Nuclear Employer Alert

  
 

NRC Hearing Requested in TVA Discrimination Case

Our August 25 Alert summarized recent, significant NRC discrimination enforcement actions against TVA and a former executive and manager. Based on its investigations, the NRC found that TVA and the two individuals retaliated against workers in two different instances, in violation of 10 CFR 50.5 and 50.7. 

Among other things, the NRC determined that the former manager, Erin Henderson, engaged in deliberate misconduct when she submitted an internal grievance claiming that she was being harassed. The NRC faulted TVA for investigating that concern, reasoning that the filing of the complaint and the investigation were each forms of prohibited adverse action. While TVA and the two individuals contested the violations in predecisional enforcement conferences, the NRC was unmoved and imposed the most severe discrimination sanctions in recent memory. 

Perhaps not surprisingly given the NRC's unyielding stance, it appears that the licensee and the individuals will be fighting back. TVA is not yet due to respond to the violation, but last week Henderson filed a request for a hearing on the Notice of Violation she received.

The hearing request calls the NRC's decision to sanction a manager for filing a workplace complaint, and TVA for following up on it by investigating, as a "decided step backward" in an era of increased focus on victims' rights as well as inconsistent with the NRC's own expectation that nuclear employers will foster respectful work environments. The request casts Henderson as the victim of a campaign of harassment by one of the individuals she supposedly discriminated against, a Sequoyah worker. To top it off, according to Henderson's filing, that worker admitted that his conduct toward Henderson was inappropriate (he ultimately resigned), numerous other TVA leaders considered his conduct inappropriate, and TVA's investigation substantiated Henderson's harassment complaint. (Counsel for the employees in these cases nonetheless contended in a recent press release that TVA's investigations were "spurious.") The hearing request provides substantial factual background tending to show that Henderson's harassment complaint was justified--and hardly deliberate misconduct.

As summarized in our prior alert, the NRC cited Henderson for two violations, one pertaining to the Sequoyah worker, the other involving a corporate employee mentioned by Henderson in her harassment complaint. As to that violation, Henderson's hearing request argues: "[T]he former corporate employee was terminated for disrespectful and unprofessional conduct towards Ms. Henderson that occurred after Ms. Henderson filed her complaint. It is simply not possible to find that Ms. Henderson’s complaint was deliberate misconduct with respect to the former corporate employee when, according to the NRC Staff, her complaint merely triggered the investigation that ultimately revealed the former corporate employee’s wrongdoing."

Much of the Henderson's request addresses her right to a hearing, even though she did not receive an Order from the NRC (only the NOV). Among other things, the request argues that Henderson has a constitutional, due process right to a hearing, partly because she has suffered a concrete reputational injury: "The Commission cannot deny that receiving an NOV for deliberate misconduct and a Severity Level II violation is an extremely serious matter. It is a highly critical statement from the Staff of the industry’s top regulator about Ms. Henderson’s integrity and calls into question whether she acts in accordance with Commission requirements." Moreover, the request argues that the agency's standards are unconstitutionally vague because, until now, the NRC has not indicated that filing a harassment complaint could be deemed deliberate misconduct that violates agency regulations.

Finally, the hearing request contends that Henderson is owed a hearing because the NRC's action is based on unreasonable assumptions, not evidence, and the NRC's factual findings are completely erroneous in various respects.

Henderson's hearing request is a good indication that the former executive, who received a five-year ban on industry work, and TVA itself, are likely to request hearings on this enforcement matter. We will keep you up to date as developments occur.

In the meantime, 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.