ML17334B736

Informs of 980326 Denial of Secretary of Labor'S Petition for Rehearing by Us Court of Appeals for Sixth Circuit Case of American Nuclear Resources,Inc Versus Us Dol.Copy of Court'S Opinion,Order Denying Petition & Judgement,Encl

ML17334B736
Person / Time
Site:	Cook
Issue date:	04/14/1998
From:	Fitzpatrick E INDIANA MICHIGAN POWER CO.
To:	NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
References
AEP:NRC:1184D5, NUDOCS 9804230019
Download: ML17334B736 (11)

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CATEGORY 1 REGULAT INFORMATION DISTRIBUTIO SYSTEM (RIDS)

ACCESSION NBR:9804230019 DOC.DATE: 98/04/14 NOTARIZED: NO DOCKET FACIL:50-315 Donald C. Cook Nuclear Power Plant, Unit 1, Indiana M 05000315 59-316,Dc;nald C. Cook Nuclear Power Plant, Unit 2, Indiana M 05000316 AUTH. NAME "'UTHOR AFFILIATION FITZPATRICK,E. Indiana Michigan Power Co.

RECIP.NAME 'ECIPIENT AFFILIATION Document Control Branch (Document Control Desk)

SUBJECT:

Informs of 980326 denial of Secretary of Labor's petition for rehearing by US Court of Appeals for Sixth Circuit case of American Nuclear Resources,Inc versus US DOL.Copy of Court s'opinion, order denying petition S judgement, encl.

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PLEASE HELP US TO REDUCE WASTE. TO HAVE YOUR NAME OR ORGANIZATION REMOVED FROM DISTRIBUTION LISTS OR REDUCE THE NUMBER OF COPIES RECEIVED BY YOU OR YOUR ORGANIZATION, CONTACT THE DOCUMENT CONTROL DESK (DCD) ON EXTENSION 415-2083 TOTAL NUMBER OF COPIES REQUIRED: LTTR ~ ENCL

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Indiana Michigan Power Company 500 Circle Drive Buchanan, Ml 491071395 INSIAi84 NICHl6AN PMfJFR April lrI, 1998 AEP:NRC:1184D5 Docket Nos.: 50-315 50-316 U. S. Nuclear Regulatory Commission ATTN: Document Control Desk Mail Stop 0-Pl-17 Washington, D. C. 20555-0001 Gentlemen:

Donald C. Cook Nuclear Plant Units 1 and 2 COMMUNICATION OF FINAL JUDGMENT SPRAGUE v. AMERICAN NUCLEAR RESOURCES, INC.

(U.S. DEPARTMENT OF LABOR CASE NO. 92-ERA-37)

The purpose of this letter is to inform you of the March 26, 1998, denial of the Secretary of Labor's petition for rehearing by the U.S. Court of Appeals for the Sixth Circuit (American Nuclear Resources Inc. v. United States De artment of Labor, File No. 96-3825) .

The, Court denied the Secretary of -Labor's petition for rehearing and issued a final mandate, reversing the prior decisions of the American Nuclear Resources Inc., Case No. 92-ERA-37. In its February 12, 1998, opinion, the Court concluded that Sprague had not engaged in protected activity, and that even American Nuclear Resources terminated him for lawful reasons.

if he had, A copy of the Court's opinion, order denying the petition for rehearing, and judgment are attached to this letter.

Sincerely, PQ+p~

E. E. Fitzpatrick Vice President Attachment

/jen c A. Abramson A. B. Beach J. Lieberman MDEQ - DW Ec RPD NRC Resident Inspector R. Sampson

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ATTACHMENT TO AEP:NRC:1184DS COMMUNICATION OF FINAL JUDGMENT SPRAGUE v. AMERICAN NUCLEAR RESOURCES, INC.

(U.S. DEPARTMENT OF LABOR CASE NO. 92"ERA-37)

RECOMMENDED FOR FULL-TEXTPUBLlCATION Pursuant to Sixth Circuit Rule 24 ELECTRONIC CITATION: 1998 FED App. 0035P l6th Cir.)

File Name: 98a0035p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CERCUIT AMERICANNUCLEAR RESOURCES, INC.,

Petitioner, No. 96-3825 V.

UNITED STATES DEPARTMENT OF LABOR, Respondent.

On Petition for Revievr of an Order of the United States Department of Labor.

No. 92-ERA-37 Argued: October 20, 1997 Decided and Filed: January 29, 1998 Before: SILER, BATCHELDER, and GIBSON,* Circuit Judges.

• The Honorable John R. Gibson, Circuit Judge of the Vnited States Court of Appeals for the Eighth Circuit, sitting by designation.

2 American 1Azclear v. United No. 96-3825 No. 96-3825 American Nuclear v. United 3 States Dep 't ofLabor States Dep 't ofLabor Two incidents hastened Sprague's termination. On March 19, some Radiation Protection employees (RPs) sprayed the COUNSEL cavity's walls to prevent airborne radiation. Th& RPs evidently waited too long to spray, however, and their delay let the particles contaminate Sprague. Afterwards, Sprague ARGUED: Kevin M. McCarthy, MLLER, CANFIELD, entered Emanuel's office and started complaining about "the PADDOCK & STONE, Kalamazoo, Michigan, for Petitioner. stupid RP's not knowing what they were doing," even though Lois R. Zuckerman, U.S. DEPARTMENT OF LABOR, the RPs did not work for ANR. ANR contends that Sprague OFFICE OF THE SOLICITOR, Washington, D.C., for was yelling, though he denies this. The next day, March 20, Respondent. ON BMEF: Kevin M. McCarthy, MLLER, Sprague underwent a "full body count" to measure his CANFIELD, PADDOCK & STONE, Kalamazoo, Michigan, radiation level. While most tests took two minutes, Sprague's for Petitioner. Lois R. Zuckerman, William J. Stone, U.S. took two hours. His results were abnormally high. During DEPARTMENT OF LABOR, OFFICE OF THE the testing, Sprague became upset at the RPs. Emanuel stated SOLICITOR, Washington, D.C., for Respondent. he "screamj'ed]" 'at the RPs for an hour, though Sprague contends that he kept his temper. After the test, Sprague requested a copy of the body count, but the RPs refused and OPINION instead gave turn an exposure report that contained the same information in a more readable format. Later that same day, still less than two weeks after Spr~gue started, Emanuel SILER, Circuit Judge. Petitioner, American Nuclear decided to terminate his employment.

Resources, Inc. ("ANR"), seeks to reverse a Secretary of Labor decision holding it liable for baclc pay and attorney's Sprague later filed a complaint with the Department of fees. The Secretary held that ANR violated the Energy Labor and alleged that his termination violated the Reorganization Act by discharging an employee, Gregory whistleblower provisions of the Energy Reorganization Act Sprague, because he reported a safety violation. Because the

("ERA"), 42 U.S.C. g 5851. An admimstrative law judge and Act does not protect Sprague's conduct, we REVERSE. the Secretary of Labor ruled in Sprague's favor. Both found that ANR terminated Sprague because he questioned the RPs about safety and, therefore, violated the ERA. Pursuant to 42 ANR is a contractor at a nuclear power plant in Michigan.

On March ll, 1992, Sprague started at ANR as a tool accountability technician. Along with others, he monitored the reactor containment area to prevent objects from falling into the reactor cavity. Sprague, however, quickly developed interpersonal problems at ANR. His supervisor, Georgina Emanuel, testified that he was rude and abrasive. One of his 1 Mer work that day, Sprague contacted the Nuclear Regulatory co-workers found him "somewhat pushy" and tried to avoid Commission (NRC) and requested a copy of the his full body count. In him whenever possible. the litigation below, the parties disputed the timing of Emanuel's decision to terminate Sprague, but on appeal the government concedes that Emanuel decided to terminate Sprague before he contacted the NRC.

4 American Nuclear v. United No. 96-3825 No. 96-3825 Amencan Nuclear v. United States Dep 't ofLabor States Dep t ofLabor U.S.C. g 5851(c), ANR now appeals and contends that Sprague solely because of his interpersonal problems.

jt fired whistleblower statutes affecting other industries, is designed to protect workers who report safety concerns .and to encourage nuclear safety generally.=- Courts interpret the statute broadly to implement its "broad, remedial purpose."

Mackowiak v. University Nuclear Sys., Inc., 735 F.21 1159,

%e review the Secretary's legal conclusions de novo, 1163 (9th Cir. 1984).

although we defer somewhat to the agency because it is charged with administering the statute. 5 U.S.C. $ 706(2)(A); The statute explicitly protects a few acts, such as testifying Chevron USA., Inc. v. Natural Resources Defense Council, in a safety proceeding. 42 U.S.C. g 5851(a)(1)(E). The Inc., 467 U.S. 837 (1984). %e willuphold an interpretation statute also includes a catch-all provision that protects if "based on a permissible construction of the statute." employees "in any other action [designed] to carry out the Chevron,467 U.S. at 843. On the other hand, we review fact purposes of [the safety statutes]." Id. at g 5851(a)(l)(F). To findings to ensure that substantial evidence supports them. state a claim under the ERA, an employee must establish that Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. the employer retaliated because the employee engaged in a 1987). Substantial evidence is "such relevant evidence as a rotected activity. Bartlik v. United States Dep 't ofLabor, 73

~ ~

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reasonable mind might accept as adequate to support a .3d 100, 103 & n. 6 (6th Cir. 1996). If an employer conclusion." Id. This court reviews the application of law to ~ ~ ~

retaliates for both legitimate and illegitimate reasons, courts fact under the same substantial evidence standard. Turnbull Cone Baking'o. v. ¹LRB., 778 F.2d 292, 295 (6th Cir. apply the "dual motive" test, under which the employer must show that it would have retaliated even if the protected 1985).

activity had not occurred. MackoMiiak, 735 F.2d at 1163-64.

The-employer bears the risk if the two motives prove Amended in 1992 the ERA protects workers from retaliatory discharge. The statute, patterned after other codify earlier court decisions. See Stone & fYebster Eng g Corp. v.

Herman, 115 F.3d 1568, 1575 (11th Cir. 1997) (noting that Congress "ratified" court decisions protecting internal complaints). The amendments'egislative history states that the rictv statute amends the law 2 "to explicitly" protect certain activities. H.R. REP. No. 102474 (Vill)

ANR's Petition for Review named only the Department of Labor as respondent. Parties to an agency proceeding such as Spraguc are not (1992). Thc amendments explicitly protect thee activities that most court proper respondents, although they may move to intervene. Oil, Chemical decisions already pmtcctcd. See 42 U.S.C g 5851(a)(1)(A), (B), (C). For

&Atomic JVorkers, Local Union Na. 6-418 v. N.LRB., 694 F.2d 1289, example, g 5851(a)(1)(A) protects an employee who "notified his 1298 (D.C. Cir. 1982). Here, Spraguc filed a responsive brief, but hc employer ofan alleged [safctyj violation." Before the amendment, almost ncvcr moved to intervene. Accordingly, this court ignores Spraguc's every circuit also protected these internal safety complaints. See Bechtel brief. Conslruc. Co. v. Secretary'abor, 50 F.3d 926, 931 (11th Cir. 1995)

(noting that almost all circuits agreed).

3 Because the amendments essentially codify the law regarding 42 U.S.C. g 5851, amended by Pub. L. No. 102-486, 106 Stat. 2776.

Because Spraguc filed his complaint before the amendments took effect, piotcctcd activities, wc believe that wc would reach the same result under the prc-1992 version of thc BRA governs herc. Pub. L No. 102486 the current statute. The Sixth Circuit protected internal complaints cvcn before the amendments. Jones v. Tennessee Valley Auth., 948 F.2d 258, g 2902(i). Unless othcrwisc noted, this opinion cites to the current 264 (6th Cir. 1991). Moreover, one case based on post-amendment law, version of the statute.

In terms of defining protected activities, the amendments essentially Stone & 8'ebsfer, strcsscd that the post-amendment ERA continues to protect only certain activities.

6 American Nuclear v. United No. 96-3825 No. 96-3825 American Nui.'lear>>. tfslited States Dep 't ofLabor States Dep 't of Labor inseparable. Id. at 1164. See also Pogue v. United States employee's acts, however, because the "meeting... was Dep't of Labor, 940 F.2d 1287 (9th Cir. 1991) (where included in a series of communications to -employer employee filed seven internal safety complaints but often representatives... [that] were, ynder the circumstances, behaved disrespectfully, applying the test in favor of the mutually reinforcing." Id. at 1575.

employee).

Moreover, an employer may terminate an employee who Therefore, a court first must determine whether the ERA behaves inappropriately, even if that behavior relates to a protects the employee's acts. Building on the Act's language, legitimate safety concern. Dunham v. Brock, 794 F.2d 1037, courts have held that the ERA protects many types of acts that 1041. (5th Cir. 1986). In Dunhom, the employee filed a safety implicate safety. For exaniple, the ERA protects an employee report with the Nuclear Regulatory Commission. The who files internal reports concerning regulatory violations. employer suspected as much hut also thought, legitimately, Jones v. Tennessee Valley Auth., 948 F.2tI 258, 264 (6th Cir. that the employee often acted in a disruptive and dominant 1991). Although the old version of g 5851 fails to protect manner. Id. at 1039. To address this problem, the employer internal reports explicitly, courts protect internal reports to held a counseling session with the employee. The employee advance the statute's policy goals. E.g., Bechtel Construe. swore at his employer and refused to change his behavior. He Co. v. Secretar'yof Labor, 50 F.3d 926, 931 (11th Cir. 1995). dared the employer to fire him. Holding for the employer, the court noted that an otherwise protected 'provoked employee's Despite this generally broad reading, courts limit the ERA not automatically absolved from abusing his status and toyrotect only certain types of acts. To constitute a protected overstepping the defensible bounds of conduct." Id. at 1041.

satety report, an employee's acts must implicate safety The employee's cavalier attitude, abusive language, and definitively and specifically. Id. In Bechtel, a carpenter defiant conduct justified his discharge. Id. at 1040-41. See disagreed with his foreman about the procedures for also Lockert v. United States Dep 't ofLabor, 867 F.2d 513, protecting radioactive tools. The court protected the 519 (9th Cir. 1989) (employee's disobedience justified carpenter's acts because he "raised particular, repeated discharge, especially where he failed to establish disparate concerns about safety procedures," which were "tantamount treatment or that he had made an unusually large or serious to a complaint." Id. The court also noted, however, that number of complaints).

"general inquiries regarding safety do not constitute protected activity." Id. Here, this court first must consider whether the ERA protects Sprague's conduct. A negative answer ends the The ERA does not protect every incidental inquiry or analysis, because generally "an employer may fire an superficial suggestion that somehow, in some way, may employee for any reason at all, so long as the reason does not possibly implicate a safety concern. Stone & Webster Zng 'g violate a Congressional statute." Kahn v. United States Corp. v. Herman, 115 F.3d 1568, 1574 (11th Cir. 1997). In Secretary ofLabor, 64 F.3d 271, 280 (7th Cir. 1995). ANR Stone & Webster, a case decided on post-amendment law, the employee held a weekly safety meeting at which he discussed fire safety with his fellow ironworkers. The court noted that 4 "Section 5851 does not protect every act... under the See also Kansas Gas d'c Elec. Co. >>. Brack, 780 F.2d 1505, 1506 (10th Cir. 1985) (protecting an employee, a quality control inspector, vvho filed auspices of safety," and that "[w]histleblowing must occur reports of continuous safety problems); Mackowlak, 735 F.2d at 1162 through prescribed channels." Id. The court protected the (protecting an employee who Red internal complaints and reported safety problems to NRC).

8 American Pfuclear v. United No. 96-3825 No. 96-3825 American Nuclear v. United States Dep 't ofLabor Dep 't ofLabor 9'tates argues that Sprague's acts never amounted to an internal concrete and continuing. For example, in Stone dc 8'ebster, safety complaint, and that therefore Sprague's conduct should the employee held weekly meetings about fire safety; in receive no protection. ANR asserts that the ERA protects Bechtel, the employee complained about the procedures for only acts that allege a violation of nuclear regulatory laws. handling radioactive tools; and in Pogue, the employee had The government, on the other hand, argues that Sprague's prepared seven internal reports identifying specific safety questions about the RPs expressed a "particular safety problems. In contrast, Sprague complained about an isolated concern" about the body count that was "tantamount to a mcident involving a wall spraying, not a procedural hazard.

complaint that the correct safety procedure was not being A single act or inquiry may, of course, fall under the ERA's observed, and thus constituted protected activity." The but that act must bear a closer nexus to safety than 'cope, Secretary of Labor, relying on Bechtel, found that Sprague's Sprague's conduct.

questions "constituted protected internal activities, since the RPs were responsible for Sprague's radiological safety as an Finally, even ifthe ERA does protect Sprague's conduct, ANR employee." ANR did not fire Sprague because he complained about safety. Emanuel testified that she fired Sprague because of Sprague's conduct falls outside the scope of ERA his interpersonal problems. Sprague complained primarily protection. His conduct lacks a sufHcient nexus to safety about the RPs'ncompetence, but the RPs did not work for concerns. Sprague did the following things that possibly ANR. No one could attribute the RPs'rrors to ANR.

implicate safety: he complained about "the stupid RP's not Therefore, Sprague's complaints alleged no safety breach by knowing what they were doing" after they waited too long to ANR. Nothing in the record indicates how Sprague's conduct spray; he grew angry at the RPs while they administered his could force ANR to change its procedures or incur extra costs.

full body count test; and, after the test, he asked the RPs for An employer would hardly retaliate over such an insignificant a copy of the body count, even though he received a more sleight.

understandable exposure report.

REVERSED.

Sprague, however, never alleged that ANR was violating nuclear laws or regulations. He never alleged that ANR was ignoring safety procedures or assuming unacceptable risks.

He simply asked for a document, one that he had no right to receive and one that contained little useful information. The government contends that Sprague's general complaints about the RPs had larger safety implications, but the record refutes that position. While Sprague's complaints resulted in one set of additional body counts on the RPs, those tests ultimately revealed no safety problem or health hazard. Sprague's conduct never led anyone to change, probe, or even question ANR's safety procedures.

5 In cases where courts protected the employee's acts, the ANR also complains that the Secretary of Labor denied it due process employee typically alleged a safety concern that was both and that the Secretaiy failed to comply with a timeliness requirement.

Because we reverse, we need not address those issues.

Case No: 96-3825 UNITED STA'IES COURT OF APPEALS FOR THE SIXIH CIRCUIT Flt; ES ORDER MAR26)998'EOMRO AMERICAN NUCLEAR RESOURCES, INC.

GgPEN, Cle Petitioner GREGORY A. SPRAGUE; UNITED STATES DEPARTMENT OF LABOR Respondents BEFORE: SILER, BATCHELDER, and GIBSON', Circuit Judges, Upon consideration oX the petition for rehearing filed by the respondent, lt is ORDERED that the petition %or rehearing be, and it hereby is, DENIED.

EN'IERED BY ORDER OF THE COURT Leonard Green, Cle The Honorable John R. Gibson, Circuit Judge oX the United States Court of Appeals for the Eighth Circuit. sitting by designation.

vrar, a~ aaaneaQ a VVairL W AC SCRIP l44~

PGR 'IHE SIXIH CIRCUIT JAN ~ -'998 No: 96-3825 Clerk LEONARDO GREEN, AMERICAN NUCLEAR RESOURCES, INC .,

Petitionex, V.

UNITED STA'ISS DEPAR'IMENI'F LABOR, Respondents.

Befoxe: Siler, Batchelder, and Gibson, Circuit Judges.

THIS MATTER came befoxe the court upon a petition for review of an order, against American Nucleax Resources, Inc.

UPON FULL REVIEW of the record and the briefs and arguments of counsel, we conclude that because the American Nuclear Reorganization Act does not protect the employee's conduct, IT IS ORDERED that the order issued by the Administrative Review Board in this matter be REvERSED.

ENHHKD BY ORD GP 'IHE COURT Le nard Green, Cler taaued aa Haadaae: A True Copy.

COSTS: Attest:

Filing Fee ...........5 Printing Total .........$ Deputy Clerk