[Federal Register Volume 65, Number 249 (Wednesday, December 27, 2000)]
[Notices]
[Pages 81903-81905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33011]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 030-14526; License No. 37-00062-07; EA No. 00-086]


In the Matter of Department of Veterans Affairs Medical Center 
Philadelphia, Pennsylvania; Order Imposing a Civil Monetary Penalty

I

    Philadelphia Department of Veterans Affairs Medical Center (PVAMC) 
(Licensee) is the holder of Byproduct Materials License No. 37-00062-07 
(License) issued by the Nuclear Regulatory Commission (NRC or 
Commission) on January 16, 1979, and most recently renewed by the NRC 
on March 31, 1994 (to expire on March 31, 2004). The License authorizes 
the Licensee to possess and use certain byproduct materials in 
accordance with the conditions specified therein at its facility in 
Philadelphia, Pennsylvania.

II

    On April 16, 1999, the U.S. Merit Systems Protection Board (MSPB) 
issued an initial decision (which became a final decision on May 21, 
1999) finding that the PVAMC discriminated against a former research 
nurse at the facility for raising safety concerns. Specifically, the 
MSPB found, in part, that the former research nurse was subjected to 
intolerable working conditions for raising safety concerns. Based on 
this MSPB finding, the NRC concluded that there was a violation of NRC 
regulations at 10 CFR 30.7. As a result, a written Notice of Violation 
and Proposed Imposition of Civil Penalty (Notice) in the amount of 
$5,500 was served upon the Licensee by letter dated July 20, 2000. The 
Notice states the nature of the violation, the provisions of the NRC 
requirement that the Licensee had violated, and the amount of the civil 
penalty proposed for the violation.
    The Licensee responded to the Notice in a letter, dated August 29, 
2000. In its response, the Licensee denied the violation and requested 
that the NRC withdraw the violation and rescind the associated civil 
penalty.

III

    After consideration of the Licensee's response and the statements 
of fact, explanation, and argument contained therein, the NRC staff has 
determined, as set forth in the Appendix to this Order, that the staff 
does not believe that the Licensee has provided an adequate basis for 
withdrawal of the violation or for rescission of the associated civil 
penalty. Therefore, a civil penalty in the amount of $5,500 should be 
imposed.

IV

    In view of the foregoing and pursuant to Section 234 of the Atomic 
Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205, 
It Is Hereby Ordered That:
    The Licensee pay a civil penalty in the amount of $5,500 within 30 
days of the date of this Order, in accordance with NUREG/BR-0254. In 
addition, at the time of making the payment, the Licensee shall submit 
a statement indicating when and by what method payment was made, to the 
Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738

[[Page 81904]]

V

    The Licensee may request a hearing within 30 days of the date of 
this Order. Where good cause is shown, consideration will be given to 
extending the time to request a hearing. A request for extension of 
time must be made in writing to the Director, Office of Enforcement, 
U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, and include 
a statement of good cause for the extension. A request for a hearing 
should be clearly marked as a ``Request for an Enforcement Hearing'' 
and shall be submitted to the Secretary, U.S. Nuclear Regulatory 
Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC 
20555. Copies also shall be sent to the Director, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
to the Associate General Counsel for Hearings, Enforcement and 
Administration at the same address, and to the Regional Administrator, 
NRC Region I, 475 Allendale Road, King of Prussia, PA 19406.
    If a hearing is requested, the Commission will issue an Order 
designating the time and place of the hearing. If the Licensee fails to 
request a hearing within 30 days of the date of this Order (or if 
written approval of an extension of time in which to request a hearing 
has not been granted), the provisions of this Order shall be effective 
without further proceedings. If payment has not been made by that time, 
the matter may be referred to the Attorney General for collection.
    In the event the Licensee requests a hearing as provided above, the 
issues to be considered at such hearing shall be:
    (a) Whether the Licensee was in violation of the Commission's 
requirements as set forth in the Notice referenced in Section II above, 
and
    (b) Whether, on the basis of such violation, this Order should be 
sustained.

    For the Nuclear Regulatory Commission.
    Dated this 14th day of December 2000.
R.W. Borchardt,
Director, Office of Enforcement.

Appendix

Evaluations and Conclusion

    On July 20, 2000, a Notice of Violation and Proposed Imposition 
of Civil Penalty (Notice) in the amount of $5,500 was issued to the 
Licensee for a violation involving the discrimination of a research 
nurse for engaging in protected activities. The violation was based 
on the NRC review of the decision, dated April 16, 1999, of the U. 
S. Merit Systems Protection Board (MSPB). The MSPB had, in part, 
concluded that the research nurse was subjected to intolerable 
working conditions for raising safety concerns. Based on the MSPB 
finding and a predecisional enforcement conference (PEC) with PVAMC 
on May 17, 2000, the NRC concluded that the intolerable working 
conditions constituted discrimination against the research nurse for 
raising safety concerns.
    The Licensee responded to the Notice in a letter, dated August 
29, 2000. In its response, the Licensee denied that the violation 
occurred and requested that the NRC withdraw the violation and 
rescind the proposed civil penalty. The NRC's evaluation and 
conclusion regarding the Licensee's response are as follows:

1. Restatement of the Violation

    10 CFR 30.7(a) states, in part, 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. The protected activities are established 
in Section 211 of the Energy Reorganization Act of 1974, as amended, 
and in general are related to the administration or enforcement of a 
requirement imposed under the Atomic Energy Act or the Energy 
Reorganization Act.
    10 CFR 30.7(a)(1)(i) provides that protected activities include, 
but are not limited to, providing the Commission or his or her 
employer information about alleged violations of either the Atomic 
Energy Act or the Energy Reorganization Act named in 10 CFR30.7(a)or 
possible violations of requirements imposed under either of those 
statutes.
    Contrary to the above, between April 1997 and May 1998, a former 
research nurse was subjected to a hostile work environment for 
engaging in a protected activity. Specifically, after the individual 
raised (to the FDA in April 1997 and the NRC in June 1997) issues 
regarding the inadequacy of the human subjects consent forms used by 
the participants in a research study (as required by 10 CFR 35.6 and 
10 CFR 35.7), she was isolated by her supervisor and there were 
significant negative changes to her working conditions.

Summary of the Licensee's Response

    The Licensee, in its response, denied that the violation 
occurred. In particular, the Licensee denied that a supervisor 
retaliated against the former research nurse by creating a hostile 
work environment because that employee identified safety issues.
    While denying the creation of a hostile work environment for the 
former research nurse because she raised safety concerns, the 
licensee agreed that the working relationships and atmosphere in the 
clinical research laboratory were not optimal in 1997 and 1998. 
However, the Licensee contended that the nurse's raising of safety 
concerns did not contribute to this poor environment. In support of 
this contention, the Licensee responded to the specific examples 
that were used to describe the hostile work environment as listed in 
the NRC letter, dated July 20, 2000, transmitting the Notice. 
Specifically;
    1. Threats of dismissal of the nurse by her supervisor--The 
Licensee noted that the supervisor denied that he threatened to 
dismiss the research nurse, although they had one conversation where 
he warned the nurse that one of the two nurses (under that 
individual's supervision) ``may have to go'' unless they could work 
together.
    2. Isolation of the nurse from her supervisor--The Licensee 
noted that it was the supervisor's recollection that the research 
nurse voluntarily, without permission or request from her 
supervisor, moved her work space from her shared office to an exam 
room in late 1996 or early 1997. The Licensee also stated that it 
was the supervisor's contention that the research nurse kept the 
door closed and locked of her own volition, thus creating her own 
isolation from the staff.
    3. Failure to include the nurse in work discussions--The 
Licensee noted that although the supervisor held unscheduled, 
informal morning meetings with the two nurses to discuss work and 
non-work related topics, the research nurse in question had informed 
the supervisor she did not want to participate in non-work related 
discussions. The Licensee also indicated that the supervisor had 
stated that the research nurse was not required to attend the 
meetings after her statement, but that she should have been able to 
hear the discussions if the doors to the offices were open. The 
Licensee concluded that the research nurse was not part of the work 
discussions because she chose to not attend those discussions.
    4. Accusation of criminal activity by the nurse in May 1997--The 
Licensee denied that criminal charges were filed against the 
research nurse. Rather, the Licensee contends that a preliminary 
police report was filed regarding missing files and the report 
stated that it was not clear if the files ``had been taken by one of 
the employee (sic)'' (the research nurse) who was on annual leave at 
the time the report was filed.
    5. Insubordination during an FDA inspection--The Licensee agreed 
that the supervisor considered the research nurse's actions during 
the FDA audit (namely, volunteering information to the FDA auditors) 
as insubordination. However, the Licensee stated that the supervisor 
did not stop the nurse from talking about issues to the regulatory 
agencies. The Licensee further stated that no action (intimidation, 
threats, or impedance from making future disclosures) was taken 
against the research nurse after the FDA audit.
    Principally for these reasons, the Licensee requested that the 
violation be withdrawn and the civil penalty be rescinded.

NRC's Evaluation of the Licensee's Response

    The NRC has carefully reviewed the Licensee's response to the 
Notice of Violation and Proposed Imposition of Civil Penalty and has 
concluded after further review, including review of the MSPB 
finding, that the violation did occur as stated in the Notice in 
that the employee was subjected to a hostile work environment as a 
result of raising safety concerns. The Licensee did not provide any 
new or compelling information in its response to change the NRC's 
conclusion that the violation occurred.
    In determining whether a hostile work environment existed, the 
NRC relied heavily on the MSPB finding in this area. The MSPB

[[Page 81905]]

finding indicates that based on the testimony of Dr. Dunkman and his 
demeanor during testimony, the Administrative Judge (AJ) was 
persuaded that he was extremely upset with the appellant for having 
his study temporarily suspended. During the PEC the staff also 
observed that Dr. Dunkman still appeared upset with the complainant 
for this action and did not seem to have an understanding that 
telling her she should not give an FDA inspector information was 
wrong. The testimony and the June 9, 1997 memo that Dr. Dunkman 
authored made it clear to the AJ that he found her disloyal and 
tried to get rid of her. Accordingly, the AJ found that the 
protected disclosures did contribute significant changes to her 
working conditions, i.e., her working conditions became intolerable.
    The Licensee contends the specific areas cited did not 
constitute a hostile work environment. Specifically, that (1) the 
supervisor denied threatening to dismiss the research nurse, (2) the 
research nurse was not isolated by her supervisor but isolated 
herself, (3) it was the research nurse's own decision to not attend 
routine meetings, (4) no criminal charges were filed against the 
research nurse regarding the missing files, and (5) no action 
(intimidation, threats, or impedance from making future disclosures) 
was taken against the research nurse after the FDA audit wherein she 
volunteered information to the FDA.
    The NRC has determined, based on the MSPB finding and 
information gathered at the PEC, that the protected disclosures 
resulted in the complainant's supervisor becoming increasingly angry 
at her and did contribute to significant changes to her working 
conditions, i.e., her working conditions became intolerable. The NRC 
recognizes that the research nurse may have isolated herself from 
her supervisor and the other nurse in the laboratory. Nonetheless, 
it was clear that the supervisor failed to address that isolation or 
include her in work related discussions with the other nurse. In 
addition, he made statements that could reasonably be construed as a 
threat of dismissal, he labeled the nurse as ``insubordinate'' for 
volunteering information to a regulatory agency, and he tried to 
terminate her after she raised safety concerns.
    The Licensee's response also provided a number of reasons for 
its disagreement with the MSPB conclusion that the termination of 
the research nurse was also discriminatory. Since the termination 
was not part of the violation cited by the NRC in the Notice, dated 
July 20, 2000, there is no need for the NRC to respond to those 
Licensee's contentions.
    The Licensee also stated that there was an error on page 2 of 
the NOV in the following statement; ``Specifically, after the 
individual raised (to the FDA in April 1997 and to the NRC in June 
1997) issues regarding the inadequacy of the consent forms used by 
the participants in a research study, there were significant 
negative changes to her working conditions.'' The Licensee contends 
that neither the supervisor nor the management at PVAMC knew about 
the FDA audit until June 1997. The NRC acknowledges that the 
Licensee may not have known about issues raised to the FDA until 
June 1997, but the nurse first made protected disclosures to the 
Licensee in February 1997. Therefore, this information does not 
change the NRC's conclusion that the Licensee created a hostile work 
environment between April 1997 and May 1998, which was based, in 
part, on the nurse's engagement in protected activities.

2. NRC Conclusion

    The NRC has concluded that this violation occurred as stated in 
the Notice and the Licensee did not provide a sufficient basis for 
withdrawing the violation or for rescinding the civil penalty. 
Accordingly, the proposed civil penalty in the amount of $5,500 
should be imposed.

[FR Doc. 00-33011 Filed 12-26-00; 8:45 am]
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