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 FACIL:50-315 Donald C.Cook Nuclear Power Plant, Unit 1, Indiana M 59-316,Dc;nald C.Cook Nuclear Power Plant, Unit 2, Indiana M 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.DISTRIBUTION CODE: A001D COPIES RECEIVED:LTR ENCL SIZE: TITLE: OR Submittal:

General Distribution NOTES: DOCKET 05000315 05000316 E, INTERNA RECIPIENT ID CODE/NAME PD3-3 LA STANG,J 01 NRR/DE/EMCB NRR/DSSA/SPLB NUDOCS-ABSTRACT COPIES LTTR ENCL 1 1 1 1 1 1 1 1 1 1 1 1 RECIPIENT ID CODE/NAME PD3-3'D NRR/DE/ECGB/A NRR/DRCH/HICB NRR/DSSA/SRXB OGC/HDS2 COPIES LTTR ENCL 1 1 1 1 1 1 1 1 1 0 EXTERNAL: NOAC l (J NRC PDR D 0 NOTE TO ALL"RIDS" RECIPIENTS:

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)p TOTAL NUMBER OF COPIES REQUIRED: LTTR~ENCL C ll'4 1 1 fl IJ 1~r 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 if he had, American Nuclear Resources terminated him for lawful reasons.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 c'P804230019 9804i4 PDR ADQCK 050003X5 P PDR y~: x~~/~~<<08 gQgcg.'Ddt.

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-TEXT PUBLlCATION 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 AMERICAN NUCLEAR RESOURCES, INC., Petitioner, V.No.96-3825 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 States Dep't of Labor No.96-3825 No.96-3825 American Nuclear v.United 3 States Dep't of Labor COUNSEL ARGUED: Kevin M.McCarthy, MLLER, CANFIELD, PADDOCK&STONE, Kalamazoo, Michigan, for Petitioner.

Lois R.Zuckerman, U.S.DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR, Washington, D.C., for Respondent.

ON BMEF: Kevin M.McCarthy, MLLER, CANFIELD, PADDOCK&STONE, Kalamazoo, Michigan, for Petitioner.

Lois R.Zuckerman, William J.Stone, U.S.DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR, Washington, D.C., for Respondent.

OPINION SILER, Circuit Judge.Petitioner, American Nuclear Resources, Inc.("ANR"), seeks to reverse a Secretary of Labor decision holding it liable for baclc pay and attorney's fees.The Secretary held that ANR violated the Energy Reorganization Act by discharging an employee, Gregory Sprague, because he reported a safety violation.

Because the Act does not protect Sprague's conduct, we REVERSE.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 co-workers found him"somewhat pushy" and tried to avoid him whenever possible.Two incidents hastened Sprague's termination.

On March 19, some Radiation Protection employees (RPs)sprayed the 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 entered Emanuel's office and started complaining about"the stupid RP's not knowing what they were doing," even though the RPs did not work for ANR.ANR contends that Sprague was yelling, though he denies this.The next day, March 20, Sprague underwent a"full body count" to measure his radiation level.While most tests took two minutes, Sprague's took two hours.His results were abnormally high.During the testing, Sprague became upset at the RPs.Emanuel stated 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 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 decided to terminate his employment.

Sprague later filed a complaint with the Department of Labor and alleged that his termination violated the whistleblower provisions of the Energy Reorganization Act ("ERA"), 42 U.S.C.g 5851.An admimstrative law judge and 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 1 Mer work that day, Sprague contacted the Nuclear Regulatory Commission (NRC)and requested a copy of the his full body count.In 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 States Dep't of Labor No.96-3825 No.96-3825 Amencan Nuclear v.United States Dep t of Labor U.S.C.g 5851(c), ANR now appeals and contends that jt fired Sprague solely because of his interpersonal problems.%e review the Secretary's legal conclusions de novo, although we defer somewhat to the agency because it is charged with administering the statute.5 U.S.C.$706(2)(A);

Chevron USA., Inc.v.Natural Resources Defense Council, Inc., 467 U.S.837 (1984).%e will uphold an interpretation if"based on a permissible construction of the statute." Chevron,467 U.S.at 843.On the other hand, we review fact findings to ensure that substantial evidence supports them.Moon v.Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir.1987).Substantial evidence is"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.This court reviews the application of law to fact under the same substantial evidence standard.Turnbull Cone Baking'o.v.¹LRB., 778 F.2d 292, 295 (6th Cir.1985).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, 1163 (9th Cir.1984).The statute explicitly protects a few acts, such as testifying in a safety proceeding.

42 U.S.C.g 5851(a)(1)(E).

The statute also includes a catch-all provision that protects employees"in any other action[designed]

to carry out the purposes of[the safety statutes]." Id.at g 5851(a)(l)(F).

To state a claim under the ERA, an employee must establish that the employer retaliated because the employee engaged in a~~~~~~~rotected activity.Bartlik v.United States Dep't of Labor, 73.3d 100, 103&n.6 (6th Cir.1996).If an employer retaliates for both legitimate and illegitimate reasons, courts apply the"dual motive" test, under which the employer must show that it would have retaliated even if the protected 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 2 ANR's Petition for Review named only the Department of Labor as respondent.

Parties to an agency proceeding such as Spraguc are not proper respondents, although they may move to intervene.

Oil, Chemical&Atomic JVorkers, Local Union Na.6-418 v.N.LRB., 694 F.2d 1289, 1298 (D.C.Cir.1982).Here, Spraguc filed a responsive brief, but hc ncvcr moved to intervene.

Accordingly, this court ignores Spraguc's brief.3 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, the prc-1992 version of thc BRA governs herc.Pub.L No.102486 g 2902(i).Unless othcrwisc noted, this opinion cites to the current version of the statute.In terms of defining protected activities, the amendments essentially 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"to explicitly" protect certain activities.

H.R.REP.No.102474 (Vill)(1992).Thc amendments explicitly protect thee activities that most court decisions already pmtcctcd.See 42 U.S.C g 5851(a)(1)(A), (B), (C).For example, g 5851(a)(1)(A) protects an employee who"notified his employer of an alleged[safctyj violation." Before the amendment, almost every circuit also protected these internal safety complaints.

See Bechtel Conslruc.Co.v.Secretary'abor, 50 F.3d 926, 931 (11th Cir.1995)(noting that almost all circuits agreed).Because the amendments essentially codify the law regarding piotcctcd activities, wc believe that wc would reach the same result under the current statute.The Sixth Circuit protected internal complaints cvcn before the amendments.

Jones v.Tennessee Valley Auth., 948 F.2d 258, 264 (6th Cir.1991).Moreover, one case based on post-amendment law, Stone&8'ebsfer, strcsscd that the post-amendment ERA continues to protect only certain activities.

6 American Nuclear v.United States Dep't of Labor No.96-3825 No.96-3825 American Nui.'lear>>.

tfslited States Dep't of Labor inseparable.

Id.at 1164.See also Pogue v.United States Dep't of Labor, 940 F.2d 1287 (9th Cir.1991)(where employee filed seven internal safety complaints but often behaved disrespectfully, applying the test in favor of the employee).

Therefore, a court first must determine whether the ERA protects the employee's acts.Building on the Act's language, courts have held that the ERA protects many types of acts that implicate safety.For exaniple, the ERA protects an employee who files internal reports concerning regulatory violations.

Jones v.Tennessee Valley Auth., 948 F.2tI 258, 264 (6th Cir.1991).Although the old version of g 5851 fails to protect internal reports explicitly, courts protect internal reports to advance the statute's policy goals.E.g., Bechtel Construe.Co.v.Secretar'yof Labor, 50 F.3d 926, 931 (11th Cir.1995).Despite this generally broad reading, courts limit the ERA toyrotect only certain types of acts.To constitute a protected satety report, an employee's acts must implicate safety definitively and specifically.

Id.In Bechtel, a carpenter disagreed with his foreman about the procedures for protecting radioactive tools.The court protected the carpenter's acts because he"raised particular, repeated concerns about safety procedures," which were"tantamount to a complaint." Id.The court also noted, however, that"general inquiries regarding safety do not constitute protected activity." Id.The ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern.Stone&Webster Zng'g Corp.v.Herman, 115 F.3d 1568, 1574 (11th Cir.1997).In 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"Section 5851 does not protect every act...under the auspices of safety," and that"[w]histleblowing must occur through prescribed channels." Id.The court protected the employee's acts, however, because the"meeting...

was included in a series of communications to-employer representatives...

[that]were, ynder the circumstances, mutually reinforcing." Id.at 1575.Moreover, an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern.Dunham v.Brock, 794 F.2d 1037, 1041.(5th Cir.1986).In Dunhom, the employee filed a safety report with the Nuclear Regulatory Commission.

The employer suspected as much hut also thought, legitimately, that the employee often acted in a disruptive and dominant manner.Id.at 1039.To address this problem, the employer held a counseling session with the employee.The employee swore at his employer and refused to change his behavior.He dared the employer to fire him.Holding for the employer, the court noted that an otherwise protected'provoked employee's not automatically absolved from abusing his status and overstepping the defensible bounds of conduct." Id.at 1041.The employee's cavalier attitude, abusive language, and defiant conduct justified his discharge.

Id.at 1040-41.See also Lockert v.United States Dep't of Labor, 867 F.2d 513, 519 (9th Cir.1989)(employee's disobedience justified discharge, especially where he failed to establish disparate treatment or that he had made an unusually large or serious number of complaints).

Here, this court first must consider whether the ERA protects Sprague's conduct.A negative answer ends the analysis, because generally"an employer may fire an employee for any reason at all, so long as the reason does not violate a Congressional statute." Kahn v.United States Secretary of Labor, 64 F.3d 271, 280 (7th Cir.1995).ANR 4 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 reports of continuous safety problems);

Mackowlak, 735 F.2d at 1162 (protecting an employee who Red internal complaints and reported safety problems to NRC).

8 American Pfuclear v.United States Dep't of Labor No.96-3825 No.96-3825 American Nuclear v.United 9'tates Dep't of Labor argues that Sprague's acts never amounted to an internal safety complaint, and that therefore Sprague's conduct should receive no protection.

ANR asserts that the ERA protects only acts that allege a violation of nuclear regulatory laws.The government, on the other hand, argues that Sprague's questions about the RPs expressed a"particular safety concern" about the body count that was"tantamount to a complaint that the correct safety procedure was not being observed, and thus constituted protected activity." The Secretary of Labor, relying on Bechtel, found that Sprague's questions"constituted protected internal activities, since the RPs were responsible for Sprague's radiological safety as an ANR employee." Sprague's conduct falls outside the scope of ERA protection.

His conduct lacks a sufHcient nexus to safety concerns.Sprague did the following things that possibly implicate safety: he complained about"the stupid RP's not knowing what they were doing" after they waited too long to spray;he grew angry at the RPs while they administered his full body count test;and, after the test, he asked the RPs for a copy of the body count, even though he received a more understandable exposure report.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.

In cases where courts protected the employee's acts, the employee typically alleged a safety concern that was both concrete and continuing.

For example, in Stone dc 8'ebster, the employee held weekly meetings about fire safety;in Bechtel, the employee complained about the procedures for handling radioactive tools;and in Pogue, the employee had prepared seven internal reports identifying specific safety problems.In contrast, Sprague complained about an isolated mcident involving a wall spraying, not a procedural hazard.A single act or inquiry may, of course, fall under the ERA's'cope, but that act must bear a closer nexus to safety than Sprague's conduct.Finally, even if the ERA does protect Sprague's conduct, ANR did not fire Sprague because he complained about safety.Emanuel testified that she fired Sprague because of his interpersonal problems.Sprague complained primarily about the RPs'ncompetence, but the RPs did not work for ANR.No one could attribute the RPs'rrors to ANR.Therefore, Sprague's complaints alleged no safety breach by ANR.Nothing in the record indicates how Sprague's conduct could force ANR to change its procedures or incur extra costs.An employer would hardly retaliate over such an insignificant sleight.REVERSED.5 ANR also complains that the Secretary of Labor denied it due process 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 ORDER AMERICAN NUCLEAR RESOURCES, INC.Petitioner Flt;ES MAR26)998'EOMRO GgPEN, Cle 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 PGR'IHE SIXIH CIRCUIT No: 96-3825 AMERICAN NUCLEAR RESOURCES, I NC., Petitionex, l44~JAN~-'998 LEONARDO GREEN, Clerk 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: COSTS: At test: Filing Fee...........5 Printing Total.........$

A True Copy.Deputy Clerk