EA-00-086 - V.A., Department of, PA

July 20, 2000

EA 00-086

Michael J. Sullivan, Director
Department of Veterans Administration
University and Woodland Avenues
Philadelphia, PA 19104

SUBJECT:

NOTICE OF VIOLATION AND PROPOSED IMPOSITION OF CIVIL PENALTY -$5,500 (U.S. Merit System Protection Board Case No. PH-1221-99-0089-W-1)

Dear Mr. Sullivan:

This letter refers to the results of an investigation conducted by the NRC Office of Investigations (OI), as well as an administrative hearing conducted by the U.S. Merit Systems Protection Board (MSPB), regarding a complaint filed by a former research nurse employed at the Philadelphia VA Medical Center (PVAMC) facility. The former research nurse indicated that she was terminated, as well as subjected to other retaliatory acts, for raising safety concerns.

The MSPB hearing, which reviewed all of the alleged acts of discrimination, did not substantiate that a number of the specific incidents raised by the complainant constituted discrimination for engaging in a protected activity. However, the MSPB did substantiate that PVAMC retaliated against the individual for her whistle blowing activity both when the individual was subjected to intolerable working conditions, and ultimately, when it terminated the research nurse's term appointment prior to its scheduled expiration. The MSPB decision was issued on April 16, 1999.

Subsequently, the OI investigation was conducted and focused solely on the termination of the research nurse's employment. The OI investigation report, the synopsis of which was forwarded to you on May 4, 2000, did not substantiate that the termination was done for engagement in protected activities.

On May 17, 2000, as a result of the MSPB finding that discrimination had occurred, a transcribed predecisional enforcement conference was held with you and other members of your staff to discuss the apparent acts of discrimination, as identified by the MSPB, their causes, and your corrective actions. A copy of the enforcement conference report was forwarded to you on June 1, 2000. After evaluation of the OI report, as well as your presentation at the enforcement conference, the NRC has concluded that there is not sufficient evidence to substantiate that the termination of the research nurse's employment was done for discriminatory reasons. In drawing this conclusion, the NRC has considered that the research project that this nurse was involved with, was being terminated by its sponsors, effective May 15, 1998, resulting in cessation of funding for the nurse's position. The NRC also considered the fact that the research nurse was a term employee who was hired for the specific research project that was terminated. Further, both the MSPB and OI evidence indicates that when the Director of the facility made the decision to terminate the research nurse's employment, he was not aware that the research nurse had engaged in protected activities. As a result, the NRC has concluded that PVAMC's stated reason for the termination of the research nurse's employment (namely, the lack of available funds due to the cessation of the research study) appears not to be discriminatory.

On the other hand, the NRC adopts the MSPB finding that the research nurse was subjected to intolerable working conditions, and that this environment was created as a result of her raising of safety issues. The NRC concludes that these conditions constituted a hostile work environment. 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 changes included threats of dismissal from her supervisor, isolation by her supervisor, failure to include her in work discussions, and an accusation of criminal activity. In addition, the supervisor told the individual that she was insubordinate because she raised safety concerns during an FDA inspection. The supervisor had explicitly told the individual not to raise any issues with the FDA inspector other than those the inspector specifically asked about. The fact that the supervisor believed, even as late as at the enforcement conference, that the individual was insubordinate for raising issues to the FDA inspector suggests that he was similarly upset with her for raising issues that were protected activities under NRC jurisdiction. Based on the supervisor's attitude, it did not appear as if he understood that in accordance with 10 CFR 30.7 he was prohibited from interfering or discriminating against a subordinate for raising concerns to an inspector. The creation of this hostile environment constitutes a willful violation of the NRC requirements set forth in 10 CFR 30.7, "Employee Protection." The violation is cited in the enclosed Notice of Violation and Proposed Imposition of Civil Penalty and the circumstances surrounding it are described in detail in the subject MSPB decision.

10 CFR 30.7 prohibits 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. 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, the nurse's supervisor engaged in discriminatory actions when he created hostile working conditions which altered her condition of employment after she raised concerns regarding inadequacies of the human subjects consent forms. The Commission's long-standing policy is to hold its licensees responsible for compliance with NRC requirements, including the actions of its employees. The violation has been categorized at Severity Level III 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 $2,750 is considered for a Severity Level III 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. Those actions were described at the conference, as well as in your letter, dated June 17, 1999, in response to a NRC "chilling effect letter" issued on May 18, 1999. Those actions included promoting an "open door" policy for employee radiation safety concerns, hiring consultants to review the radiation safety program and provide long term corrective actions, hiring a permanent staff Radiation Safety Officer, performing audits of your programs, and holding orientation sessions with new employees regarding management's expectations for raising safety concerns. Notwithstanding those actions, credit is not warranted for those corrective actions since they were incomplete and not 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. In particular, as stated earlier, as late as at the enforcement conference, the research nurse's supervisor articulated the belief that it was acceptable to instruct a nurse not to give out information to the FDA inspector and consider the nurse insubordinate for volunteering information during the FDA inspection. The supervisor's actions raise questions as to whether he understood the requirements of 10 CFR 30.7 and the importance of maintaining a safety conscious work environment where individuals are free to raise safety issues without fear of retaliation.

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 $5,500, for the Severity Level III 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.

The responses directed by this letter and the enclosed Notice are not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980, Pub. L. No. 96.511.

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

Docket No. 030-14526
License No. 37-00062-07

Enclosure: Notice of Violation and Proposed Imposition of Civil Penalty

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NOTICE OF VIOLATION
AND
PROPOSED IMPOSITION OF CIVIL PENALTY

Department of Veterans Affairs Medical Center Philadelphia, Pennsylvania

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

Based on a decision by the US Merit Systems Protection Board, dated April 16, 1999, 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 named in 10 CFR 30.7(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 to 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.

This is a Severity Level III violation (Supplement VII).
Civil Penalty - $5,500.

Pursuant to the provisions of 10 CFR 2.201, Philadelphia VA Medical Center (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 placed in the NRC Public Document Room (PDR), to the extent possible, it should not include any personal privacy, or proprietary, information so that it can be placed in the PDR without redaction. 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).

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

Dated this 20th day of July 2000