EA-00-156 - Temple University Hospital

October 19, 2000

EA 00-156

Mr. Paul Boehringer
Executive Director
Temple University Hospital
3307 North Broad Street
Philadelphia, PA 19122

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY - $8,800 (Office of Investigation Report No. 1-98-047)

Dear Mr. Boehringer:

This letter refers to the results of an investigation conducted by the NRC Office of Investigations (OI) regarding a complaint filed by a former Nuclear Medicine Technologist (NMT) employed at the Temple University Hospital (TUH). The former NMT, who had informed supervision of her intent to resign in November 1998, stated that she was not allowed to rescind her resignation, while still employed at TUH, because she had previously raised safety concerns. Based on the evidence obtained during the investigation, OI concluded that the NMT was discriminated against by TUH management as a result of having engaged in protected activities. In a letter to you, dated July 20, 2000, that provided a factual summary of the OI investigation, the finding was identified as an apparent violation of NRC requirements. On August 14, 2000, a transcribed predecisional enforcement conference was held with you and other members of your staff to discuss the apparent violation, its causes, and your corrective actions. A copy of the enforcement conference report was forwarded to you on September 7, 2000.

At the enforcement conference, TUH denied that it had discriminated against the former NMT, noting that it has shown a commitment in creating and maintaining a safety-conscious work environment at the facility, and contending that it had legitimate reasons for not allowing the individual to rescind her resignation. Those reasons, as articulated by TUH management at the conference, were: (1) because of a dysfunctional atmosphere that existed within that department, TUH had developed a long term strategy to get as many new employees as possible in the Nuclear Medicine Department (NMD) when existing technicians left; and (2) the reasons given by the NMT for resigning her position at TUH (namely, concerns with being "on-call" during nights and weekends, long hours, pay, and distrust of management) had not changed and still existed at the time of the NMT's requested rescission.

After careful evaluation of the information provided by TUH at the enforcement conference, as well as the evidence developed during the OI investigation, the NRC has concluded that TUH did, in fact, discriminate against the former NMT. Specifically, the NRC maintains that TUH management, based, at least in part, on the NMT's having previously engaged in protected activities, did not allow the NMT to rescind her tendered letter of resignation, even after the supervisor had told the NMT that she had allowed the rescission. The protected activities she engaged in included the raising of concerns regarding the falsification of records by a former assistant chief NMT, as well as another alleged instance of discrimination. Those issues resulted in predecisional enforcement conferences with TUH in January and March 1998, and also resulted in an enforcement conference, in November 1998, with the assistant chief NMT responsible for the falsifications.

In examining the first reason provided by TUH as a basis for not allowing the rescission of the NMT's resignation in November 1998, the NRC has concluded that TUH management was dissatisfied with the NMT's engagement in protected activities, and the desire for new employees in the NMD was inextricably intertwined with that NMT's engagement in those protected activities. For example, the former Associate Hospital Director for Professional Services (AHDPS), who made the decision to not allow the NMT to rescind her resignation, was questioned by OI as to whether issues surrounding the NMT who had falsified records and the subsequent investigations regarding the allegations against him, further caused the dysfunctional atmosphere in the department. In response, the former AHDPS stated that it probably lengthened the time it has taken for the department to "heal those rifts."

In addition, shortly after the NMT informed her supervisor of her intent to rescind the resignation, the supervisor sent an email to the AHDPS stating that the NMT had rescinded the resignation and the supervisor allowed it. At the conference, TUH contended that the immediate supervisor never made a decision to allow the rescission, and that, at the time, she clearly understood that she had no authority to accept the rescission. However, the TUH contention is not supported by the facts. The former NMT, as well as the Radiation Safety Officer, both testified to OI that the supervisor had told them that she had allowed the rescission, and the supervisor's own email to the AHPDS clearly states that she allowed it. In addition, a TUH Human Resources manager testified to OI that the first line supervisor would be the individual to determine if a rescission of a resignation would be accepted. Therefore, the NRC concluded that the NMT's supervisor believed, at the time, that she had the authority to accept the NMT's rescission but her decision to do that was overridden.

Further, the referenced email from the supervisor to the AHDPS also suggested that the AHDPS would not be pleased with the supervisor's decision. From this evidence, we conclude that at least one reason for the supervisor's expected response (displeasure) from the AHDPS regarding the supervisor's decision was the NMT's prior engagement in protected activities. Finally, despite the fact that the NMT's performance was at least good, based on testimony to OI and her performance evaluations, the AHDPS was unaware of her level of performance and apparently made no attempt to ascertain it before deciding her resignation should not be allowed to be rescinded. In sum, the NRC concludes that there was a link between the protected activity and TUH's stated reason that there was a desire to put new employees in the NMD. Moreover, the NRC concludes that the overriding of the decision to accept the NMT's rescission, the knowledge of the previous protected activities, and the lack of knowledge of the NMT's actual performance, all indicate that the NMT's protected activities were a factor in TUH's decision to not allow the NMT to rescind her resignation.

In examining the second reason provided by TUH as a basis for not allowing the rescission of the resignation, we find it difficult to understand why TUH would not allow this NMT, who was known to have demonstrated strong performance on the job, to rescind her resignation since the NMD was short-staffed at the time and TUH had allowed others in the past to rescind their resignation (even though their reasons for initially resigning had not changed). It is also difficult to understand why TUH would deny a rescission of a resignation, particularly after the first line supervisor had already told the employee and others that she had allowed it, and had also documented that fact. On these bases, the NRC has concluded that the second stated reason for TUH denial of the rescission was pretextual.

Accordingly, the NRC has concluded that the employee's engagement in protected activity contributed to mid-level TUH management's refusal to allow the NMT to rescind her resignation. Discrimination by a Commission licensee against an employee for engaging in certain protected activities is prohibited by 10 CFR 30.7. Discrimination includes discharge and other actions that relate to compensation, terms, conditions, or privileges of employment. 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. 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. In this case, TUH willfully engaged in discriminatory actions when it refused to allow the NMT to rescind her letter of resignation after she had previously raised concerns regarding alleged record falsification and had participated in subsequent NRC investigations. The violation has been categorized at Severity Level II in accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions" (Enforcement Policy), NUREG-1600 (May 1, 2000 (65 FRN 25368)). The Enforcement Policy is available at the Office of Enforcement website.

In accordance with the Enforcement Policy, a base civil penalty in the amount of $4,400 is considered for a Severity Level II violation. Because the violation is considered willful, the NRC considered whether credit was warranted for Identification and Corrective Action in accordance with the civil penalty assessment process in Section VI.B.2 of the Enforcement Policy. No credit is warranted for identification since you did not identify the discriminatory actions. With respect to your corrective actions, the NRC recognizes that a number of actions were taken to improve the environment at your facility as documented in a letter to the NRC dated May 21, 1998. Those actions included performance improvement initiatives in the NMD, providing training to all radiation workers regarding the process for raising safety concerns, hiring a consultant to evaluate the NMD for areas needing improvement, assigning an interim Chief Technologist in the NMD to help communications and improve teamwork, and hiring a new Radiation Safety Officer. Notwithstanding those actions, credit is not warranted for those corrective actions since they were not considered comprehensive in that they failed to give adequate guidance to supervisors and management regarding the importance of providing a supportive environment, free of retaliation, for employees who raise safety concerns.

Therefore, to emphasize the importance of continuously assuring a work environment that is free of any harassment, intimidation, or discrimination against those who raise safety concerns, I have been authorized, after consultation with the Director, Office of Enforcement, to issue the enclosed Notice of Violation and Proposed Imposition of Civil Penalty (Notice) in the amount of $8,800, for the Severity Level II violation set forth in the Notice. This amount is appropriate and in accordance with the civil penalty assessment process set forth in the Enforcement Policy.

You are required to respond to this letter and should follow the instructions specified in the enclosed Notice when preparing your response. In your response, you should document the specific actions taken and any additional actions you plan to prevent recurrence. You may reference your previous submittal, as appropriate. After reviewing your response to this Notice, including your proposed corrective actions and the results of future inspections, the NRC will determine whether further NRC enforcement action is necessary to ensure compliance with NRC regulatory requirements.

In accordance with 10 CFR 2.790 of the NRC's "Rules of Practice," a copy of this letter and its enclosure will be available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS). ADAMS is accessible from the NRC Web site at the Public NRC Library.

		Sincerely,
		/RA/ James T. Wiggins Acting For
		Hubert J. Miller Regional Administrator

Docket No. 030-02963
License No. 37-00697-31


Enclosure:Notice of Violation and Proposed Imposition of Civil Penalty

cc w/enclosure:
Commonwealth of Pennsylvania
Jay M. Gutierrez, Esq., Morgan, Lewis & Bockius

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Temple University Hospital Philadelphia, Pennsylvania		Docket No. 030-02963 License No. 37-00697-31 EA 00-156

Based on an investigation conducted by the NRC Office of Investigations, a violation of NRC requirements was identified. In accordance with the "General Statement of Policy and Procedure for NRC Enforcement Actions, Enforcement Policy - May 1, 2000," NUREG-1600, the Nuclear Regulatory Commission proposes to impose a civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954, as amended (Act), 42 U.S.C. 2282, and 10 CFR 2.205. The particular violation and associated civil penalty are set forth below:

10 CFR 30.7(a) prohibits, in part, discrimination by a Commission licensee against an employee for engaging in certain protected activities. 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, or possible violations of requirements imposed under either of those statutes.

Contrary to the above, on or about November 17, 1998, an employee was subjected to discrimination by licensee management for engaging in a protected activity. Specifically, licensee management discharged the individual, by not allowing the rescission of a resignation letter, because, in part, the individual previously raised issues regarding activities licensed by the NRC.

This is a Severity Level II violation (Supplement VII).
Civil Penalty - $8,800.

Pursuant to the provisions of 10 CFR 2.201, Temple University Hospital (Licensee) is hereby required to submit a written statement or explanation to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, within 30 days of the date of this Notice of Violation and Proposed Imposition of Civil Penalty (Notice). This reply should be clearly marked as a "Reply to a Notice of Violation" and should include for each alleged violation: (1) admission or denial of the alleged violation, (2) the reasons for the violation if admitted, and if denied, the reasons why, (3) the corrective steps that have been taken and the results achieved, (4) the corrective steps that will be taken to avoid further violations, and (5) the date when full compliance will be achieved. If an adequate reply is not received within the time specified in this Notice, an order or a Demand for Information may be issued as why the license should not be modified, suspended, or revoked or why such other action as may be proper should not be taken. Consideration may be given to extending the response time for good cause shown.

Within the same time as provided for the response required above under 10 CFR 2.201, the Licensee may pay the civil penalty proposed above or the cumulative amount of the civil penalties if more than one civil penalty is proposed, in accordance with NUREG/BR-0254, by submitting to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, a statement indicating when and by what method payment was made, or may protest imposition of the civil penalty in whole or in part, by a written answer addressed to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission. Should the Licensee fail to answer within the time specified, an order imposing the civil penalty will be issued. Should the Licensee elect to file an answer in accordance with 10 CFR 2.205 protesting the civil penalty, in whole or in part, such answer should be clearly marked as an "Answer to a Notice of Violation" and may: (1) deny the violation listed in this Notice, in whole or in part, (2) demonstrate extenuating circumstances, (3) show error in this Notice, or (4) show other reasons why the penalty should not be imposed. In addition to protesting the civil penalty in whole or in part, such answer may request remission or mitigation of the penalty.

In requesting mitigation of the proposed penalty, the factors addressed in Section VI.B.2 of the Enforcement Policy should be addressed. Any written answer in accordance with 10 CFR 2.205 should be set forth separately from the statement or explanation in reply pursuant to 10 CFR 2.201, but may incorporate parts of the 10 CFR 2.201 reply by specific reference (e.g., citing page and paragraph numbers) to avoid repetition. The attention of the Licensee is directed to the other provisions of 10 CFR 2.205, regarding the procedure for imposing a civil penalty.

Upon failure to pay any civil penalty due which subsequently has been determined in accordance with the applicable provisions of 10 CFR 2.205, this matter may be referred to the Attorney General, and the penalty, unless compromised, remitted, or mitigated, may be collected by civil action pursuant to Section 234c of the Act, 42 U.S.C. 2282c.

The response noted above (Reply to Notice of Violation, statement as to payment of civil penalty, and Answer to a Notice of Violation) should be addressed to: R.W. Borchardt, Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, with a copy to the Regional Administrator, U.S. Nuclear Regulatory Commission, Region I.

Because your response will be made available electronically for public inspection in the NRC Public Document Room or from the Publicly Available Records (PARS) component of NRC's document system (ADAMS), to the extent possible, it should not include any personal privacy, proprietary, or safeguards information so that it can be made available to the public without redaction. ADAMS is accessible from the NRC Web site at the Public NRC Library. If personal privacy or proprietary information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the information that should be protected and a redacted copy of your response that deletes such information. If you request withholding of such material, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your claim of withholding (e.g., explain why the disclosure of information will create an unwarranted invasion of personal privacy or provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information). If safeguards information is necessary to provide an acceptable response, please provide the level of protection described in 10 CFR 73.21.

In accordance with 10 CFR 19.11, you may be required to post this Notice within two working days.

Dated this 19th day of October 2000