We will not repeat all of the facts NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
35 discussed last week but we will talk about a lot of them and we will summarize, refer to, and rely on key information from those presentations in today's discussion.
As you have seen in the presentations from Mr. Shea, , and Erin Henderson, the issues giving rise to this PEC arose from the management of personnel matters within TVA's organization, not from retaliatory actions related to nuclear safety issues. Furthermore, the action TVA took with respect to Mr. McBrearty and Ms.
Wetzel resulted not from single acts by those individuals, even when single acts by themselves would have demanded action by the company.
It was the sustained pattern of conduct in violation of TVA's, code of conduct, performance values, and standards of professionalism that made TVA's personnel actions necessary.
TVA's presentation today will begin with an overview by Mr. Barstow of TVA's commitment to a Safety Conscious Work Environment and a professional and respectful workplace, along with a description of the policies and procedures it has in place to ensure that the rating of concern is the highest level of protection within the company.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
36 We will then describe the factual background that led to the personnel actions involving Mr. McBrearty and Ms. Wetzel.
During this discussion, you will hear how Mr. McBrearty's and Ms. Wetzel's behavior fell far short of TVA's performance values and competencies that are critical to TVA's operations.
Next, we will address the Office of the General Counsel's independent investigation of Ms.
Henderson's complaint, and then discuss the particular facts surrounding the placement of Mr.
McBrearty on paid leave and the termination of Ms.
Wetzel.
We will also address several legal and factual issues that will impact the conclusions here.
We believe the NRC may be viewing relevant legal standards mistakenly, mainly the legal standards for finding whistleblower retaliation occurred and for finding the existence of a constructive termination of Mr. McBrearty.
We will also address a number of factual errors we have identified in the OI investigation and reports.
Of particular importance here is the evaluation of whether TVA has provided clear and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
37 convincing evidence that it would have taken the personnel actions in this instance notwithstanding any of the alleged protected activity by the individual involved.
TVA has such clear and convincing evidence in support of TVA's actions including the fact that Mr. McBrearty admitted to his behaviors in the independent analyses conducted by HR and OGC in both Mr. McBrearty's and Ms. Wetzel's cases.
Further, there is no evidence of any motive by Joe Shea, , or Erin Henderson to retaliate.
Finally, we will discuss that some aspects of these personal matters could have been handled differently, resulting specific lessons learned and process improvement.
Now, let me turn things back over to Jim.
Jim?
MR. BARSTOW: Thanks, Tim. I would now like to described to you some of the steps TVA has taken to ensure a Safety Conscious Work Environment is established and maintained.
On August 22, 2013 the TVA Board issued a statement affirming its commitment to nuclear safety. A copy of this statement is provided as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
38 Exhibit 1.
In pursuit of this, TVA adopted a policy to, and I quote, maintain a strong nuclear safety culture that serves to make nuclear safety the overriding priority for each nuclear facility and for each individual associated with it, close quote.
Open and honest communication about safety issues is critical to TVA's methods to ensure a Safety Conscious Work Environment.
TVA's policy includes that it will rely on competent staff which demonstrate integrity and will work together as a team to safely design, construct, test, and operate TVA's nuclear facility.
TVA must ensure that disagreements are made in a respectful manner to ensure the lines of communication are not strained.
I have found a healthy team encourage respectful deliberation and TVA policy states that it values honest, open communication which encourages and shows respect for all points of view.
In practice, as the NRC report pointed out in a January 2015 Trait Talk newsletter, attracting the traits of a positive safety culture, leaders should not demonstrate or tolerate bullying or humiliating behaviors, and individuals should NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
39 treat decision-makers with respect if and when they disagree with a decision.
Finally, the NRC says individual should have confidence that conflicts will be resolved respectfully and professionally. We agree with this statement.
TVA further recognizes that whistleblower protection is integral to its efforts to bring as much information to bear around safety issues as possible. To this end, TVA provides protective measures to ensure that employees may express concerns and differing views without fear of harassment, intimidation, retaliation, or discrimination.
TVA's formal organizational values provide that safety, collaboration, and integrity are all integral to how TVA maintains a professional work environment that ensures safety.
TVA's formal organizational values are provided on Page 8 of the code of conduct, a copy of which is provided for you in Exhibit 2.
We define safety to mean we share a professional and personal commitment to protect the safety of our employees, our contractors, our customers, and those in the communities we serve.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
40 Integrity means we conduct our business according to the highest ethical standards and seek to earn the trust of others through words and actions that are open, honest, and respectful.
And collaboration means we are committed to fostering teamwork, developing effective partnerships and encouraging diversity as we work together to achieve results.
TVA is also strongly dedicated to whistleblower protection, which is a critical element of maintaining a Safety Conscious Work Environment.
We have a number of policies and rules that are designed to ensure whistleblower protection.
One of those is TVA's policy, SPP 11.804, regarding the expression of differing views and employee protection, and identifying programs available to employees for addressing concerns and differing views.
A copy of this policy is provided in Exhibit 3. As the policy states, and I quote, the ability to freely express differing views and opinions will enhance employee productivity, observance of standards, and promote a Safety Conscious Work Environment, end quote.
Our goal is to ensure that every NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
41 responsible view is valuable and should be heard and appropriately considered in the decision-making process.
Additionally, we have TVA's executive code of conduct, which is Exhibit 4. This code requires that TVA executives will hold themselves and each other to the highest standards of integrity, honesty, and ethical conduct.
Part of the executives code of conduct requires that TVA executives respect employees' protected communication and not retaliate against them for those communications.
Specifically, the code directs executives to, and I quote, maintain a workplace environment that prevents retaliation or reprisal against an employee who in good faith reports actual or suspected violations of law or ethics requirements, close quote. Accordingly, we have multiple avenues for responding to Employee Concerns and disclosure. At the same time, bad faith or malicious reports, a violation, undermine the protection of those that are raised in good faith.
It is worth noting here that the good-faith requirement of an actual or suspected violation of law or ethics is of particular importance in the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
42 nuclear industry, where a Safety Conscious Work Environment is paramount and safety considerations are a daily part of the job.
TVA policies also include procedural safeguards to ensure that employees are not subject to an adverse personal action as a result as protected activity.
TVA's procedure, SPP 01.7.4 established TVA's Executive Review Board and outlines these safeguards. A copy of this procedure is provided to you as Exhibit 5.
This policy requires Human Resources and Employee Concerns Program protection to identify and inform the Executive Review Board of any protected activity of which they are aware related to an individual who is the subject of a proposed personnel action.
The Executive Review Board must consider the relationship between protected activity and any proposed personnel action.
It is the Executive Review Board's job to ensure that any proposed discipline is not taken because an employee engaged in activity protected by the employee protection regulations of 10 CFR 50.7.
The Executive Review Board process NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
43 includes a Safety Conscious Work Environment mitigation screening and Safety Conscious Work Environment mitigation plan, if applicable.
I'd like to address two aspects of two confirmatory orders that continue to inform our work and efforts to ensure a Safety Conscious Work Environment.
In 2017, TVA entered into a confirmatory order with the NRC because TVA did not comply with a previous confirmatory order regarding adverse employment action and regulations regarding protected activity.
Pursuant to the 2017 confirmatory order, TVA agreed to, among other things, to implement robust measures to ensure that personnel decisions were not made in retaliation for protected activity.
These measures were implemented with the intent to maintain a Safety Conscious Work Environment.
TVA also agreed to conduct pulsing surveys, informed by the adverse action process to ensure that employees and contractors still felt comfortable raising concerns, notwithstanding any adverse actions taken against other employees or contractors.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
44 Finally, TVA agreed to have an independent third party with specific expertise in protected activity audit the Executive Review Board proceedings and decision.
Now I'd like to address TVA policies, code of conduct, and performance standards, specifically as they require employees to collaborate and be respectful of each other.
As indicated previously, the TVA Board's statement on commitment to nuclear safety states that it values honest, open communication to encourages and shows respect for all points of view.
TVA has five performance values and ten performance competencies, against which all of its employees are measured during the regular performance reviews.
Several of these values and competencies are relevant here and they are on your screen now.
Integrity, collaboration, effective communication, leadership, courage, and inspiring trust and engagement.
TVA's rules and policies are designed to help it achieve its core goal. TVA aims to have a healthy and respectful working environment to meet its safety and regulatory obligations.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
45 A team's failure to function properly can create risk. These include safety risks being improperly addressed and the risk of an enforcement action that TVA fails to properly identify and address regulatory issues.
With this in mind, I will turn the presentation over to Mr. Walsh and Ms. Rimon, who will describe for you how Mr. McBrearty and Ms. Wetzel did not meet TVA's values and principles, or were held to account for their misconduct, and no unlawful retaliation occurred.
MS. RIMON: Thank you, Jim. Good morning. In this portion of the presentation we will review the applicable legal standards, apply the facts to the standards, and show that no violation of 10 CFR 50.7 actually occurred.
The Commission has set out the framework for evaluating alleged employment discrimination by NRC licensees under 10 CFR 50.7 in the 2004 case, Tennessee Valley Authority, CLI-04-24, 60 N.R.C. 160, as shown on your screen.
That framework consists of two questions.
First, did the NRC staff show by a preponderance of the evidence that protected activity was a contributing factor in an unfavorable personnel NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
46 action?
If the answer to the first question is yes, then a second question must be asked.
Did the employer show by clear and convincing evidence that it would have taken the same personnel action regardless of the protected activity? With respect to the first question, the Commission explained in CLI-04-24 that an employee may not simply engage in protected activities and expect immunity from future unfavorable personnel actions. Mere employer or supervisor knowledge of the protected activity does not suffice as a contributing factor.
The evidence, direct or indirect, must allow a reasonable person to infer that protected activities influence the unfavorable personnel action to some degree.
The Commission further explained its preponderance of the evidence standard and in a March 2011 denial for a petition for rulemaking that sought to amend 50.7 in light of the Commission's ruling in CLI-04-24.
This denial can be found at 76 Federal Register 12,295. There the Commission explained that preponderance of the evidence means that it is more NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
47 likely than not that a violation occurred.
With respect to the question of whether the employer would have taken the same action independent of any protected activity, the Commission stated that in accordance with 10 CFR 50.7(d),
employers can defend against whistleblower discrimination charges by proving that legitimate reasons or non-prohibited considerations justified their actions.
We note that the OI reports did not acknowledge or address this aspect of 10 CFR 50.7(d) in reviewing the allegations.
The Commission acknowledged that the clear and convincing standard puts a thumb on the scale in favor of employees.
Importantly, though, the Commission also stated that this standard preserved the flexibility nuclear employers require to take appropriate action against alleged whistleblowers who are ineffective on the job or unneeded in the workplace, and prevented undue interference with employer's prerogative to manage their workers.
And, of course, employee discipline is inherently discretionary as only the organization and its managers themselves understand the workplace NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
48 dynamics taking place on a daily basis.
Here, the staff has failed to satisfy its burden to demonstrate by preponderance of the evidence that any protected activity contributed to the actions taken against Mr. McBrearty or Ms.
Wetzel.
The NRC has failed to show it is more likely than not that Mr. McBrearty and Ms. Wetzel were retaliated against for engaging in protected activity. The question before the NRC is not whether the personnel actions taken by TVA were entirely defect-free or whether a different organization, or even the NRC, may have chosen to handle the personnel matters otherwise.
The only question for the NRC is whether it has demonstrated that it is more likely than not that TVA retaliated against Mr. McBrearty or Ms.
Wetzel for protected activity.
Based on all of the information presented by Erin Henderson, Joe Shea, and during the presentations last week and the information we will discuss today, the staff has not met its burden here.
The OI reports provide no direct evidence linking TVA's personnel decisions, whether right or NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
49 wrong in the NRC's view, with protected activity.
And even if the staff believes it has met its burden, TVA has demonstrated by clear and convincing evidence that it would have taken these employment actions regardless of these former employee's protected activity.
Whether TVA has provided such clear and convincing evidence should be assessed under the three so-called Carr factors for federal agency whistleblower cases, referring to the 1999 Federal Circuit decision in Carr v. Social Security Administration at 185 F.3d 1318.
None of the three Carr factors is definitive on its own but all should be considered together to determine whether the employer has shown that it had an independent, non-retaliatory basis for taking the action that it did.
As shown on your screen, the three Carr factors are, one, the strength of the Agency's evidence in support of its personnel action, two, the existence and strength of any motive to retaliated on the part of Agency officials who are involved in the decision.
And three, any evidence that the Agency takes similar actions against employees who are not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
50 whistleblowers but who are otherwise similarly situated.
Here, these factors all weigh heavily in TVA's favor. As you heard throughout last week, we have strong evidence in support of TVA's actions, including the fact that Mr. McBrearty admitted to his behaviors.
And the independent analyses conducted by HR and OGC in Mr. McBrearty's and Ms. Wetzel's cases.
There is no evidence of any motive by Joe Shea,
, or Erin Henderson to retaliate.
Indeed, the only motive was this, to stop the inappropriate behavior, Mr. McBrearty and Ms.
Wetzel informed Ms. Henderson to ensure a respectful work environment at TVA.
In addition, TVA has demonstrated that Mr. McBrearty's paid administrative leave was consistent with TVA practice and procedure and that Ms. Wetzel's discipline was within the range of disciplines TVA used for similar misconduct.
Now we will turn to a review of the facts.
And before we talk about the specific actions the NRC believes may have been retaliatory, we'd like to emphasize to you what we believe is actually the key starting point here.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
51 Specifically, in 2016 when Ms. Henderson raised the concern of a potential conflict of interest between Michael McBrearty and Michelle Conner. The relevant federal regulations and TVA policies are shown now on your screen.
It is a basic obligation of public service, clarified in 5 CFR 2635.101(8) that, quote, employees shall act impartially and not give preferential treatment to any private organization or individual, close quote.
Where an employee knows that circumstances would cause a reasonable person to question his or her impartiality, federal regulations require the employee to recuse him or herself until the situation is reviewed and/or cleared by the Agency's ethics process.
TVA's code of conduct mandates that a professional and preference workplace requires that TVA employees, quote, avoid all conflict of interests between work and personal affairs, end quote.
TVA's code of ethics requires that employees shall endeavor to avoid any actions creating the appearance they are violating the law or ethical standards.
Ms. Henderson, like any manager, was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
52 obligated to respond to any actual or perceived conflict of interests.
You heard from Ms. Henderson about the circumstances that led to her raising the potential conflict of interests involving Mr. McBrearty and Ms.
Conner in 2016.
She had become reasonably concerned about Ms. Conner's ability to engage in impartial, unbiased, oversight of Sequoyah due to the nature of her relationship with Mr. McBrearty.
This concern arose after Ms. Conner's response to Sequoyah reportability failure indicated that Ms. Conner was unwilling to be critical of Mr.
McBrearty.
Ms. Conner was the Corporate Area Functional Manager, or CFAM, with oversight responsibility of the site licensing organizations.
Their apparent close personal relationship created a potential conflict of interests, or at least the appearance of one. They could impair TVA's ability to maintain a safe working environment at Sequoyah.
The potential conflict, or appearance of one, was material to Corporate Nuclear Licensing's regulatory oversight of Sequoyah. Ms. Henderson had NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
53 a duty to report that potential conflict and her doing so was a proper execution of her supervisory duties.
In fact, Ms. Henderson's own performance standards measured her ability to maintain effective oversight of sites.
For example, Ms. Henderson's 2016 performance review included a regulatory oversight performance objective requiring her to develop and implement improved oversight strategies, and to improve regulatory governance through benchmarking industry best practices.
As you know, the inquiry into whether towards a potential conflict of interest due to a potential relationship between Ms. Conner and Mr.
McBrearty was handled entirely by Human Resources.
Ms. Henderson had no role in that investigation other than to be interviewed by HR and to provide information relevant to that investigation. You also know that HR and not Ms. Henderson reviewed gate records for Mr.
McBrearty and Ms. Conner, and that fact was improperly disclosed to them, as was the fact that Ms. Henderson raised the concern.
Both Mr. McBrearty and Ms. Conner repeatedly expressed anger to others at TVA about Ms.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
54 Henderson. HR's investigation was minimal and did not reach a definitive conclusion as to the existence of an actual conflict.
That investigation found Ms. Conner and Mr. McBrearty, quote, have a very close personal relationship, end quote, but that it was not clear as to whether the personal relationship was inappropriate or created a conflict of interests.
We are including a copy of this June 17, 2016 investigation report as Exhibit 6. It should be emphasized that Ms. Henderson was obliged to report an appearance of a conflict of interests to HR.
As Ms. Henderson presented to you last week, TVA's Employee Concerns Program investigated this issue.
And as you can see on your screen, they found, quote, a number of data-points supporting Erin Henderson's request for investigation into the alleged relationship between Ms. Conner and Mr.
McBrearty, closed quote, and that it was reasonable for management to determine if an improper relationship existed.
Although Ms. Henderson justifiably and appropriately raised the concern, the outcome of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
55 investigation was a disclosure that Ms. Henderson raised the concern resulting in the unfounded claim that Ms. Henderson was pulling individuals' gate logs for vindictive reasons.
The resulting animus directed at Ms.
Henderson by Mr. McBrearty and others, including Ms.
Wetzel, created the untenable position Ms. Henderson found herself in by March 2018.
I will turn it over to Tim now to discuss Mr. McBrearty's disrespectful and inappropriate conduct, and the result of the TVA investigation into his misbehaviors.
Tim?
MR. WALSH: Thank you, Laurel.
Last week, Ms. Henderson detailed for you the sustained campaign of disrespectful behaviors and open hostility directed at her by Mr. McBrearty and others, all because she raised a conflict of interest concerns.
Ms. Henderson detailed the evidentiary record of events after she submitted the ethics complaint including Mr. McBrearty's derogatory statement to her subordinate, berating her in an email to many people for directly talking to the NRC, criticizing Erin to her subordinates from others, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
56 leaving her and sometimes her group off communication directly related to her responsibilities, team meetings, and key regulatory meetings, even telling others that he would not speak with her because he did not like her, even on significant company regulatory matters, and otherwise created a challenging work environment.
All of this ultimately limited Ms.
Henderson's ability to perform aspects of her required duties. Ms. Henderson ultimately filed a complaint alleging harassing behaviors in a hostile environment, as was her right and obligation to do.
And as Ms. Henderson and Mr. Shea told you last week, she was encouraged to put in writing everything she believed was contributing to her concerns so that her concerns could be investigated.
And that is what she did.
It's worth noting here that the Office of Investigations asked Human Resources Director Amanda Poland if an individual claiming harassment has to present specific evidence regarding harassment or can the individual just ask for help?
Ms. Poland responded, all of the above, anything that comes in we evaluate how to handle. As Ms. Henderson showed you last week, there is a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
57 service-life non-cited violation or the Kirk Key non-cited violation prompted her complaints because at the time she filed it, there was nothing left for TVA to do on these issues.
Ms. Henderson's complaint was not and could not be an effort by her to impede Mr.
McBrearty's attempt to restore regulatory compliance, as alleged in the OI reports because the service life backfit in denial had already been under review by the NRC for months.
And Ms. Henderson also showed that the Kirk Key license amendment request had already been the subject of an NRC pre-submittal meeting and was just about to be submitted.
Ms. Henderson told you last week that no one individual interaction led her to file a complaint. She submitted her complaint in response to a pattern of behaviors.
That took place over multiple years, directly related to her raising the ethics concern, and which behaviors many had attempted to previously resolve.
She was told to include any information she had along with the names of anyone who may have been involved in the work environment issues. She NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
58 included Ms. Wetzel for this reason, not because of any of her alleged protected activity.
As Ms. Henderson explained, she had no knowledge that Ms. Wetzel submitted a concern to the NRC in November of 2017, which the NRC did not substantiate.
In addition, Ms. Henderson could not have faced her complaint on statements made by Ms. Wetzel after Ms. Henderson filed her complaint.
To the extent there's any question about Mr. McBrearty's disrespectful behavior in conduct, we will now review all of the record evidence on this, including record evidence of TVA's repeated efforts to counsel him.
The following items are contained in Ms.
Henderson's Exhibits 4, 30, 70 to 81, 83, 85, 88 to 89, and 91 to 93.
Next slide, please. On January 28, 2017, Ms. Henderson was left off the email that Mr.
McBrearty sent to other CNL personnel regarding a Sequoyah notification of enforcement discretion, on which she should have been included.
This was not a unique event or even the first time this occurred, as demonstrated by Mr.
Polickoski taking note of an indication when Erin was NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
59 included on an email one month earlier.
On January 29, 2017, after Mr. McBrearty sent a licensing email to Mr. Shea and Mr. Polickoski but not her, Ms. Henderson emailed Mr. McBrearty, noting that she was often not included on Sequoyah licensing correspondence, asking that she include her on relevant communication.
She informed his supervisor, Dennis Dimopoulos, of this request. On February 13, 2017, Mr. McBrearty forwarded Ms. Henderson's email to a wide array of individuals, including some outside the licensing organization, without including Ms.
Henderson and for no clear reason.
On February 14, 2017 Jim Polickoski told Ms. Henderson that Mr. McBrearty was open about his hostility towards her.
On February 15, 2017 Mr. Shea told Ms.
Henderson that Mr. McBrearty was unwilling to talk to Ms. Henderson at all to develop a proposed plan on a licensing issue.
Mr. Shea explained to Ms. Henderson that Mr. McBrearty would like to express all the reasons that he does not like her.
On February 16, 2017 Mr. Polickoski told Ms. Henderson that Mr. McBrearty puts him in a bad NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
60 place by speaking very negatively about Ms.
Henderson, and that if Mr. McBrearty is that open with Mr. Polickoski, Mr. Polickoski could only imagine what else Mr. McBrearty is saying about Ms.
Henderson.
Ms. Henderson told this to Mr. Shea the next day on February 17th. On February 23, 2017, Ms.
Henderson spoke with Mr. McBrearty's supervisor, Dennis Dimopoulos.
On February 17, 2017, Ms. Henderson spoke with Mr. Dimopoulos again. Mr. Dimopoulos told Ms.
Henderson that he spoke with Mr. McBrearty. Mr.
Dimopoulos attributed Mr. McBrearty's behavior to Ms.
Conner.
On February 28, 2017 Mr. Shea texted Ms.
Henderson noting that she was included on an email from Mr. McBrearty. In response, Ms. Henderson explained that she had spoken with Mr. Dimopoulos the day before.
On March 16, 2017 two of Ms. Henderson's subordinates noted that Mr. McBrearty had a hostile tone on phone calls lately. One subordinate stated that his hostility is directed towards Ms. Henderson, not the group.
Both subordinates agreed that the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
61 hostility is because, quote, Michelle has done wrong, close quote. And one subordinate stated that Mr.
McBrearty discussed that frequently.
On March 17, 2017 Ms. Henderson learned that Mr. McBrearty was complaining to her husband's subordinate about her husband's use of personal leave around the time of an NRC inspection, even though it was approved by her husband's supervisor.
Mr. McBrearty also brought Ms.
Henderson's leave up with Ms. Henderson's subordinate, Mr. Polickoski.
On March 27, 2017 Ms. Henderson's subordinate told her that Mr. McBrearty was extremely confrontational and defensive while her subordinate went out to sites over the prior week.
On March 29, 2017 an individual contributor at Corporate Nuclear Licensing told an administrative assistant that he heard Mr. McBrearty has been expressing his issues with Erin to people and making it difficult to work with him.
On April 7, 2017 Ms. Henderson's subordinate told her that Mr. McBrearty's hostility stems from his belief that Ms. Henderson ruined Michelle Conner's career and life.
That same day, Ms. Henderson emailed Mr.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
62 McBrearty saying, quote, the ongoing adversarial commentary is not helpful to any of us. We have a responsibility to help our respective groups get to the right place together and ensure a respectful work environment. If you'd like to discuss how we can better do that, I'd be happy to come to the site to talk about it, close quote.
As Ms. Henderson said last week, Mr.
McBrearty did not take Ms. Henderson up on the offer to meet.
On April 10, 2017 Mr. Shea discussed Mr.
McBrearty's behavior with Tony Williams, the Site Vice President of Sequoyah.
On April 25, 2017 Ms. Henderson's subordinate stated that Mr. McBrearty is using the non-cited violation to publicly poke her and that Mike is on a rampage against her.
On June 13, 2017, an ECP investigation report documented some of Mr. McBrearty's behavior and the belief that Mr. McBrearty has animosity towards Ms. Henderson because of his personal relationship with Ms. Conner.
On June 15, 2017, Mr. Shea held a discussion with Mr. Williams and Mr. Dimopoulos expressing his concerns about the ongoing, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
63 antagonistic relationship by Mr. McBrearty towards Ms. Henderson. On July 3, 2017 Mr. Shea told Ms. Henderson that Mr. McBrearty sent an email whining about her. Ms. Henderson responded to Mr.
Shea that Mr. McBrearty's behavior is never going to end and no one is doing anything about it.
On July 25, 2017, Ms. Henderson spoke with Tony Williams, who stated that he had spoken with Mr. McBrearty.
Mr. Williams added that Michelle Conner is clearly the struggle and that she is constantly in Mr. McBrearty's ear and that Mr. McBrearty has not considered how that could be impacting how he interfaces with Ms. Henderson.
On September 6, 2017 Mr. McBrearty graded a draft plan for submitting and communicating the denial backfit letter for the service life NPV, assigning action item to Ms. Henderson but not informing Ms. Henderson.
On October 3, 2017 Mr. McBrearty failed to include Ms. Henderson or her team on an email regarding a root cause analysis team for a security issue.
On October 4, 2017, Mr. McBrearty emailed individuals at Corporate Nuclear Licensing asking NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
64 that Corporate Nuclear Licensing weigh in on an issue but did not include Ms. Henderson, who was the senior manager.
On October 4, 2017 Mr. Shea noted to Ms.
Henderson that Mr. McBrearty is leaving Ms. Henderson off of emails again related to a security issue.
Ms. Henderson told Mr. Shea that Mr.
Polickoski also had noted that he is forwarding the emails to her, including one related to a critical decision-making phone call.
Ms. Henderson told Mr. Shea that she did not mention it because she didn't want to keep coming to him on it.
Mr. Shea and Ms. Henderson also agree at that time that although the peer team was not high-performing for the foreseeable future, Ms. Henderson should limit her interaction with the peer team so as to minimize interface with Mr. McBrearty.
On that same day, Mr. McBrearty did not invite Ms. Henderson to a meeting on the topic of requesting a regulatory conference or providing a written response. He did include Mr. Shea and her direct report, Mr. Polickoski.
On October 11, 2017, Mr. Shea met with Mr. McBrearty and discussed with him that any manager NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
65 would have been obligated to seek an investigation into the potential conflict of interests involving him and Ms. Conner based on the information received indicating such potential.
On October 19, 2017 Mr. Shea emailed Mr.
McBrearty telling him that it was Mr. Shea's expectation that Fred Marcussen and Ms. Henderson would be with Mr. McBrearty at a meeting, about which meeting Mr. McBrearty had not informed Ms. Henderson.
On October 26, 2017 Ms. Henderson sent an email to Mr. Shea stating that she continued to be a little frustrated with the lack of communication coming out of Sequoyah after Sequoyah Licensing scheduled a mock 95001 inspection without informing Ms. Henderson's team, even though Ms. Henderson had assigned someone to track progress on the inspection.
On November 17, 2017, Mr. Shea directed that Mr. McBrearty coordinate with Ms. Henderson on a strategy on backfit issues. Mr. McBrearty responded that he would call Ms. Henderson that afternoon but never did.
As I noted a moment ago, Ms. Henderson has withdrawn from some of her Sequoyah-related and peer team activities to minimize her interface with Mr. McBrearty. But when she did have engagement with NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
66 him again in March of 2018, his behaviors resumed.
On March 2, 2018, Mr. McBrearty sent an email to a wide audience with bold red font berating Ms. Henderson for having a phone call with the NRC, even though he was aware beforehand that she would be making the call.
Mr. Shea emailed Mr. McBrearty that same day reminding him that he was involved in the discussion where it was decided that Ms. Henderson would do outreach to the NRC and that fact should not have been unexpected.
And Mr. Polickoski emailed Mr.
McBrearty's supervisor that same day and told Mr.
Dodds that his email had an attacking tone towards Corporate and was over the top.
On March 6, 2018 after an hours-long closed-door conversation with Mr. McBrearty, Mr.
Polickoski told Ms. Henderson that Mr. McBrearty, quote, has not yet boiled over yet is my worry, close quote.
As Ms. Henderson described for you last week, following this sustained campaign and pattern of disrespectful behavior by Mr. McBrearty, she almost quit.
It was almost after the timely NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
67 intervention by Chief Nuclear Officer, Mike Balduzzi, and additional encouragement from Mr. Shea that Ms.
Henderson did not quit and decided instead to lodge a formal complaint.
This action was entirely consistent with 10 CFR 50.7(d), which explicitly reinforces to all nuclear industry employees and licensees that individuals are not immune from discharge or discipline for legitimate reasons for adverse actions dictated by non-prohibited considerations.
After the complaint was filed, the Office of the General Counsel commenced an investigation.
As recounted last week, TVA's OGC investigation substantiated in part Ms. Henderson's allegations.
The report further found that Mr.
McBrearty's behaviors violated two federal statutes and 3 TVA policies.
stated that he was particularly concerned by the investigations findings that Mr. McBrearty's behavior had escalated after he had been counseled.
In addition, he also found particularly troubling the report's findings that an employee had stated that the pulling of gate records pushed Mr.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
68 McBrearty over the edge and that Mr. McBrearty is open about his hostility towards Ms. Henderson, and that Mr. McBrearty said some pretty awful things about Ms. Henderson, and he speaks negatively to Ms.
Henderson's direct reports.
And according to the investigator, Mr.
McBrearty remains ticked that Ms. Henderson had an investigator have his gate record pulled.
The investigator added, in my view, the grudge Mr. McBrearty has against Ms. Henderson is alive and well. And was not the only one troubled by the report findings.
As shared with you in his Exhibit 11, Sequoyah Site Vice President Tony Williams texted to his conclusions that Mr. McBrearty should not have made the aggressive comment without Ms. Henderson in the workplace and should have kept his opinion to himself and maintained a professional environment.
also showed you last week that the recommendations took place to Mr. McBrearty on temporary, paid administrative leave was a joint one including several other people, including the Sequoyah Site Vice President, the TVA Senior Vice President for Nuclear Operations, the Office of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
69 General Counsel, and Human Resources.
also demonstrated that Mr.
McBrearty's ECP contacts had nothing to do with his agreement with the consensus recommendation.
showed you that he knew of Mr.
McBrearty's ECP contacts months before Ms.
Henderson's complaint and months before he read about them in the OGC investigation report.
He further demonstrated that he supported Mr. McBrearty for further advancement within TVA since learning of those contacts.
It defies logic to think, suggest, or allege that would suddenly retaliate against Mr. McBrearty for raising concerns.
I'll pause here to reflect on this for a moment. is the whistleblower who, 25 years ago, raised his own concerns to ECP. That courageous act resulting in a shutdown plant, a $500,000 civil penalty, replacement of plant management, and him being accused of ruining someone's life.
To this day, and you say it yourself, merely retelling that story is a deeply emotional experience for him. It is unconscionable for the NRC to believe that would ever knowingly NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
70 retaliate against anyone for raising a concern to the ECP.
All of the TVA managers and HR and OGC personnel who consider the investigations findings agreed the tm00 should be removed from his then-current role so that he would be separated from Ms.
Henderson to ensure that his behavior for her did not continue pending further determination as next steps.
This was consistent with TVA policy and practice. then communicated the joint recommendation to Mr. McBrearty's supervisor, Mr.
Dodds.
Mr. Dodds read the investigation report and agreed with the consensus recommendation to place Mr. McBrearty on paid leave.
And he did so, consistent with 10 CFR 50.7(b)'s explicit statement that individuals are not immune from discharge or discipline for legitimate reasons or from adverse action dictated by non-prohibited consideration.
The investigation found that wrongdoing occurred by Mr. McBrearty. Everyone involved in receiving the investigation report agreed that wrongdoing occurred.
Everyone involved agreed that wrongdoing NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
71 must be addressed, and everyone involved agreed that paid leave was the appropriate next step based on TVA policy and practice in order to separate the parties and to protect Ms. Henderson from that wrongdoing until a further determination could seek to address the findings in the report.
Further, that same day, May 25, 2018, when Mr. Dodds was placing Mr. McBrearty on paid leave, Mr. McBrearty admitted to his inappropriate behavior and disrespectful conduct.
As shown in Exhibit 16, Mr.
Dodds emailed Mr. Williams and Mr. Czufin a summary of his meeting with Mr. McBrearty.
Mr. Dodd's email stated in part, as you can see on your screen, Mike knew what this was about without prompting. He said he was surprised that an investigation had occurred and that the company concluded that his actions constituted harassment.
He did not offer a defense other than saying he did not realize he had crossed the line and was sorry he had done so. I told him there was no if in my mind about the independent investigation.
Mr. McBrearty also said I think I left my ego get out of control and will not do that again.
I will create a corrective action contract this NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
72 weekend. There was nothing in Mr. Dodd's email to indicate that Mr. McBrearty stated or believed that he was being retaliated against and there was no evidence that any protected concerns or any other retaliatory act played any part in this recommendation. All of the evidence is to the contrary.
Next, as detailed, he and others raised appropriate questions about the investigation reports relying on Mr. McBrearty's ECP contacts.
This should be come as no surprise because that is what TVA has trained its managers to do and what TVA's policies expect and require.
As showed, he and others, including Mr. Williams, Mr. Dodds, Senior Vice President Mr. Steven Bono, and Chief Nuclear Officer, Mr. Mike Balduzzi, believe that the investigation report's conclusion should not rely in any part on Mr. McBrearty's ECP concerns.
They engaged OGC and Human Resources with those concerns.
To be clear, it was entirely reasonable for the Office of the General Counsel investigation to inquire whether, given the sustained patterns of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
73 misbehaviors recounted in Ms. Henderson's complaint and further detailed by Ms. Henderson in the investigation, Mr. McBrearty and others have not filed the ECP concern in good faith, particularly where at least one of Mr. McBrearty's concerns was filed soon after he was counseled by his superior on the behavior towards Ms. Henderson.
However, even though this inquiry by OGC was reasonable, , and the other TVA managers thought it best to ensure that the report's findings were completely separated from those ECP concerns.
As explained, the intent behind the revisions to the report was to determine what conclusion the report would come to once Mr.
McBrearty's ECP activities were no longer considered.
Neither nor anyone else had any interest in the report reaching any particular conclusion.
And in response, OGC stated that the investigation had uncovered a number of instances of inappropriate behavior unrelated to ECP, which had not been included in the initial report, and that the other examples would result in the same multiple findings as the initial draft of the report.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
74 Indeed, as OGC Investigator John Slater testified to OI, he did not re-interview anyone or find other witnesses and did not re-investigate anything.
While the report was being revised, Human Resources conducted its own evaluation of the OGC report and the information underlying it to determine whether there was enough non-ECP-related material to justify discipline, and if so, what discipline would be warranted.
This evaluation was conducted by Watts Bar HR Manager Michelle Ferguson and was provided at Exhibit 22. Ms. Ferguson is an experience nuclear HR professional with over 15 years as an HR representative in the nuclear industry.
After watching all this information, completely separated from any of Mr. McBrearty's EPC contacts, Ms. Ferguson concluded that Mr. McBrearty's behavior and conduct was unbecoming of a leader at TVA and warranted Mr. McBrearty's termination.
She found violation of TVA policy and expectations related to professional and respectful workplace behaviors.
She explained that, quote, it is not a single egregious occurrence but the culmination of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
75 the time and type of behavior that occurred that contributes to the conclusion, close quote.
Again, this proves that the effort undertaken following the initial investigation report was to evaluate what would be the result when non-protected behaviors were separated from ostensibly protected ones. And that independent analysis found that termination of Mr. McBrearty would be appropriate.
During this time, while Mr. McBrearty was on paid leave, the only difference of opinion among TVA personnel considering the investigation result was what level of discipline would be warranted.
As showed you, Mr. Dodds initially suggested giving Mr. McBrearty a written warning and allowing him to return to work. Mr.
Williams, the Sequoyah Site Vice President, and Mr.
Czufin agreed.
This is in Exhibit 17. The fact that Mr. Williams, Mr. Dodds, and initially supported bringing Mr. McBrearty back to work is clear evidence that they had no retaliatory motive.
Similarly, Mr. Shea made the suggestion that if the decision was made to bring Mr. McBrearty NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
76 back to work, he could be placed in an emergency preparedness position in organization.
agreed that would be feasible.
This is in Exhibit 18. Again, this is clear evidence that they had no retaliatory motive.
But there was a difference of opinion on possible disciplinary action and, as just noted, Ms.
Ferguson found termination was warranted and, as documented in Exhibit 17, HR Director Amanda Johns found a suggestion by Mr. Dodds for a written warning that he liked.
As Ms. John explained, as you can see on your screen, quote, seems like, given the egregious behavior that has been long-term insubstantiated, final written warning was required, respectful workplace training would be the minimum I would propose.
For your reference, in Corporate we terminate for these actions when substantiated and I could support that as well if you choose that path, close quote.
So, we have Human Resources professionals, the Office of the General Counsel, senior TVA executives, and three people in Mr.
McBrearty's chain of command who all agree that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
77 pending next steps, Mr. McBrearty should be put on paid leave because of his inappropriate conduct towards Ms. Henderson.
All of this is to say TVA was following his processes and engaging in rigorous healthy debate among numerous stakeholders as to what discipline should result from Mr. McBrearty's behaviors.
The evidence clearly shows that there was no retaliatory motive, nor was there retaliation for engaging in protected activity.
Accordingly, the determination of proper discipline for Mr. McBrearty, whether the NRC agrees with TVA's paid leave position or not, was solely in TVA's discretion.
I will now turn it back over to Laurel to discuss that Mr. McBrearty was not constructively discharged.
MS. RIMON: Thanks, Tim. As described to you last week, one aspect of the investigation and report process was less than ideal.
The report took longer to complete than it should have to address the concerns raised by TVA managers. This was unfortunate given that Mr.
McBrearty was then on paid administrative leave.
But these circumstances are not evidence NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
78 of retaliation or retaliatory animus.
The delay was caused in part by staffing issues at OGC, including the fact that one of the attorneys in OGC had recently any unexpectedly passed away, increasing the caseload on the remaining attorneys at OGC, in particular Mr. Slater, who was tasked with reviewing and revising the report.
This is not an excuse but rather, an explanation. TVA agrees that the length of time it took to revise the report was longer than anyone would have preferred in these circumstances.
But it certainly does not reflect retaliatory animus by anyone at TVA. It is not true that Mr. McBrearty was constructively discharged, as alleged in the Mr McBrearty Office of Investigations report and the notices of violation.
As explained, he and all the Sequoyah managers involved believed the administrative leave would be a matter of days or weeks at most. This was consistent with TVA practice and general government practices.
In any event, lengthy unpaid leaves are not uncommon in government agencies.
Although the information is somewhat dated, a GAO report in 2014 examining the use of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
79 federal paid administrative leave reflected several federal agencies with employees on administrative leave for as long as three years, with thousands of federal employees across multiple agencies on administrative leave for as long as three 3 six months.
As you can see, the length of Mr.
McBrearty's paid leave was not unusual, nor was it a constructive discharge. He was not terminated.
In fact, Mr. McBrearty voluntarily resigned his position. He admitted as much last week, twice, when he said in these very proceedings that he received a job offer and resigned his position.
A constructive discharge requires that the resignation is involuntary. Further, the burden of demonstrating constructive discharge is Mr.
McBrearty's and it is a high burden, as you can see on your screen.
He, as the Complainant, must demonstrate that the resignation was in fact involuntary.
This requirement was established by the Federal Circuit in its 2006 decision in Garcia v Department of Homeland Security at 437 F3d 1322 at Page 1329, which states in relevant parts that, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
80 quote, our cases recognize that most resignations and retirements are not constructive removals, and that the doctrine of coercive involuntariness is a narrow one, requiring that the employees satisfy a demanding legal standard, closed quote.
Thus, it has long been held that, quote, employee resignations are presumed voluntary and this presumption will prevail until Plaintiff comes forward with sufficient evidence to establish that the resignation was involuntarily extracted, close quote. Other case law from the Merit System Protection Board holds that, quote, an employee-initiated action, such as a resignation, is presumed to be voluntary and thus, outside the merit system protection for its jurisdiction.
This is found in the 2000 decision of Neice v. Department of Homeland Security, 105 M.S.P.R. 216, at Page 211.
As noted by the MSPB in the 2014 decision of Salazar v. Department of the interior at 2014 WestLaw 509049, the main factors used to evaluate claims in the constructive discharge are whether, one, employee lacked a meaningful choice in the matter. And two, it was the Agency's wrongful actions that deprived the employee of that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
81 choice. Also, voluntariness is assessed by objective circumstances, not by the Complainant's objective beliefs.
An administrative leave alone is not a basis for constructive discharge. Even employees placed on administrative leave for over a year have been found not to have been constructively discharged, as the Merit System Protection Board concluded in Naheed v. Department of Defense, 2012 WestLaw 8010006. The fact that termination was a possibility or even a likelihood does not mean a constructive discharge has occurred.
As previously discussed, there's no allegation or support in the record that Mr. Dodds, the manager who placed Mr. McBrearty on administrative leave or anyone in his chain of command had a retaliatory purpose in doing so, nor does the OI report point to any.
The NRC has identified several protected disclosures by Mr. McBrearty regarding his technical concerns that it proposes may have been the basis for retaliation.
In each of these instances, however, Mr.
McBrearty was able to pursue multiple avenues to raise his concerns and have them heard and addressed.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
82 Ms. Henderson showed that these disclosures played no part at all in the filing of her complaint and that they were resolved or nearly resolved at the time she filed her complaint.
In addition, as said last week, Mr. McBrearty's ECP complaints played no role whatsoever in his agreement with the joint recommendation of paid leave. Finally, TVA managers were universally careful not to rely on protected activity.
Numerous employees and supervisors took pains to ensure that protected activity was not the basis for any personnel action. For all of these reasons, there's simply no credible support for the allegation that Mr. McBrearty was constructively discharged.
I will turn now to a discussion of the personnel action against Ms. Wetzel.
In the case of Ms. Wetzel, Mr. Shea asked OGC to investigate and consider the comments Ms.
Wetzel had made to him in the context of her NEI loanee assignment and issues surrounding her travel vouchers, in which she made numerous, deliberately false statements about Ms. Henderson.
As Mr. Shea explained last week, he NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
83 terminated Ms. Wetzel based on the following factors, his knowledge that certain of her statements and emails were in direct violation of TVA's standards and policies.
Because he knew the oral and email statements were false and because of OGC's recommendation, the termination was appropriate.
Specifically, Mr. Shea knew that Ms.
Wetzel had violated TVA rules and policies by making unfounded and specious allegations about her supervisor in statements she repeatedly made to him.
As Mr. Shea showed you in his Exhibit 7, on March 29, 2018 Ms. Wetzel alleged that Ms.
Henderson was unreasonable and was attempting to effectively block her loanee opportunity with nuclear energy, even though Ms. Wetzel knew Ms. Henderson was moving it forward by email correspondence on which Ms. Wetzel had been copied the day prior, March 28, 2018, as shown on Mr. Shea's Exhibit 6 and also on your screen.
This was the first of a number of unsolicited allegations that Ms. Wetzel volunteered against Ms. Henderson.
Just over a month later on May 7, 2018, Ms. Wetzel emailed Mr. Shea to complain about the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
84 lack of detail in her travel reimbursement memorandum and alleged, without credible basis, that Ms.
Henderson was going to use Ms. Wetzel's travel vouchers as an investigative tool against her.
This is in Mr. Shea's Exhibit 11.
Ms. Wetzel alleged, as you can see on your screen, quote, I know that Erin has used HR to investigate people, reported people to ECP, threatened to have people for-cause drug tested, pull badge and gate records, and appraiser a lot more actions that I'm not aware of.
She has demonstrated a long-standing pattern of using TVA processes as punitive and retaliatory tools. Based on the lack of detail in her NEI loan confirmation 2018 document, I anticipate using her travel vouchers as an investigative tool, close quote.
As Mr. Shea explained to you last week, he was most troubled by Ms. Wetzel's unfounded statement that Ms. Henderson had taken probably a lot more actions that she was not aware of, which demonstrated to Mr. Shea that Ms. Wetzel was comfortable spreading false or unsubstantiated information about Ms. Henderson.
Mr. Shea appropriately sought assistance NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
85 on how to address the May 7 allegations. As Mr. Shea showed last week in his Exhibit 12, he sought advice from internal TVA resources when he was unsure how to proceed.
Mr. Shea forwarded this information to OGC, believing it could be related to Ms. Henderson's case, but also acknowledging that OGC could determine to handle the matter separately.
As also shown in Mr. Shea's Exhibit 12, OGC decided to address the statements made in Ms.
Wetzel's May 7th email as part of an ongoing independent investigation.
And he told Ms. Wetzel that her allegations would be addressed by an appropriately independent review party.
Ms. Wetzel's unfounded statements did not stop there.
As provided in Mr. Shea's Exhibit 18, on June 9, 2018, Ms. Wetzel alleged, quote, I know I've got to get my travel in, this is getting ridiculous, we are now floating my rent but I've been afraid of what will happen as soon as I start submitting vouchers.
I don't even try to understand my boss and why she does what she does, but I do know that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
86 she never gives up, close quote.
Mr. Shea responded in part, quote, not sure why anything is getting ridiculous, have you submitted something already?
Carla has been monitoring and hasn't seen anything hit the system. What are you referring to, does what she does and never gives up? Is there something beyond your last email? Close quote.
Ms. Wetzel provided no support for her claims and responded only, quote, it's ridiculous because I'm afraid and haven't submitted so now we're floating, no action has been taken to my knowledge yet, close quote.
Ms. Wetzel's unfounded statements did not stop there.
As shown in Mr. Shea's Exhibit 21, in late June or early July, Ms. Wetzel texted Mr. Shea asking that he help push her May voucher through because she claimed that Mr. Shea's executive assistant may be getting different directions from management that could be hanging things up.
Her use of the term management was a thinly veiled reference to Ms. Henderson. As he had done previously, Mr. Shea asked for more information.
He responded what are you referring to as NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
87 a different direction from management? Carla and I are actively engaged in your May package, what is leading you to believe there is such a different direction?
Ms. Wetzel replied only past experience with no further information or support. Not satisfied with this response? Mr. Shea asked again, quote, If you have a factual basis for your assertions regarding different direction, please provide that, close quote. He received no response.
Mr. Shea again attempted to obtain additional information from Ms. Wetzel on her allegations against Ms. Henderson by calling her on July 2nd, but Ms. Wetzel provided nothing further.
Throughout these events, as he had done with Ms. Wetzel's May 7th statements, Mr. Shea repeatedly sought assistance from OGC and Human Resources on how to address these additional voluntary statements by Ms. Wetzel.
When the initial draft of the OGC investigation did not address Ms. Wetzel's May 7th statements, Mr. Shea suggested additional interviews with Ms. Wetzel and Ms. Henderson to get facts, analysis, and conclusions that were independent.
OGC strongly disagreed with that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
88 suggestion out of concern that it would do more harm than good, as it would allow Ms. Wetzel's disrespectful conduct to be perpetuated.
Following Ms. Wetzel's June 9th allegations that things were ridiculous and that she couldn't submit her travel vouchers because she did not even try to understand her boss and why she does what she does, but she knew her boss never gives up.
OGC found that she was continuing with her disrespectful behaviors.
In August of 2018 after the OGC investigation had reached a conclusion with respect to Mr. McBrearty, Mr. Shea's contemporaneous notes reflect that OGC indicated that Ms. Wetzel's, quote, behaviors are harassing, still reviewing, close quote.
These notes are provided in Mr. Shea's Exhibit 24. As Mr. Shea described for you last week, he believed that Ms. Wetzel's statements in particular that Ms. Henderson had undertaken probably a lot more actions that Ms. Wetzel was not aware of, lost and unacceptable line.
Based on discussions Mr. Shea had with OGC, OGC was continuing to review Ms. Wetzel's behaviors and would make a written recommendation to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
89 them.
On August 30, 2018, OGC issued a supplemental memorandum and recommendation with respect to Ms. Wetzel.
OGC recommended that Ms. Wetzel be separated from the company, either by a no-fault separation agreement or termination, because it found that Ms. Wetzel s pattern of behaviors violated multiple TVA policies and federal law.
With this recommendation in my mind, which comported with its own determination that Ms.
Wetzel's statements crossed an unacceptable line, Mr.
Shea decided to separate Ms. Wetzel from the company.
As required by TVA procedures, this adverse employment action was reviewed by the TVA Executive Review Board, or ERB.
The purpose of the ERB is to ensure that the proposed adverse employment action is consistent with company practices and not based on retaliation for protected activities.
More specifically, the ERB adds a degree of independence and deliberative input to propose personnel actions, and is specifically focused on ensuring that activity protected under 50.7 does not form the basis for adverse action, and that the action NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
90 is consistent with action taken for similarly situated employees.
The ERB process also considers negative impacts to a Safety Conscious Work Environment and develops mitigation plans as necessary.
As Mr. Shea described to you last week, over half a dozen individuals participated in or witnesses the ERB.
They included Steven Bono, the Senior Vice President for operations and ERB Chair, Ryan Dreke from OGC, Arcie Reeves from Human Resources, Joe Calle, the TVA Nuclear Safety Culture Monitoring Panel Chairperson, Inza Hagins-Dyer, senior manager of ECP, Deanna Fults, the ECO program manager for the corporate office, and John McCann who attended in his auditing role.
The final ERB package is included in Mr.
Shea's Exhibit 26 These individuals were completely independent from all of the underlying events.
As documented in Mr. McCann's ERB audit report, provided in Mr. Shea's Exhibit 27, which included review of the September 19, 2018 ERB for Ms.
Wetzel.
Mr. McCann found that the ERB's discussion included both the consideration of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
91 potential for harassment, intimidation, retaliation, and discrimination, HIRD, and the potential impact on the SCWE. SCWE mitigation plans were reviewed by the ERB and approved as appropriate.
Documentation packages were prepared prior to the meeting and meeting discussions were focused on potential safety culture issues.
Personnel in attendance demonstrated a good understanding of the purpose of the meeting and the relationship between prior discipline and potential safety culture and SCWE impacts.
And the overall quality and consistency of ERB meetings continues to improve throughout the fleet. This is now mature, well understood process.
As documented in the ERB package in Mr.
Shea's Exhibit 26, no ERB member objected to proceeding with Ms. Wetzel's separation for TVA.
The ERB Members concluded that the proposed action was based on legitimate, non-retaliatory reasons, and consistent with TVA policies, procedures, and past practices.
No ERB Member dissented. I'd like to emphasize again no ERB Member found the proposed action was based on retaliation, and the independent auditor found that ERB processes were close to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
92 following.
Ms. Wetzel was offered a new fall separation agreement, which she initially accepted but rescinded, as was her right. As shown in Mr.
Shea's Exhibit 32, TVA convened an ERB update before proceeding with terminating her from the company.
They considered new legal documentation submitted by Ms. Wetzel's attorney to ensure there was no new information impacting the previous ERB conclusions.
The ERB update reached the same conclusions, again unanimously, the action was based on legitimate, non-retaliatory reasons, and consistent with TVA policies, procedures, and past practices.
These facts show that Mr. Shea took action for only non-prohibited considerations contemplated by 10 CFR 50.7.
This action was supported by an OGC recommendation that independently evaluated Ms.
Wetzel's conduct and concluded termination was legally supportable.
And Mr. Shea closely followed the independent ERB process to ensure that no action was taken for inappropriate reasons.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
93 Finally, we conclude our summary of the personnel action against Ms. Wetzel by noting that we have additional evidence demonstrating Ms. Wetzel's willingness to spread false information about Ms.
Henderson.
For example, while Ms. Wetzel was on paid administrative leave, she wrote to the Department of Labor on December 18, 2018 that, quote, Ms. Henderson had a remarkable, fast promotion trajectory on information of belief her father is a good friend of Chip Pardee, who was then TVA's Chief Operating Officer, closed quote.
Another example, only weeks later, Ms.
Wetzel falsely stated to the Department of Labor on January 31, 2019 that, quote, Henderson's father, Roy West, was a former VP for TVA and made sure his daughter got the promotion, close quote.
Ms. Henderson's father is not Roy West, does not know Chip Pardee, is not even in the nuclear industry. As Ms. Henderson testified to OI, her father installed doors and windows in Philadelphia, and then became an inner-city school teacher in Philadelphia.
As Ms. Henderson told you last week, as a result of Ms. Wetzel's false rumors about her, these NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
94 inaccuracies about her credentials have even been repeated in the past.
These examples are included here and show those kinds of rumors that Ms. Wetzel was engaged in spreading about Ms. Henderson, and she had no actual facts or good-faith basis for believing them to be true.
As demonstrated last week by Ms.
Henderson, , and Mr. Shea and is summarized here again today, there was no deliberate misconduct by any of them intended to cause a violation of 10 CFR 50.7.
All of their actions were taken for legitimate reasons, nor was there any evidence of retaliatory animus or motive by any of them. I will now turn it back over to Tim to start our discussion on errors in the OI report.
MR. WALSH: Thank you, Laurel.
We will now turn to a discussion of a number of factual errors in the Office of Investigations report that further undermine the allegations raised in the apparent violation against TVA and the individual.
We will first review errors in the McBrearty OI report. The first error we will address NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
95 is a statement on Page 49 of the McBrearty OI report, as showed on your screen, which states that the evidence obtained by OI did not demonstrate that Mr.
McBrearty's behavior was excessive or even harassing, or even intimidating.
As we previously summarized today and last week by Ms. Henderson, it was certainly excessive and Erin Henderson rightly believed it harassing and intimidating.
So did TVA's Human Resources professional, TVA's Office of the General Counsel, senior TVA executives, and the three individuals in Mr. McBrearty's immediate chain of command.
And TVA also found the behavior to have repeatedly violated TVA's policies and code of conduct.
Second, as previously discussed, the McBrearty OI report found on Page 48 that Mr.
McBrearty was constructively discharged. This is typically incorrect under the law.
Mr. McBrearty himself admitted in these very proceedings that he received a job offer while on paid leave and voluntarily resigned.
Accordingly, under well-established legal principle, he could not have been constructively discharged.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
96 Third, the OI report wrongly states on Page 49 without basis that ECP's investigation 17-00683 demonstrated retaliatory animus by Ms.
Henderson towards Mr. McBrearty, as shown on your screen.
This is simply not true and is clear error by OI. To the contrary, that ECP investigation found that it, quote, could find no intent on the part of Ms. Henderson to retaliate against Mr.
McBrearty, close quote.
This error is compounded by the fact that it appears to be the sole basis of which OI claimed to have found retaliatory animus by Ms. Henderson towards Mr. McBrearty.
Four, the McBrearty OI report alleges on Pages 48 to 49, and as you can see on your screen, TVA did not follow its own policy or discipline process when it did not initially notify Mr. Dodds or Mr. Williams of the harassment investigation.
And by not allowing Mr. Dodds to be underlying evidence. All of this is incorrect.
There is no TVA policy or procedure requiring that an employee's supervisor be notified of an internal harassment investigation while that harassment investigation was ongoing.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
97 Reading the OI report it appears OI concluded this requirement existed based on testimony from Mr. Dodds.
So, this appears to be a misunderstanding by Mr. Dodds as TVA's employee discipline policy, SPP 11.316, contains no such requirement. There is a requirement in Appendix A to that policy that managers obtain information prior to making a discipline determination.
That would include information about or supporting an investigation's findings. That requirement was met.
Mr. McBrearty's chain of command was informed of the investigation's findings, both in the initial May 25th draft report and in the August 10th final report. But no decision on discipline was ever reached because Mr. McBrearty resigned before one was made.
Six, the statement at the top of Page 50 of the McBrearty OI report that allegedly, quote, instructed the TVA OGC to potentially find more different information that justified a purported OGC substantiation of harassing behavior by Mr.
McBrearty, close quote, is not correct.
could not instruct the OGC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
98 investigator to do anything.
Furthermore, as explained, he, along with several other TVA nuclear managers, engaged OGC to evaluate what conclusion the investigation would come to once ECP activity was no longer considered.
As stated last week, it is ironic that the NRC has alleged retaliation against him when he was one of the people who asked OGC what conclusions the report would come to without considering Mr. McBrearty's protected activity.
I will now turn it back over to Laurel for a discussion of errors in the Wetzel OI report.
MS. RIMON: Thanks, Tim.
The first error we will address is OI's conclusion on Page 48, borrowing from the fundamentally flawed finding by the Department of Labor investigator that the OGC investigation into Ms. Henderson's harassment complaint was actually a chilled work environment assessment and that statements made therein, no matter how egregious or false, would somehow be cloaked as protected activity. TVA respectfully and a wholeheartedly disagrees. There are several flaws with OI's assessment here and importantly, the DOL NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
99 investigator did not interview Mr. Slater.
Although NRC OI did, the OI report barely recounts Mr. Slater's own testimony here. Mr. Slater equivocally testified to the NRC that he conducted a run of the mill harassment investigation, that he had never performed a chilled work environment assessment, and wouldn't even know how to go back anymore.
The OI report also failed to appreciate the fact that Mr. Slater asked Ms. Wetzel if she felt chilled for the sole purpose of determining whether they would be candid with him in answering his questions about harassment.
Ms. Wetzel responded that she did not feel chilled. In fact, Mr. Slater told each witness that he was investigating a harassment complaint and OI inexplicably discounted other direct testimonies showing this.
As you can see on your screen now, Exhibit 36 of the Wetzel OI report appears to be a summary of the supplemental interview of Mr.
McBrearty, conducted on August 30, 2019.
This date may be relevant because Mr.
McBrearty's supplemental interview occurred roughly ten days after the August 20, 2019 Department of Labor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
100 investigators' findings were issued.
Even assuming for the sake of argument that Mr. McBrearty had no knowledge of the Department of Labor's findings at the time of the supplemental interview, the Office of Investigations' summary of his supplemental interview explicitly states that Mr.
McBrearty testified that Mr. Slater told him that his interview was related to a harassment allegation.
In addition, in Exhibit 37 of the Wetzel OI report is another interview summary which was conducted in October 2019. This interview summary confirms, too, the individual was asked questions about harassment.
Exhibit 38 is yet another summary of an interview conducted by OI in October 2019. This summary, too, states the that individual interviewed, quote, believed the interview was related to concerns of intimidation, harassment, and reprisal, close quote.
Further, as discussed during Mr. Shea's presentation last week, Section 5.2.E of the NRC's own allegation manuals specifically provides that there's no requirement that NRC and DOL conclusions agree.
Relevant here, TVA had no opportunity to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
101 respond to the DOL finding that the TVA OGC investigation was a chilled work environment assessment before DOL made its findings.
The claim was never raised by Ms. Wetzel in her DOL filings, nor was this claim presented to TVA by the DOL investigator.
Finally, the DOL findings were not the result of an adjudication but rather, the result of an investigation.
Those findings were set aside the moment TVA requested an adjudicatory hearing in the matter until 29 CFR Section 24.106(b), which states in relevant part that if objections to the Department of Labor's investigations findings are timely filed, quote, all provisions of the order will be stayed, unquote.
That's what happened here, TVA files its objections, the DOL findings were stayed, and the matter was eventually settled.
Even if the NRC were to insist that the OGC investigation was a chilled work environment assessment, it still fails to confront the fact that Mr. Shea, and thus, TVA had independent knowledge of Ms. Wetzel's disrespectful conduct outside of the Slater investigation that violated TVA's policy.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
102 Each instance of her voluntary disrespectful conduct was directly presented to Mr.
Shea.
At the end of the day, none of Ms.
Wetzel's statements were good faith statements regarding actual or genuinely suspected violations of laws or rules.
Ms. Wetzel's statements were entirely unfounded and based on rumor supposition and contrary to actual fact.
Based on the nature of the allegations, their the lack of specificity and the fact that Mr.
Shea had personal knowledge of some of the issues Ms.
Wetzel was falsely complaining about, he knew her allegations against Ms. Henderson did not raise genuine and reasonable concerns.
The next error in the Wetzel OR report is its impossible finding on Page 48 and shown on your screen that Ms. Henderson filed a complaint after becoming aware of Ms. Wetzel allegedly raising concerns of a chilled work environment to Mr. Shea and Mr. Slater.
As Ms. Henderson demonstrated to you last week and as you can see on the next slide, Ms.
Wetzel's emails and texts to Mr. Shea's in her NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
103 interview with Mr. Slater occurred after Ms.
Henderson filed her complaint.
This alleged finding is a factual impossibility.
Third, the OR report on Page 43 and shown on your screen indicates that Mr. Shea, Ms.
Henderson, and TVA essentially stated that Ms.
Wetzel's claimed protected activity were a central and required function of her job and were not protected activities. But this is not accurate.
TVA's position is that for an employee who routinely raises concerns as a part of his or her job, something more than temporal proximity must be shown to draw an inference that protected activity caused an adverse employment action.
In any event, the OI report later concedes on Page 44 that it did not find that Ms.
Wetzel's nuclear safety technical concerns were contributing factors in her termination.
Fourth, the OR report states on Page 47 and also on your screen that Ms. Wetzel's termination seems contrary to TVA's procedural and employee discipline related to progressive discipline.
This appears to be an impression rather than an actual finding of fact or conclusion of law.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
104 In any event, the OR report is mistaken, TVA's policies do not require the use of progressive discipline in each case and the absence of progressive discipline is not itself evidence of retaliation. TVA's employee discipline policy provides that individual circumstances play a role, and although there is a preference for progressive discipline, the circumstances may warrant termination without progressive discipline, as TVA determined was the case here.
The fifth error in the Wetzel OI report is the NRC's concerns about the ERB process.
On Page 46 of the OI report and also on your screen, OI asserts that TVA may have violated their own policy by administering adverse employment action, a no-fault separation agreement and paid administrative leave, to Ms. Wetzel before final approval of ERB documents with signatures.
But as Mr. Shea showing you last week and as the OI report notes on Page 20, excerpted on your screen, the initial voluntary separation agreement was dated October 25, 2018, which was the date that Mr. Shea and Ms Poland met with Ms. Wetzel and provided her with a no-fault separation agreement.
This is confirmed by Ms. Wetzel's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
105 Department of Labor complaint in the December 18, 2018 ERB update, which both state that she received the no-fault on October 25th.
This occurred in accordance with TVA's ERB procedure after Steve Bono, the ERB Chair, signed the ERB record of action on October 19, 2018.
Notwithstanding Ms. Wetzel's statements to the contrary at Mr. Shea's PEC last week, we have confirmed with former HR Director Amanda Poland that Ms. Wetzel was not provided a no-fault separation agreement on October 15th.
Mr. Poland's review of her records indicates that she sent to Mr. Shea the first approved agreement on October 22, 2018, and thus he could not have shared one with Ms. Wetzel on October 15th.
Ms. Wetzel was provided the no-fault agreement on October 25th, ten days after the initial meeting on October 15th.
OI also alleges of page 46, as you can see on your screen, and the ERB was not provided supporting documentation or specific examples of where others were terminated for harassment.
And that the OI interviews with Ms.
Poland and Ms. Reeves failed to provide specific information on employees used as examples and their NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
106 testimony differed on who conducted the review, what violations were compared, and the timeframe of the review.
OI investigators faulted these individual's witnesses inability to recall at the time they were interviewed by OI, the specific details of the information they reviewed.
But roughly a year had elapsed between their reviews and these individuals' interviews with OI. The OI report also does not indicate whether during the course of their interviews, the investigators gave Ms. Poland and Ms. Reeves and opportunity to refresh their recollections through documents or otherwise.
In addition, OI did not recognize the different purposes for which Ms. Poland and Ms.
Reeves conducted their respective reviews. Ms.
Poland's review had nothing to do with the ERB.
She testified she did not participate in the ERB itself and that she reviewed the documentation on specific examples to inform her discussions with management on what discipline would be appropriate for Ms. Wetzel.
Ms. Reeves testified that she was the HR representative for the ERB and reviewed the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
107 documentation for that separately. There is no inconsistent in their testimonies here.
The fact that specific details on comparable disciplinary actions were not discussed during the ERB was consistent with Ms. Reeves' regular practice, as she testified to OR.
She represented to the ERB the result of her review, as she usually did. If the OI investigators asked TVA to provide the relevant information, we would have shared with the NRC that five other TVA employees had been discharged and acquired for several years for inappropriate conduct, ranging from failure to perform required work, sexual harassment, and inappropriate clothing and photos on a computer.
In this case, Ms. Wetzel was held to a high standard. She was a leader in TVA and knew or should have known that this conduct was unbecoming of a leader and in violation of TVA's code of executive behavior.
The last error I will address is on Page 46 of the Wetzel OI report and is now on your screen, although it pertains to Mr. McBrearty's investigation too.
There, OI alleges that TVA acted contrary NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
108 to its procedures by failing to notify TVA's Office of the Inspector General of OGC's finding that Mr.
McBrearty violated federal law or OGC's finding that Ms. Wetzel has violated federal law.
This, too, is incorrect. TVA's policy regarding referrals to the OIG, TVA-11.8.5, provides for referrals of suspected waste, fraud, and abuse to the Inspector General.
This policy does not require the referral of every personnel matter to OIG. The OIG's purpose is to provide independence where particularly necessary, not in routine personnel matters.
As you see, HR as well as the TVA managers rightly understood Ms. Henderson's complaint to be a personnel matter. That is, that she believed she was being subject to targeted, hostile, and disrespectful behavior.
I will now turn it back to Tim to conclude our factual and legal analyses.
MR. WALSH: Thank you, Laurel. I would like to conclude this review of the facts by applying them to the controlling legal standard.
The NRC staff has failed to meet its preponderance of the evidence burden. All of the evidence discussed today and the errors identified in NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
109 the OI report show that it is more likely that a violation did not occur.
Further belying any claim that the staff has met its preponderance of the evidence burden is the fact that the OI reports state no less than four times across them that their findings are based on alleged reasonable assumption, as shown on your screen.
In the McBrearty OI report, OI claimed on Page 48 that it is reasonable to assume that Ms.
Henderson submitted her complaint in an effort to impede or stop Mr. McBrearty's actions or behaviors, part of which were protected activity.
And the Ms. Wetzel OI report claims across Pages 48 and 49 that it is reasonable to assume that Ms. Henderson had knowledge of the concerns Ms.
Wetzel provided to Mr. Shea, or that it is reasonable to assume that this information contributed to Ms.
Henderson's decision to include Ms. Wetzel's behavior in her complaint.
And that it is reasonable to assume that Mr. Shea provided this information to TVA OGC with the expectation that it would result to an employment action.
We have demonstrated that the actual NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
110 evidence shows that these OI assumptions are not reasonable at all. Moreover, alleged reasonable assumptions, or any assumptions for that matter, are not evidence.
They are instead the complete absence of evidence. Neither justice nor nuclear safety is served.
If any dedicated nuclear professional were banned from the nuclear industry based merely on purported and in this case unfounded assumptions.
Even if the staff believes it has met its burden, TVA has demonstrated by clear and convincing evidence that it would have taken these employment actions regardless of the former employee's protected activity.
First, as shown on your screen, we must note that the McBrearty OI report has yet another error, here by stating an incorrect legal standard to be used when evaluating the clear and convincing evidence requirement.
The Mr. McBrearty OI report states on Page 49 that the business reason purported by TVA must be clear and convincing that a legitimate, non-discriminatory reason was the only motive that existed for the adverse action.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
111 The use of the word only is clear legal error.
That's not the Commission's legal standard. The Commission's standard is that even if the staff shows by preponderance of the evidence that protected activity contributed to the adverse actions, the employer can show by clear and convincing evidence that it would have taken the action anyway, and thus be cleared of any retaliation.
Accordingly, under the applicable legal standards, a legitimate non-discriminatory reason must be present but it need not be the only motive for the adverse action, although a non-discriminatory reason was TVA's only motive here.
Compounding OI's clear legal error, is the fact that this was applied in a critical portion of its analysis when it's certain that the evidence that it had obtained did not demonstrate that Mr.
McBrearty's behavior was excessive or harassing or even intimidating.
As we have shown today, that is not the case.
Furthermore, and finally, TVA and the individual cases are supported by overwhelming NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
112 evidence. We have all of the record evidence supporting Erin s claim in demonstrating Mr.
McBrearty's disrespectful behavior.
We have the result of the independent OGC investigation substantiating in part Ms. Henderson's complaint on which TVA management relied when determining to place Mr. McBrearty on paid leave.
We have Mr. Williams' text message stating that Mr. McBrearty should not have made the aggressive comment about Ms. Henderson in the workplace and should have kept his opinion to himself and maintained a professional environment.
We have Mr. Dodds agreeing with the recommendation to place Mr. McBrearty on leave after reading the Slater report.
We have the testimony of the whistleblower, , that he would never retaliate against anyone for raising concerns to ECP and evidence that he supported bringing Mr. McBrearty back to work with a warning, including potentially in own organization.
We have Mr. McBrearty's admission that he let his ego get out of control. We have the independent review conducted by Michelle Ferguson finding that the culmination and duration and type of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
113 Mr. McBrearty's behavior warranted termination.
We have the email from HR Director Amanda Johns that termination of Mr. McBrearty would be appropriate discipline. We have the Office of the General Counsel's recommendation that Mr. McBrearty be terminated for his behavior.
We have all of Ms. Wetzel's disrespectful emails documenting her unfounded statements about Ms.
Henderson.
We have the Office of the General Counsel's supplemental analysis, concluding that Ms.
Wetzel's disrespectful conduct violated TVA's policies, which recommended that Ms. Wetzel be separated from the company.
We have the TVA Executive Review Board evaluation that concluded, without equivocation, that Ms. Wetzel's separation was based only on legitimate reasons.
We have the complete lack of actual evidence showing any retaliation or retaliatory animus by any one of the dozen TVA personnel who are involved in or reviewed the same facts, found that wrongdoing by Mr. McBrearty and Ms. Wetzel occurred, and determined that the wrongdoing must be addressed.
And we have a clear and obvious non-NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
114 retaliatory motive, to ensure that trust and respect permeate TVA's work environment.
I will now turn it back over Tim Barstow.
MR. BARSTOW: Thank you, Tim.
First, I would like to say that TVA firmly believes no deliberate misconduct or careless disregard for the requirement of the truth.
However, TVA does recognize that the allegation of wrongdoing in the Wetzel Department of Labor finding and TVA's notice of apparent violation could potentially have a chilling effect on the work environment.
TVA is a responsible licensee and a responsible steward of safety culture and Safety Conscious Work Environment. TVA understands that the allegations themselves could result in perceptions that could negatively affect the work environment.
Accordingly, TVA has taken action to address the potential for such reception.
Following publication of the August 2019 Department of Labor investigation findings and the DOL findings that we reported, TVA's leader issued a fleet-focused communication about safety culture, offered by Tim Rausch.
This message provided some facts of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
115 DOL case and reiterated the multiple avenues that TVA Nuclear employees have for raising safety or quality concerns. This is provided in Exhibit 7.
Further, the TVA's safety culture manager, implemented a discretionary Safety Conscious Work Environment mitigation plan for the Nuclear Fleet group in response to the Department of Labor finding. We are providing a copy of that plan for you today as Exhibit 8.
Similarly, TVA also implemented a Safety Conscious Work Environment mitigation communication plan for Sequoyah. This is provided as Exhibit 9.
Following publication of the March 2020 apparent violation, TVA took several actions. In accordance with procedural requirements, TVA communicated a regulatory report on the apparent violation.
Tim Rausch, TVA's Chief Nuclear Officer, sent a written communication to the TVA's Nuclear Fleet and subsequently distributed a copy of the NRC apparent violation.
In this communication, Mr. Rausch acknowledged the NRC apparent violation, stated that TVA had not reached the same conclusions on the matter, and reinforced TVA's commitment to a healthy, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
116 sustainable nuclear safety culture and Safety Conscious Work Environment.
A copy of this statement is being provided to you today as Exhibit 10.
In addition, TVA documented the NRC apparent violation and its Corrective Action Program at Condition Report 1593594. This CR is being provided to you today as Exhibit 11 and is available for NRC inspection.
In addition, the Corporate Nuclear Licensing manager has discussed the apparent violations with the Corporate Nuclear Licensing group and also initiated communication on the same subject as the site licensing groups.
A copy of the talking points used is being provided to you as Exhibit 12 and is available for inspection as part of the attachment to CR 1593594.
I will now turn to a discussion of lessons learned for TVA. In our review, we've recognized and described here today a number of areas where we could have done better as an entity to better manage the issues leading to where we are.
And perhaps we could have avoided the personnel issues that got us here.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
117 First, as explained today, Ms. Henderson raised in the very beginning a potential conflict of interests that we certainly hope and expect our employees to bring to the company's attention.
The confidentiality of that investigation was not, or should have been, maintained. That is a lesson here, as much of what resulted could have been prevented.
Second, TVA should not have pursued a method of limiting Ms. Henderson's job responsibilities to address Mr. McBrearty's behavior towards her.
Although the managers involved were seeking a way to de-escalate and improve the work environment, it may have been more effective to direct Mr. McBrearty to cease his misbehavior and take swifter personnel action to address it.
Third, the management and employees on numerous occasions and told Mr. McBrearty of the improper nature of this conduct for Henderson.
TVA could have taken other steps to definitively address this conduct, including, for example, more concerted efforts to detail to Mr.
McBrearty in writing the problems with his behavior, explicit directions regarding including Ms.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
118 Henderson, and appropriate communications relating to the Corporate Nuclear Licensing group, management and ensuring these steps happen, and progressive discipline where warranted.
Fourth, it was appropriate for Ms.
Henderson to document her legitimate concerns in her March complaint. TVA should not have allowed the employee tension to degrade to the point where a valued manager was left with the decision to resign or file a complaint.
We should have managed that situation better and not let it come to that. TVA recognizes and accepts these areas where it could have done better.
However, and I want to emphasize this, these instances relate to mismanagement of performance issues and employee misconduct.
They do not relate to safety or regulatory issues and in no way show retaliation or the lack of dedication to a Safety Conscious Work Environment.
To the contrary, throughout the processes and incidents described today and during last week's PEC, TVA management tried to do the right thing.
They tried to investigate fellow NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
119 concerns, they tried to improve the work environment, reducing tension. Management tried to counsel where behavioral issues were uncovered.
They proceeded cautiously when thorny issues with the Employee Concerns Program were presented, as demonstrated by cautious approach with Mr. McBrearty and an apology to the Executive Review Board adverse action when implicated, as shown by Joe Shea's actions.
In our review of these cases, we discovered an area of potential improvement for are ERB adverse action process that can aid our management in the future.
To be clear, we did not discover wrongdoing. Rather, we see an area of improvement and have taken it upon ourselves to make that improvement in our continued efforts to maintain a Safety Conscious Work Environment.
The McBrearty OI report on Page 40 correctly reflects that TVA's ERB adverse actions procedure in effect at the time did not require an ERB or formal management review process for paid administrative leave.
OI also asserts that TVA had revised that procedure since then and that revised did not require NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
120 an ERB paid suspension like Mr. McBrearty's, nor would it be required for a denial of access.
In December 2019, TVA issued Provision 5 for this procedure and addressed one issue identified in the OI report. TVA added denial of access to the actions to constitute a non-ERB adverse action, which are subject to management screening, including protected activity evaluation.
For such actions, a full ERB is not required but management is required to conduct reviews, documented in TVA Forms 41647 and 41753.
Notably, Ms. Henderson was a key advocate of this procedure change.
41647, which is on your screen, consists of a questionnaire assessing whether a Safety Conscious Work Environment mitigation plan is necessary, and if so, provides a framework for that plan.
41753, which is now on your screen, requires management to, among other things, ensure the action is not taken because an employee engaged in activities protected by the employee protection regulation, 10 CFR 50.7, in TVA procedure.
Because there is language inconsistency between denial of access and administrative leave, we NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
121 have also endeavored to review the current policy and revise, where necessary, to ensure that the place of administrative leave, pending investigation, like Mr.
McBrearty's, will trigger this procedure going forward.
To that end, we have taken the action and entered into the Corrective Action Program and Condition Report, documenting that clarity is needed in the adverse action procedure as to whether a denial of access also includes management designating an employee to a paid time off status.
The procedure will be revised to ensure that an employee placed on paid administrative leave pending investigation will constitute a non-ERB adverse action review. Finally, with respect to Mr.
McBrearty, it is apparent that he was placed on administrative leave for an undefined, extended period of investigation.
In that respect, we have implemented a pilot nuclear investigation protocol.
As you can see on the next slide, this protocol brings together multiple organizations within TVA that conduct investigations for a joint intake process with specific procedures for identifying claims as whistleblower and ensuring such NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
122 disclosures are protected.
From there, concerns will be passed to a newly constituted Investigations Committee made up of stakeholders throughout the company, including management HR, OGC, Ethics, and other components as appropriate.
As shown on the next slide, this Committee will refer matters to the inappropriate investigating body, who will be required to follow specified standards relating to the timing for completion of the investigation and reporting.
This protocol is intended to adhere to best practice and bring consistency to the investigation process, including initial intake, review of the claims, assignment of an investigative body, timeframes for completion, content and quality of work product, reporting of outcomes, and required action, and completion of necessary follow-up.
We are confident this process will address some of the limitations that were acknowledged the length of the investigative process.
To wrap up, I would like to thank you again for giving us an opportunity to speak with you today and to answer your questions.
I would like to conclude by raising NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
123 several points, which I trust have been made clear to you today, demonstrating that neither TVA nor the three individuals from whom you have heard engaged in any intentional retaliatory action in response to employees raising issues associated with nuclear safety.
In addition, all three individuals have demonstrated their adhering to the rules and ideal surrounding nuclear safety.
TVA's code of conduct describes how employees must comport themselves in the nuclear industry and is designed to promote the highest levels of safety.
Mr. McBrearty and Ms. Wetzel broke that code and they did so for reasons unrelated to nuclear safety.
First, Mr. McBrearty's actions certainly undermined TVA's nuclear safety culture by engaging in repeated misconduct over the same period of time towards Ms. Henderson that was not respectful and violated TVA's policy.
While disagreements are inherent, they must be made in a respectful manner. TVA policy and the NRC's trait-positive safety culture required that communications must be open and honest and respectful NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
124 and the employees be able to express differing points of view without fear of harassment, intimidation, or retaliation.
By his own admission, Mr. McBrearty's actions towards Ms. Henderson were in retaliation for Henderson's well founded HR referral regarding a close personal relationship with Ms. Conner.
And he certainly was not respectful to Ms. Henderson when he berated her in emails or refused to speak with her.
His actions violate TVA's code of conduct, in particular that employees act with the highest standards of integrity and this is employees offering openly and with respect and honesty.
He violated that code by treating her staff disrespectfully and by repeatedly and openly expressing his disdain for Ms. Henderson to her subordinates.
Mr. McBrearty also violated the mandates of collaboration and respect when he deliberately left Ms. Henderson off emails or removed her from emails, and then forwarded those emails to persons outside of CNL, and when he refused to speak with her.
Mr. McBrearty was counseled multiple NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
125 times over the course of two years to improve his behavior, but his behavior only escalated. Ms.
Wetzel also violated the code of conduct.
First, she told Mr. Shea that Ms.
Henderson vindictive. She accurate Ms. Henderson of improperly using TVA processes to punish employees, going so far to assert that Henderson had taken actions that Ms. Wetzel wasn't even aware of.
These were not mere expressions of opinion, they were assertions of fact that she used as a basis for requesting that Henderson not be involved in reviewing Ms. Wetzel's travel vouchers, and later for not submitting her vouchers in a timely manner. She was not respectful. When complaining about the details of her NEI contract and the process by which she would submit her travel expense vouchers, she was not honest. She knew, or should have known, particularly after Mr. Shea just accused her of her allegations, that those allegations were false.
Ms. Wetzel knew Ms. Henderson was not foot-dragging or blocking her NEI position because she was copied on correspondence related to the detail. Indeed, as Mr. Shea told you last week, he later encouraged her to reach out directly to OGC to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
126 resolve her concerns.
In short, Ms. Wetzel was not honest, was disrespectful to Ms. Henderson, and she did not demonstrate the highest integrity expected of TVA employees and management.
TVA must be able to address personal matters within the world of nuclear safety.
Employees should not be permitted to undermine TVA operation and its nuclear safety culture by cloaking what are truly personnel issues in the robe of nuclear safety.
TVA is strongly dedicated to the Safety Conscious Work Environment and nuclear safety culture. We are confident that Erin Henderson,
, and Joe Shea, and all of the involved TVA personnel acted in accordance with these values while navigating these personnel issues.
I will now turn it over to TVA Chief Nuclear Officer, Tim Rausch, for our closing comments.
MR. RAUSCH: During today's presentation, we have lessons learned related to how we manage these performance issues.
We can do better at adjusting harassing behaviors the moment they surface and take NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
127 appropriate and effective actions to confront these behaviors.
We can do better in supporting our employees when they need our help, and we can do better at swiftly and efficiently investigating in dispositioning personal matters. And we will.
We've identified potential process improvements and we're acting on them. That includes improvement to our ERB adverse action procedure you just heard about from Jim Barstow.
It also includes our implementing at my direction a new investigation response team and protocol, also which you just heard about from Jim Barstow.
I again want to stress, though, that while we do have important lessons learned in how we handle these personal matters, they do not show any wrongdoing or retaliation by anyone at TVA.
However, our lessons learned show that we are self-critical and we are committed to continuous improvement.
We are fully committed to a healthy and sustainable nuclear safety culture and Safety Conscious Work Environment where every employee feels free and encouraged to raise any potential concern.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
128 We have been focused on continuously improving our culture and we are seeing the results.
To illustrate that, I want to direct your attention to recent NRC on-site inspections regarding the Safety Conscious Work Environment at our TVA site.
Over the past year, in the course of several NRC inspections at TVA's nuclear plant, the NRC repeatedly found that TVA personnel understood the various methods for raising concerns and are willing to raise nuclear safety concerns without fear of retaliation.
In particular, I note the most recent Watts Bar inspection report from December of 2019, quote, determined that there is evidence of improvement in the Safety Conscious Work Environment and the Radiation Department and sustained improvement in the Operations Department, end of quote.
But I ask you to think about what the message would be to our workforce and to our industry if you issue violations to these individuals. I don't think it will foster a Safety Conscious Work Environment, but instead, it will send an opposite message.
The NRC demands that we create an NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
129 environment where personnel are free to rate safety concerns without fear of retaliation, intimidation, harassment, or discrimination. We at every turn encourage our employees to raise concerns.
We take our duty to investigate those concerns seriously. Here, however, we have an employee that is facing a violation of potentially a ban from working in our industry for doing just that, raising a concern.
And we have two managers who did what they should have by referring those matters for investigation and seeking internal counsel and expertise.
If these individuals receive violations for these actions, I struggle to envision how it won't have a chilling effect. The message that would be sent to concerned individuals and to managers is that raising and investigating internal security is too much exposure.
I say this to you today not to be an alarmist, but out of a legitimate concern that violations for these individuals could have a detrimental impact on our industry.
And these principles are so important to us that based on the facts here, we unequivocally NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
130 stand behind these individuals and defend their good-faith efforts to do their jobs and to maintain a professional and Safety Conscious Work Environment.
And if that means that we need to pursue our cases to the next level, we're prepared to do that.
I thank you for your time today.
MR. WILSON: Thank you, Mr. Rausch, thanks Mr. Barstow. We're going to take a 15-minute break so we'll be back at 10:45 a.m. and resume then.
Thanks.
(Whereupon, the above-entitled matter went off the record at 10:29 a.m. and resumed at 10:47 a.m.)
All right, let's go ahead and resume.
Mr. McBrearty, do you have any comments?
MR. McBREARTY: Yes, I do. Can you hear me okay?
MR. WILSON: Yes, we can.
MR. McBREARTY: Okay, my name is Michael McBrearty, I'm the former Site Licensing Manager at the Sequoyah Plant.
I've got three items I want to touch upon and then just give some general remarks.
First, in the TVA presentation today and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
131 at least one of the presentations I heard last week, they referred to counseling that I had received over some period of time.
I was not made aware that I was being counseled and never provided any documentation of such. I was repeatedly told by my management that Joe and Erin Henderson complained about me and I was told to minimize my interactions with them.
I was repeatedly told that I work for Sequoyah, not for Corporate Nuclear Licensing. Up until the time I was suspended, I was responsible for coordinating and leading the Executive Review Board per delegation from my manager at the time, Mr. Al Dodds.
If my management had significant concerns about my behavior, I doubt my management would have trusted me with this significant management responsibility.
At one point in October 2017, after again being unjustly accused of leaving Ms. Henderson off of a meeting invitation, I told my manager, Dennis Dimopoulos, that I considered the constant complaints by Mr. Shea and Ms. Henderson to be harassment.
And I insisted that it stop immediately.
I told my manager it was making it difficult, if not NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
132 impossible, to do my job. I did not hear of any of additional complaints until I was suspended on May 25, 2018.
The second area I want to talk about is I've heard during the presentations last week and today mentioned about a confession and an apology for my actions.
TVA noted that during my meeting with Mr.
Dodds on May 25th, I immediately knew what the meeting was about and that I confessed, apologized, and offered to develop a corrective action plan.
On Friday May 25, 2018, around 2:00 p.m.,
it was the Friday before Memorial Day weekend, I was preparing to leave site for the weekend, as most of the site population had already left, and I stopped by my Director's, Mr. Dodd's, office to give him status and see if he had any need for me to remain on site that day.
Mr. Dodds was in a closed door meeting in his office so I did not interrupt. I subsequently stopped by a few more times but his office door remained closed. As there was nothing significant to discuss with Mr. Dodds, I decided to depart site.
Around 3:00 p.m., as I walked out the security gatehouse, the exit to the protected area, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
133 Mr. Dodds called me on my cell phone. He asked me if I was still on site.
I told him I was at the gatehouse and could come back in to meet with him. He directed that I not return to my office but that I should meet him at the Sequoyah Training Center, which is located outside of the protected area about a half mile from Sequoyah.
While I was speaking on my cell phone to Mr. Dodds, Mr. Czufin exited the gatehouse and walked directly past me without acknowledging me.
At that point, I assumed I was in some type of trouble, giving the timing of Mr. Dodds' phone call, Mr. Czufin's appearance and failure to acknowledge me, and Mr. Dodds' direction to not try to re-enter the protected area and instead meet him at the Sequoyah Training Center.
During my experience as the Licensing Manager, I was familiar with TVA's protocol to suspend an employee's site access and then administer employee discipline at the Sequoyah Training Center.
I was concerned that this was now occurring to me.
When I met with Mr. Dodds at the Sequoyah Training Center, he informed me that I was being placed on administrative leave suspension as a result NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
134 of a recent investigation regarding a text message I had sent.
My recollection is that Mr. Dodds asked me if I was aware of the investigation and I told him that I was recently interviewed by TVA OGC as part of an investigation but I thought the investigation was looking at a concern I had raised through my text message.
Mr. Dodds repeatedly emphasized that this was a very serious issue and that my termination is being considered. He recommended that I develop an individual corrective action plan and provide it to him as it may mitigate any discipline.
Mr. Dodds suggested I develop the plan as soon as possible to ensure it is considered in a disciplinary process.
During our conversation, I cannot recall if it occurred within a Sequoyah Training Center or while Mr. Dodds and I were later walking together to our cars in the parking lot, I told Mr. Dodds that I was sorry.
Mr. Dodds and I knew each other since he was first hired as a TVA consultant in the 2016 timeframe and we had established a good relationship, both sharing a love of soccer and baseball.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
135 Mr. Dodds had just become my manager a few months earlier in late February 2018. My mindset at that time was I felt sorry that my friend, Mr.
Dodds, was just hired in late February and now he had to deal with this situation.
The third area I want to talk about is there was discussion that I was being considered for promotion and that was discussed with me. This was discussed in TVA s and presentations.
They noted that I was being considered as part of succession planning for a position within organization as the Director of Emergency Preparedness, whenever that position should be become vacant.
There was no schedule or commitment for this position. This position is a direct report to Mr. Shea. At some point in early 2018, I do not recall the exact date, Mr. Shea stopped by my office one day as he was visiting Sequoyah.
I recall during that conversation Mr.
Shea mentioning that I was being considered as part of the succession planning for the EP Director position.
Mr. Shea also noted that, with respect to the ongoing tension between myself and Ms. Henderson, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
136 I needed to own the problem. He clarified that he felt I should setup a meeting with TVA executives, including Mr. Balduzzi, the CNO, and Mr. Czufin and confess my alleged behavior issues in order to move forward.
I dismissed the conversation at the time but its significance occurred to me during and TVA's presentations at these enforcement conferences.
Finally, I'll give some general remarks.
I have worked in nuclear power since 1990, starting with the United States Nuclear Regulatory Commission and then in Licensing and Regulatory Affairs management positions at two U.S.A. nuclear power-plants.
Never before in my 30-year career have I ever felt it necessary to raise a concern the Employee Concerns Program or to the NRC, nor am I aware of an ECP complaint filed against me during that time.
For over two years between late 2015 and 2018, I repeatedly tried to get TVA to address two docketed NRC violations at Sequoyah.
I raised these concerns through face to face meetings with the licensing management and peer team through the Corrective Action Program, and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
137 finally, through the Employee Concerns Program and the Nuclear Regulatory Commission.
In March 2018, I was informed by the TVA senior Employee Concerns Program Manager that she had received a copy of a text message I had sent to a licensing peer. EP would be treating this as a new concern.
From our discussion, I believe that ECP was investigating this issue as a concern I had raised. The ECP manager indicated TVA management wanted to use an independent, external investigator and they were still identifying who that would be.
In late March, I went on family sick leave to care for my 92-year-old father, who had recently been diagnosed with terminal cancer. Not long after I returned from my father's funeral, I was placed on administrative leave.
Mr. Al Dodds, my manager, informed me of the administrative leave. He told me a recent investigation was the reason for my suspension and he referred to my text message from March.
Mr. Dodds told me termination was being considered. He strongly recommended I develop an individual corrective action plan as soon as possible. Over the following three NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
138 months, I was periodically told that my return to work was imminent and then told TVA Corporate was not satisfied.
I was told that my Sequoyah site management fully supported me and was trying to bring me back to the site as soon as possible. The constant threat of termination was held over me.
Finally, in August 2018, I received a job offer overseas and tendered my resignation. After submitting by resignation, I heard directly and indirectly from former managers and peers that the site wanted me back but Corporate would not allow it.
One of my former managers, Mr. Dennis Dimopoulos, I spoke with him shortly before I left Chattanooga to travel to California to be with my son before I took my new job.
He told me, Mike, get in your truck and don't look back. You did a good job, keep your head high, and you were not treated justly.
That's the end of my remarks.
MR. WILSON: Thank you, Mr. McBrearty.
Ms. Wetzel?
MS. WETZEL: Yes, thank you for the opportunity to speak. Can you hear me?
MR. WILSON: Yes, we can.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
139 MS. WETZEL: Thank you. Two federal agencies, both the Department of Labor and the NRC, determined that I was wrongfully and illegally terminated.
No actions that TVA has taken or discussed today I believe will prevent others from being fired for communicating their honest opinions to management as I was. On January 14, 2019 it was the day that Joe called me and fired me.
Within an hour, I was getting text messages and phone calls and emails from people at Corporate Nuclear Licensing.
Joe was apparently administering his SCWE mitigation plan and immediately after firing me, he met with CNL, and the meeting that Joe had with them people took as a threat, not a SCWE mitigation.
People in CNL texted me and called me and they said this is the way the meeting went. Joe said recall that discussion that I had with the group in October regarding --
MR. GIFFORD: Ms. Wetzel, I believe you may have inadvertently muted yourself.
MS. WETZEL: I'm sorry, can you hear me now?
MR. GIFFORD: Yes.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
140 MR. WILSON: We lost you after that previous meeting, and then you went mute.
MS. WETZEL: Okay, so Joe implemented his SCWE mitigation plan and met with CNL immediately after firing me on January 14th.
And people called me and texted me within an hour of me being fired, so that was a surprise to me and they said that Joe told them, recall that discussion I had with the group in October regarding a respectful work environment?
And he said Beth no longer works here.
People contacted me and said, Beth, you've always been professional and respectful. They didn't understand why I would have been fired, and if I'd be fired, what about them? What would happen to them?
It's my belief that if the NRC does not take enforcement against TVA for fear of retaliation, the fear of retaliation will continue to exist.
People are afraid for their jobs and they've seen professional people like Mike and myself retaliated against for comments that we've made, honest comments we've made.
That's all I have to say.
MR. WILSON: Thank you, Ms. Wetzel.
TVA, do you have any comments from NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
141 anything that you heard from Mr. McBrearty or Ms.
Wetzel?
MR. BARSTOW: Thanks, George, I do have a couple comments. TVA leaders and managers are held to a high standard of conduct. Leaders and managers have a responsibility to uphold a respectful workplace and create an environment where all individuals can come to work and feel respected and valued. Mr. McBrearty violated that responsibility.
While TVA agrees that it was unfortunate that Mr. McBrearty was left on administrative leave for nearly three months before he resigned, it does not show there was any retaliation for protected activity.
Regarding Ms. Wetzel, terminating any employee is never easy. However, TVA has an obligation to ensure a respectful workplace and Ms.
Wetzel's disrespectful conduct, particularly as a member of the TVA leadership, crossed an unacceptable line.
While terminating an employee is never easy, there was no retaliation involved with that decision.
Mr. McBrearty and Ms. Wetzel understood the importance to nuclear safety of maintaining a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
142 respectful workplace. They chose to act otherwise and TVA was obligated to address their misconduct.
That's the end of my comments.
MR. WILSON: Thanks, Mr. Barstow. We're going to go ahead and the NRC's going to caucus, based on the time right now for about an hour so let's include a half-hour break in there for lunch.
So, let's come back at 12:30 p.m. We'll be back into the conference at 12:30 p.m.
Go ahead and split the rooms, Ian, please.
MR. GIFFORD: Nathan, if you could please put up a slide when we go to the breakout session reminding of the 12:30 p.m. return time.
For NRC participants that will be using the breakout room, you will shortly get an alert to join the breakout room. You will click yes, you will then get a prompt asking that you change your audio to the breakout room, and you will also press yes.
You'll be aware that you're in the breakout session because it will say breakout session at the top of the screen on the left-hand side, as well as the top on the right-hand side and there will be a list of attendees.
The mute and unmute features work a NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
143 little bit different in the breakout rooms. You have to select your name from the list of participants and then the grey mute button will appear.
If you have somebody else's name selected, the grey mute button will not appear. Once the breakout session has ended, you'll get a prompt asking to end the session and your audio will be transitioned back to the main room.
I'll go ahead and start the breakout session now.
(Whereupon, the above-entitled matter went off the record at 11:05 a.m. and resumed at 12:31 a.m.)
MR. WILSON: This is going to commence the question and answer section. Sara Kirkwood will be leading the questions for the NRC.
Sara?
MR. GIFFORD: I actually don't see her video on so maybe she's delayed getting back.
MS. KIRKWOOD: Sorry, I'm here, I just couldn't find myself in a list on the attendee sense, not in an existential sense, to unmute myself.
MR. WILSON: All right, go ahead, Sara.
MS. KIRKWOOD: We have several questions that we would like clarification on in order to better NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
144 assist with dispositioning this matter, and whoever is in the best position to answer them, please feel free. Does TVA have a policy about relationships between employees?
MR. BARSTOW: I would guess what you're trying to get at is around -- to answer your question, I'm not really sure.
I won't guess why I think you're answering the question, I just don't know whether there's a policy for that or not.
MS. KIRKWOOD: What is your criteria for deciding that a relationship between employees is a problem for TVA?
MR. BARSTOW: I don't think I would make that decision.
I think what the guidelines are, from what I've read from TVA's policy, it's really set up around whether there's either a potential ethics concern or the perception of an ethics concern.
So, if I felt there was an ethics concern based on the relationship I'm describing, then I would say that I would turn that over to a supervisor or HR or OGC and get some more help in determining whether there's truly an ethics concern or not.
MS. KIRKWOOD: But the ethics concern NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
145 you're talking about is federal ethics? There's not an additional TVA-specific prohibition on employees having relationships with one another?
MR. BARSTOW: I don't know specifically I guess whether there is or isn't. I know my history, my work history.
MR. RAUSCH: Yes, there is a policy. I don't have it in front of me but we can certainly get that, if that's allowable by the system.
But if there is a relationship of any kind with two employees and that's known, that's evaluate before employees are placed in particular positions to make sure there isn't a supervisory or oversight conflict of interests between those two individuals. If a relationship is formed or created in established organizational structure, then when that's known an evaluation would be done if that issue was raised up for that evaluation.
Or if it's deemed that it could be a conflict of interests, that's where you would raise the question to have an ethics review conducted of that.
MS. KIRKWOOD: And...go ahead.
MR. BARSTOW: No, I was going to say I did find in our presentation where it talks up TVA's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
146 code of conduct, it mandates that a professional and respectful workplace requires TVA employees, and the quote out of the code of conduct is, avoid all conflict of interests between work and personal affairs.
MS. KIRKWOOD: And when you talk about when you would have a relationship evaluated before they were put into the position, is that a romantic type of relationship or would that include a friendship?
MR. RAUSCH: Yes, it's typically, and again, because this is grey, you would engage the right people, that would be HR and OGC, but mainly HR in the line of questioning you're offering.
But it's typically one of marriage, there is a relationship by family. But there are other kinds of relationships that would be evaluated because there are all kinds of relationships that exist in the world today that are not necessarily by marriage.
So, those have to be evaluated too but typically, a friendship is not something that you would pre-establish an evaluation on.
That would be something that if you saw a potential conflict of interests because the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
147 friendship was such that it may interfere with decision-making or the ability to provide oversight consistently with the rest of the employees, then the question should get asked and that should be looked at.
That doesn't necessarily mean that they can't maintain the relationship they have or the organizational structure, but every situation is different and that's why we would engage experts to help us determine that.
MS. KIRKWOOD: And when you talk about oversight, that they shouldn't engage in oversight of one another, what type of oversight?
Is that what I think of as classic, supervisory oversight where you have input into somebody's pay, leave, appraisals, or is there another element of oversight that you are including in this that you would want to evaluate the relationship?
MR. BARSTOW: I think what you're driving at, and what I'm used to in the situation we're describing now, where a corporate area functional manager has some responsibility over governance, oversight, execution, and support of the site, then that individual has responsibility.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
148 In our case, it's the GOES model, which I just described. So, that individual does interact with the site functional area manager and has the responsibility to be unbiased working with that individual.
And the risk you have is that if somebody does have a relationship that doesn't allow them to be unbiased, it could affect that group working together, those two groups working together.
MS. KIRKWOOD: And does that go all the way up in the, say, corporate licensing organization?
Because the whole corporate licensing organization provides oversight, to some extent, to the sites.
Correct?
MR. BARSTOW: I'm not sure I understand the question.
MS. KIRKWOOD: So, I understand that you're saying that the corporate functional area manager had an oversight responsibility for the site licensing organizations to make sure that they're consistent wherever.
But would that also be true of the corporate functional area manager's supervisor and her supervisor? Would they also have those oversight responsibilities?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
149 MR. BARSTOW: I would say no. Based on my experience, the corporate functional area manager has specific roles and responsibility as part of the management model.
It would not be the same for people that are above them.
MS. KIRKWOOD: I think what we're struggling with here is why it was considered even a potential conflict for the corporate functional area manager, at the time Michelle Conner, to have a friendship with Mr. McBrearty.
And there may be something we are missing about that position. If you could help me understand why that was not just a simply specious complaint, that would be helpful.
MR. RAUSCH: Jim, go ahead and talk about CFAM in a moment but I want to keep going back to the point that our company continues to reinforce that if you see something or there is a potential issue, it's communicated up.
So, it's never wrong for a person to ask for an evaluation of a conflict of interests. That's just keeping our first principles in front of us.
In many cases, those investigations may come back and say there isn't a conflict of interests NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
150 or there is not a problem there. But we wouldn't chastise or say the person that initiated the request for an ethics look to be wrong or trying to skew some kind of relationship.
The opportunity to request an ethics evaluation is always encouraged if you feel that, in good faith, we should do that. And then the outcome is the outcome.
Either we looked at it and there is no problem with this relationship and the organizational structure, or maybe there's an adjustment that we need to make.
I've seen it where a second person has to be involved when there's a decision made regarding performance reviews or pay or discipline or anything like that with that individual, because that relationship may impede somebody's clear thinking.
And then in other cases, we may find placement of one or both of those individuals to go to a different part of the organization so that conflict is eliminated because the reporting change is eliminated.
So, there's a wide spectrum, but back to the request to ask for an ethics evaluation, we always encourage that if somebody in good faith feels that's NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
151 appropriate.
Jim, do you want to explain what CFAM does in more detail?
MR. BARSTOW: I can. Sara, do you need that dialog? I kind of touched on it already, about the CFAM oversight role.
MS. KIRKWOOD: Sure, go ahead.
MR. BARSTOW: So, CFAM, my experience and what I've seen at TVA here in the short time I've been here, the corporate functional area managers provide the oversight, they provide feedback on performance to the site organizations.
They provide coaching, counseling when needed on how to do certain activities. They become the most proficient because they do it the most often at a central office. So, being able to do that is important.
And if you have a relationship, no matter what that relationship is, that may bias that ability, then that's a concern. And it potentially is a significant concern, given the nuclear safety aspect.
MR. WALSH: Ms. Kirkwood, this is Tim Walsh here. I just want to add to what they were saying. You mentioned something about a specious NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
152 complaint and I just want to address that aspect of your question here.
As we reported or presented last week in Ms. Henderson's presentation and discussed again today, there were numerous data-points from multiple sources questioning the propriety of the relationship that existed.
And Erin noticed it herself based on an overly defensive reaction by Michelle Connor when the Sequoyah site was questioned about why it failed to make an eight-hour report.
And that's what she initially surfaced and other people reported to her that this was not a new concern at the time. And then there was a collective decision involving discussions with, as Erin said, Mr. Joe and the Human Resources thought it ought to be investigated.
And so the investigation occurred and it reached the conclusion that it reached.
MS. KIRKWOOD: How many conflict of interest investigations does TVA do on a typical year regarding employees relationships?
MR. BARSTOW: I'm not privy to that information.
MR. RAUSCH: I don't know that either.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
153 MS. KIRKWOOD: Was I muted when I asked that? I'm sorry, how many are either of you personally aware of?
MR. BARSTOW: Since I've been here with the company, none that I know of.
MR. RAUSCH: I hear of ethics reviews or investigations that are ongoing but I don't have any kind of judge of numbers.
I hear about them periodically in briefings and so forth but I couldn't give you an order of magnitude whether it's 100 or 15 per year.
MS. KIRKWOOD: Okay, you briefly mentioned an eight-hour report that didn't happen.
Do you know what caused this ball to start rolling?
Do you know what the topic of the eight-hour report was?
MR. WALSH: Ms. Kirkwood, yes, if I recall correctly and I could find the information, the fire protection system was isolated at Sequoyah to a portion of the site. And if my nuclear colleagues here want to better explain that, then please feel free to jump in, but that's my understanding of the issue. They discovered it was inappropriately isolated and that report was required. And that was in April of 2016.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
154 MS. KIRKWOOD: And for that type of discussion with the site of whether or not a report was warranted, would it have just been the licensing organization involved in determining whether or not a report was warranted?
Or would that also have involved the technical people at the site who were working on the fire protection system?
MR. BARSTOW: What I'm used to with that is that operations, maintenance, whoever would be involved, engineering, would potentially be part of making that decision around whether it was isolated.
Generally, operations and licensing are the ones who determine the condition exists or the ones that make the call on the reportability. And really, the license-holder or the site is the one that has the absolute requirement to make the report available.
MS. KIRKWOOD: Do you consider a violation of ethics to be a violation of the law?
MR. BARSTOW: I guess I'm not a lawyer.
In my mind, I think that it could be.
MS. KIRKWOOD: Do you consider harassment to be a violation of the law?
MR. BARSTOW: Yes.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
155 MS. KIRKWOOD: This may take me a minute to pull up the right exhibit but I want to look at your policy on referring to the IG.
Mr. Walsh, do you know what I'm talking about?
MR. WALSH: I do believe I have that. To which OI report is that attached?
MS. KIRKWOOD: I think it is attached in Ms. Wetzel's. It's part of the documents, a large set of documents.
I don t know if you have Exhibit 19. I do have it up now, it's TVA policy on cooperation with the Office of the Inspector General.
MR. WALSH: Yes, Ms. Rimon may be assisting us with that issue too.
I have a portion of the policy in front of me I believe but tell me what you're asking about and we will look at it, and we will get back to you.
MS. KIRKWOOD: So, I am looking at Section 3.1.4 of that policy, TVA Managers, and it's Page 6 of 8 with your policy. Let me know when you're there and I'll ask my question.
MR. WALSH: Let me just understand again, Ms. Kirkwood. 3.1.4 TVA Managers, is that the specific section to which you're referring?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
156 MS. KIRKWOOD: Yes.
MR. WALSH: Okay, we will take a look and report back. Hold on. What's your question, Ms.
Kirkwood?
MS. KIRKWOOD: So, that leads off by saying: ensure that known or suspected violations of the law, it goes on, are immediately reported to the IG.
I'm trying to understand why neither the alleged FX concern or the harassment concern were referred to the TVA OIG?
MR. WALSH: It would be guessing as why it wasn't referred. But what my perspective would be is that not all employee actions would be referred to the OIG.
And in fact, having come from the commercial world of Exelon and other licensees utilities in the country, they don't even have the OIG process.
So, maybe Laurel, I don't know if she could help me with that discussion?
MS. RIMON: Yes, thanks, Jim. I think we can address the question a couple ways. The policy that you're referring to, it doesn't require explicitly that all suspected violations be referred, NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
157 and there's a reason for that.
The way the policy is written is based, in large part, naturally, on the Inspector General Act. And if you start a little before the paragraph that you referred to and if you look at Paragraph 3.1.2 on that page, you'll see Subparagraphs A and B, which are most relevant here, and they are somewhat repetitive of the discussions earlier in the policy, which are the purpose and scope of the Office of the Inspector General.
And 3.1.2 A and B reflect language that comes directly from the IG Act. And A says promote economy and efficiently while preventing and detecting fraud, waste, and abuse.
And B says conduct and supervise audits, evaluations, and investigations relating to TVA programs and operations.
So, the intent of the Office of the Inspector General in general and of TVA's OIG are to address those matters that most require the independence of the Inspector General.
And those are generally aimed fraud, waste, and abuse, or in matters of such significance that you need an outside independent review that may have an impact to TVA's operations overall.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
158 I don't think anything in this policy specifically requires that every single personnel matter be referred to the Inspector General's Office.
And across the Offices of the Inspector General, that's not the case.
Generally, they aren't staffed or equipped to handle every single matter that comes up.
So, I think it was consistent here with general practice and with the policy not to refer this particular matter to the OIG.
MS. KIRKWOOD: Does TVA have a policy about who can access employee badge records?
MR. BARSTOW: Well, I would think there would be. I'm trying to think of the term. It's an employment record so it wouldn't be able to be accessed by just anyone.
I believe security is the one that would control that and it would probably be asked for by HR.
MS. KIRKWOOD: Do you know what type of concern a supervisor would need to have in order to ask for somebody's badge records?
MR. BARSTOW: A concern by a supervisor?
MS. KIRKWOOD: Sure.
MR. BARSTOW: I'm not sure a supervisor NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
159 would ever ask for badge record. I think the way it would happen is there would be some concern that an employee was, as an example, leaving work earlier than their shift would normally end, or something like that, they would bring that -- they would have to get a body to determine if they would have to go look at the records to determine that.
MS. KIRKWOOD: We heard testimony last week that TVA's OGC had said their report, and I'm checking now with the Slater report, could not be emailed to anyone at the site other than the Site Vice President.
What policy governs when an investigative report like that can be emailed?
MR. BARSTOW: I'm not aware of one but I'm used to it so once again, I'll talk to my previous professional history.
Many times, reports that are sent are limited to the need-to-know folks and so they make that determination, the investigator and the investigating body makes that determination.
MS. KIRKWOOD: Can you help me understand why Joe would have gotten a copy of the Slater OGC investigative report, but Mr. Dodds, Mr. McBrearty's direct supervisor was not allowed to have a copy?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
160 MR. BARSTOW: Ms. Kirkwood, that is not an accurate characterization of events that occurred.
Mr. Czufin had a copy of the report and at the request then with discussion of other members, the management drove a hard copy of the report to the Sequoyah Plant on Friday, May 25th, and provided him a copy of the report.
Joe did not receive a copy of the report until afterwards, and my understanding of the circumstances there is that this regarded a harassment claim filed by his subordinate.
So, of course he was one of the stakeholders involved in the appropriate resolution of the concern.
MS. KIRKWOOD: testified to us last week that he waited while Mr. Dodds reviewed the report because Mr. Dodds was not allowed to keep a copy of it. And I'm trying to understand why that was true.
MR. WALSH: Ms. Kirkwood, was following the direction that he got.
MS. KIRKWOOD: Okay, so is anyone present able to explain to us why Mr. Dodds was not allowed to keep a copy of the OGC report?
MR. WALSH: Our understanding of the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
161 facts is that they were keeping control of the hard copies available. It's irrelevant as to why Mr.
Dodds was or was not allowed to have a copy of the report and I'm not sure what information are you searching for at this time.
This was an OGC investigation and the report was limited to a need-to-know basis at that time. And Mr. Dodds certainly was made aware of the report's findings and he was also involved in further discussions thereafter that happened.
MS. KIRKWOOD: As I stated previously, you are welcome not to answer any questions. From the perspective of the NRC, we find it to be inconsistent with your procedures, and therefore suspect, that the supervisor directly responsible for administering discipline was not provided a copy of the report.
He was allowed to view it under very limited controlled circumstances. This is your opportunity to try to explain to us why that was true.
If you don't have anything further to say on that, we can move on.
MR. WALSH: Which procedure are you referring to that our actions were contrary to?
MS. KIRKWOOD: Your employee discipline NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
162 procedure. If you go to your procedure, TVA SPP 11.3.16 --
MR. WALSH: Are you referring to a specific exhibit?
MS. KIRKWOOD: It's in Exhibit 19 and it is Section 3.2.2(b), taking disciplinary actions.
MR. WALSH: Ms. Kirkwood, I don't have that specific provision of the procedure in front of me at that point in time. But, as we stated today in the presentation, there is no specific provision in the procedure that requires information to be provided before a disciplinary decision is going to be determined.
We weren't taking any disciplinary action at that time. This was a paid leave decision and ultimately, as you are aware, no discipline was taken with respect to Mr. McBrearty.
MS. RIMON: Sorry, can I add to that real briefly? Because I do have it in front of me.
Is the language that you're referring to in this second sentence of Paragraph B of that section? Ms. Kirkwood?
MS. KIRKWOOD: Yes, sorry, the exhibit is out of Webex so I always have to exit in and out to see the paragraph I'm talking about.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
163 MS. RIMON: Okay, I just wanted to make sure. But as Mr. Walsh said, that sentence says that in matters that are referred -- that refers to OIG referrals.
Are you referring to something else? I just want to make sure we know which requirement you're referring to.
MS. KIRKWOOD: So, what I'm specifically
-- you're correct. It says all disciplinary and non-disciplinary incidents cited in these guidelines should be investigated prior to action being administered.
In matters that are referred to the Office of the Inspector General for investigation, the organization should carefully review the report and, as appropriate, the underlying evidence to assure itself that disciplinary action is warranted.
We have interpreted that to mean that a supervisor would get a copy of an investigatory report and the underlying evidence. Is that an incorrect assumption of how TVA operates?
MS. RIMON: I don't think that's an incorrect assumption, I think factually that is true, and Mr. Dodds in this case did have the opportunity to review the report.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
164 You asked about why he wasn't able to keep it and Mr. Walsh has explained that there were controls in place regarding the security of the report, and discipline had not been imposed at that time.
So, I certainly understand that he had the opportunity to review the report again as that was being considered down the road.
But so factually, I think it is incorrect to say that he didn't have an opportunity to review the report, but also with respect to this policy, I don't believe it applies to the question that you're raising because this is specifically related to OIG referral.
So, I don't think there's any evidence that there was any action in contravention of any existing TVA policies.
MS. KIRKWOOD: Okay. Does OGC typically write memos recommending taking adverse actions for employee matters?
MR. BARSTOW: Could you repeat the question again, please?
MS. KIRKWOOD: Is it typical that OGC would write a memo recommending taking an adverse action in an employee matter?
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
165 MR. BARSTOW: I don't know the history of that. I don't know, I guess they would do that if it was needed. I'm not sure where you're going.
I don't have any experience with that.
MR. RAUSCH: Ms. Kirkwood, this is Tim Rausch, and I would say that in multiple occasions where I've been associated with discussion on discipline, most of those occur over a teleconference or a Webex or a face-to-face, pre-pandemic. And the OGC representation of input would be shared in that meeting as input.
If we were separated or there was separation in terms of all the facts coming in and we were looking for OGC's recommendation or input towards a disciplinary action, then they would typically send that, if requested.
And then, also, if an investigation was requested by OGC of which they either led or were part of, and it was requested as part of that investigation that a recommendation on discipline be included, then they would include the recommendation upon request if it was made like that.
So, I wouldn't say that it's typical because most of the time we're doing this in a teleconference, Webex, or face to face and you don't NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
166 need an email, but it can be requested.
MS. KIRKWOOD: You mentioned the tend to write something when there's been an investigation that they either led or were part of. Approximately how many investigations are there per year that are done by OGC in the way you just discussed?
MR. RAUSCH: Just to be clear, as part of the OGC investigation I could request their recommendation towards discipline.
I don't always do that. I may ask for an investigation but if I was clear to ask for a recommendation, then they would either provide that or tell me why it was not appropriate that they did.
But I don't have a number for how many they're involved in. First of all, I can't speak for the enterprise.
I can speak for Nuclear and I would say that OGC is involved in some form of an investigation or other probably twice a month. And that's just from recollection.
I don t have data in front of me.
MS. KIRKWOOD: And in those cases that you're talking about, approximately twice a month they're involved in an investigation, would the recommendation for discipline come from the OGC NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
167 person who did the investigation? Or does it come from the higher level?
MR. RAUSCH: OGC has a hierarchy just like all other organizations do, and depending on the level of the investigator, there's always more than one person on the OGC side that's involved in looking at that.
But depending on the level of the person involved, there may be more than one additional person. There may be a group of OGC representatives that weigh in on that.
But before something like that would be issued, it would be vetted such that this is where OGC stands or recommends, it wouldn't be one individual perspective and representing that as OGC.
MS. KIRKWOOD: You mentioned that you could request an OGC opinion on what type of discipline was appropriate. Who would have made the request for the OGC opinion with respect to Mr.
McBrearty that he be terminated that came, I believe it was signed out by Ms. Quirk?
I may not be saying that name correctly.
MR. RAUSCH: Not being involved with that at that point, I can't answer that. I don't know who would have made that request.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
168 MR. WALSH: We don't have any information on who made the request.
MS. KIRKWOOD: Okay, is it typical that you would see -- what we're struggling with here is on the one hand, you have talked about this as being a routine disciplinary matter.
On the other hand, we see a memo I believe from your General Counsel recommending terminating Mr. McBrearty, and also with the involvement of the head of your Human Resources and the Chief Nuclear Officer. That strikes me as a very high level of involvement in this personnel matter at TVA.
I'm wondering if you could explain to us if this was that typical?
Was there something unusual about this that elevated it to that level?
MR. WALSH: Hold on one second, please.
MR. BARSTOW: I would say, to answer the question, given the nature of the investigation being a harassment investigation, that would justify the level of review you're describing.
MR. WALSH: In addition, Jim, I would also offer that the high level of the employees involved in the personnel issues, managers in the organizations...
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
169 MS. KIRKWOOD: As part of the OGC investigation into Ms. Henderson's complaint, why was Michelle Conner not interviewed?
MR. WALSH: Ms. Kirkwood, you asked those questions of and Mr. Shea last week and they provided you answers in that regard.
MS. KIRKWOOD: If TVA wants to stand on that answer, they are welcome to. Are you adopting those answers, then, on the part of the company?
MR. WALSH: Let's, just for the record, show that Mr. Shea explained to you last week that he made a suggestion that Michelle Conner not be interviewed in the course of the investigation because of the supplemental agreement that TVA had entered into just a few months prior to it.
And as Joe explained, his reason for the suggestion was she was no longer in the organization and was well settled in her new position. She made the suggestion. He made the suggestion. And as told you, he said essentially the same thing.
It was a suggestion from Mr. Shea.
He also added that if Mr. Slater believed that her information from Michelle Conner was necessarily, he certainly would have obtained it from her if he thought he needed to.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
170 He is not a shy individual and certainly could have interviewed her if he believed information from Michelle Conner was warranted.
MS. KIRKWOOD: The central portion of that OGC investigative report relies extensively on the idea that Mr. McBrearty was previously counseled for this alleged harassing behavior.
Why wasn't anyone at the Sequoyah site management who would have been the ones providing this counsel interviewed as part of the OGC investigation?
MR. WALSH: Ms. Kirkwood, you asked a similar question last week. The individuals before you were not able to provide you with information regarding why Mr Slater did or did not ask those questions.
Mr. Slater was interviewed by the Office of Investigations, certainly those questions could have been directed towards him at the time.
MS. KIRKWOOD: Again, if you don't have answers you're welcome not to answer.
These are the questions that the NRC has left lingering as we try to decide what is the appropriate violation here.
MR. WALSH: Then the answer is the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
171 investigation report is the report that was reflected in the investigation that was conducted and the findings that it made.
And the TVA executives reviewing the report reached the conclusions they reached based on the information they had in front of them.
And as testified to you last week, he found it particularly troubling, the findings by the investigation report, including the fact that Mr. McBrearty had been counseled about his behaviors, which had personal knowledge of himself because he was told that Mr. McBrearty's supervisors were spoken to.
And if there was any question about whether or not Mr. McBrearty had been counseled or coached or spoken to about this behavior, those questions were answered in the presentations last week and this week today, and by Mr. McBrearty himself when he said he was spoken to about his behaviors.
So, we don't see that there's any issue at this point in time with respect to whether or not Mr. McBrearty was spoken to about his inappropriate conduct.
MS. KIRKWOOD: You've referred several times to this being an independent investigation that NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
172 was, essentially, Mr. Slater was in control, he could decide who to interview.
So, if it was a fully independent investigation, then why did management get a draft copy before it was final?
MR. WALSH: Ms. Kirkwood, would you please repeat your question again? I'm trying to understand what information you're looking for here.
MS. KIRKWOOD: So, you've said several times this was an independent investigation, that it was up to Mr. Slater to decide who he interviewed, that he could have done whatever he felt was needed.
And, as I understand it, TVA is relying heavily on the idea that they could trust this investigation because it was independent. And so why, then, was a draft provided to management before it was finalized?
MR. WALSH: So, first, with respect to the independence of Mr. Slater, he was independent of the nuclear organization so he was independent in that regard.
With respect to the investigation findings, the report was issued on May 25, 2018.
That was the report and then management had questions on it and they then engaged OGC in a process there to NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
173 address those concerns about the ECP concerns.
I think that was ground well covered in the discussion last week. That's what happened.
MS. KIRKWOOD: Why was there a supplemental investigation done?
And I m speaking now about what was done to Ms. Wetzel, which didn't involve any further evidence gathering and didn't involve talking to the original investigator.
It's a two-part question. Why was it done at all and why was it not done by Mr. Slater, the original investigator?
MR. WALSH: Ms. Kirkwood, my understanding is that there was no supplemental investigation conducted.
You may be referring to the August 30th supplemental memorandum prepared by the Office of the General Counsel that conducted additional review into the facts and circumstances regarding Ms. Wetzel.
As Mr. Shea testified last week, when he received a copy of the initial report, he identified that it was silent on information that he thought was going to be addressed and the report was revised in part there.
The final report was done and during the NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
174 meeting -- that was August 10th. During the meeting that was held to discuss what might potentially result from the investigation report, Mr. Shea clearly notes that Ms. Wetzel's harassing behaviors were still under review at this time.
Subsequently, in accordance with that contemporaneous information, the Office of the General Counsel provided additional analysis.
And as Mr. Shea explained to you last week, that supplemental analysis considered all of the statements that were made to Mr. Shea at that time up through that point in time, including the May 7th email, the June email, the late June and July text messages from Ms. Wetzel.
MS. KIRKWOOD: Why was that supplemental? What do you call it? I'm trying to remember the words you used to describe it.
The memorandum written by someone other than Mr. Slater, why was he not involved in preparation of this additional document based off his report?
MR. WALSH: Mr. Slater had no involvement in the disciplinary decisions that were made here.
As I stated and I hope I explained, her conduct was still being reviewed at that time and NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
175 that ultimately resulted in a recommendation, again, from the Office of the General Counsel.
Mr. Slater was not involved in any of that, that's all the supplemental memorandum from August 30th is. It's legal analysis, not fact-finding.
MS. KIRKWOOD: As part of the OGC investigation, why was Mr. McBrearty not asked about the various emails that he was alleged to have not included Ms. Henderson on?
MR. WALSH: That would be a question for Mr. Slater, Ms. Kirkwood. I don't think we have any information relevant here to provide you in that regard.
As I understand things, however, Mr.
Slater, as he explained in his report, confirms that Ms. Henderson has been left off certain emails.
And I believe that information was also confirmed in one of the underlying ECP investigation reports, MEC 1700410, where ECP received information from personnel that Mr. McBrearty had a habit of leaving Ms. Henderson off of emails.
And then I will also note that in April of 2018, Mr. McBrearty was counseled by his supervision in a midyear review regarding the use of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
176 his email.
MS. KIRKWOOD: I messed up my mute again.
That statement that you just made, that Mr. McBrearty was counseled in his mid-year review, what was the source for that statement?
MR. WALSH: It's in his April 2018 mid-year review. I can pull it up if you like, I believe it's in one of Ms. Henderson's exhibits, if you give me a moment?
I'm going to put you on mute for a second so you don't hear papers flipping around.
Hold on.
Ms. Kirkwood, it's Erin Henderson Exhibit
- 90. The mid-year review included the statement, working on improved interface with Corporate such as less frequent uses emails, especially reply all.
MS. KIRKWOOD: Okay, thank you. What is Erin Henderson's current position?
MR. BARSTOW: Erin Henderson is currently working on special projects in the corporate office.
MR. RAUSCH: She is on temporary leave of her normal duties while going through preparation activities for these proceedings.
Because when she returns and where she NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
177 came from, she was the Director of Plant Support at Sequoyah Station.
MS. KIRKWOOD: What is Joe 's current position?
MR. RAUSCH: Similar to the answer for Erin. He's on a very special project during these proceedings. They can prepare for them. His normal duties are Vice President of New Nuclear and Nuclear Innovation.
MS. KIRKWOOD: As a matter of law or of TVA policy, who is the arbiter of when a complaint is made in good faith?
MR. RAUSCH: You trailed off at the end of your question. Could you repeat it, please?
MS. KIRKWOOD: As a matter of law or of TVA policy, who is the arbiter of when a complaint is made in good faith?
MR. BARSTOW: So, I think what I would say about your question is that anybody who would review the complaint would certainly have the opportunity to weigh in and make the determination of whether it's made in good faith.
But I think in the end, it's a legal question and in our case, it would be OGC that would make that determination.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
178 MS. RIMON: If I can add to that, Ms.
Kirkwood?
I would say the question of whether something's made in good faith or not is inherently a factual question, although it might be guided by legal principles. Primarily whether there is a claim that meets a legal standard that's been articulated.
But otherwise, just as anyone who investigates any complaint has to make credibility determinations, they also may have to make determinations about whether something's made in good faith or otherwise, I'm not aware of a standard in TVA policy or even in the law expressly related to the meaning of good faith.
But it's generally along the lines of a credibility determination and a determination about intent.
MS. KIRKWOOD: As I understand it, the primary reason that TVA has proffered that Ms. Wetzel was terminated is that she made unfounded allegations against Ms. Henderson.
And there was a lot of discussion about her email saying there's other actions that she might not be aware of.
If Ms. Wetzel had made those types of NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
179 allegations against a subordinate, would that also be a problem? Or is it only when those allegations are made against a supervisor that it's an issue?
MR. WALSH: Ms. Kirkwood, that question involves speculation and hypotheticals of facts that are not in circumstance here.
It depends on the facts.
MS. KIRKWOOD: I would like to understanding from TVA's perspective if it was the unfounded allegations that they found to be an issue or that they were made about her supervisor?
MR. RAUSCH: Ms. Kirkwood, if I understand your question correctly, if an individual, I think you said Ms. Wetzel, made unfounded allegations against the subordinate versus the supervisor, would it make a difference?
It wouldn't, we would investigate both of them equally because we need to understand if those unfounded allegations are driving an environment that could create something that's harassing, intimidating, or discriminating. And so we would want to better understand that.
MS. KIRKWOOD: I have no further questions.
MS. RIMON: Ms. Kirkwood, I'd like to add NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
180 one thing, if I may, to that just to be clear. The representations about Ms. Wetzel's conduct are not just that they were unfounded, but that they were unprofessional and disrespectful. And those are things that are required by TVA's code of conduct.
So, I just want to make sure that you are capturing all aspects of those claims.
MR. WILSON: Thank you. I'd like to take this opportunity to emphasize some of the points made during my opening remarks.
No final decision has been made on the part of the NRC. We will consider the information gathered by the Office of Investigations and information presented here today.
The NRC staff will meet after the conclusion of the PEC to reach a final Agency decision as to whether a violation occurred.
I'll also remind you that any statements, or the lack of thereof, made by an NRC employee at this conference are not intended to represent the final Agency's position or determinations.
Before we close this conference, does the court reporter have any questions or clarifications that are needed? Okay, I'll go ahead and give those to you now.
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433
181 (Whereupon, the above-entitled matter went off the record at 1:33 p.m. and resumed at 1:34 p.m.)
Thank you very much. Finally, I'd like to thank you for your presentations and participation. With this, we conclude our teleconference, thank you very much.
(Whereupon, the above-entitled matter went off the record at 1:34 p.m.)
NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.
(202) 234-4433 WASHINGTON, D.C. 20005-3701 (202) 234-4433