Nuclear Employer Alert

  
 

NRC Board Grants TVA Executive's Motion to Aside Immediate Effectiveness of Staff Order in Discrimination Case

We previously reported on NRC discrimination enforcement actions against TVA, a TVA manager (Erin Henderson), and TVA's former Vice President of Regulatory Affairs, Joseph Shea. The NRC cited TVA for four violations of 10 CFR § 50.7 and cited the individuals for deliberate misconduct in violation of § 50.5.

As to Mr. Shea, the agency's Office of Enforcement issued an Order Prohibiting Involvement in NRC-Licensed Activities that barred him for five years "from engaging in, supervising, directing, or in any other way conducting NRC-licensed activities." As explained in its cover letter to Mr. Shea, the Staff concluded that he had "played a significant role in the decisionmaking process to place a former corporate employee [Beth Wetzel] on paid administrative leave ... and terminate the former corporate employee ... in part, for engaging in protected activity, including raising concerns about a chilled work environment." The Order was effective immediately.

Like Ms. Henderson, as well as TVA (see sidebar), Mr. Shea has strongly contested the NRC's findings. In addition to requesting a hearing on the Order, he challenged the Staff's determination that it take effect immediately (Motion to Set Aside the Immediate Effectiveness of the Order). Bifurcating the substantive challenge to the enforcement action and its immediate effectiveness, a three-judge ASLB panel heard oral arguments on his motion on October 16. Yesterday, in a split decision (2-1), the judges granted Mr. Shea's motion (Memorandum and Order (Granting Order to Set Aside the Immediate Effectiveness), ASLBP No. 20-968-04-EA-BD01).

Mr. Shea's primary argument to the ASLB was that the Staff failed to present evidence that he acted with deliberate intent to retaliate against Wetzel. Among other things, Mr. Shea pointed out that he had worked closely with TVA's Office of General Counsel and Human Resources to address ongoing conflicts involving Henderson, Wetzel, and others, and that his actions leading to to Wetzel's discipline were transparent (not nefarious), above-board (not ill-motivated), and in good faith (not with deliberate intent to violate agency regulations).

The ASLB's majority opinion largely accepts Mr. Shea's argument. The Order first clarified the standard for establishing a violation of 10 CFR § 50.5 and the evidence required to sustain an immediately effective order under that provision: "to uphold the immediate effectiveness of a 10 C.F.R. § 50.5 violation, the Staff must present adequate evidence that the alleged wrongdoer (1) knowingly (2) engaged in deliberate misconduct. This 'knowingly' requirement needed to support an immediately effective order is to be distinguished from mere 'willfulness,' which can be established by showing merely an act of careless disregard." Adequate evidence, in turn, "is not an onerous burden, but merely requires a showing that the order is based on more than 'mere suspicion, unfounded allegations, or error.'"

The ASLB granted Mr. Shea's motion because the Staff failed to present "adequate evidence of an intentional violation of a Commission requirement." To establish that Mr. Shea engaged in deliberate misconduct, the Staff had to provide “'reliable, probative, and substantial evidence' of 'the state of mind and intent of [Mr. Shea],' of 'the requisite intent [of Mr. Shea] to act in a wrongful manner,' and that '[Mr. Shea] recognize[d] that [his] action was improper.'" Addressing this core issue, the panel stated:

We emphasize that resolution of the instant motion comes down to one central question, as articulated by the Staff, “whether there is adequate evidence to conclude that Mr. Shea, with the knowledge that his actions were prohibited, deliberately terminated Ms. Wetzel because she expressed her concerns on numerous occasions, that there was a chilled work environment . . . at TVA.” The key issue before us, then, is “about Mr. Shea's actions in terminating Ms. Wetzel for her protected activity,” and nothing else.

The Staff’s ... evidence largely focuses on Ms. Wetzel’s actions and whether her actions constituted protected activity. The Staff describes a convoluted history of allegations between employees and supervisors, involving opaque statements regarding chilled work environments, and several examples of protected activity, but it fails to establish the requisite connection between these allegations and Mr. Shea’s decision to terminate Ms. Wetzel.

The Board rejected the Staff's argument that it need show only that "a person of reasonable caution would believe" that Mr. Shea terminated Wetzel based, in part, on her protected activity. Mr. Shea's actual knowledge, not what he or a reasonable person should have known, was the issue.

One judge dissented. Contrary to the majority's conclusion that, in this context, the Staff needed to present evidence that Mr. Shea actually knew that his actions would cause a discrimination violation, the dissent believed that the only evidence required was a showing of an "intentional act or omission that the person knows would cause a licensee to be in violation of any rule or regulation or other NRC requirement":

All that is required to be shown is that Mr. Shea fully understood or should have understood his responsibility to comply with the [Energy Reorganization Act] and Commission regulations. No party argued that these laws and regulations were unknown to Mr. Shea.

The matter is now referred to the Commission for further consideration, so the ASLB's Order is not immediately effective. Please contact us if you should have any questions about this development.

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.