Nuclear Employer Alert

  
 

NRC Cites TVA, Two Senior Leaders for Discrimination Violations

The NRC today announced significant enforcement actions against the Tennessee Valley Authority (TVA) and two former TVA senior licensing employees based on recent discrimination findings by the Office of Investigations. In terms of severity level and sanctions, this is the most significant discrimination enforcement action the NRC has taken in recent years.

After holding predecisional enforcement conferences with TVA and the two senior leaders, the NRC issued the following notices and orders:

The NOV to TVA cites four violations of 10 CFR 50.7. Two of them stem from adverse actions against a Sequoyah nuclear plant employee who raised concerns about TVA's handling of two non-cited technical violations and about a potential chilling effect in the corporate licensing department. According to the NOV, TVA's then Director of Corporate Nuclear Licensing (CNL), Erin Henderson, improperly lodged an internal harassment complaint against the Sequoyah worker after the worker raised concerns: "The former employee suffered an adverse action when you filed a complaint, dated March 9, 2018, triggering an investigation as to whether the former employee harassed you." The second 50.7 violation occurred when, following the investigation, TVA placed the employee on administrative leave until the employee resigned.

Henderson also figured in the other pair of violations. Her internal harassment complaint also accused Beth Wetzel, one of her subordinates, of harassing her. As we reported in our February 3, 2020 Alert, Wetzel and Henderson had not gotten along well, and some of the conflict spilled into protected activity territory. Among other things, Wetzel alleged that Henderson created a chilling effect. In response to the dueling allegations, the TVA Office of General Counsel (OGC) conducted an investigation. Henderson's single complaint against two individuals (the Sequoyah worker and Wetzel) thus caused two discrimination violations. In each instance, Henderson's complaint and the ensuing OGC investigation constituted adverse actions.

The fourth violation involved TVA's response to Henderson's complaint about Wetzel following the OGC investigation. According to the NOV, Wetzel raised her concerns to the TVA Vice President of Regulatory Affairs, Joseph Shea, during the investigation. The NRC cited Shea for his role in placing Wetzel on paid administrative leave and her termination.  The Order to Shea summarizes this violation:

The former employee suffered an adverse action when [Shea] played a significant role in the decisionmaking process to place the former employee on administrative leave and terminate the former employee. There is a nexus between the former employee’s protected activity of raising concerns about a chilled work environment and the termination of the former employee. [Shea] stated during the predecisional enforcement conference that [he] terminated the former employee for being “disrespectful” to the former Director of CNL. However, the examples used in the TVA OGC report as evidence that the former employee was “disrespectful” to the former Director of CNL were: 1) raising concerns about a chilled work environment in a TVA OGC interview; and 2) raising concerns about reprisal from the former Director of CNL directly to [Shea]. [Shea] admitted that he did not counsel the former employee about the asserted disrespectful behavior.

The NRC categorized the discrimination against the Sequoyah worker as a Severity Level II problem and proposed a monetary penalty of twice the base amount (for the two adverse actions). The NRC deemed the fourth violation to be a Severity Level I problem, given Shea's more senior position within TVA and the nature of the adverse action against Wetzel. As explained in a cover letter to TVA, although Henderson's violations were considered Severity Level II matters, the NRC deemed the two adverse actions against Wetzel to be a combined Severity Level I violation, with a double-the-base penalty of $600,000. The total proposed penalty for all of the violations, however, is $606,942 when reduced to the prevailing cap.

Henderson is required to submit a reply to the NOV. TVA, of course, may protest or pay the proposed monetary penalty. The enforcement action against Shea is harsh: a five-year ban from working in the nuclear industry. The NRC reasoned that this penalty was justified by the "significance of the underlying issues," that Shea's position at TVA had a "very broad sphere of influence," and because his actions were deliberate. Shea now holds a non-nuclear position with TVA.

The enforcement action is troubling for at least three reasons. First, Shea was not a walk-on nuclear manager oblivious to the significance and potential regulatory consequences of retaliation. He held important roles in the industry, including a 10-year stint as a Division Director at the NRC, before that serving as a lieutenant in the Navy. He then held positions of increasing responsibility during his nearly 10 years in TVA's licensing and regulatory affairs function. It is perplexing that he would have intentionally discriminated against a worker for raising safety concerns. What is troublesome is that he likely sincerely believed that he was acting for legitimate reasons and apparently had the support of the corporate organization, yet in retrospect the NRC concluded that he intended to retaliate.

Second, the enforcement actions stemmed in part from very-difficult-to-handle dueling internal concerns between employees. Wetzel's concerns about Henderson were deemed protected activity, but Henderson's concerns about Wetzel were the opposite--a retaliatory adverse action. A nuclear organization has little choice but to encourage all employee concerns and to investigate them when they arise. Here, the NRC is effectively insisting that TVA should have properly binned one concern as protected and the other as retaliatory even before investigating, because the act of investigating was itself an adverse action. The NRC does not offer guidance to the industry here on how managers are to develop such perceptive foresight when employees don't get along. One factor that might distinguish the TVA situation from future dueling-employee cases is that Wetzel's complaint was protected, but not vice versa, perhaps because she was the subordinate, although a predisposition to give credit to the "underdog" when dueling concerns arise is arguably an unwise approach.

Finally, some activists have been pressuring the NRC to take actions against TVA for its history of SCWE and employee concerns problems (see sidebar). Those activists have made clear that, in their view, the NRC must do more than give TVA a "slap on the wrist." It is discomfiting that in the midst of those efforts, the NRC has taken its harshest discrimination enforcement actions in years.

If you have any questions about this development, please contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.