IA-20-008, Predecisional Enforcement Conference Transcript for Joe Shea (IA-20-008)

Predecisional Enforcement Conference Transcript for Joe Shea (IA-20-008)

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Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION

Title:

Pre-decisional Enforcement Conference RE Joe Shea Docket Number:

IA-2020-008 Location:

teleconference Date:

Thursday, June 25, 2020 Work Order No.:

NRC-0944 Pages 1-159 NEAL R. GROSS AND CO., INC.

Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.

Washington, D.C. 20005 (202) 234-4433

1 UNITED STATES OF AMERICA 1

NUCLEAR REGULATORY COMMISSION 2

+ + + + +

3 PRE-DECISIONAL ENFORCEMENT CONFERENCE 4

RE 5

JOE SHEA 6

(DOCKET NO. IA-2020-008) 7

+ + + + +

8 THURSDAY 9

JUNE 25, 2020 10

+ + + + +

11 The conference was convened at 8:00 a.m.,

12 George Wilson, Director, Office of Enforcement, 13 presiding.

14 15 16 NRC STAFF PRESENT:

17 GEORGE WILSON, Director, Office of Enforcement 18 ALEX ECHAVARRIA, Office of Investigations 19 IAN GIFFORD, Office of Enforcement 20 SARA KIRKWOOD, Office of the General Counsel 21 SCOTT LUINA, Office of Investigations 22 CHRIS

MILLER, Office of Nuclear Reactor 23 Regulation (NRR), Division of Reactor 24 Oversight 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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2 MARK MILLER, Region II, Division of Reactor 1

Projects 2

DAVID SOLORIO, Office of Enforcement 3

CATHERINE THOMPSON, Office of Enforcement 4

5 6

ALSO PRESENT:

7 JOE SHEA, Respondent 8

SID FOWLER, Pillsbury Winthrop Shaw Pittman, 9

on behalf of Mr. Shea 10 MEGHAN

HAMMOND, Pillsbury Winthrop Shaw 11 Pittman, on behalf of Mr. Shea 12 ANNE LEIDICH, Pillsbury Winthrop Shaw Pittman, 13 on behalf of Mr. Shea 14 MICHAEL

LEPRE, Pillsbury Winthrop Shaw 15 Pittman, on behalf of Mr. Shea 16 BETH WETZEL, Complainant 17 TIMOTHY

WALSH, Pillsbury Winthrop Shaw 18 Pittman, on behalf of Mr. Shea 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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3 CONTENTS 1

Opening Remarks 4

2 Director, Office of Enforcement 3

Enforcement Policy Overview 4

4 Office of Enforcement Staff 5

Apparent Violation............... 12 6

Office of Enforcement Staff 7

External Presentation.............. 15 8

Complainant Comments

.............. 18 9

External Response to Complainant Comments...

100 10 Questions...................

100 11 Closing Remarks................

158 12 Director, Office of Enforcement 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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4 P R O C E E D I N G S 1

8:01 a.m.

2 MR. WILSON: Good morning, everyone. My 3

name is George Wilson, I'm the Director of the Office 4

of Enforcement.

5 Before we get started, Ian Gifford will 6

review the details of today's video conference and 7

answer any questions. Ian?

8 MR. GIFFORD: Thank you, George. I'll 9

just walk you through a few features of Webex on your 10 screen. I see that everyone has joined using their 11 computer. You can switch to phone if you'd like by 12 selecting the gray audio button at the bottom of the 13 attendee list and swap audio, but we prefer computer 14 if possible.

15 If you'd like to see all of the 16 participants you can click the participant tab in the 17 top right corner. You'll then see a list of all of 18 the attendees for today's meeting.

19 You can hover your own name and you'll see 20 a microphone and video. To the right you can select 21 those to mute and unmute yourselves, and turn on and 22 off your video.

23 If you are unable to turn off your audio, 24 the host will mute you if there's background noise.

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5 Just be aware that if the host has muted you, you 1

won't be able to unmute yourself, and so if you are 2

having difficulties and believe that you've been muted 3

by the host, please see the chat feature at the bottom 4

and select a message to the host requesting control of 5

your own audio.

6 If the chat box does not automatically 7

open for you, you would just select chat at the top 8

and you'll see the chat box open up under the list of 9

attendees.

10 Rather than seeing the list of names, if 11 you would like see thumbnails of the videos that are 12 present, you can look at the little box that has three 13 horizontal lines. It's a drop-down menu; select the 14 drop-down menu, and switch from list to thumbnail and 15 that will show you the active videos, in addition to 16 the active speaker that's in the larger video box at 17 the top right.

18 This is what it should look like after you 19 click the participant button. You would see the 20 different thumbnail video feeds.

21 During the presentation, if you'd like to 22 switch to full-screen mode in the bottom left portion 23 of your screen, you see a tab that says full screen, 24 you would select that and this would be your new 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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6 screen display.

1 You would have a drop-down menu that 2

appears at the top of your screen, if you hover your 3

mouse over the center top.

4 And you can see the features of mute, you 5

can also select participants and you'll see a video 6

box in the top right corner, you can expand that video 7

box by dragging the bottom left corner to make it 8

larger or smaller.

9 If it's covering a certain portion of the 10 PowerPoint slide you'd like to see, you can drag that 11 video all over the screen.

12 You can also select participants and get 13 a larger view where you see all the thumbnails of all 14 of the videos, in addition to the active speaker.

15 If you're running a dual monitor setup, 16 you can also drag that pop-up window over to a second 17 screen so that it doesn't cover any of the PowerPoint 18 slides.

19 If you do not want to see the PowerPoint 20 slides and would like to prioritize video, in the top 21 right corner of the video screen there's two arrows 22 that point to the top right and bottom left corner.

23 That would expand the video to the full 24 screen. That's what it would look like there, and you 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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7 would see all of the active thumbnails of the videos 1

along the bottom. It'll display five at a time.

2 You can select the right and left arrows 3

under those thumbnails if you want to scan through 4

other videos. This is the screen that we recommend 5

using after the caucus, for the Q&A portion of the 6

meeting.

7 I think that covers it, George. If you'd 8

like to take it back?

9 MR. WILSON: Thank you.

10 The purpose of today's teleconference is 11 to obtain information that would be used to determine 12 if a violation of discrimination occurred, which was 13 contrary to the requirements of 10 CFR 50.5 and 10 CFR 14 50.7 in employee protection.

15 It is important to note that this pre-16 decisional conference is an important step in our 17 four-step process. We want to offer you an 18 opportunity to make statements to us so that we can 19 fully and thoroughly process if you're non-compliant.

20 Our role is not to debate the facts with 21 you, but to receive and process information that is 22 pertinent. We will use today's information along with 23 information you submitted prior to the meeting today 24 to inform the final enforcement decision.

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8 In a few moments, I'll go over the agenda 1

and provide some public meeting guidance. I'd like to 2

begin with introductions. Would those NRC staff 3

please introduce yourselves?

4 MS. THOMPSON: Catherine Thompson, Office 5

of Enforcement.

6 MR. SOLORIO: Dave Solorio, Office of 7

Enforcement, Branch Chief.

8 MR. GIFFORD: Ian Gifford, Office of 9

Enforcement.

10 MR. M. MILLER: Mark Miller, Region II.

11 MR. C. MILLER: Chris Miller, Office of 12 Nuclear Reactor Regulation.

13 MR. SOLORIO: Please repeat, Chris.

14 MR. C. MILLER: Chris Miller, Office of 15 Nuclear Reactor Regulation.

16 MS. KIRKWOOD: Sarah Kirkwood, Office of 17 the General Counsel.

18 MR. ECHAVARRIA: Alex Echavarria, Office 19 of Investigations, Region II.

20 MR. LUNIA: Scott Luina, Office of 21 Investigations, Region II.

22 MR. WILSON: Would individuals from TVA 23 please introduce themselves?

24 MR. SHEA: My name is Joe Shea, TVA. I'll 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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9 let my counsel introduce himself. Mr. Walsh?

1 MR. WALSH: Thank you, this is Tim Walsh 2

from Pillsbury. On the phone, also from Pillsbury, we 3

have Mike Lepre, Anne Leidich, Sid Fowler, and Meghan 4

Hammond.

5 And here in the room with me is TVA Chief 6

Nuclear Officer, Timothy Rausch.

7 MR. WILSON: Thank you. The court 8

reporter, are you online? Thank you.

9 The agenda for today's teleconference 10 consists of opening remarks by me, followed by an 11 enforcement policy overview by Catherine Thompson, and 12 then an overview of the case specifics by Dave 13 Solorio, the supervisor having oversight in this 14 discrimination concern.

15 Following Mr. Solorio's overview of the 16 case specifics, you will be provided an opportunity to 17 present information for NRC's consideration.

18 The NRC staff looks forward to 19 understanding your perspectives on these issues and 20 we'd also like you to tell us if you believe there are 21 any errors of the understanding of the facts and 22 circumstances, and discuss any aggravating or 23 mitigating circumstances that we should consider.

24 Following your presentation, the NRC staff 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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10 will caucus in a separate breakout room on WebEx, and 1

upon our return we will ask additional questions as 2

necessary. You will also have access to a separate 3

breakout room if you wish to use.

4 At the end of this teleconference, I will 5

be making closing remarks on behalf of the NRC and 6

this meeting will be adjourned.

7 Now let's cover some of the meeting 8

guidelines of this conference. In accordance with our 9

normal practice, any written material you provide 10 today will be placed in the NRC's document management 11 system. It'll be withheld from public disclosure 12 until this matter is concluded. NRC representatives 13 may ask questions as they deem necessary after the 14 caucus.

15 This meeting is being transcribed, 16 therefore, it's important that all individuals speak 17 clearly and identify themselves to assist the 18 transcriber.

19 In case the transcriber has follow-up 20 questions, please remain in the teleconference for a 21 few minutes after the meeting adjourns.

22 The written transcript will provide the 23 NRC with a record of the information that is presented 24 today and will be used in reaching a final agency 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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11 decision in the matters that we will discuss.

1 The transcript is not normally released to 2

the public, however, if requested under the Freedom of 3

Information Act, release would be considered, subject 4

to redactions allowed by the Freedom of Information 5

Act.

6 In accordance with the NRC enforcement 7

policy and manual, this conference is closed to public 8

observation because it involves the findings of an NRC 9

Office of Investigations report that has not been 10 publicly disclosed, and involves personal issues 11 related to discrimination.

12 With the exception of the transcript 13 already mentioned, no portion of this PEC shall be 14 recorded. And in addition, information discussed in 15 this PEC cannot be discussed in the public domain by 16 NRC staff, TVA staff, or other concerned individuals.

17 Today, no final NRC decision will be 18 discussed, made, or announced at this meeting. The 19 parties will be informed in writing if the NRC decides 20 to take an enforcement action.

21 Based on the availability of the 22 transcript and supplemental information you may 23 provide, we plan to make a final determination by the 24 end of July.

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12 Does anyone have any questions regarding 1

the agenda or leading guidelines that I just 2

described?

3 MR. SHEA: I do not.

4 MR. WILSON: With that, at this time, Ms.

5 Thompson will provide an overview of the enforcement 6

policy, followed by Mr. Solorio's overview of the case 7

specifics.

8 MS. THOMPSON: We are conducting today's 9

teleconference to obtain information related to an 10 apparent violation of the NRC's employee protection 11 rule, 10 CFR 50.7, and 10 CFR 50.5 for deliberate 12 misconduct.

13 The NRC has determined that you apparently 14 engaged in deliberate misconduct because Tennessee 15 Valley Authority, an NRC licensee, discriminated 16 against the former manager of emerging regulatory 17 issues, Ms. Wetzel, for engaging in protected 18 activities. Your actions resulted in a termination of 19 Ms. Wetzel.

20 To ensure a

safety conscious work 21 environment, a high value is placed on employees being 22 free to raise nuclear safety concerns, regardless of 23 the merits of the concern.

24 The NRC's authority is limited to taking 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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13 an enforcement action against the licensee or 1

contractor, would we make a finding of discrimination.

2 As appropriate, enforcement actions 3

include issuing a notice of violation, assessing a 4

civil penalty, issuing an order, modifying an NRC 5

license, or, in criminal cases, referring to the case 6

to the Department of Justice for prosecution.

7 Over the years, the NRC has made referrals 8

to DOJ and they have prosecuted some cases.

9 Additionally, nuclear workers may seek personal remedy 10 regarding discrimination cases via the Department of 11 Labor.

12 Because this subject matter involves pre-13 decisional discrimination information and findings by 14 our Office of Investigations, this teleconference is 15 closed to the public.

16 Ms. Wetzel was invited to attend the 17 teleconference and she is also on this teleconference.

18 She will be given the opportunity to provide comments 19 for NRC's consideration.

20 It is important to note that this 21 teleconference is pre-decisional and is an important 22 step in our enforcement process. We want to offer you 23 an opportunity to make statements to us so that we can 24 fully and thoroughly process the apparent violation.

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14 Our role is not to debate the facts with 1

you, but to receive and process the information that's 2

presented today.

3 This teleconference will provide an 4

opportunity for the NRC to ask clarifying questions 5

and it will provide you the opportunity to comment on 6

the information that is provided in the conference 7

letter, to provide or to present additional relevant 8

information, such as aggravating or mitigating 9

circumstances, and to also discuss corrective actions 10 that have been taken, or are planned.

11 Presently, the concern is being processed 12 in accordance with our guidelines on escalated 13 enforcement. In accordance with Section 6.10 of the 14 enforcement policy, the issue might be dispositioned 15 at a Severity Level-I, -II, or -III violation.

16 The NRC is considering a notice of 17 violation or a ban. A notice of violation describes 18 the NRC requirement that was

violated, the 19 circumstances of the violation, the severity level of 20 the violation, and may require a written response.

21 The NRC considers issuing a ban to a 22 licensee official when their actions are deliberate 23 and result in the NRC no longer having reasonable 24 assurance that license activities will be conducted in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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15 an adequate manner.

1 Bans are typically fixed at one, three, or 2

five years. When the NRC determines the length of a 3

ban, we consider the position of the individual in the 4

organization and the significance of the underlying 5

violation.

6 We will conduct an internal agency panel 7

to make a final decision. In addition to what has 8

previously been developed by the NRC's Office of 9

Investigations, we will consider information presented 10 today.

11 If the agency determines that a violation 12 of 10 CFR 50.5 and 10 CFR 50.7 occurred, you will 13 receive a public notification of the agency's 14 enforcement action. Additionally, the NRC will issue 15 a press release.

16 The possible outcomes for escalated 17 enforcement actions include the issuance of a notice 18 of violation, or the issuance of an order for a one to 19 five-year ban.

20 Additionally, a potential outcome is that 21 no enforcement action is taken by the NRC. Dave?

22 MR. SOLORIO: Good morning, can you hear 23 me okay, Joe and Nathan?

24 MR. SHEA: Yes, I can.

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16 MR. SOLORIO: Thank you. At this time, 1

I'll provide a summary of the apparent violation and 2

then I'll turn things over to you, Joe.

3 The purpose of the NRC Investigation 2-4 2019-015 was to determine whether Ms. Wetzel was the 5

subject of employment discrimination for participating 6

in a protected activity, in violation of the NRC's 7

employee protections, specifically 50.7.

8 The NRC determined that Ms. Wetzel was 9

apparently placed on paid administrative leave on 10 October 15, 2018 and terminated on January 14, 2019, 11 in part for engaging in protected activities.

12 Between 2016 and '17, Ms. Wetzel raised 13 numerous safety concerns, including violations of Part 14 26 fatigue rule at Watts Bar, failure to adhere to the 15 Fukushima requirements at Sequoyah, concerns regarding 16 a Watts Bar 2 surveillance extension request, and 17 failure to meet NRC commitments in Information Notice 18 2017-03 to identify Anchor/Darling double-disc gate 19 valve susceptibility to failure at Browns Ferry.

20 Ms. Wetzel also raised concerns about a 21 chilled work environment. Ms. Wetzel also wrote 22 condition reports and discussed safety issues during 23 meetings. All of these above are protected 24 activities.

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17 NRC staff reviewed the evidence gathered 1

during the NRC OI investigations, and determined the 2

actions taken against Ms. Wetzel were an apparent 3

violation of the NRC's rule prohibiting deliberate 4

misconduct, 10 CFR 5.55(a).

5 Based on the evidence developed during the 6

investigations and subsequent staff analysis, it 7

appears that you, as the vice president of regulatory 8

affairs, engaged in deliberate misconduct that caused 9

an NRC licensee to be in violation of 10 CFR 50.7, 10 employee protection.

11 Next slide.

12 10 CFR 50.55(a) states in the relevant 13 part that any employee of a licensee may not, one, 14 engage in deliberate misconduct if it causes, or would 15 have caused, if not detected, a licensee or applicant 16 to be in violation of any rule, regulation, or order, 17 or any term, condition, or limitation of any license 18 issued by the Commission.

19 10 CFR 50.7(a) states in the relevant part 20 that discrimination by a Commission licensee against 21 an employee for engaging in certain protected 22 activities is prohibited.

23 Discrimination includes discharge and 24 other actions that relate to compensation terms, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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18 conditions, or privileges of employment.

1 Next slide. Between October 15, 2018 and 2

January 14, 2019, you apparently engaged in deliberate 3

misconduct that caused TVA, an NRC licensee, to 4

discriminate against a former corporate employee for 5

engaging in protected activity.

6 Specifically, Ms. Wetzel engaged in 7

protected activity by raising concerns of a chilled 8

work environment to you and a TVA attorney during a 9

TVA Office of General Counsel investigation.

10 After becoming aware of this protected 11 activity, you, as the Vice President of Regulatory 12 Affairs, placed Ms. Wetzel on paid administrative 13 leave and played a significant role in terminating 14 her.

15 Your apparent actions were based at least 16 in part on Ms. Wetzel engaging in protected activity.

17 George?

18 MR. WILSON: Thank you, Dave. Mr. Shea, 19 we're ready for your presentation.

20 MR. SHEA: Thank you, Mr. Solorio, thank 21 you, Mr. Wilson.

22 Before we start, just for the recorder, 23 I've been advised that my microphone is very sensitive 24 and page-turning can be distracting, so if there's any 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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19 problem with that please let me know.

1 Other than that, I will get started.

2 Good morning. As you've just heard, my 3

name is Joe Shea and I am the Vice President of 4

Nuclear Technology Innovation at the Tennessee Valley 5

Authority, TVA.

6 During the period of time we'll be 7

discussing today, I served as the Vice President of 8

Regulatory Affairs and Support Services at TVA.

9 I want to thank you all for the 10 opportunity to discuss the allegations raised in the 11 NRC's March 2, 2020 notice of apparent violation 12 during this pre-decisional enforcement conference.

13 I have great respect for the NRC's 14 enforcement process and for the integrity that I have 15 seen the NRC staff and executives bring to that 16 process, dating back to my first exposure to the NRC's 17 enforcement process when I was a junior NRC employee 18 back in the early 1990s.

19 I take the allegations that the NRC has 20 lodged against me very seriously. As I will discuss 21 in detail today, it is absolutely wrong to conclude 22 that at any time I deliberately took actions that I 23 knew would cause the Tennessee Valley Authority to 24 discriminate against Ms. Wetzel for engaging in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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20 protected activities.

1 The charge against me is simply not true 2

and you will see that demonstrated in my 3

contemporaneous emails, notes, and documents you have 4

before you.

5 I will show you that my actions, with 6

respect to Ms. Wetzel, were aimed at remedying a 7

situation where one of the managers in my organization 8

was engaged in inappropriate conduct directed at her 9

supervisor, Erin Henderson.

10 As a leader, I have a responsibility to 11 all of my employees to ensure they do not come to work 12 in a hostile work environment or a harassing 13 workplace, and I had that responsibility to Erin 14 Henderson.

15 The TVA Code of Conduct that is in place 16 today, and was also in place in 2018, makes clear that 17 if harassment is found to have occurred, appropriate 18 disciplinary action, up to and including termination 19 of employment, will be taken.

20 The TVA 2018 Code of Conduct is provided 21 in Exhibit 1. The NRC itself says in its safety 22 culture of traits for a respectful work environment, 23 that leaders should not demonstrate or tolerate 24 bullying or humiliating behaviors.

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21 Moreover, the statements Ms. Wetzel made 1

to me were simply unprofessional and unacceptable for 2

a manager to make in any workplace, much less a 3

federal agency, which TVA is.

4 Today, we'll walk through my actions, and 5

the organization's actions, with respect to Ms.

6 Wetzel. By way of outline for my presentation, first 7

I will give you a brief background of myself and my 8

own experience raising nuclear safety concerns.

9 Then my attorney will give an overview of 10 the legal matters related to this case. Next, I will 11 discuss how Ms. Wetzel made statements to me on 12 multiple occasions, about Ms. Henderson, that I 13 believe were neither true, nor raised in good faith.

14 Then I will show you how, when faced with 15 those statements, I repeatedly and consistently asked 16 for assistance from the appropriate TVA resources, 17 namely the Office of General Counsel and Human 18 Resources on how to address Ms. Wetzel conduct.

19 Throughout this presentation, you will see 20 I was focused on Ms. Wetzel inappropriate conduct, not 21 any protected activities she may have engaged in.

22 Indeed, none of these issues are nuclear 23 safety issues, these are internal personnel issues I 24 was addressing, and seeking help to address, within my 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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22 own organization.

1 I will show you that I had no preconceived 2

notions when I first referred Ms. Wetzel's conduct to 3

OGC and HR as to what the outcome may be.

4 And I will show you that I followed 5

applicable TVA processes, namely the TVA Executive 6

Review Board, to ensure adverse employment action 7

against Ms. Wetzel was taken for appropriate reasons, 8

and not because of her protected activity.

9 Finally, I will show you why I simply 10 would not have engaged in the conduct alleged here.

11 In a moment, my attorney will provide a short 12 discussion of the legal standards that apply here, and 13 preview why no violation of 10 CFR 50.5 occurred.

14 But before he does that, I want to 15 emphasize to you, the board members, that I have been 16 honored and privileged to have been able to have a 17 career of nearly 40 years in public service and I 18 strongly want to continue in that.

19 Indeed, to the best I can recount, every 20 job I have held since I was 18 has been in public 21 service, or in support of public service, at the 22 local, state, or federal level.

23 In brief, I have served a little over 5 24 years in the United States Navy, approximately 19 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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23 years at the United States Nuclear Regulatory 1

Commission.

2 My time at the NRC included service to the 3

Office of Nuclear Reactor Regulation, and Nuclear 4

Material Safety and Safeguards, as a licensing project 5

manager; in the Office of the Executive Director for 6

Operations, as Chief of the Regional Operations 7

Section; and the Office of Nuclear Security and 8

Incident Response as the Director of Nuclear Security 9

Policy; and finally, in Region II, in roles that 10 included Director of Reactor Projects, Reactor Safety, 11 and Fuel Facility Inspection.

12 For nearly the last ten years, I've 13 continued in public service at the Tennessee Valley 14 Authority, and I'll briefly describe some of my tenure 15 at TVA later in the presentation.

16 Across these years of service, I have 17 first been instructed, then learned to experience, and 18 then taught and nurtured the critical importance of 19 being able to ask questions if I feel I lack 20 knowledge, and to reasonably expect an answer; of 21 being able to raise a concern if I am unsure of 22 something or I think something is not right, and to 23 have my concern addressed; and ultimately, being able 24 to express, with all my skill and passion, an issue 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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24 where I believe my team or organization are standing 1

at a danger, and expecting no harm will come if I have 2

raised the issue within the highest ethical standards, 3

including with integrity and sincerity.

4 I truly believe that I have adhered to 5

these principles throughout all of my career.

6 I will certainly never claim that I am 7

perfect, and this experience has prompted me to 8

reflect closely on the facts and circumstances we are 9

here today to discuss.

10 I would like to firmly reiterate that 11 retaliating against someone for raising a nuclear 12 safety issue would be against everything I have ever 13 learned, experienced, and espoused in my lengthy 14 public service career. And it didn't happen here.

15 While I provide some discrete examples of 16 where I have had the opportunity to raise concerns 17 that are reflective of a range of my personal 18 experiences, I offer these examples to you in an 19 effort to show that I personally know what it's like 20 to raise concerns that others may not want to hear.

21 These examples have instilled in me the 22 sensitivity towards and appreciation for others who 23 themselves raise such concerns.

24 In 2012, while serving in my capacity at 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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25 TVA as Vice President of Licensing, TVA was under 1

extremely regulatory pressure to submit a high-quality 2

license application for a transition to National Fire 3

Protection Association Standard 805 on a non-4 negotiable NRC deadline.

5 At that time, I was struggling mightily 6

with my TVA peers, who I believe were not supporting 7

a sufficient quality standard in terms of completeness 8

and accuracy.

9 Those senior management and executive 10 peers kept reporting to the Chief Nuclear Officer that 11 our submittal was on schedule, when myself and my 12 subordinates knew that it was not.

13 The CNO at that time was nearly 14 exclusively focused on ensuring the application was 15 submitted on time.

16 That put me, the most junior member of the 17 nuclear executive leadership team, in the position of 18 informing my senior vice president that we were off 19 schedule, contradicting the reports of my peers.

20 However, I went into his office, armed 21 with facts developed by my subordinates, presented the 22 issue and recovery plans, and I was supported. And I 23 think this example shows how I was not afraid to speak 24 up on behalf of my team when I see and issue.

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26 In 2007, as Division Director in NRC's 1

Region II Office, I had a significant disagreement on 2

the NRC's position on an apparent violation against an 3

individual in the nuclear industry.

4 To my recollection, I provided my view of 5

the facts supporting my concerns to the relevant NRC 6

leadership, including the Acting Regional 7

Administrator and the Director of the Office of 8

Enforcement.

9 The discussion was professional but 10 passionate, and very strong words were used 11 professionally, but very strongly.

12 I mentioned this instance because in this 13 case, while my view did not prevail, as I hoped it 14 would, I was given the opportunity to raise those 15 concerns and did not suffer consequences.

16 That resonates with me all these years 17 later because that's how I want others to view their 18 interactions with me, that they can have professional 19 but passionate discussions and know that the same 20 outcome of no consequence will result.

21 And finally, one of the most lasting 22 memories I have in my professional life occurred when 23 I was serving as staff to the NRC's then-executive 24 director for operations.

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27 At an annual NRC leadership forum, the EDO 1

reacted to a presentation regarding diversity concerns 2

among the staff, which reaction disturbed some of the 3

agency's senior leaders.

4 My view, as a leader, even the EDO 5

couldn't address an issue if he wasn't made aware of 6

it, including one that had potentially significant 7

impact to the health and culture of that agency.

8 So, I found the EDO in a quiet setting and 9

presented the facts as they had been presented to me 10 by other senior leaders, and as I had observed them.

11 And while visibly stunned, the EDO reacted 12 with a degree of gratitude that I had had the courage 13 to be the one to bring this issue to his attention, 14 and I suffered no adverse consequences.

15 Collectively, these experiences, and many 16 others that I have experienced across my career, have 17 instilled in me the value of being able to raise 18 concerns without fear of retaliation.

19 My team at TVA also felt they could raise 20 issues to me without fear of retaliation, and at least 21 one example from this time period is provided to you 22 in Exhibit 2.

23 These experiences also support my 24 confidence that I have never intentionally retaliated 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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28 against anyone who participated in protected 1

activities. And I am also confident that today's 2

discussion will bear out that my actions, vis-a-vis 3

Ms. Wetzel, were ethical, in concert with processes 4

such as they existed, and supported by counsel from 5

leaders and support organizations.

6 I will now turn it over to my attorney to 7

speak on my behalf.

8 MR. WALSH: Thank you, Joe. I'm Tim Walsh 9

of the Pillsbury Law Firm.

10 As Joe's representative here today, I want 11 to emphasize for the NRC the high legal standard that 12 must be met to make a finding of deliberate misconduct 13 here.

14 In order to make such a finding, the staff 15 must determine that an individual intentionally sought 16 to cause a violation of a Commission requirement.

17 Here, in 10 CFR 50.7, it is a very high standard.

18 As Joe will show you today, his actions 19 come nowhere close to that standard. The NRC has 20 alleged that Joe has engaged in deliberate misconduct 21 under 50.5 that caused TVA to violate the employee 22 protection requirements of 50.7.

23 The Commission's regulations, orders, and 24 other statements interpreting these regulations make 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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29 explicit that a finding of deliberate misconduct 1

requires an intent to commit wrongdoing.

2 Specifically, the rule states that 3

deliberate misconduct by a person means an intentional 4

act or omission that the person knows would cause the 5

licensee to be in violation of any rule, regulation, 6

or order.

7 The facts we will lay out for you show 8

that is not true, but before we get to the facts, it 9

is important to consider the Commission's own words 10 when promulgating 50.5.

11 This is because the Commission crafted a 12 deliberate misconduct rule to apply only in extreme 13 circumstances, where intent to commit wrongdoing was 14 clear.

15 I will now refer statements the Commission 16 made when promulgating the rule in 1991. This is 17 available at 56 Federal Register 40654. In that 18 rulemaking, the Commission explicitly stated that the 19 deliberate misconduct rule applies only to individuals 20 who deliberately set in motion events that would cause 21 a violation.

22 Stated differently, the Commission 23 explained that an individual acting in this manner has 24 the requisite intent to act in a wrongful manner.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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30 The Commission also made clear that the 1

deliberate misconduct rule does not apply in cases of 2

negligence, honest mistakes, or ignorance, or in cases 3

where people may have made mistakes while acting in 4

good faith.

5 The Commission has also explained that 6

50.5 does not include accidental careless disregard 7

for the requirements. 50.5 is a narrower rule that 8

applies only to deliberate misconduct.

9 The Commission made clear that, quote, 10 under this narrower rule, the range of actions that 11 would subject an individual to action by the 12 Commission does not differ significantly from the 13 range of actions that might subject the individual to 14 criminal prosecution, close quote.

15 The NRC claims that Joe intentionally took 16 some action knowing that it would cause a violation of 17 50.7, as to overcome an additional hurdle, and that 18 hurdle is 50.7(d), which explicitly provides in part 19 that actions taken by an employer or others, which 20 adversely affect an employee, may be predicated upon 21 non-discriminatory grounds.

22 And an employee's engagement in protected 23 activity does not automatically render him or her 24 immune from discharge or discipline for legitimate 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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31 reasons, or from adverse action dictated by non-1 prohibited considerations.

2 So, when evaluating whether Joe took 3

action knowing it would cause a violation of 50.7, the 4

staff must look at all of 50.7 including 50.7(d). We 5

note for the record that the Office of Investigations 6

report contains no discussion of 50.7(d).

7 While this may be an oversight, the staff 8

must consider that regulation when evaluating Joe's 9

intent.

10 Joe will show you that he did not act with 11 any deliberate intent to cause a violation of 50.7, 12 nor did he act with any careless disregard for 50.7, 13 either.

14 The enforcement manual defines careless 15 disregard as where an individual is usual of the 16 existence, meaning, or applicability of a requirement, 17 but nevertheless proceeds to engage in conduct that 18 the individual knows may cause a violation.

19 That definition does not fit the 20 circumstances here. Here, Joe took action for 21 entirely non-discriminatory and non-prohibited 22 reasons.

23 Joe will show you that he believed that 24 Ms. Wetzel was engaging in a pattern of conduct that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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32 violated TVA's rules and policies when making 1

unfounded statements about her supervisor, Erin 2

Henderson.

3 Joe will explain to you that he knew, or 4

reasonably believed, that the statements Ms. Wetzel 5

was making could not be true, or not made in good 6

faith. Joe will show you that when confronted with 7

these statements, he asked for help.

8 He again acted in good faith by seeking 9

assistance from human resources and the Office of 10 General Counsel in determining what he should do. At 11 one point during the series of events -- and Joe will 12 show you the emails -- Joe recommended to the Office 13 of General Counsel that Ms. Wetzel be interviewed to 14 find out more about the basis of her statement.

15 Asking the appropriate internal resources 16 for assistance in how to handle a personnel issue is 17 not the mark of a person who is intending to engage in 18 wrongdoing. Again, it is worth repeating.

19 Asking for help in how to handle a 20 personnel matter does not show an intent to violate 21 any requirement; it shows intent to do what is right.

22 As Joe showed you, the Office of General 23 Counsel disagreed with Joe's recommendation for good 24 reason. Joe considered that recommendation and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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33 accepted it.

1 Ultimately, Joe came to the conclusion 2

that Ms. Wetzel's actions warranted discipline.

3 The Office of General Counsel reviewed the 4

facts at hand and determined that separating Ms.

5 Wetzel from the company was legally supportable, and 6

made that recommendation to Joe, either by a no-fault 7

separation agreement or by termination at management's 8

discretion.

9 With this recommendation in hand, Joe 10 evaluated the facts and circumstances and determined 11 to move forward with separation of Ms. Wetzel from the 12 company, first by offering her a no-fault separation 13 agreement.

14 Joe then followed TVA's

process, 15 specifically designed to ensure that employment 16 actions are not taken for prohibited consideration, 17 the Executive Review Board. Joe presented the 18 proposed action to the Executive Review Board, or ERB, 19 and the ERB concluded that legitimate reasons were the 20 basis for separating Ms. Wetzel from the company.

21 The bottom line is that all of the 22 evidence here shows that Joe acted in good faith every 23 step of the way. This is not easy: holding people 24 accountable for their actions, ensuring a harassment-25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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34 free workplace, fostering a safety conscious work 1

Environment.

2 No one does it perfectly but the evidence 3

shows that Joe's passions were motivated only to 4

ensure that harassing behavior stopped, not any 5

technical concerns or alleged chilled work environment 6

concerns anyone may have raised.

7 Before I turn it back over to Joe, I just 8

want to note that we submitted to the NRC a set of 9

exhibits in support of Joe's presentation today.

10 Those exhibits are identified as Exhibits 1 through 11

33.

12 Accompanying the records, is a book review 13 summary of the information contained in the exhibits, 14 and a detailed table of contents explaining the 15 relevance of each document within it.

16 Joe and I will refer to those exhibits 17 today, and our presentation will also be provided to 18 you as Exhibit 34.

19 I'll turn it over to Joe now and speak 20 with you again at the end of his presentation. Joe?

21 MR. SHEA: Thank you, Mr. Walsh. As I 22 mentioned in my opening, I want to first address the 23 apparent violation lodged against me in this 24 proceeding.

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35 I unequivocally deny that at any time I 1

deliberately took actions that I knew would cause the 2

Tennessee Valley Authority to discriminate against Ms.

3 Wetzel for engaging in protected activity.

4 I'd like to expand on that statement in 5

terms of some of the guidance available, that I 6

anticipate you may use in your decision-making, and 7

I'd like you to hear my perspective on those criteria.

8 With regards to specific criteria in 9

Section 1.1.2 of Part 2 of the enforcement manual, 10 Criterion 1, I do agree and I was in fact aware and 11 knowledgeable that a requirement exists in 10 CFR 50.7 12 prohibiting discrimination against an employee for 13 participating in a protected activity.

14 Criteria 2. I do not agree that a 15 violation of 10 CFR 50.7 occurred. Rather, in 16 proceeding through, and ultimately signing the action 17 related to Ms. Wetzel's termination, I was then and 18 remain convinced that it was taken on non-prohibited 19 grounds.

20 To amplify, I did understand that Ms.

21 Wetzel had taken part in, or potentially taken part 22 in, more than one protected activity. However, I 23 acted to separate Ms. Wetzel from the company under a 24 full belief that the action was being taken responsive 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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36 to finding that Ms. Wetzel had participated in an 1

ongoing campaign of disrespectful and harassing 2

conduct, that included repeated statements that her 3

supervisor had initiated inappropriate investigations 4

of TVA employees for a vindictive motive, despite 5

having no reasonable basis or specific knowledge to 6

support those statements.

7 This is a finding that I was provided 8

after I sought input from the Office of General 9

Counsel, whose staff had investigated the issues and 10 who were knowledgeable of applicable protections 11 provided to TVA employees.

12 The finding presented to me from the OGC 13 investigation was consistent with my own experience 14 from Ms. Wetzel's statements and behaviors that 15 developed over the late spring and summer of 2018.

16 Additionally, it is also important to note 17 that Ms. Wetzel was a leader and supervisor of others, 18 and TVA holds managers to higher standard of conduct 19 that does not allow for her conduct here.

20 The TVA Code of Conduct requires managers 21 to, quote, exhibit the highest standards of ethical 22 conduct at all times and avoid behavior that could be 23 reasonably perceived as improper.

24 Because of this sustained disrespectful 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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37 and harassing conduct, I acted to separate Ms. Wetzel 1

from the company with the knowledge that Ms. Wetzel 2

was discharged for legitimate reasons apart from any 3

of her protected activity, consistent with the 4

provisions of 10 CFR 50.7(d).

5 Returning again to the criteria from 6

Section 1.1.2 of Part 2, I do agree that the actions 7

I took from the point in time that I received the 8

complaint of harassment filed by Ms. Henderson on 9

March 9, 2018, through signing of Ms. Wetzel's 10 termination letter in January 2019, were voluntary.

11 I agree that I did know the requirements in 10 CFR 12 50.7, in their entirety, were applicable. And lastly, 13 I did not know and do not agree that my actions were 14 contrary to those requirements.

15 In fact, I had and have multiple reasons 16 to believe they were fully compliant with the 17 provisions of 10 CFR 50.7(d).

18 As I will take you through today, my basis 19 for Ms. Wetzel's termination included several factors.

20 The recommendation from the Office of General Counsel 21 that termination was appropriate, my own knowledge 22 that Ms. Wetzel's statements against Ms. Henderson 23 were entirely non-safety-related matters, but rather 24 personnel matters, and the fact that this action went 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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38 through TVA's Executive Review Board process to ensure 1

the distinction between a prohibited and non-2 prohibited basis existed.

3 The bottom line is that the personnel 4

action involving Ms. Wetzel is a personnel matter that 5

has an independent basis entirely separate from any 6

protected disclosures. Specifically, it was solely 7

aimed at the critical imperative of ensuring a 8

harassment-free workplace.

9 I acted conscientiously to meet the 10 requirements of other governing rules and policies, 11 including maintaining both a safety conscious work 12 environment and a harassment-free workplace, and I did 13 not act out of retaliatory motive.

14 I would like to transition to today's 15 discussion of a sequence of events, by briefly 16 describing the evolution of the corporate licensing 17 organization during my tenure as vice president. I 18 will then review the harassment-free policies that TVA 19 implements in its workplace. On this basis, I will 20 get to a discussion of the facts and circumstances 21 that are the reasons we are here today, and show you 22 that I took care and acted in good faith when 23 addressing Ms. Wetzel's conduct.

24 I joined TVA as a manager for Watts Bar 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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39 Unit 1 Licensing and Regulatory Matters in 2010.

1 By

2011, we were facing several 2

significant regulatory issues, including, for example, 3

the placement of Browns Ferry site into Column 4 of 4

the NRC ROP action matrix, and other significant 5

issues at Sequoyah and Watts Bar, that had the risk of 6

placing them in Column 3 or 4 of the action matrix as 7

well.

8 My leadership approach in this extreme 9

situation was focused on recovering and restoring 10 regulatory expertise to the corporate office.

11 Under this approach, by 2014, several of 12 those key regulatory challenges facing TVA in 2011 had 13 moved to a better place. At that time, that is in 14 2014, TVA senior leadership asked me to focus on 15 long-term organizational optimization and developing 16 future leadership capability within my team.

17 This eventually led to the hiring of Ms.

18 Henderson into the position of Senior Manager of 19 Operating Fleet Licensing in the summer of 2015.

20 During the recruiting process for this 21 position, I received a call from Ms. Wetzel where she 22 specifically expressed to me that she felt Ms.

23 Henderson was too inexperienced to be a senior manager 24 of regulatory affairs.

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40 However, what I was looking for in a 1

candidate was different than what Ms. Wetzel perceived 2

as needed. I needed leadership in my group.

3 I had regulatory expertise within the 4

team, but I was looking for someone who had the 5

leadership capability to bring the organization 6

forward, and Ms. Henderson clearly exceeded the other 7

candidates in that regard.

8 Upon hiring Ms. Henderson, I impressed on 9

her the challenges and themes in the corporate team's 10 morale in improving safety culture.

11 Ms. Henderson told me her approach 12 included, among other things, having one-on-one 13 discussions with every individual on the team and to 14 let them express whatever concerns they had about the 15 existing state of the organization.

16 I was very satisfied with her overall 17 approach and thought that it showed the mark of a good 18 leader.

19 Indeed, from 2015 to early 2018, during 20 Ms.

Henderson's

tenure, the Corporate Nuclear 21 Licensing team had undergone a series of reviews of 22 safety conscious work environment within the group.

23 These reviews included the NRC's own 24 inspections, ECP investigations, and safety conscious 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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41 work environment pulsing surveys.

1 And much to Ms. Henderson's credit, none 2

of those reviews or investigations found that 3

Corporate Nuclear Licensing team members were chilled.

4 In fact, the data from these reviews indicated an 5

improving safety conscious work environment trend.

6 That's not to say we were perfect, but 7

consistent with my personal history and strong beliefs 8

in a safety conscious work environment, when we 9

learned of potential issues in the group, we took 10 action.

11 For example, in my Exhibit 3 is a reply to 12 an Employee Concerns Program corrective action letter 13 by David Czufin detailing the actions in 2016, after 14 a concern was raised in our group.

15 This 2016 ECP investigation noted there 16 were some indications that the concerned individual 17 was reluctant to raise non-nuclear concerns to 18 Corporate Nuclear Licensing management.

19 Corrective actions were taken to address 20 those

concerns, including a

meeting with all 21 supervisors and above in the Corporate Nuclear 22 Licensing group on October 11, 2016 to review and 23 discuss TVA procedure STP 11.8.4, expressing concerns 24 and differing view, as well as instruction to all 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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42 licensing supervisors and above to hold meetings with 1

their direct-reports to open a dialog and obtain 2

feedback.

3 Also relevant to today's discussion is 4

TVA's policies on maintaining a workplace that is free 5

from harassment and other inappropriate behaviors.

6 For example, TVA's Code of Conduct, in 7

effect in 2018, states that managers are to exhibit 8

the highest standards of ethical conduct at all times 9

and avoid behavior that could be reasonably perceived 10 as improper. The Code of Conduct also states that TVA 11 strives to provide a workplace for employees that is 12 free from menacing or harassing behaviors.

13 The 2018 Code of Conduct even provided an 14 example where a team member is constantly insulting 15 another team member and states, a co-workers constant 16 insults are not consistent with TVA values.

17 In additional to TVA's policies, I 18 received several sets of training on employee rights 19 and responsibilities for managers and supervisors, and 20 management actions to promote a safety conscious work 21 environment.

22 In those trainings, it is reiterated time 23 and time again that harassment, intimidation, 24 retaliation, and discrimination against individuals 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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43 who raised concerns will not be tolerated, and that I 1

had principal responsibility as a supervisor for 2

ensuring my employees are not subject to harassment, 3

intimidation, retaliation, or discrimination for 4

raising concerns.

5 My personal view is to provide a work 6

environment where employees feel valued, respected, 7

and encouraged to raise concerns.

8 These considerations, Corporate Nuclear 9

Licensing group performance, safety culture, and 10 safety conscious work environment, and our policies 11 prohibiting harassment and inappropriate behaviors, 12 all came to the fore for me beginning in March 2018.

13 I will now turn to the matters at hand.

14 The issues had roots prior to March 2018. As I will 15 describe for you, there were points where I was aware 16 of performance management issues relating to Ms.

17 Wetzel.

18 As I told you, Erin was brought in to 19 improve the group's performance, and there was some 20 tension in that. None of this was unexpected, so I 21 worked to help the matters as best I could.

22 As I stated earlier, Ms. Wetzel called me 23 during the recruiting process for Ms. Henderson's 24 position in 2015 to state she believed Ms. Henderson 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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44 was too inexperienced.

1 I made no comment to Ms. Wetzel at that 2

time, because I was engaged in active hiring process.

3 Again, as I noted earlier, I was focused on the 4

candidates' leadership ability, an area in which Ms.

5 Henderson had clearly exceeded the other candidates.

6 In fact, Ms. Henderson came to the final 7

interview with a full 90-day plan prepared on how to 8

address performance issues in the Corporate Nuclear 9

Licensing group.

10 I next recall that in January of 2016 I 11 had a meeting with Ms. Henderson where Ms. Wetzel's 12 performance was discussed.

13 I subsequently had a meeting with Ms.

14 Wetzel, and my notes from my meeting with Ms. Wetzel 15 indicate that she was unsure of how to approach the 16 performance management situation she faced.

17 There, I suggested that Ms. Wetzel may 18 benefit from a mentor and subsequently facilitated a 19 mentorship for her with Mr. Greg Boerschig, who was 20 the Vice President of Nuclear Oversight at the time.

21 As I recall, this mentorship lasted until 22 about 2017, when Mr. Boerschig had to take over as a 23 temporary Site Vice President of Sequoyah. My 24 handwritten notes of this meeting with Ms. Wetzel are 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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45 provided in Exhibit 4.

1 In my view, pairing Ms. Wetzel with an 2

experienced nuclear executive would provide a unique 3

opportunity for growth and development and exposure on 4

how to develop, as the company's expectations of its 5

leaders were elevated.

6 Ms.

Henderson continued experiencing 7

performance issues with Ms. Wetzel and in April of 8

2016 Ms. Henderson rated Ms. Wetzel as off-track in 9

her midyear performance, as I provided in Exhibit 5.

10 Ms. Wetzel came to be very concerned about 11 this off-track rating. I engaged with Ms. Henderson 12 on ways to performance-manage Ms. Wetzel. At the end 13 of 2016, Ms. Wetzel was not placed on a performance 14 improvement plan and, in fact, was rated solid.

15 On July 3, 2017 I have notes of a 16 discussion I had with Ms. Wetzel about her performance 17 on a written work product, where I provided direct 18 feedback, and frankly, disappointment that some 19 significant talent is in that work product, and we 20 discussed how she could improve.

21 However, on the Anchor/Darling disc gate 22 valve response to the NRC that Ms. Wetzel was 23 responsible for, there were again similar issues with 24 that work product. Namely, Ms. Wetzel provided a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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46 written work product with significant quality gaps to 1

Ms. Henderson very close to when signature on the 2

product was due.

3 Both Ms. Henderson and I had to challenge 4

Ms. Wetzel and her staff to increase the quality in 5

the product before it was submitted, which she 6

ultimately did do.

7 I raise these performance issues only 8

because they informed my understanding at the time 9

that there was some tension between Ms. Henderson and 10 Ms. Wetzel, based on Ms. Wetzel's performance issues.

11 Although they represented a source of 12 tension, I did not in any way perceive that my 13 organization, myself, or Ms. Henderson were being 14 unresponsive to nuclear safety and quality concerns.

15 Rather, as the Anchor/Darling situation reflects, the 16 tension arose from efforts to ensure we were elevating 17 the quality of our regulatory products.

18 Thus, I was not unaware of that tension 19 when Ms. Wetzel approached me in mid-February 2018 20 about the idea of a multi-month and potentially multi-21 year loaned employee arrangement up at the Nuclear 22 Energy Institute in Washington D.C.

23 Based on my recollection, I had a 24 favorable impression and reaction to Ms. Wetzel's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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47 proposal.

1 I personally believe that the industry was 2

best positioned to help itself through NEI by 3

committing talented utility people to work on these 4

issues and initiatives.

5 And I also recall that Ms. Wetzel 6

indicated that an assignment could have had an 7

additional positive attributes, namely, removing her 8

from her stressful situations from her boss. But I 9

recall that Ms. Wetzel only made this comment in 10 passing at the end of our conversation. Nevertheless, 11 the comment was not a surprise to me.

12 I will now turn to describing our process 13 to loan Ms. Wetzel to NEI, but in adhering to the 14 timeline, I first want to discuss Ms. Henderson's 15 harassment complaint.

16 On March 9th at about 3:45, I received an 17 email from Ms. Henderson in which she attached a 18 written statement alleging a hostile environment.

19 This report followed a set of events and 20 circumstances in the days preceding, in which Ms.

21 Henderson had become extremely upset with what she 22 expressed was a sustained pattern of individuals 23 across the regulatory organization conducting 24 themselves in a

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48 unprofessional manner, the result of which, in her 1

opinion, was a hostile environment in which she was 2

precluded from fully discharging the requirements and 3

responsibilities of her position.

4 She was so upset that she nearly quit, and 5

as Ms. Henderson explained to you earlier this week, 6

her March 2018 complaint was not the first time I 7

learned of these issues. She reported some previous 8

occurrences to me and I tried to address them without 9

success.

10 Looking back at this time, I readily 11 acknowledge that Ms. Henderson should not have faced 12 a situation where she believed her only recourse was 13 to quit. To the extent that I did not do enough to 14 address her earlier

concerns, I

accept full 15 responsibility for that.

16 Based on discussions with human resources, 17 the Office of General Counsel, and my management, it 18 was determined that the Office of General Counsel, or 19 OGC, would conduct the investigation into Erin's 20 complaint.

21 To the best of my recollections, this 22 decision was made for a couple of reasons. Human 23 resources was short-staffed at the time, and ECP had 24 already reviewed similar or related issues within the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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49 regulatory affairs extended organization over the 1

previous two years, and might no longer be perceived 2

as sufficiently independent.

3 I recall that after a consultant with 4

senior management, including the Chief Nuclear 5

Officer, Ms. Henderson's complaint was provided to 6

OGC.

7 I was initially the management point of 8

contact for Ms.

Henderson's complaint for 9

approximately one month, as I recall, but that role 10 transitioned to David Czufin. Thereafter, I expected 11 the investigation would proceed on its course and 12 reach the result it would reach.

13 In turning the matter over to OGC in 14 March, I had no expectation that it would find for or 15 against any one of the specific individuals listed in 16 Ms. Henderson's complaint.

17 However, over the course of the next 18 several months, I was confronted with information from 19 Beth Wetzel that I believed could have been related to 20 Ms. Henderson's harassment complaint, and some of 21 which information I believe or knew to be unfounded.

22 As I will detail now, I acted in good 23 faith to see that this information was addressed in 24 accordance with TVA's policies and procedure.

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50 I will now turn to summarize the process 1

to implement Ms. Wetzel's NEI loan assignment. This 2

process began almost immediately after she raised the 3

opportunity in mid or late February. By mid-March the 4

process was well underway.

5 Between March 19 and April 27, 2018, I was 6

copied on numerous emails regarding the contract 7

between NEI and TVA for Ms.

Wetzel's loan 8

reassignment, as well as discussions regarding Ms.

9 Wetzel's NEI loanee confirmation agreement, and her 10 travel reimbursement memorandum.

11 These emails and documents are included in 12 Exhibit 6. While these emails might seem like 13 minutiae, I think it is important here to reiterate 14 how quickly the organization was able to take Ms.

15 Wetzel's request from idea to fruition.

16 Numerous people, including myself, Ms.

17 Henderson, Wes Wingo from human resources, and 18 Jennifer Grace and David Codevilla from the Office of 19 General Counsel were able to effectuate her request.

20 While the information available in Exhibit 21 6 details those interactions, I will highlight a few 22 examples for you here and also on your screen.

23 On March 21, 2018 I had a meeting 24 scheduled for an NEI contract discussion, which 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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51 included Ms. Henderson, myself, Wes Wingo from HR, and 1

David Codevilla from the Office of General Counsel.

2 The next day, March 22, 2018, Mr.

3 Codevilla sent the contract drafts to NEI's attorney.

4 On March 27th, Ms. Henderson sent a 5

follow-up email to her contact at NEI requesting the 6

status of Ms. Wetzel's contract. She then forwarded 7

NEI's response to myself and Ms. Wetzel. Using her 8

own contacts to move Ms. Wetzel NEI's contract forward 9

showed that Ms. Henderson was working to facilitate 10 Beth's assignment.

11 This quick progress in evidence that Ms.

12 Henderson was diligently pursuing the matter, was why 13 I was surprised when I was contacted by Ms. Wetzel 14 while I was on official travel in Oregon on either 15 March 28th or March 29th indicating, in essence, that 16 Ms. Henderson, was foot-dragging on Ms. Wetzel's NEI 17 loanee assignment.

18 Her claim was puzzling and unfounded 19 because, at this time, I was aware of the progress 20 that had been made, particularly that Ms. Henderson 21 had just reached out to NEI to follow up on the 22 progress.

23 In addition, Ms. Henderson forwarded that 24 email exchange with NEI to Ms. Wetzel. That email 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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52 exchange is included in my Exhibit 6.

1 I did not do anything in response to Ms.

2 Wetzel's comment at that time, other than to make a 3

mental note of it.

4 Next in my presentation, I think it is 5

very relevant to briefly go into detail surrounding 6

the TVA travel voucher process. It was during 7

discussions of Beth's travel vouchers that she 8

continued to make inappropriate statements.

9 Relevant here, managers can delegate their 10 review and approval authority for any travel vouchers 11 that do not exceed 100 percent of per diem.

12 Ms. Henderson and I had both delegated 13 this authority to the same person, Carla Edmondson, 14 who was my administrative assistant.

15 I say this because there was no functional 16 difference in whether it was myself or Ms. Henderson 17 who approved Ms. Wetzel's vouchers. Ms. Edmondson 18 reviews and approves the travel vouchers initially, 19 whether or not it is myself or Ms. Henderson who were 20 technically listed as approvers for Ms. Wetzel. Ms.

21 Wetzel had a long, comfortable working relationship 22 with Ms. Edmondson. Ms. Wetzel was very familiar with 23 the travel voucher process.

24 Now that you have a base of understanding 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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53 for events occurring up to this point, I would like to 1

go through the specific statements Ms. Wetzel made 2

during the NEI assignment contracting and travel 3

voucher process, why they raised red flags to me, and 4

how I addressed them.

5 Soon after Ms. Wetzel contacted me in 6

Oregon, she sent me an email on March 29th, alleging 7

that Ms. Henderson was trying to block her NEI loanee 8

assignment.

9 I will read from the parts, relevant parts 10 of the email, which is in Exhibit 7. In this email, 11 Ms. Wetzel alleged that we were not using the same 12 contract for her assignment that were used in previous 13 loanee assignments and alleged that Ms. Henderson was 14 attempting to block her loanee opportunity.

15 She alleged, if my boss is going to be 16 unreasonable with NEI and effectively block my loanee 17 opportunity, would you please tell me so I know what 18 to do next?

19 I was struck by this allegation because it 20 was so apparent that Ms. Henderson had been working 21 diligently for Ms. Wetzel's loanee assignment and Ms.

22 Wetzel had seen this same correspondence.

23 Indeed, a few hours after Ms. Wetzel's 24 email, Ms. Henderson forwarded me the latest markup of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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54 the contract, as you can see in Exhibit 8.

1 It was also not true that Ms. Henderson 2

had imposed the use of an inappropriate contract 3

template. The contract template we were using was 4

negotiated between TVA and NEI and had changed under 5

purview of TVA and NEI attorneys since the prior 6

examples Ms. Wetzel cited in her email.

7 I did not take any actions at this time, 8

other than asking Ms. Wetzel to speak to Mr. Codevilla 9

in OGC about her concerns. Again, it was Mr.

10 Codevilla drafting the contract, not Ms. Henderson.

11 As you can see in Exhibit 6, Ms. Wetzel 12 was copied on several subsequent iterations of the 13 contract and had a few back and forth exchanges with 14 Mr. Codevilla.

15 I did not do anything further with Ms.

16 Wetzel's March 29 email.

17 Now, for just a few dates before I go onto 18 the next email, Ms. Wetzel's contract with NEI was 19 fully executed by all parties on April 13 and is 20 provided in your Exhibit 9.

21 Ms. Henderson signed a loanee letter to 22 Ms. Wetzel on April 27, 2018, notifying Ms. Wetzel 23 that she would be in continuous travel status for the 24 NEI assignment, with details as provided in your 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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55 Exhibit 10.

1 Ms.

Wetzel started her NEI loanee 2

assignment on or about April 29.

3 From the best of my recollections, the 4

initiation of Ms. Wetzel's NEI assignment had 5

progressed smoothly from the time that she started on 6

April 29.

7 However, on May 7, 2018, Ms. Wetzel sent 8

an email to me expressing concern regarding the lack 9

of detail in her travel reimbursement memorandum. She 10 observed, in effect, that it was less detail than she 11 desired.

12 Specifically, her email stated, I am 13 concerned with the lack of commitment to write the 14 details that we worked on as a team for my TVA 15 reimbursements, and said she was shocked to see what 16 Erin sent out.

17 It was, to a large degree, true that we 18 had discussed providing a discussion of the treatment 19 of likely expenses in her memo. However, I later 20 learned from the Office of General Counsel that 21 providing such a detailed explanation may put TVA at 22 risk of violating the federal travel regulations if 23 TVA's own memo conflicted with those regulations for 24 Ms. Wetzel's reimbursements.

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56 Thus, her travel memorandum simply stated 1

that she would be reimbursed in accordance with the 2

applicable federal travel regulations, which are 3

subject to change at any time. Preparing the travel 4

memorandum in this way was consistent with prior 5

practice.

6 Ms. Wetzel's email continued, and I was 7

very distinctly disturbed by the second element of the 8

email, which is provided in Exhibit 11 and which is 9

displayed on your screen, and which I will quote here.

10 Quote, I will be processing large travel 11 vouchers through Carla, and will follow all TVA, 12 federal, and NEI requirements to the best of my 13 ability. I know I will get audited, based on the 14 amount of dollars that will be processed through 15 vouchers, and I believe all the research the team did 16 will result in clean audits.

17 However, I know that Erin has used HR to 18 investigate people, reported people to ECP, threatened 19 to have people for-cause drug tested, pulled badge and 20 gate records, and probably a lot more actions that I'm 21 not aware of.

22 She has demonstrated a longstanding 23 pattern of using TVA processes as punitive and 24 retaliatory tools. Based on the lack of detail in her 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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57 NEI loanee confirmation 2018 document, I anticipate 1

her using my travel vouchers as an investigative tool.

2 Unquote.

3 These allegations concerned me. I thought 4

it was unusual that Ms. Wetzel would raise Ms.

5 Henderson's reporting of issues through HR, given that 6

as a leader, if Ms. Wetzel thought about that at all, 7

she would recognize that Ms. Henderson was obligated 8

to have a potential HR conflict addressed.

9 As I stated in my OI interview, I was 10 aware of and involved in the decision to inform Human 11 Resources of the ethics concern involving Michelle 12 Conner and Mr. McBrearty. We were required to raise 13 that issue, based on the information we had.

14 Related to that issue, I also knew that 15 Ms. Henderson could not have had badge and gate 16 records pulled from her instruction based on her 17 position, and I suspect that Ms. Wetzel knew this too.

18 For another example, I was aware that on 19 February 23, 2018, Ms. Henderson had relayed a concern 20 to HR raised by one of her direct reports regarding an 21 incident where another employee had raised concerns of 22 a chilled work environment against 23 Again, Ms. Henderson was required to 24 request such an investigation where those concerns 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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58 were raised. And that HR investigation substantiated 1

that allegation.

2 However, the most troubling statement from 3

Ms. Wetzel was the unfounded assertion that Ms.

4 Henderson had taken probably a lot more actions that 5

I'm not aware of.

6 These words in particular demonstrated to 7

me that Ms. Wetzel was comfortable spreading false, or 8

at least unsubstantiated, information about Ms.

9 Henderson by stating this to me. By the very words 10 Ms. Wetzel used, actions that I am not aware of, she 11 acknowledged the unfounded nature of the reference to, 12 probably a lot more actions.

13 Finally, Ms. Wetzel also proposed in her 14 email that I be her approver on travel vouchers. This 15 was odd as I previously explained Ms. Edmondson 16 approved the travel vouchers initially, whether or not 17 it was myself or Ms. Henderson which were technically 18 listed as approvers for Ms. Wetzel.

19 Upon my concern in reading the allegation 20 in Ms. Wetzel's email, I forwarded the email to Amanda 21 Poland in HR and Jennifer Grace at OGC, as shown in 22 Exhibit 12 and as you can see on your screen.

23 The NRC Office of Investigation report 24 suggests, at Page 43, that it was inappropriate for me 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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59 to send Ms. Wetzel's email to OGC when I knew that OGC 1

was investigating Ms.

Henderson's harassment 2

complaint.

3 I disagree, and more importantly, that 4

mischaracterizes what I did. As I stated at the 5

beginning of today's presentation, I sought advice 6

from internal resources when I was unsure how to 7

proceed.

8 Here, I sought advice on how to handle Ms.

9 Wetzel's allegations and whether they should be 10 provided to John Slater within the scope of his 11 current OGC investigation, or an alternate approach.

12 Either struck me as reasonable.

13 On one

hand, the ongoing Slater 14 investigation was intended, in my mind, to examine 15 into the full set of facts behind Ms. Henderson's 16 claims, including any involvement by Ms. Wetzel, even 17 if that investigation ultimately found that Ms.

18 Henderson's claim was not valid or valid only in 19 parts.

20 On the other hand, I also stated in my 21 email, please advise if you agree or see a different 22 way to act on this. My meaning was that, if OGC felt 23 a

different

approach, such as a

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60 been reasonable as well.

1 At that time, I did not have any direct 2

knowledge about what Ms. Wetzel had told the attorney 3

investigator, because the investigation was still 4

ongoing.

5 Ms. Grace of OGC responded that same day, 6

writing, thank you, I will provide this to Mr. Slater.

7 I was the person who interfaced with HR manager Wes 8

Wingo on outlining her travel details, so I am 9

familiar with this. This response is also provided in 10 Exhibit 12.

11 The following week, I responded to Ms.

12 Wetzel's May 7 email, having received input from Ms.

13 Grace on how to respond, as provided in Exhibits 13 14 and 14.

15 I explained to Ms. Wetzel why TVA decided 16 to not write a separate memo for her on the federal 17 travel regulations. Ms. Wetzel had requested a 18 detailed memorandum on her obligations under the 19 federal travel regulations, which I

initially 20 supported, but it was later determined by OGC that we 21 should not attempt to rewrite the federal travel 22 regulations ourselves, and rather, direct Ms. Wetzel 23 to the original document.

24 I then addressed the allegations she had 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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61 made against Ms. Henderson, stating, as a separate 1

matter, you raised some very serious assertions 2

against your supervisor. I have turned these over for 3

further evaluation to an appropriately independent 4

review party. You may be apprised of any conclusions, 5

if it is appropriate to share, when that review is 6

completed.

7 As a result, I understood, at this time, 8

that the items listed in Ms. Wetzel's May 7 email 9

would be addressed by the ongoing independent 10 investigation into Ms. Henderson's complaint being 11 conducted by OGC.

12 By May 31, 2018, I received a copy of the 13 original investigation report put together by Mr.

14 Slater in TVA OGC, which was dated May 25, 2018. This 15 report is provided in your Exhibit 15.

16 The report discussed a number of the 17 elements that had been raised in Ms. Henderson's March 18 9 complaint. However, I noted after I received it 19 that the report did not mention the travel claim 20 process issues I had forwarded to Jennifer Grace, 21 including the May 7 email references.

22 Thus, on May 31, 2018, I emailed Emily 23 Walker in HR and copied Jennifer Grace and others, 24 noting my concern that the Slater report did not have 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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62 a reference to Ms. Wetzel's email allegations.

1 Specifically, as you can see on your 2

screen and in Exhibit 16, I wrote in part, I think 3

this is a relatively simple matter of an additional 4

interview with Beth and Erin that pulls the string on 5

each of Beth's itemized assertions.

And I

6 specifically think what's missed in the OGC treatment 7

of Beth's emails is the assertion that Erin initiated 8

HR investigations in a retaliatory or vindictive 9

manner.

10 I strongly suspect that was actually a 11 reference to the 2018 investigation Arcie Reeves did 12 of regarding the claim by one of 13 employees that had chilled the employee over a 14 safety culture matter. Which sounds similar to the 15 protected whistleblower aspect that Johnny so 16 thoroughly documented for Mike McB.

17 Regardless, again, regardless, I need 18 support in getting specific facts, analyses, and 19 conclusions that are independent.

20 Independent, as I used it in this context, 21 meant simply analyses and conclusions draw by a party 22 not linked organizationally close to me, Ms.

23 Henderson, or any of the individuals named by Ms.

24 Henderson.

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63 Finally, I advised that I looked forward 1

to OGC drawing equally well-documented analyses on Ms.

2 Wetzel's allegations, quote, whatever they might be.

3 I want to pause here so we can reflect a 4

moment on this email. When I wrote it over two years 5

ago, I certainly never considered that I would be 6

sitting here in front of the NRC today reading it to 7

you in an effort to demonstrate that I did not engage 8

in deliberate misconduct, but this is the email that 9

I wrote.

10 And to me, no matter the outcome of this 11 proceeding, this email shows that I absolutely was not 12 intending to take an action that would cause a 13 violation of NRC's employee protection requirements.

14 This email shows that I was looking for independent 15 facts, analyses, and conclusions, as I do in any 16 investigation.

17 In response to my May 31 email, Jennifer 18 Grace from OGC stated that she, quote, strongly 19 disagreed that any investigation of Beth's allegation 20 in her email is warranted. In fact, I think any 21 further investigation would do more harm than good, as 22 it allows the harassing behavior that was identified 23 in John's report to be perpetuated.

24 Ms. Grace goes on to say that John 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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64 confirmed that he considered Beth's email during the 1

investigation and that he concluded that the email was 2

simply further evidence of the pattern of harassing 3

behavior that had been occurring over the last several 4

years, unquote. You can see this in Exhibit 17 and 5

also on your screen.

6 I recall that there were also concerns 7

about management being viewed as allowing further 8

harassment to occur.

9 Based on Ms. Grace's reasoning and strong 10 disagreement, I personally did not pursue further 11 investigation of Ms. Wetzel's allegation. Had I 12 disagreed with the recommendation, I would have said 13 so. As I described in my opening, I am not hesitant 14 to push back on issues where I disagree.

15 Ms. Grace also forwarded a footnote 16 drafted by Mr. Slater, which addressed Ms. Wetzel's 17 May 7 email.

18 The footnote, which is available in 19 Exhibit 17, noted that two of the allegations Ms.

20 Wetzel made in her May 7 email against Ms. Henderson, 21 reportedly inappropriately having people investigated 22 by HR and pulling of gate records, were the same 23 unfounded allegations made in her interview during the 24 OGC investigation and did not warrant further follow-25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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65 up.

1 At this time, I further understood that 2

the OGC investigation report was going to be subject 3

to further review and revision.

4 About a week later, on June 9, 2018, I 5

received another email from Ms. Wetzel, as shown in 6

Exhibit 18 and also on your screen.

7 Her email stated in part, I know I've got 8

to get my travel in. This is getting ridiculous. We 9

are now floating my rent. But I've been afraid of 10 what will happen as soon as I start submitting 11 vouchers. I don't even try to understand my boss and 12 why she does what she does, but I do know that she 13 never gives up.

14 At this point in time, Ms. Wetzel had 15 submitted no travel vouchers for approval and, indeed, 16 did not submit her final vouchers for her May travel 17 until June 29, nearly three weeks after this email.

18 Thus, it was strange to me that she was complaining 19 about floating her rent when she had not completed any 20 vouchers and Carla had informed her to pay her rent on 21 the corporate card so this issue did not occur.

22 Ms. Wetzel responded with more of the 23 same, just stating, it's ridiculous, because I'm 24 afraid and haven't submitted. So now, we're floating, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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66 no action has been taken to my knowledge yet. The 1

latter part indicating that she did not believe Ms.

2 Henderson had yet done anything at all.

3 As I had done with my May 7 email, and in 4

light of the concerns that Ms. Grace shared with me on 5

May 31, that Ms. Wetzel not be allowed to continue her 6

behaviors, I forwarded this email exchange to Jennifer 7

Grace, asking that it be included for discussion. And 8

you'll see in Exhibit 19.

9 Throughout all these circumstances, I 10 thought I was doing the right thing.

11 On June 11, Jennifer responded to my 12 email, noting, it sounds like Beth is continuing with 13 some of the behaviors that John substantiated in his 14 report are part of the creation of the hostile 15 environment. A discussion needs to be had with Beth 16 ASAP. However, I think we need to have final 17 discussion with respect to Mike McBrearty before we 18 can talk to her or any of the others. This email is 19 in Exhibit 20.

20 While I awaited further instructions from 21 Ms. Grace, Ms. Wetzel continued these behaviors and 22 sent me texts in late June or early July. These are 23 provided in Exhibit 21 and also on your screen.

24 Ms. Wetzel texted me that she was getting 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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67 different directions from management that could be 1

hanging things up. I attempted to find out the basis 2

for her statement. I responded, what are you 3

referring to as different directions from management?

4 Since Carla and I are actively engaged in your May 5

package, what is leading you to believe that there is 6

such a different direction? Ms. Wetzel responded 7

only, past experience.

8 Again, I found these statements not 9

credible, because, as noted earlier in my 10 presentation, no matter whether myself or Ms.

11 Henderson was assigned to review Ms. Wetzel's travel 12 vouchers, it would normally be Carla Edmondson who 13 reviewed and approved them.

14 In addition, as I noted to Ms. Wetzel, I 15 and Carla were actively engaged in your package. Erin 16 was not involved with the May package at all.

17 Furthermore, I had no indications that Ms. Henderson 18 had ever made beyond a routine inquiry into Ms.

19 Wetzel's travel vouchers.

20 In fact, for the purposes of this PEC, we 21 reviewed expense voucher records and confirmed that 22 when Ms. Henderson was responsible for approving Ms.

23 Wetzel's travel vouchers, the average number of days 24 from submission to approval was a little less than 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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68 three days.

1 We also identified an email from January 2

of 2018, that's January of 2018, which you can see on 3

your screen, where Ms. Wetzel admitted to an 4

inadvertent mistake on her travel vouchers to me and 5

Ms. Henderson provided support for Ms. Wetzel. That 6

email is provided as Exhibit 22.

7 This interaction contradicts the statement 8

on Page 8 of the OI report that Ms. Wetzel, quote, 9

knew that if she got in trouble for violating any 10 travel policies, she would be terminated.

11 Again, in an effort to determine the basis 12 for her statement, I asked Ms. Wetzel, if you have a 13 factual basis for your assertion, please provide that.

14 And I also emphasized again she could pay her rent 15 with the corporate card.

16 As far as I recall, Ms. Wetzel did not 17 provide a basis for her assertion. Similar to the 18 reference in the May 7 email to probably a lot more 19 actions that I'm not aware of, I found the response 20 past experience as highly pejorative, yet without 21 specificity for me or anyone else to do anything with.

22 And when we looked into the issue for the 23 purposes of this case, there didn't seem to be any 24 past experience for her to rely on.

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69 Finally, on July 2, I called Ms. Wetzel 1

from my office, in the presence of Carla Edmondson, to 2

further explain her allegations against Ms. Henderson, 3

but Ms. Wetzel provided nothing further.

4 Ms. Wetzel discussed this phone call in 5

the NRC OI

report, and I

will address her 6

characterization of it later in this presentation.

7 As you can see from these exhibits, 8

emails, and texts, Ms. Wetzel made a number of 9

unfounded accusations and unprofessional statements 10 towards Ms. Henderson.

11 I will now turn to how I and our 12 organization addressed those statements.

13 On August 10, 2018, a memorandum was 14 issued to me enclosing a final copy of the 15 investigation report prepared by the Office of General 16 Counsel into the allegations of harassment raised by 17 Erin Henderson. This report is provided in Exhibit 18 23.

19 This memorandum was signed to me directly 20 by TVA's Executive Vice President and General Counsel.

21 The fact that not only had the Executive Vice 22 President and General Counsel signed it, but moreover, 23 the Executive Vice President and General Counsel 24 functions as TVA's designated agency ethics official, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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70 which in my federal experience has great significance 1

and made an impression on me.

2 At the time, I perceived this as the 3

senior-most agency official responsible for 4

determining what constituted or didn't constitute a 5

breach of the ethics standards that TVA implements as 6

a federal agency.

7 At a minimum, I could not ignore the 8

authority of the General Counsel position from which 9

that opinion was issued.

10 After the report was issued, on August 16, 11 2018, a teleconference was held with TVA's senior 12 executive leadership, including a number of members of 13 the TVA-wide executive leadership team, to discuss the 14 August 10 investigation report.

15 My handwritten notes from the meeting 16 indicated that we very briefly discussed Ms. Wetzel's 17 behavior during the call. My notes state that Ms.

18 Grace indicated that Ms. Wetzel's, quote, types of 19 behaviors are harassing, comma, still reviewing, 20 unquote, and are provided in Exhibit 24.

21 I would like to take a moment to correct 22 the record here. During my OI interview for this case 23 related to Mr. McBrearty, I mistakenly indicated that 24 I did not have notes from this meeting. This is on 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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71 Page 116 of my interview transcript.

1 During my interview, I had several Xeroxed 2

copies of my handwritten notes, but not the full 3

notebooks, and several other documents with me. And 4

I referred to some of those records throughout my 5

interview, as my transcript indicates.

6 In preparing for this PEC, I reviewed my 7

complete notebooks again and identified that in fact 8

I did have some handwritten notes from this meeting.

9 Had I identified those notes during the interview, I 10 certainly would have shared them with the 11 investigator, because they show that the discussion on 12 Ms. Wetzel was that her behaviors are harassing and 13 still being reviewed.

14 Following this meeting, and based on 15 discussions I had with OGC, my understanding was that 16 OGC was continuing to review Ms. Wetzel's behaviors 17 and would make a recommendation.

18 Here, I'd like to pause and note an event 19 that will help explain my thinking at the time. I had 20 originally been scheduled to perform a performance 21 review for Ms. Wetzel at the end of August and still 22 intended to have it with her and to discuss the 23 results of the OGC investigation and the August 10, 24 2018 final report.

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72 I knew I would need assistance from the 1

appropriate internal resources on how to handle such 2

a review in light of the still forthcoming and yet 3

unknown to me recommendation from OGC.

4 To that end, on August 20, I sent my draft 5

talking points for Ms. Wetzel's performance review 6

meeting to Jennifer Grace, Emily Walker, Amanda 7

Poland, and Chris Chandler. These are provided in 8

Exhibit 25 and also excerpted on your screen.

9 I believe you can see that the proposed 10 talking points are a

good indicator of my 11 contemporaneous thinking, before I had received any 12 recommendation from OGC on potential discipline or 13 lack thereof, and specifically that I had no 14 preconceived notion of the outcome for Ms. Wetzel and 15 I had no intent to retaliate against her.

16 In fact, my talking points stated that the 17 investigation identified you as a contributor to the 18 hostile work environment. Specifically of concern is 19 that you were identified as having repeatedly 20 represented that your supervisor initiated 21 investigation and had individuals' gate records 22 examined.

23 Of concern is that you could have no 24 specific knowledge that she's had people's gate 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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73 records pulled because, in fact, an individual manager 1

cannot unilaterally order such an action.

2 The primary phase of the investigation has 3

been completed, however, no specific decisions have 4

been made regarding your behavior and the apparent 5

violation of TVA policies and/or potential violation 6

of federal law have been made. It is expected that 7

determinations in that regard will be made in coming 8

weeks.

9 I specifically reiterated in my proposed 10 talking points that Ms. Wetzel should continue to 11 raise concerns regarding nuclear safety or any aspect 12 of the organization that she believed can make the 13 organization and its people operate better.

14 Ultimately, I received feedback from OGC 15 that a pre-meeting of this sort was not part of our 16 normal process and we would not normally give an 17 employee an early look at the results of an 18 investigation before we were ready to pronounce 19 discipline or disposition of the matter.

20 Again, at this point in time, I had no 21 indication of what the recommendation of OGC was going 22 to be. And again, I stated to Ms. Grace that I looked 23 forward to the recommendation, whatever it may be.

24 Thus, on that advice, I decided to cancel 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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74 the August 31, 2018 performance evaluation meeting 1

with Ms. Wetzel.

2 The next day, August 30, 2018, OGC issued 3

its supplemental memorandum and recommendations with 4

respect to Ms. Wetzel. The NRC is already in 5

possession of this memorandum and I will refer to non-6 attorney-client privileged portions of the cover page 7

here.

8 The legal memorandum found that Ms. Wetzel 9

engaged in harassment, retaliation, and the creation 10 of a hostile work environment with respect to Ms.

11 Henderson, in violation of multiple TVA policies and 12 federal law.

13 The memorandum recommended that Ms.

14 Wetzel's employment with TVA be terminated as a result 15 of her involvement in a pattern of harassment and 16 retaliation directed at Ms.

Henderson.

OGC 17 recommended separating Wetzel from company, whether 18 through a

no-fault separation agreement or 19 termination, either of which I could pursue at my 20 discretion.

21 It was my understanding that the 22 recommendations in this supplemental memorandum were 23 not only based on what was in the Slater report, but 24 also on Wetzel's ongoing harassing behavior that had 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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75 continued through and after the May 25 Slater 1

investigation and report.

2 I agreed with OGC's recommendation. As I 3

stated at the beginning of my presentation, I have no 4

issues raising hard questions to management, but I 5

agreed with the reasoning from OGC and believed I had 6

a duty to ensure a harassment-free workplace.

7 I will now turn to the steps I took to 8

separate Ms. Wetzel from the company, including the 9

required processes that I followed to ensure the 10 proposed separation complied with applicable 11 requirements and not based on retaliation for 12 protected activities.

13 On September 19, 2018, TVA conducted an 14 Executive Review Board, or ERB, to review the adverse 15 employment action for Ms. Wetzel. The ERB is composed 16 of TVA personnel who are independent of the proposed 17 adverse employment action. The purpose of the ERB is 18 to ensure that the proposed adverse employment action 19 is consistent with company practices and not based on 20 retaliation for protected activities.

21 From my handwritten notes, I recorded the 22 participants as Steve Bono, Senior Vice President for 23 Operations and ERB Chair, Ryan Dreke, OGC, Arcie 24 Reeves, Human Resources, Joe Calle, the adverse 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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76 employee action process owner, Inza Hagins-Dyer, 1

Senior Manager of Employee Concerns Program, Deanna 2

Fultz, Employee Concerns Program Specialist for the 3

corporate office, and John McCann, who served as the 4

individual providing independent auditing of TVA's 5

implementation of the adverse employee action and 6

Executive Review Board process, per the Confirmatory 7

Order. The final ERB is included in Exhibit 26.

8 The ERB is governed by TVA Procedure STP-9 01.7.4, adverse employee action, and the Executive 10 Review Board.

11 As you know, the TVA adverse employee 12 action process has been the source of appropriate NRC 13 concern regarding its effective implementation for a 14 period of time since 2009 and the ERB process was 15 developed in and around the 2017 Confirmatory Order, 16 which I was involved in implementing.

17 We took action following the 2017 18 Confirmatory Order to improve rigor around several key 19 leadership steps, including to ensure the discipline 20 is not taken because an employee engaged in activities 21 protected by the employee protection regulations in 10 22 CFR 50.7.

23 Given my involvement in implementing the 24 2017 Confirmatory Order, my intent was to follow the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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77 process closely. For this particular, ERB, my role 1

was to serve as the presenting manager.

2 From my perspective, the other 3

participants, including our Senior Vice President for 4

Operations and our external advisor, as well as the 5

HR, ECP, and OGC participants, is that they understood 6

the clear distinction between protected activities and 7

non-prohibited considerations.

8 I had had interactions with all of them on 9

numerous issues over an extensive period of time. I 10 believed that, individually or collectively, they 11 would ensure that the proposed action could proceed 12 only if they were convinced that it was based on non-13 prohibited considerations.

14 My recollection is that I presented the 15 fact-finding portions of the Board and the answers to 16 the questions that I was procedurally required to, and 17 then I was dismissed while the Board considered the 18 questions reserved for the Board only, Questions 14 to 19 19.

20 My experience was

that, since the 21 implementation of enhancements from the 2017 22 Confirmatory Order, the process was taken very 23 seriously.

24 My overall recollection of the ERB was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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78 that it was challenging. However, everyone was in 1

agreement that the proposed action was not in 2

retaliation for raising protected concerns and the ERB 3

did not object to proceeding with the adverse action.

4 I would like to specifically point to 5

Question 15 of the ERB, which the OI agent looked to 6

in his analysis. The question states, does it appear 7

the individual's involvement in a protected activity 8

contributed in any way to the proposed action 9

recommendation?

10 While I was not present for this portion 11 of the ERB, per procedure, the ERB checked no for that 12 question. The ERB feedback added an explanation that 13 Ms. Wetzel was involved in the OGC investigation, as 14 described in the August 10, 2018 report.

15 I understood that this was an attempt to 16 acknowledge that while Ms. Wetzel had participated in 17 the investigation, her mere participation in that 18 investigation had no bearing on the reason for the 19 disciplinary action.

20 At the end of the day, the truth is that 21 both myself and, I am confident, the ERB believed we 22 had doggedly attempted to evaluate the collection of 23 protected and non-protected activities, separate them, 24 and focus solely on the non-protected activities, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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79 including that it was appropriate to move forward, and 1

any portrayal to the contrary, in my opinion, is not 2

accurate.

3 As I noted, John McCann attended the ERB 4

in his auditing role. A copy of his audit report that 5

included this ERB is provided at Exhibit 27.

6 He wrote in his report, with respect to 7

all of the ERBs he audited during that period, which 8

included the September 19 Wetzel ERB, the discussion 9

included both the consideration of potential for 10 harassment, intimidation, retaliation, and 11 discrimination, and the potential impact on the SCWE.

12 SCWE mitigation plans were reviewed by the 13 ERB and approved as appropriate. The documentation 14 packages were prepared prior to the meeting and the 15 meeting discussions were focused on the potential 16 safety culture issues.

17 Personnel in attendance demonstrated a 18 good understanding of the purpose of the meeting and 19 the relationship between required discipline and 20 potential safety culture and Safety Conscious Work 21 Environment impacts.

22 The overall quality and consistency of ERB 23 meetings continues to improve throughout the fleet.

24 This is now a mature and well-understood process.

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80 Again, these observations related to all 1

of the ERBs Mr. McCann had observed in that period.

2 As relevant, Mr. McCann did not make any negative 3

findings about the September 19 ERB.

4 Finally, I would like to address the fact 5

noted in the OI report that the ERB was signed on 6

October 16 and 19 by the ERB members, while Ms. Wetzel 7

was placed on paid administrative leave on October 15.

8 I can understand why this might not be clear.

9 However, we acted consistent with TVA procedure.

10 Ms.

Wetzel was placed on paid 11 administrative leave on October 15. As the OI report 12 notes on Page 20, excerpted on your screen, the 13 initial voluntary separation agreement was dated 14 October 25, 2018, which was the date that myself and 15 Ms. Poland met with Ms. Wetzel and provided her no-16 fault separation agreement.

17 This occurred after Steve Bono, the ERB 18 Chair, signed the ERB Record of Action on October 19, 19 2018.

20 The OI report states, on Pages 20 and 46, 21 that Ms. Wetzel was provided a no-fault separation 22 agreement for the first time on October 15, 2018.

23 That is incorrect. My talking points in the October 24 15, 2018 meeting state, the terms of a no-fault 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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81 separation agreement had not yet been set.

1 Further, Ms. Wetzel's Department of Labor 2

complaint and the December 18, 2018 ERB update both 3

confirm that Ms. Wetzel was provided her first no-4 fault separation agreement on October 25, 2018.

5 An excerpted copy of the adverse action 6

ERB procedure in place at that time is my Exhibit 28, 7

which is excerpted on your screen. As you can see, 8

no-fault separation agreements do require an ERB, 9

while actions for paid administrative leaves are not 10 specifically listed.

11 After vetting the action through the ERB 12 process, I decided it was best to raise these issues 13 with Ms. Wetzel at her performance review scheduled 14 for October 15, 2018.

15 That morning, I emailed my talking points 16 to Amanda Poland, of which you can find a copy in 17 Exhibit 29. My talking points detailed the legal 18 reasoning and conclusions from the August 30, 2018 19 supplemental OGC memorandum.

20 I further stated that TVA was prepared to 21 offer Ms. Wetzel a no-fault separation agreement in 22 lieu of termination, but the terms of the no-fault 23 separation agreement had not yet been set, so that Ms.

24 Wetzel could have time to reflect on matters that may 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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82 be of interest to her in negotiating such an 1

agreement.

2 My talking notes also clearly stated that 3

should you choose not to accept a no-fault separation 4

offer, TVA is prepared to move to termination.

5 As of that meeting, Ms. Wetzel was placed 6

on paid administrative leave.

7 Between October 15 and November 16, 2018, 8

I have several documented discussions between myself 9

and HR regarding the terms of Ms. Wetzel's no-fault 10 separation agreement. One of those drafts is provided 11 in Exhibit 30.

12 I recall that I was very conscious that 13 Ms. Wetzel was close to her eligible retirement age, 14 and I wanted to make her landing as soft as possible 15 and wanted to ensure that whether it was paid or 16 unpaid, she received creditable service from TVA up to 17 her eligible retirement date.

18 As provided in Exhibit 31, Ms. Wetzel 19 initially signed a no-fault separation agreement, 20 which addressed her retirement concerns, on December 21 5, 2018, but I believe, consistent with standard TVA 22 no-fault separation terms, was given seven days to 23 rescind her signature.

24 The next day, December 6, we received a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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83 letter from Ms. Wetzel's attorney indicating that Ms.

1 Wetzel may be considering withdrawing her signature 2

and making further demands for negotiation.

3 Then, on December 10, Ms. Wetzel, through 4

her attorney, notified TVA that she had begun the 5

process of mediating her issues through the NRC and 6

requested an additional seven days within which to 7

rescind the no-fault separation agreement.

8 TVA reviewed the request, but as it had 9

been engaging in negotiation with Ms. Wetzel since 10 mid-October and previously granted a

two-week 11 extension, TVA declined to offer a

further 12 counterproposal or grant the seven-day extension.

13 Ms. Wetzel then rescinded the no-fault 14 separation on December 11, within the allotted seven 15 days.

16 The ERB alternative to a

no-fault 17 separation agreement was to implement a contingency 18 plan for termination, which was what was put into 19 motion after Ms. Wetzel rejected the no-fault 20 separation.

21 On December 18, an ERB update meeting was 22 held to review additional information, after Ms.

23 Wetzel rejected the no-fault separation agreement, as 24 provided in Exhibit 32. Once again, the ERB had no 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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84 objection.

1 Accordingly, Ms. Wetzel was terminated on 2

January 14, 2019. The termination letter is provided 3

as Exhibit 33.

4 In summary, ultimately, I took action to 5

terminate Beth Wetzel because I believed she was 6

engaged in disrespectful and harassing conduct towards 7

Erin Henderson and I believed it was my responsibility 8

to ensure a respectful and harassment-free workplace.

9 These circumstances were not easy. And I 10 want to emphasize that, as I detailed here today, I 11 took appropriate caution by seeking out advice and 12 input from the appropriate resources within TVA, and 13 ultimately, I acted only after the ERB had vetted the 14 proposed action.

15 In addition to the factual events, there 16 are several issues and contextual perspectives that I 17 want to briefly address. These are issues that are 18 touched on in the OI report or are considerations in 19 the NRC enforcement process.

20 First, to be clear that at no point in 21 time did any technical or nuclear safety issue raised 22 by Ms. Wetzel play any part in the decision to 23 separate her from the company. As I read it, even the 24 NRC OI report does not make that finding. The OI 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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85 report claims it was Ms. Wetzel's alleged chilled work 1

environment statements that contributed to her 2

termination.

3 I will address that issue in a moment, but 4

I want to be clear that any nuclear safety issue Ms.

5 Wetzel raised had no role. If you have any questions 6

for me on this topic I'm happy to address them.

7 At this time I will turn to my specific 8

concerns with the NRC's analysis in the OI report. I 9

have laid out five specific issues, which you can see 10 listed on your screen for reference.

11 First, I would like to address the OI 12 report's analysis of whether Ms. Wetzel alleged 13 protected activities contributed to her termination.

14 The primary basis for OI's findings, and indeed DOL's 15 August 29th conclusion, which were never litigated, 16 appear to be that Ms. Wetzel participated in a chilled 17 work environment assessment when interviewed by OGC 18 Attorney John Slater and that she raised potential 19 chilled work environment concerns to Mr. Slater in 20 that interview and to me in her emails.

21 I must reiterate that at no time did I 22 have any cause to believe that Mr. Slater was 23 conducting a chilled work environment assessment or 24 that information provided to Mr. Slater could be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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86 construed as a chilled work environment concern.

1 I knew him to be conducting an independent 2

harassment investigation. The OI report states as 3

much on Page 43.

4 At that time, Shea knew that TVA OGC 5

investigation was looking into whether Wetzel and 6

others were creating a harassing environment for 7

Henderson. That is the only lens with which I viewed 8

the results of Mr. Slater's investigation.

9 The NRC may have a different view of these 10 circumstances, but here it has been alleged that I 11 deliberately acted with an intent to discriminate 12 based in part on statements that Ms. Wetzel made. It 13 is therefore my intent that must be considered and I 14 had no such intent.

15 The purpose of having the harassment claim 16 investigated by an independent investigator, Mr.

17 Slater, who was new to all of the issues and 18 individuals was, in part, to establish what had 19 actually occurred within the organization.

20 Even if Ms. Wetzel herself believed that 21 she was participating in a chilled work environment 22 assessment, I had no indication that was her belief.

23 Rather, I advanced the action against Ms. Wetzel 24 because, one, OGC concluded that she had participated 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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87 in a, quote, pattern of harassment and retaliation, 1

unquote, against Ms. Henderson.

2 Two, that Ms. Wetzel had made one or more 3

significant unfounded statements directly to me 4

outside of the Slater investigation. Specifically the 5

May 7th assertion of, quote, probably a lot more 6

actions than I'm not aware of, unquote, and her 7

assertion of, quote, past experience, unquote, without 8

more detail.

9 And three, my perspective that OGC in 10 drawing their August 30th conclusions, had taken into 11 account the totality of Ms. Wetzel's representations, 12 including both those made to Mr. Slater and those not 13 made to Mr. Slater in his interview.

14 Second, the OI report finds that the 15 statements Ms. Wetzel made were accurate and truthful 16 to the best of her knowledge because they were, quote, 17 rooted in truth in that the activities occurred but 18 were arguably not based on the reasons that Ms. Wetzel 19 believed, unquote.

20 This is a troubling finding because 21 certain of her assertions were not reasonably rooted 22 in any truth. Rather, what is troubling is that OI 23 and DOL analyses ignore the statement in her May 7th 24 email that Erin was allegedly responsible for certain 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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88 harassing actions and, quote, probably a lot more 1

actions that Ms. Wetzel was not aware of, unquote.

2 Which in my mind crossed an unacceptable line.

3 There was then and is now, no intellectual 4

or ethical construct I can conceive of on a broad 5

sweeping indictment with no specificity, taken to be 6

accurate or grounded in truthfulness when the words 7

admit to no actual knowledge of the truth.

8 To extent that the NRC analysis ignores 9

that particular statement in its analysis, it is 10 difficult to understand what would ever be considered 11 a non-prohibited grounds under 10 CFR 50.7(d).

12 Third, Ms. Wetzel is characterized in the 13 OI report as saying that she did not provide any 14 further details on the July 2nd phone call due to the 15 presence of Carla Edmondson because she thought I was, 16 quote, trying to catch her saying something negative 17 about a management to subordinate, which is against 18 TVA policy, unquote.

19 It is not true that I was trying to catch 20 her. People don't get caught in being asked to 21 amplify a previous remark. Even if there were some 22 inadvertent confusion caused by my part, including Ms.

23 Edmondson on that phone call, it should be noted that 24 twice before I had given Ms. Wetzel the opportunity to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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89 elaborate on her allegations against Ms. Henderson to 1

me alone.

2 The first time in my June 9, 2018 response 3

to Ms. Wetzel's email the same day, and the second, 4

through text messages where I asked her to elaborate 5

on why she believed she was getting different 6

directions from management.

7 Fourth, on Page 43 of the OI report it 8

appears to read that I stated that Ms. Wetzel's 9

claimed protected activities were a central and 10 required function of her job and were not protected 11 activity. That reference is not cited, and I have 12 reviewed my notes and transcripts and am unable to 13 find anywhere where I mace such a statement. It seems 14 quite odd and out of character that I would have said 15 that.

16 Rather, I do believe that Beth and almost 17 every person employed by the nuclear regulatory team 18 engages in protected activity every day as part of 19 their job.

20 Because protected activities were a 21 central and required job function for Beth, it would 22 have been an assumption of any discussion and decision 23 on an adverse action that she had participated in 24 protected activities and that absent clear evidence 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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90 that there was a non-prohibited basis for the adverse 1

action, the adverse action should not move forward.

2 The last observation I will make regarding 3

the OI analyses regards the discussion on Page 45 4

regarding the request for specific evidence. The 5

analysis suggests that it was especially concerning 6

that I asked Ms. Wetzel to provide support for her 7

claims, because I had knowledge of the prior ECP 8

concerns raised against Ms. Henderson.

9 I

disagree that there's anything 10 concerning about this. Two of the prior ECP concerns 11 against Ms. Henderson were not substantiated at all 12 and one concern, NEC 1700683, was substantiated in 13 part, but explicitly found no retaliatory intent by 14 Ms. Henderson.

15 Furthermore, that analysis again ignores 16 that in the May 7 email, Ms. Wetzel broadly asserted, 17 probably a lot more actions that I'm not aware of, 18 instances of retaliation by Ms. Henderson.

19 To me, it's not unreasonable for me to ask 20 essentially, what do you mean? I'm not quite sure 21 what else the NRC would have me do here. Ultimately, 22 in my mind, I turned the May 7 list of issues, 23 including the broad, probably a lot more actions that 24 I'm not aware of, assertion over to the entity that I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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91 believed was capable and positioned to examine all of 1

the facts with the various assertions by Henderson and 2

Wetzel in one effort.

3 In conclusion, I want to reiterate that I 4

never acted with any intent to retaliate against Ms.

5 Wetzel for engaging in any alleged protected activity.

6 I acted based on my good faith belief that Ms. Wetzel 7

was engaging in disrespectful and harassing actions.

8 Any supervisor, any supervisor will tell 9

you these kinds of decisions are never easy, and that 10 was true for me and also why I was asking for help all 11 along the way in investigating and evaluating these 12 behaviors.

13 Based on the nature of these allegations, 14 their lack of specificity, and that I had personal 15 knowledge of some of the issues that Ms. Wetzel was 16 falsely complaining about, I did not believe her 17 allegations against Henderson raised genuine and 18 reasonable concerns.

19 I asked Ms. Wetzel to provide more detail 20 for the allegations she raised against Henderson, but 21 she declined. I used company processes, OGC, and the 22 Executive Review Board, that I believe are designed to 23 provide neutral and independent advice and guidance.

24 OGC provided its recommendation and the ERB did not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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92 object to the implementation of disciplinary action 1

here.

2 This concludes my statements as to the 3

factual portion of my apparent violation.

4 While reviewing the history of this 5

situation, I looked for any indication that I had 6

deliberately taken action that caused TVA to be in 7

violation of 10 CFR 50.7, and as I have discussed at 8

length today, I found no such indication and strongly 9

deny that I violated 10 CFR 50.5.

10 But I also took the opportunity to assess 11 what I could have done differently along the three or 12 more year arc of this situation to have prevented this 13 situation that was anything close to a harassing 14 environment.

15 While I believe, ultimately, that Ms.

16 Wetzel was responsible for her choice to make 17 statements about Ms. Henderson that could not possibly 18 have been grounded in fact or reasonable belief, I did 19 assess and observe the following things I would do 20 differently to facilitate a non-harassing workplace.

21 I did reflect on the actions I took to 22 give additional support to Ms. Wetzel, specifically, 23 while I did facilitate getting her an executive level 24 mentor, I might have had more structured discussions 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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93 with Ms. Wetzel around her mentoring discussions that 1

would have given Ms. Wetzel additional opportunity to 2

discuss her perspectives on her working relationships.

3 Having done that review, based on my 4

existing skills and experience, I took my initiative 5

one step further. And it's a step that I find 6

profoundly insightful.

7 Several weeks back, I enrolled in the 8

Society for Human Resource Management. The Society 9

for Human Resource Management is one of the two 10 premier professional training and certification 11 processes for human resource professionals across the 12 nation for companies of all types.

13 I became a member and immediately took the 14 course entitled, Workplace Harassment Management 15 Fundamentals. As I took the course, several key 16 aspects were repeatedly emphasized.

17 The first is that harassment is something 18 where managers of all experience levels can recognize 19 that something needs to be done, but that the specific 20 steps to take are rarely clear unless you have 21 extensive personal experience responding to such 22 concerns.

23 The second clear point was that managers 24 need to constantly seek the support of knowledgeable 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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94 parts of the organization to ensure that claims of 1

harassment are properly addressed.

2 And third, I learned that I needed to 3

increase my sensitivity to behaviors that others may 4

be perceiving as harassing.

5 This is the training that is foundational 6

to the HR professional community. I took and funded 7

this training on my own initiative.

8 I will now turn it over to my attorney.

9 Tim?

10 MR. WALSH: Thank you, Joe. At the 11 beginning of the presentation, I emphasized that a 12 finding of deliberate misconduct is a very high 13 standard requiring a showing of intent to cause a 14 violation of 50.7.

15 Joe showed you today, through emails and 16 other records, that he never possessed any such 17 intent. Quite to the contrary, these records 18 demonstrate that the only intent Joe had was to do 19 what was correct.

20 The circumstances present here are far 21 different than in other cases where the NRC has found 22 that an individual had engaged in deliberate 23 misconduct, causing a licensee to violate 50.7.

24 For example, September of 2019, the NRC 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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95 issued an order to Mr. Thomas Summers, in Enforcement 1

Action IA-18-040, prohibiting him from involvement in 2

NRC-licensed activity.

3 In that

case, the NRC Office of 4

Investigations found that a

contract employee 5

initiated a condition report on one day and Mr.

6 Summers emailed the contract employee's employer the 7

next day, including in his email the condition report 8

and asking a question about it.

9 That same day, Mr. Summers spoke with the 10 contract employer and discussed reassigning the 11 contract employee to another plant.

12 The NRC investigation also found that Mr.

13 Summers' testimony differed significantly from that of 14 other witnesses, thus undercutting his credibility and 15 discrediting his assertion that the individual's 16 removal from the plant was unrelated to protected 17 activity.

18 Also in that case, the NRC found that Mr.

19 Summers had deliberately provided false and inaccurate 20 information to the NRC to influence the NRC's 21 discrimination investigation.

22 Joe's case is far different. Unlike in 23 Mr. Summers' case, there is no rash decision to take 24 action against Ms. Wetzel. The record shows that Ms.

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96 Wetzel's offending conduct was carefully considered 1

over several months by multiple TVA personnel.

2 In addition, the record shows that Joe's 3

view of Ms. Wetzel's pattern of conduct that violated 4

TVA's policies were aligned, if not identical, to 5

others who also considered that pattern. He receives, 6

at multiple times, input from the Office of General 7

Counsel, which found that Ms. Wetzel's conduct 8

violated TVA policies and was not appropriate for 9

someone at her level.

10 Further, the adverse action was reviewed 11 by the Executive Review Board, which did not object to 12 the adverse action. Indeed, the HR representative to 13 the ERB testified to OI that the information presented 14 to the ERB was very thorough and damaging, that there 15 was no question at the ERB about proceeding with the 16 adverse action.

17 None of the facts presented today suggest, 18 let alone show, any intent to violate the Commission's 19 employee protection requirements. In fact, they show 20 that Joe made every effort to ensure that the adverse 21 action had only legitimate and appropriate bases. He 22 even recommended that Ms.

Wetzel be further 23 interviewed to learn more about the bases for her 24 statement.

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97 The evidence presented today is far more 1

convincing than the evidence relied on in the Wetzel 2

OI report. Indeed, that report states that the 3

primary basis for finding that Joe has engaged in 4

retaliation is based only on a, quote, reasonable 5

assumption, close quote.

6 The OI report states on Page 49, and as 7

displayed on your screen, that it is reasonable to 8

assume that Shea provided Ms. Wetzel's statement to 9

TVA OGC with the expectation that it would lead to an 10 employment action against Wetzel to prevent Wetzel 11 from continuing to raise these fear of retaliation 12 concerns, which is a protected activity.

13 We have demonstrated today how the 14 evidence shows that this assumption is not reasonable 15 at all. Moreover, alleged reasonable assumptions are 16 not evidence, they are instead the complete absence of 17 evidence and should not be permitted as any basis for 18 finding that Joe engaged in retaliation, let alone an 19 order banning him from the industry.

20 As discussed earlier today, the Commission 21 made explicit that a finding of deliberate misconduct 22 requires finding the intent to act in a wrongful 23 manner and the Commission equated that standard to one 24 used in a criminal prosecution. Alleged reasonable 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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98 assumptions fall nowhere close to that standard.

1 The NRC and other reasonable minds may 2

disagree with the outcome that was reached here, but 3

that outcome was not reached by any attempt to cause 4

a violation of the Commission's employee protection 5

regulations or any wrongdoing.

6 Joe's actions demonstrate that he wanted 7

to do the right thing. He should not get a violation, 8

let alone be banned from the industry, for the 9

evidence shows that he asked for help and input every 10 step of the way.

11 I would like to now address another 12 concern with the OI report's findings.

13 As Joe explained to you, he in no way 14 considered the internal OGC investigation into Ms.

15 Henderson's harassment complaint any chilled work 16 environment assessment. Again, it's his intent that 17 matters here.

18 In addition, the NRC should not feel bound 19 by the Department of Labor investigation's findings in 20 this regard, as you can see on your screen.

21 First, TVA had no opportunity to respond 22 to the DOL findings that the TVA OGC investigation 23 where they showed work environment assessment before 24 DOL made its findings here. The claim was never 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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99 raised by Ms. Wetzel in her DOL findings, nor was this 1

claim presented to TVA by the DOL investigator.

2 Second, those findings were not the result 3

of an adjudication. Rather, the findings were the 4

result of an investigation. Those findings were set 5

aside the moment TVA requested an adjudicatory hearing 6

in this matter.

7 29 CFR 24.106(b) states in relevant part 8

that if objections to Department of Labor findings are 9

timely filed, quote, all provisions of the order will 10 be stayed, unquote. That's what happened here. TVA 11 filed its objection, the DOL findings were stayed, and 12 the matter was eventually settled.

13

Third, the Department of Labor 14 investigator never interviewed the TVA investigator, 15 Mr. Slater. But the NRC did. Mr. Slater 16 unequivocally testified to the NRC that he conducted 17 a run of the mill harassment investigation and that he 18 never performed a chilled work environment assessment 19 and wouldn't even know how to go about conducting one.

20 Fourth, the NRC did not re-interview Joe 21 following the Department of Labor findings when it 22 could have done so. Again, it's Joe's intent that is 23 at issue here in this apparent violation, not anyone 24 else's.

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100 And finally, Section 5.2(e) of the NRC 1

Allegation Manual specifically provides that there is 2

no requirement that the NRC and DOL conclusions agree.

3 In summary, Joe had only legitimate and 4

non-prohibited considerations in mind from the start 5

of the events we discussed here today, all the way to 6

the finish. He never had any intent to commit --

7 That concludes Joe's presentation for 8

today. Next week, you will hear from TVA and its 9

perspective that the actions by Erin, and Joe 10 were taken for only appropriate reasons. Thank you.

11 MR.

WILSON:

Thank you for the 12 presentation.

13 One of the things, Joe, that I'm going to 14 apologize, I know the court reporter did get 15 disconnected for a little bit, so we're going to have 16 to figure out, to go back and part of your 17 presentation, to have him get his notes fixed. If the 18 court reporter could come up so we can get those 19 fixed?

20 Then, we'll be taking, when we break out, 21 we'll come back at 10:50. So, the NRC will be back at 22 10:50. Did anyone have any questions?

23 Court reporter, do you know when you got 24 disconnected and you need to fix your notes? Okay.

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101 Thank you very much.

1 MR. SHEA: Mr. Wilson?

2 MR. WILSON: Yes.

3 MR. SHEA: Yes, before we get to the court 4

reporter, I myself would like a break. So, Mr. Court 5

Reporter, I'd like to come back at 10:10, ten after 6

10:00.

7 MR. WILSON: Oh, you can take a break, Joe, 8

you can take a longer break if you'd like, we just 9

have to get this before we move on to the next phase.

10 I'm fine with that.

11 MR. SHEA: Okay. I'll be back at 10:10.

12 We'll get this straightened out, then I'll go -- we'll 13 caucus as well. Thank you, Mr. Wilson.

14 (Whereupon, the above-entitled matter went 15 off the record at 10:04 a.m. and resumed at 10:33 16 a.m.)

17 MR. WILSON: Thanks, everyone. Thanks, 18 Mr. Shea, for working with the court reporter to get 19 everything put back on the record.

20 At this time we will listen to Ms. Wetzel.

21 Ms. Wetzel, your comments, please.

22 MS. WETZEL: Ian, can you hear me?

23 MR. WILSON: Yes, we can.

24 MS. WETZEL: Okay. All right, thank you.

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102 Yes, I would like to make a few comments. One thing 1

I wanted to correct or, that I believe was inaccurate, 2

was Mr. Shea said that he received a call from me 3

during the recruiting process for Ms. Henderson and I 4

told Mr. Shea that she was too inexperienced.

5 I didn't call Joe and tell him that Erin 6

was too inexperienced, it was during a 9-box meeting 7

where we went over different managers and their 8

ability to do jobs. And Joe asked at the end of the 9

9-box meeting what Ed and I thought about Erin.

10 And we were silent, we didn't say anything 11 and Joe pressed us, come on, tell me what think about 12 Erin. And I did tell him that because we had just 13 demoted one of our employees, Henry Lee, for not 14 having eight years of experience, regulatory 15 experience, he couldn't be a senior program manager, 16 that we might be at risk because Erin doesn't have 17 eight years of regulatory experience and we were 18 bringing her in to be a manager over the whole group.

19 I wanted to clarify that.

20 And then I also wanted to say that I still 21 don't see how I could have created a hostile work 22 environment for my boss, it's management that maintain 23 the work environment. And during the OI interviews of 24 employees and corporate licensing group, the employees 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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103 said I was nothing but professional and respectful 1

during, when I worked.

2 But I apparently created a hostile work 3

environment because I gave my opinion, my honest 4

opinion, during an interview of OGC, and I raised 5

concerns to my management about how I might be treated 6

by Ms. Henderson. And apparently those concerns were 7

justified because I was terminated.

8 And the other thing I'd like to mention 9

was, if I was, if my discussions and things I said and 10 did were inappropriate, I never got feedback from Joe 11 or Erin or OGC or HR that I

was acting 12 inappropriately. I was just terminated out of the 13 blue.

14 I guess I also want to say, Joe said that 15 I was not given a no-fault separation agreement on 16 October 15th. I was.

17 It was read to me. And I was handed it to 18 read. And I pointed out that I'm six months from my 19 retirement date after 30-plus years of federal 20 service.

21 And I also pointed out a sentence that 22 insinuated I could not discuss anything with the NRC 23 after I was terminated. And Joe took that paper back 24 and said, we'll change this paperwork.

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104 So I was handed something on October 15th 1

and it was different than the paper I was handed 2

later. That's it.

3 MR. WILSON: Okay, thank you, Ms. Wetzel.

4 Mr. Shea, any comments?

5 MR. SHEA: Yes. Taking disciplinary 6

action against any employee is not easy. Terminating 7

a talented individual is a difficult action for any 8

leader. And terminating Ms. Wetzel on January 14, 9

2019 was a, both a frustrating and personally 10 emotional moment for me.

11 However, I have an obligation to all 12 employees to ensure a work environment that is 13 respectful and free of harassment. And throughout 14 this period I took steps to obtain the advice of 15 counsel of expert organizations in harassment and 16 investigations and I took great care to ensure that 17 the actions taken were not retaliatory for protected 18 activities.

19 It is my position that TVA did not violate 20 10 CFR 50.7 and I did not deliberately take actions 21 that I knew would cause TVA to violate 10 CFR 50.7.

22 That is all.

23 MR. WILSON: Thank you. We're going to do 24 separate breakout in the caucus rooms. We will be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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105 back at 11:30. So that gives us 50 minutes. It's 1

been taking about that time in the caucus, so I will 2

see everyone back in the main room at 11:30.

3 Ian, please establish the breakout room.

4 Thank you.

5 MR. GIFFORD: Thank you, George.

6 (Whereupon, the above-entitled matter went 7

off the record at 10:39 a.m. and resumed at 11:31 8

a.m.)

9 MR. WILSON: All right, we should have 10 everyone back now. With that, Sara Kirkwood is going 11 to be leading the questioning for the NRC. Sara?

12 MS. KIRKWOOD: Sorry, George, I was 13 slightly late. Are you ready for me to begin?

14 MR. WILSON: Yes, Sara. Yes, we are.

15 MS. KIRKWOOD: Okay, sorry. Did, Mr.

16 Shea, did Erin Henderson, prior to filing her 17 complaint in March of 2018, did Erin Henderson come to 18 you with concerns that any TVA employee was harassing 19 her?

20 MR. SHEA: Ms. Kirkwood, if you're asking, 21 prior to her March 2018 complaint, did Ms. Henderson 22 come to me complaining that anyone was harassing her, 23 is that correct?

24 MS. KIRKWOOD: Yes.

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106 MR. SHEA: As I discussed generally in my 1

opening remarks that in the days prior to her filing 2

of the complaint she had, there had been some issues 3

of concern that had caused her to be upset to the 4

point of preparing to quit.

5 And in that exchange she had expressed 6

concerns that were activities and actions by 7

individuals that she was frustrated with. And 8

challenged me as to when was leadership going to do 9

something about that because in her view it's 10 something that had been going on for some period of 11 time.

12 Does that answer your question?

13 MS. KIRKWOOD: That was just in a day's 14 filing? So it was just in March of 2018 that you 15 started hearing her concerns that there were things 16 happening that were causing her to think of quitting?

17 MR. SHEA: So I understand that, that was 18 one instance, I have a recollection with no 19 specificity that over the previous year or so she had 20 expressed on one or more occasions some concerns with 21 the behaviors of one or more individuals. And she 22 used either the word harassing or hostile, in one of 23 those conversations that I recall.

24 MS. KIRKWOOD: And do you recall who the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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107 individuals were who she said was harassing her?

1 MR. SHEA: One of the, so I don't recall 2

who she equated the term harassing or hostile 3

specifically with. One of the individuals that was 4

causing her quite a bit of frustration was Mr.

5 McBrearty.

6 MS. KIRKWOOD: Did you take any action at 7

that point with respect to Mr. McBrearty?

8 MR. SHEA: There were occasions when I 9

spoke to Mr. McBrearty. And specifically in October 10 of 2017, and went to the site and sat down with him 11 and gave him some perspective on a couple of the 12 issues that he was challenging the corporate office 13 on.

14 MS. KIRKWOOD: Did you talk to anyone else 15 about Mr. McBrearty, about the relationship between 16 Mr. McBrearty and Ms. Henderson?

17 MR. SHEA: I did. I know that I had a 18 conversation in April of 2017. An introductory 19 meeting with vice president at Sequoyah, Mr. Tony 20 Williams.

21 He had recently arrived as the site vice 22 president. And my recollection is I relayed to Mr.

23 Williams that he had a very capable site licensing 24 manager but that I discussed that the relationship 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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108 between Sequoyah licensing manager and the corporate 1

office could be improved.

2 I don't know how much more specific I got 3

than that but that would have been April of 2017.

4 I have some recollection, and I think a 5

note, that on June 20, 2017 I had another conversation 6

with Tony Williams and Mr. McBrearty's direct boss at 7

the time, Dennis Dimopoulos, where I expressed some 8

concern about the ongoing seeming antagonism by Mr.

9 McBrearty towards Ms. Henderson.

10 I don't recall whether that was a phone 11 call or whether they were at the corporate office.

12 But that was the date I have some notes on.

13 MS. KIRKWOOD: You have notes on that?

14 MR. SHEA: Some handwritten notes I 15 believe. It's very brief.

16 And in addition, then I spoke to, in 17 October 2017, I spoke to Mr. Williams again on that 18 day, as well as talking to Mr. McBrearty again. That 19 was out at Sequoyah.

20 I did, with regard to Mr. McBrearty, I 21 also recall, at least on one occasion, in February of 22 2018 I had a call to encourage him to work with the 23 corporate leadership because we were trying to get a 24 particular product out called the Kirk Key LAR. And 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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109 I encouraged him to, we were trying to all get the 1

best product out as possible. I recall he was 2

frustrated about that particular LAR in that time 3

frame, so I spoke to him in February of 2018.

4 MS. KIRKWOOD: Did Erin Henderson, prior 5

to filing her complaint in March 2018, did Erin 6

Henderson complain to you that Beth Wetzel was 7

harassing her?

8 MR. SHEA: I know that Ms. Henderson and 9

I had a number of conversations regarding Ms. Wetzel's 10 performance. Whether she specified that the behaviors 11 were harassing, I can't place a discussion where she 12 said that one way or the other.

13 MS. KIRKWOOD: Were the, so, I would 14 typically think of performance as --

15 MR. SHEA: Absolutely. Sorry. I'm sorry.

16 MS. KIRKWOOD: -- performance --

17 MR. SHEA: Performance is performance, 18 that's correct.

19 MS. KIRKWOOD: Yes. Versus, were there 20 concerns about her conduct?

21 Were there concerns, did Henderson express 22 concerns to you about Wetzel's conduct?

23 MR. SHEA: She expressed on, at one 24 occasion, one or so occasions that she thought that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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110 Ms. Wetzel was perhaps talking to others in the group, 1

to include Mr. McBrearty who is in, at the site, in 2

some negative fashion about her. So yes.

3 The details of what she said any 4

conversation about Ms. Wetzel beyond that I don't 5

specifically recall.

6 MS. KIRKWOOD: And, to -- you said earlier 7

that Ms. Henderson had expressed concerns to you about 8

Ms. Wetzel's performance.

9 MR. SHEA: Yes.

10 MS. KIRKWOOD: Employees, her performance 11 would not be harassing of her manager, correct?

12 MR. SHEA: Absolutely. I was, I expressed 13 that she was frustrated with performance but you're 14 absolutely right, discussions on performance are not 15 discussions related to harassment.

16 MS. KIRKWOOD: Did Erin Henderson ever 17 express to you that Alesia Justice was harassing her 18 prior to receiving the complaint?

19 MR. SHEA: I don't recall any reference to 20 Ms. Justice in any detail, other than a perspective 21 that Ms. Justice and Ms. Wetzel were, had a close 22 relationship.

I don't recall Ms.

Henderson 23 specifically suggesting that Ms. Justice was harassing 24 her. I don't recall that prior to the March 2018.

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111 MS. KIRKWOOD: Do you think that a 1

manager's subordinates having a close relationship can 2

be harassing of that manager?

3 MR. SHEA: No, not in and of itself.

4 Certainly not.

5 MS. KIRKWOOD: Did Erin Henderson ever 6

express to you prior raising her complaint in March of 7

2018 that was harassing her?

8 MR. SHEA: Not that I can recall with any 9

specificity. If there was a discussion about 10

, it was not harassing as much as potentially 11 insubordinate.

12 MS. KIRKWOOD: What is the difference, in 13 your mind, between insubordinate conduct and harassing 14 conduct?

15 MR. SHEA: Insubordination is related to 16 the following or not following of directions.

17 Harassing is a much broader set of behaviors. It 18 encompasses a much broader set of possible behaviors.

19 MS. KIRKWOOD: Prior to the complaint in 20 March of 2018, did Erin Henderson ever express to you 21 that Michelle Conner was harassing her?

22 MR. SHEA: My recollection is that similar 23 to what I described as Ms. Wetzel, there was close 24 converse relationships. She expressed her concern 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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112 between them where they were potentially talking 1

negatively about Ms. Henderson.

2 In that period of time after Ms. Conner 3

settled in her new position, I don't recall a specific 4

reference to Ms. Conner's harassing in a particular 5

fashion in that period of time.

6 MS. KIRKWOOD: Prior to receiving the 7

complaint, did Ms. Henderson discuss with you the 8

possibility of filing it?

9 MR. SHEA: I'm sorry, of what?

10 MS. KIRKWOOD: Of, did she discuss or plan 11 to file it, that she was thinking of filing a 12 complaint, the possibility of filing a complaint with 13 you prior to when you received, you said you received 14 the email on March 9th at 3:45?

15 MR. SHEA: That's right. As I described 16 in the presentation, Ms. Henderson had gotten very 17 upset in a day or two, I think it was two days prior 18 to when she submitted the complaint, about some things 19 that had gone on.

20 And she expressed that she was very 21 frustrated. And she challenged me, when is leadership 22 going to do something about these behaviors. And she 23 used the word, harassing or hostile.

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113 as this was a, something I needed to respond to, that 1

leadership needed to respond to. And I encouraged her 2

to consider putting all of her concerns in writing so 3

that they could be actually evaluated.

4 MS. KIRKWOOD: Did you see a draft of the 5

complaint before it was filed?

6 MR. SHEA: No. Not that I have any memory 7

of, no.

8 MS. KIRKWOOD: You said she was very upset 9

in the days leading up to the complaint because of 10 certain behaviors. What specifically did you 11 understand those behaviors to be?

12 MR. SHEA: There was a particular product 13 that was being developed. It was a license amendment 14 related to Sequoyah.

15 And it had been in development for some 16 period of time. It was a frustration to the site and 17 a frustration to, as well Erin and I, that it was not 18 moving along and achieving the right quality standards 19 so there was tensions in that regard and all around.

20 It was an important product.

21 And my recollection is there was an 22 exchange between Sequoyah, Mr. McBrearty and one of 23 the employees underneath Erin, where he characterized 24 his view on the corporate office as impeding the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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114 progress of these important activities to the 1

determinant of the site, is my recollection.

2 And I don't recall how she became 3

specifically aware of that exchange, text. But I 4

recall that as being particularly upsetting in this 5

characterization of her role in how she was 6

discharging it in terms of getting the LAR out.

7 License amendment request.

8 And other issues I think were included in 9

that. That particular seemed to be an exchange that 10 particularly bothered her.

11 MS. KIRKWOOD: I assume you're referring 12 to the texts between Mr. McBrearty and Mr. Polickoski?

13 MR. SHEA: Yes.

14 MS. KIRKWOOD: That text was also quite 15 critical of you. Did you view that text as harassing 16 you?

17 MR. SHEA: I didn't. I had heard the 18 issues that Mr. McBrearty was speaking to, progress on 19 the LAR was something that he and I had talked about.

20 As I mentioned earlier in February of 21 2018. And I had known his frustration, he had 22 expressed his frustration to me in the past on that 23 issue as well as another technical issue.

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115 dynamic that had not yet resolved itself between the 1

corporate office, including at my level, and the site 2

regulatory leadership, in this case Mike.

3 And it was just something that I needed to 4

go take to, it was my action to go help solve that as 5

the senior person in that group. I did not consider 6

it harassing. But that is my view. And that's just 7

my view of it against me.

8 MS. KIRKWOOD: And when you said it was 9

your job to go sell that, was it your job to go sell 10 the underlying technical dispute or issues that were 11 holding up the LAR or your job to solve something 12 else?

13 MR. SHEA: It's my job to ensure that 14 working performance of the entire regulatory 15 organization across a fleet, if you will, was both 16 performing high and working well together and the text 17 challenged that it wasn't working too well together.

18 That is mine to solve, accountable to my boss.

19 MS. KIRKWOOD: Thanks. I'm going to tell 20 you, Mr. Shea, if you need a break just say so, don't 21 feel like you have to keep on answering if you need to 22 get like a drink of water or something.

23 MR. SHEA: I'll just ask, I'm sorry, am I 24 looking like --

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116 MS. KIRKWOOD: You were looking like you 1

might need a moment. I wanted to give it to you if 2

you needed it. You're okay? Okay.

3 When you received the complaint from Erin 4

Henderson, what were your thoughts?

5 MR. SHEA: My thoughts were that this was 6

six, seven, eight pages of detail that was, I accepted 7

that it represented the entirety of her concerns. It 8

was mine to, and of course it was addressed to me and 9

Amanda Poland, I think the director of human resources 10 supporting the nuclear fleet, it was ours to go 11 respond to and we needed to go determine the 12 appropriate way to respond to that. And we needed to 13 do it with some urgency.

14 In about five minutes I will take that 15 break, if you don't mind.

16 MS. KIRKWOOD: Not at all. Did anything 17 in the complaint trouble you?

18 MR. SHEA: I guess I'd ask that it be more 19 specific about trouble me. It's a complaint of 20 harassment and hostility; that's troubling.

21 MS. KIRKWOOD: Did anything, was there any 22 incident in that complaint that you learned of for 23 the first time from reading the complaint?

24 MR. SHEA: I'd have to review the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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117 complaint to see if anything strikes me as being new 1

or novel looking backwards.

2 MS. KIRKWOOD: She made several references 3

in that complaint to people having filed ECP 4

complaints. Did that concern you that she viewed that 5

as harassing of her?

6 MR. SHEA: The Employee Concerns Program 7

is established as a avenue for individuals to raise 8

concerns, and for any number of reasons that they may 9

want to go to that program.

10 So that any individual took an issue to 11 ECP is, I wouldn't view as harassing, but I don't have 12 the expertise, and didn't have the expertise, to know 13 whether it was possible for a series of ECP complaints 14 against an individual to be viewed as harassing. So 15 that was a complexity of the complaint that I knew I 16 needed help to get evaluated.

17 MS. KIRKWOOD: You said this complaint 18 went to you and Amanda Poland, and I believe you had 19 testified that you made the decision to send it to OGC 20 for an independent type of review. Do I have that 21 right?

22 MR. SHEA: The decision to send it to the 23 Office of General Counsel was one that evolved from a 24 discussion between Ms. Poland and myself. And there 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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118 were some discussions with Mike and us, and I believe 1

then CNO Mike Balduzzi at the time.

2 And ultimately out of those discussions it 3

was determined to approach OGC to investigate it.

4 MS. KIRKWOOD: Did you discuss with anyone 5

in OGC who should be interviewed as part of this 6

complaint?

7 MR. SHEA: I'm sorry, there was a little 8

break, could you repeat the question?

9 MS. KIRKWOOD: Did you discuss with anyone 10 in OGC who should be interviewed as part of this 11 complaint?

12 MR. SHEA: As in the initial discussions 13 with OGC, which I would characterize as in-brief 14 discussions where before Mr. Czufin took over the role 15 as point of contact for the investigations, there was 16 an initial discussion with the managing attorney and 17 the investigator about what it is, who's the group, 18 how big is it, and those sort of things.

19 Where he would discuss, for example, one 20 of his techniques was to do interviews. So it was a 21 logistical in-brief type of discussions.

22 And in one of those, in that conversation, 23 I know that I raised the issue that one of the 24 individuals mentioned, Ms. Conner, had recently been, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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119 we had gone to settlement. Achieved a settlement with 1

her in, I think it was December or so of 2017.

2 And Ms.

Conner had just started 3

approximately December 2017, maybe January of 2018.

4 In a new position that was also in my group. And I 5

had a point of view, two things. One, that Ms. Conner 6

was settling well into that new role. That it was 7

exciting and challenging and she was looking forward 8

to getting some satisfaction from it.

9 And the other was, I was quite mindful 10 that we had just settled with her, at that point, 11 three or four months earlier. And I just expressed my 12 concern that an interview regarding harassment had the 13 potential to have someone who had just been settled 14 with have a perspective that that negotiation and 15 settlement had not been in good faith, the managing 16 attorney was Grace and Mr. Slater, to be aware of 17 that. And if I went so far as to encourage them if 18 there were ways that he could get to the bottom of the 19 entire complaint without upsetting that situation, 20 that would be good.

21 And it was a caution. So that there was 22 awareness of the temporal proximity to something that 23 had been just recently achieved. And was important to 24 the health of that individual, Ms. Conner. As well as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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120 the organization that she just settled in.

1 And I will, if you don't mind, I don't 2

know how much was five minutes. Would that be okay?

3 MR. WILSON: Yes. Yes, Joe, we'll take a 4

ten minutes break. It's 12 o'clock, we'll be back at 5

12:10. Will be ten minutes be good?

6 MR. SHEA: Yes, Mr. Wilson. Thank you.

7 MS. KIRKWOOD: George, do you want to do 8

a ten minute break or do you want to break longer for 9

like a lunch-type of break?

10 MR. WILSON: That's up, I'll ask the 11 group, would you like to do that? How much longer do 12 you think, just an estimate?

13 MS. KIRKWOOD: I'm not sure. Probably, it 14 sort of goes on some of the answers, but --

15 MR. WILSON: Okay. Well, let's go ahead, 16 all right, let's go ahead and take a 30-minute break.

17 We'll be back at 12:30.

18 MR. SHEA: Thank you.

19 (Whereupon, the above-entitled matter went 20 off the record at 12:00 p.m. and resumed at 12:31 21 p.m.)

22 MR. WILSON: Sara?

23 MS. KIRKWOOD: Okay.

24 MR. SHEA: Ms. Kirkwood, I'm sorry.

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121 MS. KIRKWOOD: Sure.

1 MR. SHEA: Okay, just while we were on 2

break, I did have an opportunity to reflect on your 3

first question, look at my notes on your first 4

question, or one of your first questions, where I 5

think you asked me if I had talked to anybody about 6

Mr. McBrearty and his behaviors and I told you I 7

talked to Tony Williams. I mentioned a meeting with 8

Tony and Mr. Dimopoulos. I told you I talked to Mr.

9 McBrearty himself.

10 To the extent I thought you were asking, 11 had I talked to anybody, those were examples. But I 12 thought just to be sure, I do have notes that I talked 13 to Inza Hagins-Dyer in May of 2017.

14 And my notes from that discussion were 15 that Inza indicated that the investigation, and I 16 think she was referring to 17-0410, concluded that a 17 chilled work environment, hostile work environment, 18 did not exist. And my notes further stated that Inza 19 indicated she had challenged Mike to evaluate whether 20 he had a blind spot with regard to an employee at 21 corporate, Michelle Conner.

22 And then, so, that was my conversation 23 with Inza and her reflection that she had talked to 24 Mr. McBrearty. And then I did have, and I don't know 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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122 notes from this, I had periodic meetings with my boss 1

Dave Czufin.

2 And I am aware that from time-to-time I 3

would talk to him about the overall relationship 4

between the corporate office and Mr. McBrearty. Ms.

5 Henderson, Mr. McBrearty.

6 So I just wanted to be more complete. I 7

wasn't a hundred percent sure that you wanted a 8

representative list or just a little bit more. So I 9

wanted to get that for you.

10 MS. KIRKWOOD: Thank you, I appreciate 11 that. Was there anything else you wanted to 12 supplement?

13 MR. SHEA: No.

14 MS. KIRKWOOD: Okay. So, right before we 15 broke, you were explaining that Ms. Conner was not, 16 why it was your recommendation that Ms. Conner not be 17 interviewed. And I think I understood you to say that 18 you were concerned that Ms. Conner might perceive an 19 interview as being in bad faith because of the 20 settlement she had just entered into. Do I have that 21 right?

22 MR. SHEA: Yes.

23 MS. KIRKWOOD: Who was involved in that 24 settlement with Ms. Conner?

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123 MR. SHEA: I can remember the name of the 1

attorney who negotiated it with me.

2 MS. KIRKWOOD: Sorry, let me clarify my 3

question. From TVA, who was involved? Was it you who 4

was negotiating, was it you printing it? What 5

managers at TVA --

6 MR. SHEA: Yes.

7 MS. KIRKWOOD: -- would have been --

8 MR. SHEA: I was in that negotiation, yes.

9 MS. KIRKWOOD: Okay. Was Erin Henderson 10 part of that negotiation?

11 MR. SHEA: No.

12 MS. KIRKWOOD: Did you view settling that 13 complaint as a way of resolving harassment directed 14 toward Ms. Henderson?

15 MR. SHEA: Sure.

16 MR. WALSH: Ms. Kirkwood, just a point of 17 clarification here. The settlement occurred at the 18 end of 2017 and her harassment complaint was filed in 19 March 9th of 2018. So I don't understand the question 20 and I just want to make note of the timeline there.

21 MR. SHEA: Yes, I'd ask you to clarify 22 that as well, Ms. Kirkwood.

23 MS. KIRKWOOD: I'm fully aware of the 24 timeline. But you were discussing earlier, we were 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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124 discussing about whether or not Ms. Henderson had 1

raised concerns previously about employees harassing 2

her.

3 So what I am asking you is if you viewed 4

that settlement as a way of resolving concerns of Ms.

5 Henderson's?

6 MR. SHEA: The settlement was to resolve 7

Ms. Conner's concerns. And in settling it Ms.

8 Conner's was settled in another organization. And I 9

did view that that would reduce tension within the 10 group.

11 Your question specifically, did I think it 12 would resolve, I'm sorry, can you finish that for me?

13 Resolve what? I can't hear you.

14 PARTICIPANT: You do look to be on mute.

15 MS. KIRKWOOD: Sorry. I still get mixed 16 up on the buttons. Did you think that the settlement 17 agreement with Conner was resolving concerns of Ms.

18 Henderson's?

19 MR. SHEA: I thought that it would 20 alleviate tensions within the group and that would 21 potentially alleviate some of Ms.

Henderson's 22 concerns.

23 MS. KIRKWOOD: You referred the Henderson 24 complaint for investigation because you were concerned 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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125 that Ms. Henderson was being harassed, correct?

1 MR. SHEA: I referred it because Ms.

2 Henderson filed the complaint with me and I needed to 3

respond to it.

4 MS. KIRKWOOD: Do you have a copy of the 5

complaint?

6 MR. SHEA: Yes. Yes.

7 MS. KIRKWOOD: Okay. I would like you to 8

look at Page 8 of her complaint. It sort of starts on 9

Page 7. It's the paragraph that runs from Page 7 to 10 Page 8.

11 Actually, I would start even on the bullet 12 before that on Page 7.

13 MR. SHEA: Yes. I'm sorry, on 221 is the 14 15 MS. KIRKWOOD: Yes.

16 MR. SHEA: -- the second one. During a 17 discussion with one of my directs.

18 MS. KIRKWOOD: Yes. And look at the 19 bullet right before that too. During a meeting with 20 ERI.

21 MR. SHEA: Yes. Yes.

22 MS. KIRKWOOD: Okay. So in both of those 23 bullets, and tell me if you read it differently. What 24 I am reading is, Erin Henderson identifying incidents 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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126 involving Michelle Conner that would have happened 1

after her settlement agreement.

2 So, if Erin Henderson is accusing Michelle 3

Conner of harassing her after the settlement agreement 4

took place, I'm trying to understand why you felt that 5

it was not appropriate to have Conner interviewed as 6

part of this investigation.

7 MR. SHEA: I think I described earlier, in 8

response to your question, that I described to Mr.

9 Slater and Ms. Grace a fact that a settlement had 10 occurred recently. And that as he looked at how he 11 was going to do the investigation and do interviews, 12 I asked him to be aware of, and mindful of the fact 13 that an interview could cause Ms. Conner to think we 14 had negotiated in bad faith.

15 I could not instruct Mr. Slater what to do 16 with his investigation. His conduct of investigation 17 was between him and his boss, Ms. Grace.

18 MS. KIRKWOOD: Did any employees at TVA 19 raise concerns to you about Erin Henderson's conduct?

20 MR. SHEA: When --

21 MR. WALSH: Ms. Kirkwood, do you have a 22 time frame that you would like to discuss or --

23 MR. SHEA: Yes, that's my question.

24 That's my question, when.

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127 MS. KIRKWOOD: I would actually be 1

interested in any times that an employee raised 2

concerns. When Ms. Henderson worked for you.

3 I'll narrow it if you want. You could go 4

from sort of 2016 forward. When she was in her 5

position as the corporate licensing manager, did 6

employees raise concerns to you about Ms. Henderson's 7

conduct?

8 MR. SHEA: About her conduct I would say 9

no. I would, described in my discussion this morning, 10 that Ms. Wetzel talked to me about in January of 2017, 11 2016, I'm sorry, of her difficulty in getting aligned 12 with her bosses expectations. I did not take that or 13 hear that as a complaint about her conduct.

14 MS. KIRKWOOD: Did you hear complaints 15 from Ms. Wetzel about Ms. Henderson, about things 16 other than her conduct?

17 MR. SHEA: I just described an example of 18 that.

19 MS. KIRKWOOD: Is that the only example?

20 MR. SHEA: That's the only one I can 21 recall.

22 MS. KIRKWOOD: You included in the 23 exhibit, it's dated February 23rd of 2018, when Ms.

24 Henderson went to HR about an allegation that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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128 had been inappropriate in a licensing call of 1

some type. And I see the HR investigation. What 2

actions were taken coming out of that?

3 MR. SHEA: I don't recall. I honestly 4

don't recall, Ms. Kirkwood.

5 MS. KIRKWOOD: But continued 6

with the company after that time, correct?

7 MR. SHEA: After that time he, yes, he 8

left the company in, later in 2018.

9 MS. KIRKWOOD: Would you have been 10 responsible for any actions that were taken coming out 11 of that or would that have been somebody else?

12 MR. SHEA: I would have to know what the 13 actions were that came out of it to know who would 14 have been responsible for those.

15 MS. KIRKWOOD: Okay. And at this point 16 you don't recall if there were any actions coming out 17 of it?

18 MR. SHEA: I don't specifically recall 19 what they were.

20 MS. KIRKWOOD: You referenced today two 21 emails. Let's start with the May 7th, 2018 email. I 22 think you have that as Exhibit, let's pull it up. One 23 moment.

24 (Whereupon, the above-entitled matter went 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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129 off the record at 12:46 p.m. and resumed at 12:48 1

p.m.)

2 MS. KIRKWOOD: Okay. I'm looking at your 3

Exhibit 12, the email from Ms. Wetzel to you on May 4

the 7th, 2018. Are you with me?

5 MR. SHEA: Just one minute, please.

6 MS. KIRKWOOD: Sure.

7 MR. SHEA: May 7, 2018 at 10:11:44 a.m.?

8 MS. KIRKWOOD: Yes.

9 MR. SHEA: That's the one.

10 MS. KIRKWOOD: So I understand that you 11 viewed this email as extremely troubling from Ms.

12 Wetzel, correct?

13 MR. SHEA: Just there were passages in it 14 that I considered extremely troubling.

15 MS. KIRKWOOD: And did you view that email 16 as harassing of Ms. Henderson?

17 MR. SHEA: I viewed it in two ways. One 18 is that as she was making references to types of 19 things such as the HR investigation that Ms. Henderson 20 had referenced in her complaint. And I also viewed it 21 as Ms. Wetzel was raising a perspective of her own, 22 that her boss was being -- I'm trying to -- trying to 23 find the words. Using things as an investigative 24 tool. So that she was raising a concern of her own.

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130 MS. KIRKWOOD: Did you view that email as 1

part of a sustained pattern of -- sustained campaign 2

of disrespectful conduct from Ms. Wetzel directed 3

toward Ms. Henderson?

4 MR. SHEA: At that moment, I did not. I 5

recognized, as I mentioned, some of the things she 6

referenced in her email were referencing the HR 7

investigation, were being Ms. Henderson's complaint.

8 And -- but I, in that moment, didn't see that as a --

9 that was a discrete email and by itself was not a 10 pattern.

11 MS. KIRKWOOD: Did you think that she was 12

-- that Ms. Wetzel was violating TVA policies or 13 procedures by sending that email to you?

14 MR. SHEA: At the time, I viewed the 15 passage in there, specifically the opened-ended 16 reference to a lot more actions that I'm not aware of 17 as troubling. I struggled to see how that would've 18 been considered ethical. That was one of the things 19 that motivated me to provide it to -- to offer it to 20 OGC. They are the experts in the application of TVA's 21 code of conduct. So I was troubled by it, but I 22 sought the assistance of OGC to determine what it 23 represented.

24 MS. KIRKWOOD: So if you were troubled by 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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131 it and you thought it was a potential violation of the 1

TVA code of conduct -- code of ethics, why was she 2

allowed to go on a rotation to NEI after that email?

3 MR. SHEA: She was already on the 4

rotation.

5 MS. KIRKWOOD: On May 7th?

6 MR. SHEA: My recollection is she had gone 7

up on April 29th is my recollection.

8 MS. KIRKWOOD: Did you give any thought to 9

pulling it back at that time?

10 MR. SHEA: No, my -- my response was to 11 provide -- to seek assistance from, in this case, OGC 12 and HR to figure out the proper way to assess it and 13 what it represented and to -- that was the first thing 14 that needed to be done.

15 MS. KIRKWOOD: She had already been named 16 in Ms. Henderson's complaint however at that time as 17 somebody who was harassing Ms. Henderson. Did you 18 think it was appropriate for her to go on the NEI 19 rotation with that investigation pending?

20 MR. SHEA: The investigation was ongoing.

21 The investigation had not been completed yet. So I 22 did not make a determination on any action without the 23 investigation being completed.

24 MS. KIRKWOOD: Looking again at that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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132 email, the statement, I know that Erin has used HR to 1

investigate people. What did you take that in 2

reference to?

3 MR. SHEA: I took it as reference to the 4

April or the spring 2016 HR investigation into the 5

concern about the relationship between Ms. Conner and 6

Mr. McBrearty.

7 MS. KIRKWOOD: And why --

8 MR. SHEA: But -- but I did not know that.

9 That's what I took it as.

10 MS. KIRKWOOD: Why did you take it as that 11 as compared to the investigation by Ms. Henderson into 12

?

13 MR. SHEA: I'm just giving you my 14 reaction. That's what I attributed it to.

15 MS. KIRKWOOD: But you agree that the 16 statement is, in fact, true, correct, that Ms.

17 Henderson has used HR to investigate people?

18 MR. SHEA: No, I don't -- I don't -- I 19 don't agree with that at all. In the particular in 20 the spring of 2016, concerns were brought to Ms.

21 Henderson and to me, but to Ms. Henderson that raised 22 questions about the ability of Ms. Conner -- the 23 perception of the ability of Ms. Conner to provide 24 unbiased oversight in her role over Mr. McBrearty. It 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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133 was not that Ms. Henderson used HR to investigate 1

people. Ms. Henderson properly took concerns raised 2

to her and took them to HR, that organization to 3

position to look at issues like that. She did not go 4

there to have them investigated.

5 MS. KIRKWOOD: So you don't agree with the 6

way she framed the statement, but you agree that Ms.

7 Henderson did, in fact, initiate at least two 8

investigations that we've talked about today of her 9

employees with HR?

10 MR. SHEA: Can you say the question again?

11 I'm sorry.

12 MS. KIRKWOOD: You don't agree with the 13 way Ms. Wetzel framed the statement. But you agree 14 that Ms. Henderson did, in fact, refer at least two 15 different cases that we've talked about today of her 16 employees to Human Resources for investigations?

17 MR. SHEA: In my view, Ms. Henderson 18 discharged her obligation which is when concerns were 19 raised to her to -- to have them looked at.

20 MS. KIRKWOOD: I guess I'm trying to get 21 at I think you indicated that you viewed this as a 22 false accusation on the part of Ms. Wetzel. And so 23 I'm trying to narrow down which part is false. And I 24 think where we are is at the part that you find false 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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134 is the use of the word, use, because you thought the 1

investigations were, in fact, appropriate. But we 2

agree that they did happen?

3 MR. WALSH: Ms. Kirkwood, pardon me one 4

second. I understand your questioning, but let's look 5

at the whole email in context and not just one word in 6

the email.

7 MR. SHEA: Yeah, that's --

8 (Simultaneous speaking.)

9 MR. WALSH: -- the whole sentence --

10 (Simultaneous speaking.)

11 MR. SHEA: Yeah, that's what I wanted to 12 get to. So the sentence is -- is adjacent to she has 13 demonstrated a long pattern of using TVA processes as 14 punitive and retaliatory tools. So in looking at, you 15 know, how the word, use, or what's some other word, it 16 was juxtaposed against a view that those had been done 17 in a punitive and retaliatory manner. Are you there?

18 Sorry.

19 MS. KIRKWOOD: Yes. Sorry, again, hit my 20 button wrong. You specifically talked about pulling 21 badging gate records and that Ms. Wetzel should have 22 known that Ms. Henderson didn't have the ability to do 23 that. I want to understand a little bit more about 24 that. Who can pull badge records at TVA?

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135 MR. SHEA: Security.

1 MS. KIRKWOOD: And is there a written 2

procedure about obtaining badge records?

3 MR. SHEA: I am sure there is. I don't 4

know it.

5 MS. KIRKWOOD: Are there circumstances 6

where a manager can obtain badge records? Or is that 7

such a well-known -- you said Ms. Wetzel would've 8

known this. I'm just trying to understand that. They 9

could only be obtained under certain circumstances?

10 MR. SHEA: I don't have that procedure.

11 I'm confident that I cannot call up security and just 12 have them pull badge records on my request or any 13 other manager's request.

14 MS. KIRKWOOD: Why do you think that Ms.

15 Wetzel would have known that that could not happen?

16 MR. SHEA: From the time she'd worked at 17 TVA and, in fact, the time she worked at the site.

18 MS. KIRKWOOD: But are you familiar with 19 the HR investigation of Ms. Conner and Mr. McBrearty?

20 MR. SHEA: I'm familiar that one occurred, 21 yes.

22 MS. KIRKWOOD: And in fact, it discussed 23 their badge records?

24 MR. SHEA: I'm sorry. Was that a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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136 question? I don't -- I don't have that report.

1 MS. KIRKWOOD: You don't have that report?

2 Again, on that email, Ms. Wetzel had asked for a 3

detailed travel memo that she'd been told she would 4

get. And I understood your testimony to say your 5

concern was when she basically said that Ms. Henderson 6

hadn't provided it to her, you testified that it 7

wasn't Ms. Henderson who said she shouldn't get that 8

detail memo. It was OGC. But how would Ms. Wetzel 9

have known that it was OGC who had switched that 10 direction?

11 MR. SHEA: She wouldn't necessarily have 12 until someone told her that which on May 12th -- or 13 sorry, May 14th, I recall I went back to her and 14 responded and explained that to her.

15 MS. KIRKWOOD: But on May 7th when she 16 raised a concern, how was that -- how was expressing 17 a concern that she did not get what she had been told 18 she was going to get about specific procedures for how 19 to submit her travel vouchers part of a sustained 20 pattern of conduct campaign against Ms. Henderson?

21 MR. SHEA: At that point, that had not 22 been determined to be a sustained pattern of 23 disrespectful and harassing conduct. And it is this 24 email and some of the assertions in there referenced 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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137 to punitive and retaliatory, those are words of 1

concern. That is what caused me to bring the matter 2

forward to OGC to get assistance to look at and 3

determine what, if any, of those elements of that 4

email were an ethical problem or not. So I didn't 5

attempt in that moment to parse these and make a 6

judgment of my own. I sought assistance from the 7

organizations that had expertise in that area.

8 (Pause.)

9 MS.

KIRKWOOD:

Do you have Erin 10 Henderson's complaint in front of you still?

11 MR. SHEA: Yes, yes.

12 MS. KIRKWOOD: Okay. Could you turn to 13 page -- page 6? I'm looking at the section that's 14 page 6 of the complaint that says, there are some 15 indications that other individuals, Michelle Conner, 16 Beth Wetzel, Ed Schrull, and Alesia Justice, may 17 potentially be contributing to this environment or 18 colluding with each other facilitate creating a 19 hostile work environment as described below. May 20 potentially be, and then there's kind of a timeline 21 attached. And you are welcome to read through it if 22 you want.

23 MR. SHEA: Is there a particular element 24 on the timeline, or --

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138 MS. KIRKWOOD: Well, I'll ask you my 1

question and then you can decide. I'm not trying to 2

mislead you. I read the Henderson complaint as 3

relatively vague as to what most of these individuals 4

actually did to her.

5 What Wetzel said about Erin Henderson, she 6

engaged in a lot of -- she probably did other things 7

that I don't even know about, seems similar. So I'm 8

trying to understand why -- in resolving the Henderson 9

complaint, TVA fully investigated it and disciplined 10 employees but that Wetzel's comment that Henderson was 11 doing things to people was treated as disrespectful 12 conduct. Why wasn't Henderson's complaint that, say, 13 people had gone to ECP and treated as disrespectful 14 conduct toward her employees?

15 MR. SHEA: My action was to put both of 16 those sets of issues in front of an organization that 17 was capable of performing an investigation and 18 determining facts, analyses, and conclusions on them 19 both. So the OGC drew a conclusion with regard to Ms.

20 Wetzel on August 30th on that, and that was the 21 conclusion that they drew. So I'm not sure if your 22 question is different than that. My action was to 23 have them investigated.

24 (Simultaneous speaking.)

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139 MS. KIRKWOOD: Did you view OGC's job as 1

to get at the truth of the matter such that a possible 2

outcome could've been that Erin Henderson was the one 3

harassing her employees? Or did you view this as they 4

needed to look to see if Henderson was being harassed?

5 MR. SHEA: They needed to look at the 6

complaint and find the facts behind under what was 7

presented to them and make their own conclusions. So 8

I didn't have a preconceived notion. Ms. Henderson 9

presented it as she was being harassed. That's what 10 was presented to OGC. My expectation was that they 11 investigate it and draw their own conclusions.

12 MS. KIRKWOOD: Didn't Ms. Wetzel make very 13 similar allegations in that email to you on May 7th 14 about Ms. Henderson?

15 MR. SHEA: Let me look at the May 7 email.

16 So I do want to take time to look at the chronology to 17 understand their point of view.

18 MR. SHEA: Please do.

19 MR. WALSH: Joe, which document are you 20 looking at?

21 MR. SHEA: The -- Ms. Henderson's 22 complaint on page 6.

23 (Pause.)

24 MR. SHEA: Ms. Kirkwood?

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140 MR. WALSH: Could you repeat the question 1

now that Joe's had an opportunity to review the 2

document, please, Ms. Kirkwood?

3 MS. KIRKWOOD: I was asking for him to 4

explain why the -- the Henderson complaint lists a 5

variety of somewhat vague allegations against her 6

employees. The Wetzel email, in my view, has a very 7

similar vague allegations against her supervisor. And 8

I'm trying to understand the different treatment on 9

the part of TVA of those two documents.

10 MR. WALSH: Ms. Kirkwood, are you asking 11 Joe how he treated them differently, because he's 12 previously stated that he treated them the same?

13 MS. KIRKWOOD: I don't think he did say 14 that. And I'm asking him what he thought was a 15 possible outcome, why he views those as different.

16 MR. SHEA: Well, my action was to have 17 them both investigated by experts to determine what 18 were the facts and the true in both of them. I can 19 look at them and see more specificity in the March 9th 20 complaint than in a vague station of -- of probably a 21 lot more that I'm not aware of. I'd see more 22 specificity. However, my action was that I was not in 23 a position to be the one to investigate and draw that 24 conclusion. I provided and reached out and sought 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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141 assistance from the part of the company that had that 1

expertise.

2 (Pause.)

3 MS. KIRKWOOD: Can you turn with me to 4

your Exhibit 16?

5 MR. SHEA: Just a minute, please.

6 MS. KIRKWOOD: Sure.

7 (Pause.)

8 MR. SHEA: This is an email from myself to 9

Emily Walker on May 31st at 12:39 p.m. Is that 10 correct?

11 MS. KIRKWOOD: Yes, that's what I'm 12 talking about. What I thought I understood your 13 testimony to be was that you referred this to OGC and 14 whatever they come up with was fine. They were the 15 independent investigators.

16 But here, it looks like you're saying, I 17 haven't gotten what I need out of this and I need you 18 to do more with it. And again, I'm trying to 19 reconcile those statements. If they were doing an 20 independent investigation, then why couldn't they just 21 take the Slater report as it stood in May? Why did 22 you go back and ask for more?

23 MR. SHEA: Let me look at the 25th report.

24 (Pause.)

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142 MR. SHEA: Just one minute, please.

1 (Pause.)

2 MR. SHEA: Ms. Kirkwood, can you hear me?

3 MS. KIRKWOOD: I can hear you.

4 MR. SHEA: We will get used to this 5

hopefully. Okay. The report from the 25th was, to my 6

read of it, really silent on the set of issues 7

presented by Ms. Wetzel in her May 7 email. So 8

whether the investigation was going to conclude that 9

Ms. Wetzel's characterizations were disrespectful and 10 harassing or alternatively look at whether Ms.

11 Wetzel's claim of vindictiveness, the report was 12 silent of that. So for me to respond either way to 13 Ms. Henderson's concern about Ms. Wetzel and her 14 complaint or theoretically to Ms. Wetzel's concern 15 about Ms. Henderson, the report was silent. So I was 16 seeking that to be addressed in the report.

17 MS. KIRKWOOD: The report is similarly 18 silent about Ms. Henderson's concerns about Justice --

19 Alesia Justice, Ed Schrull, and Michelle Conner. Did 20 you have similar concerns that they weren't addressed?

21 MR. SHEA: I was -- specifically because 22 Ms. Wetzel had raised the issues to me, I was noted 23 that that was on my plate and needed a resolution. So 24 that's what drove me to follow up with OGC. I didn't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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143 have anything uniquely on my plate from those other 1

individuals.

2 MS. KIRKWOOD: I'm going to flip to the 3

ERB package next. I think you submitted it as an 4

exhibit, but I'm assuming you have it. And I need to 5

pull it up too.

6 (Pause.)

7 MS. KIRKWOOD: Do you have it in front of 8

you?

9 MR. SHEA: I'm sorry. Did you describe it 10 as a particular exhibit?

11 MS. KIRKWOOD: Sorry. It's the ERB 12 package. It's your Exhibit 26.

13 MR. WALSH: Yes, it's 26.

14 MR. SHEA: Thank you. Yes, I do.

15 MS. KIRKWOOD: Okay. So I'm looking at 16 the summary of situation in question, include all 17 relevant information. Do you see where I am?

18 MR. SHEA: Yes, ma'am.

19 MS. KIRKWOOD: Okay. It says there that 20 Ms. Wetzel has been found to have acted in violation 21 of three TVA policies governing employee behaviors and 22 two federal statutes that provide protection to (audio 23 interference). Did you at any time refer Ms. Wetzel 24 to the IG?

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144 MR. SHEA: I did not.

1 MS. KIRKWOOD: Isn't the IG responsible 2

for investigating concerns about violations of the 3

law?

4 MR. SHEA: That is one of their functions.

5 MS. KIRKWOOD: Why did you not refer this 6

to the IG?

7 MR. SHEA: I didn't reflect on that at the 8

time. I mean, it is a lower level personnel matter to 9

the extent that there's, I believe, discretion, at the 10 levels of things that are referred. This was a 11 finding that had been made, and there was a basis for 12 us to assess it from a discipline policy standpoint.

13 Normally, IG is, you know, an organization that is 14 primarily waste, fraud, and abuse.

15 MS. KIRKWOOD: Also in that paragraph, it 16 says, specifically, the investigation concluded that 17 Ms. Wetzel had engaged in a sustained campaign of 18 disrespectful conduct over a lengthy period of time.

19 The disrespectful conduct included repeated 20 insinuations by Ms. Wetzel that her supervisor had 21 initiated inappropriate investigations of TVA 22 employees for a vindictive purpose despite Ms. Wetzel 23 having no reasonable basis or specific knowledge to 24 support those insinuations. You told us about the May 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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145 7th email that Ms. Wetzel sent you. Was there 1

anything else that you considered part of this 2

sustained campaign of disrespectful conduct?

3 MR. SHEA: There is.

4 MS. KIRKWOOD: Would you tell us what that 5

is, please?

6 MR. SHEA: Yes, just a minute.

7 MS. KIRKWOOD: Sure.

8 MR. SHEA: The email in June 9th and the 9

exchange at the end of June or July where Ms. Wetzel 10 again raised challenges to Ms. Henderson's behavior 11 and, you know, characterized them in ways that was --

12 was casting aspersions, disrespectful of Ms.

13 Henderson's obligations to discharge her job and how 14 she did that. Let me pull up a June 9 email. In the 15 June 9 email, Ms. Wetzel wrote, I have been afraid 16 what will happen as soon as I started submitting my 17 vouchers. I don't even try to understand my boss and 18 why she does what she does.

19 But I know she never gives up. So there's 20 no specificity to that assertion. And without any, it 21 is -- if it has no basis, then it is disrespectful and 22 harassing. And to the extent that there are a series 23 of these, then that's what the investigation report 24 refers to.

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146 MS. KIRKWOOD: Is there anything before 1

May 7th?

2 MR. SHEA: There was an email on March 3

29th with regard to the contract. I didn't, at that 4

point, consider that. It was a -- it was a question 5

she described potentially that Erin was blocking her 6

contract.

7 But there was no motivations of 8

vindictiveness or anything else associated with that.

9 So I didn't view at that time as anything other than 10 what I described this morning. And there was nothing 11 prior to that that I would've considered part of 12 evidence I had of a pattern of disrespectful and 13 harassing conduct.

14 MS. KIRKWOOD: Do you have any evidence of 15 a pattern of disrespect or harassing conduct of Ms.

16 Wetzel toward Ms. Henderson other than emails or texts 17 directed to you?

18 MR. SHEA: Those are the -- those are the 19 evidence that I have and then what you see performed 20 as an investigation and through its conclusions and 21 its conclusion that a pattern was consistent with that 22 specific evidence that experienced over those couple 23 months.

24 MS. KIRKWOOD: Also on that same ERB 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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147 package, you did yes for the question, was the 1

employee on clear notice of any rules and/or 2

expectations that were violated prior to this event?

3 MR. WALSH: Ms. Kirkwood, I'm sorry. You 4

cut out briefly on my end. Everyone else may have 5

heard, but what question number are we referring to?

6 MS. KIRKWOOD: It doesn't have a number.

7 It's on page -- it's a button. It's --

8 MR. SHEA: Page 2 of 2.

9 MS. KIRKWOOD: -- 2 of 2, yeah. And it is 10 the first button, if you will. Was the employee on 11 clear notice of any rules and/or expectations that 12 were violated prior to the event?

13 MR. SHEA: Yes.

14 MS. KIRKWOOD: And what clear notice do 15 you think she had? What was your basis for saying 16 yes?

17 MR. SHEA: I base that yes based on the 18 training that I was aware that all managers needed to 19 take on the types of things that I mentioned in my own 20 presentation. Those were applicable to all managers 21 which talked about maintaining a respectful workplace 22 and code of conduct. That was my basis.

23 MS. KIRKWOOD: Do you think part of a 24 respectful workplace can involve criticizing your 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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148 supervisor?

1 MR. SHEA: Criticism can be done if it --

2 it's how it's done. It can be done respectfully, and 3

it can be done disrespectfully. So yes, one can 4

criticize the organization including one's supervisor.

5 The issue is how it's done.

6 MS. KIRKWOOD: You stated that that ERB 7

was a particularly challenging ERB. What was 8

challenging about it?

9 MR. SHEA: Challenging in that the members 10 challenged each other to make sure we were answering 11 these questions in a way that there was common 12 understanding. It was not meant to mean that it was 13 more difficult than I anticipated. It was a challenge 14 which is a term of the level of engagement and rigor.

15 (Pause.)

16 MS. KIRKWOOD: Do you know the TVA policy 17 on expressing concerns and differing views?

18 MR. SHEA: I don't -- is it one of the 19 exhibits? I don't have it here on my table that I'm 20 aware of. Are you referring to something specific 21 that I have?

22 MS. KIRKWOOD: I don't think it was one of 23 your exhibits. Mr. Walsh, do you have that policy?

24 MR. WALSH: I don't know that I have it in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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149 front of me, no.

1 MS. KIRKWOOD: I'm going to read you 2

something from that policy. It starts in the purpose 3

section. I know you don't have it in front of you.

4 TVA encourages the voluntary expression of concerns 5

and differing views. The ability to freely express 6

concerns and differing views will enhance employee 7

productivity and promote a safety conscious work 8

environment. How do you --

9 MR. WALSH: Ms. Kirkwood, I have the 10 policy. I'm sorry. I have the policy in front of me.

11 If you wanted to point me to the portion that you're 12 looking at so I can read --

13 MS. KIRKWOOD: Sure.

14 MR. WALSH: -- along.

15 MS. KIRKWOOD: Yeah.

16 MR. SHEA: And I realize I've got another 17 set of documents over here that I can also look at.

18 Give me just a second, please.

19 MS. KIRKWOOD: Sure. It's Section 1.0.

20 MR. WALSH: Ms. Kirkwood, just so we're 21 extra clear, which revision are you reading from, if 22 you know?

23 MS. KIRKWOOD: That's a good question.

24 Let me check. I am reading from -- it says Rev. 0009, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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150 page 4 of 15, although I think the table of contents 1

and stuff are in front of it. And yeah, it's --

2 MR. WALSH: I'm on that page, and -- I'm 3

on that page and have that revision. But let's double 4

check with Joe to make sure he has the correct one 5

too. Thank you.

6 MR. SHEA: Where am I -- where am I 7

looking, please?

8 MS. KIRKWOOD: Go to 1.0 --

9 MR. WALSH: Joe, it should be -- oh, 10 sorry. You have the document in front of you, Joe?

11 MR. SHEA: Not yet.

12 MR. WALSH: It's in the big binder, 13 Exhibit 19D it looks like.

14 MR. SHEA: This is TVA SPP 11.804?

15 MR. WALSH: Yes, and Ms. Kirkwood directed 16 us to page 4 or 5, Revision 9, and the purpose, 17 Section 1.0.

18 MR. SHEA: All right. And I'm there.

19 MS. KIRKWOOD: It says, the second 20 sentence, TVA encourages the voluntary expression of 21 concerns and differing views.

22 MR. SHEA: Yes.

23 MS. KIRKWOOD: Was -- how was what Ms.

24 Wetzel express to you expressing her concerns about 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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151 Ms. Henderson not in keeping with this policy?

1 MR. SHEA: The distinction to me is that 2

this encourages expression of concerns and differing 3

views. That is not the same as giving license to 4

express them in a disrespectful fashion without -- or 5

expressing motivations without -- you know, without 6

basis. So a concern can be expressed. You need to do 7

it -- and you still need to do it in an ethical 8

fashion.

9 MS. KIRKWOOD: In your view --

10 MR. SHEA: I'm sorry. In a respectful --

11 in a respectful fashion.

12 MS. KIRKWOOD: Is it possible for an 13 employee to legitimately express a concern that they 14 ultimately are incorrect about?

15 MR. SHEA: Certainly.

16 MS. KIRKWOOD: Mr. Walsh, I thought I 17 heard you make a reference to Exhibit 19. Do you have 18 the same package of TVA exhibits that I'm looking at?

19 MR. WALSH: Yeah, it's not an exhibit that 20 we -- this is not part of Joe's exhibit package. It's 21 our separate binder materials for review.

22 MS. KIRKWOOD: Okay. Where I'm going next 23 is to the employee discipline policy.

24 MR. SHEA: Are you referring to TVA SPP 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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152 11.316? And I have Revision 6.

1 MS. KIRKWOOD: I don't scroll quite as 2

fast as you do because I have it all electronically.

3 Hold on.

4 (Pause.)

5 MS. KIRKWOOD: So it is -- yes, SPP 6

11.316, Revision 6. Yes, we are on the same page.

7 Excellent. Mr. Walsh, are you there too?

8 MR. WALSH: I am at that document, yes.

9 MS. KIRKWOOD: Okay. Mr. Shea, did you 10 use this policy in proposing disciplinary action 11 against Ms. Wetzel?

12 MR. SHEA: Yes.

13 MS. KIRKWOOD: Did you view yourself for 14 the purpose of Ms. Wetzel's discipline and ultimate 15 termination being in the role of a 3.13 role of a 16 chief officer or manager, executive vice president, 17 chief officer or manager or a 3.14 of supervisor?

18 MR. SHEA: Sorry. Did you say 3.1.3.1?

19 MS. KIRKWOOD: Sorry. There's a different 20 definition for a supervisor, the role of a supervisor 21 and the role of a manager. And I was trying to figure 22 out which one you fit into in this particular removal.

23 MR. SHEA: Yeah, I was in the manager 24 role.

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153 MS. KIRKWOOD: Who would've been in the 1

supervisor role?

2 MR. SHEA: So I did use this procedure.

3 I can't tell you that I focused on that distinction 4

because Ms. Henderson was at the heart of the 5

complaint. So I certainly served in the role of the 6

manager, and I certainly coordinated with -- actions 7

with HR which is a supervisory role.

8 MS. KIRKWOOD: Okay. If you go to Section 9

3.2.1, guidelines for progressive discipline, Section 10 A. It states, TVA generally supports the concept of 11 progressive discipline, believing that the major 12 purpose of disciplinary action is to rehabilitate the 13 employee, prevent reoccurrence, and encourage the 14 employee involved to render future satisfactory 15 service. An effective system emphasizes correcting 16 the problem rather than punishing the offender.

17 Therefore, TVA's focus is on communicating an 18 expectation of changed improvement rather than an 19 expectation of future problems and eventual 20 termination. Did you counsel or attempt to correct 21 Ms. Wetzel regarding her treatment of Ms. Henderson?

22 MR. SHEA: I would offer, Ms. Kirkwood, 23 that the procedure goes on to say, however in some 24 circumstances, more rigorous disciplinary action may 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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154 be warranted. Such action is intended to deter more 1

extreme unsafe or -- and inappropriate behaviors. And 2

from my engagement with HR and of course supported by 3

the August 30 memo from General Counsel, it was 4

separation as termination. That was recommended for 5

this particular -- this particular circumstance. And 6

I reviewed the procedure and supported that.

7 MS. KIRKWOOD: Did you ever counsel Ms.

8 Wetzel regarding her treatment of Ms. Henderson?

9 MR. SHEA: No.

10 (Pause.)

11 MS. KIRKWOOD: In Section 3.2.2(b), it 12 says -- it says -- it's 3.2.2(b). Are you with me, 13 Mr. Shea?

14 MR. SHEA: Yes.

15 MS.

KIRKWOOD:

Okay.

It

says, 16 managers/supervisors shall refer to the Douglas 17 factors disciplinary action checklist prior to 18 administering discipline. Did you do that?

19 MR. SHEA: Yes. You did ask earlier if I 20 had counseled Ms. Wetzel. Just to clarify, I did 21 redirect to her several times seeking more information 22 which I understand is not the same as counseling which 23 you were asking. But I was seeking to understand and 24 engage, but you asked about the Douglas factors.

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155 MS. KIRKWOOD: So if you go to Appendix A, 1

there's a list of the Douglas factors. Is that the 2

list you would've used?

3 MR. SHEA: I see it.

4 MS. KIRKWOOD: Is this the list that you 5

used?

6 MR. SHEA: Yes.

7 MS. KIRKWOOD: Looking at Factor C, did 8

she have a past disciplinary record?

9 MR. SHEA: No.

10 MS. KIRKWOOD: Looking at Factor D, how 11 did her past work record play into the Douglas 12 factors?

13 MR. SHEA: Her performance was solid in 14 TVA's performance management terminology. The Douglas 15 factors are, of course, looked at in their totality.

16 MS. KIRKWOOD: Sure. Looking at Factor J, 17 how did you draw a conclusion about the potential for 18 her rehabilitation?

19 MR. SHEA: I don't have notes to what I 20 specifically did with my review against those. I 21 consulted with HR and General Counsel, so I don't have 22 any particular notes on how I addressed that.

23 MS. KIRKWOOD: Were any of those factors 24 particularly influential to you either way?

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156 MR. SHEA: Of those three factors?

1 MS. KIRKWOOD: No, of all the Douglas 2

factors?

3 MR. SHEA: The employee's job level and 4

seriousness of the offense were of awareness to me in 5

consultation with OGC. So an understanding of the 6

consistency with the TVA disciplinary policy. So 7

those were ones that were important. They're all 8

important, though. And again, as procedure guides, I 9

sought counsel from HR and OGC who are the experts in 10 the -- in the application of it.

11 MS. KIRKWOOD: Did you view the decision 12 to terminate Ms. Wetzel or to propose her termination 13 for ERB review as your decision or as OGC's decision 14 or as someone else's decision?

15 MR. SHEA: It's my decision. OGC provided 16 a recommendation.

17 MS. KIRKWOOD: When Ms. Wetzel was 18 terminated, what was the impact on the rest of the 19 site staff?

20 MR. SHEA: The -- I'm sorry. The impact 21 on the rest of the corporate staff?

22 MS. KIRKWOOD: Yes, sorry. Corporate 23 site. I didn't say that very well. Her work group.

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157 impact?

1 MS. KIRKWOOD: Did you do a safety 2

conscious work environment mitigation plan?

3 MR. SHEA: I did.

4 MS. KIRKWOOD: How did that -- how did --

5 did people express concerns to you that Ms. Wetzel had 6

been terminated?

7 MR. SHEA: Let me just review my 8

mitigation plan notes, if you don't mind.

9 MS. KIRKWOOD: Sure. Go ahead.

10 (Pause.)

11 MR. SHEA: So I implemented a key step of 12 the mitigation plan of speaking to the -- the 13 licensing organization to corporate regulatory affairs 14 staff on January 14th. And my notes from, you know, 15 that discussion, I don't -- I was informing them. I 16 didn't have any notes of anyone expressing any 17 particular concern.

18 And subsequent to that, we did have a 19 survey performed by Oak Ridge Associated Universities 20 in April of 2019 to -- and that was part of the 21 mitigation plan to assess the work group's 22 perspectives on what had occurred. And that concludes 23 that -- that the communication surrounding the 24 management changes were sufficient for the event was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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158 the primary conclusion from that. And Oak Ridge 1

recommended that no additional follow-up action was 2

needed for that group.

3 MS. KIRKWOOD: I don't have any further 4

questions. Is there anything about your answers that 5

you want to clarify?

6 MR. SHEA: Do you mind if I confer with 7

counsel briefly?

8 MS. KIRKWOOD: Not at all.

9 MR. SHEA: Thank you very much.

10 (Pause.)

11 MR. SHEA: Ms. Kirkwood and Mr. Wilson, 12 can you hear me?

13 MR. WILSON: Yes, yes.

14 MR. SHEA: Yeah, I have no further --

15 further comments to make. I appreciate -- appreciate 16 very much your time.

17 MR. WILSON: All right. Thank you. I'd 18 like to take this opportunity to reemphasize some of 19 the points made during my opening remarks. No final 20 decision has been made on the part of the NRC. We 21 will consider the information gathered by the Office 22 of Investigation, information provided earlier by you, 23 Mr. Shea, and information presented here today.

24 The NRC staff will meet after the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.

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159 completion of the PEC to reach a final agency decision 1

as to where a violation occurred. I'll also remind 2

you that any statements or lack thereof made by an NRC 3

employee at this conference are not intended to 4

represent the agency's final position or 5

determination. Before we close the teleconference, 6

does the court reporter have any questions or 7

clarifications that are needed?

8 (No response.)

9 MR. WILSON: Finally, I'd like to thank 10 everyone who participated and all the presentations 11 that you -- this --

12 MR. SHEA: Are you there?

13 MR. WILSON: Yes.

14 MR. SHEA: You broke up.

15 MR. WILSON: Oh. This concludes our 16 teleconference. Thanks, everyone.

17 (Whereupon, the above-entitled matter went 18 off the record at 2:01 p.m.)

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