Report of Investigation, Case No. 3-2001-009, Davis-Besse Nuclear ...

CASE No. 3-2001-009

Up:ted S' ;A.i ear R atry ommission -

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Reori f Inv stion

: .. &4*.,----! - S * t-fi Raii -y Concerns Relat:ing to ';'riigad -a fitnise4wo-Dt ror.ui e Voato

.... . - . . .. - --.: . . .: : . .,

Office of Investigations

Reported by 0; RIt-

Informatjq, in this record was deletedIn accordance .vitI De, Freedom of InfomationAct exemp ..ons . -

F I--:-.-

Title: DAVIS-BESSE NUCLEAR PLANT %ZQDELIBERATEDISCRIMINATION.AGAINST A

I FOR RAISING SAFETY CONCERNS RELATING TO INSUFFICIENTTRAINING AND A FITNESS-FOR-DUTY PROCEDURE VIOLATION

Licensee:

FirstEnergy Nuclear Operating Company76 South Main StreetAkron, OH 44308

Docket No.: 05000346

Reported by:

'ames N. Kalkman, Senior Special AgentOffice of InvestigationsField Office, Region HI

Case No.: 3-2001-009

ReportDate: August23, 2001

Control Office: OI:RIMI

Status: CLOSED

Reviewed and Approved by:

Richard C. PaVUl, DirectorOffice of InvestigationsField Office, Region III

WARNING

DO NOT DISSEATE, PLACE IN UUBLIC DOCUMENT ROOM ORDISCUSS THE CONS OF THIS POROQF INVESTIGATION OUTSIDENRC WITHOUT AuTII9RITY OF THE APPROVING OFFICIAL OF THISREPORT. UNAUTHORiD DISCLOSURE MAY REikCT IN ADVERSEADMINISTRATIVE ACTIOND/OR CRIMINAL PROSECUTION.

SYNOPSIS

This investigation was initiated on March 5, 2001, by the U.S.Nuclear Regulatory Commission,Office of Investigations, Region III, to determine whether Lug

Davis-Besse Nuclear Plant was deliberately discriminatedraising safety concerns relating to lack of training and apotential fitness-for-duty procedure violation. .. _. _.

Based on the evidence developed, this investigation concludedthnart him andeliberately discriminated aginst. ao asn

a nce o ecting fact-finding meeting ony subjecang thr o a g n

_ ysubjecting th t oacaching session o

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TABLE OF CONTENTS

Page

SYNiOPSIS ....................... . . . . . . . . . . . . . . . . . . . . . I

LIST OF INTNERVIEW M E E S ...........................

DETAILS OF INVESTIGATION .7

Applicable Regulations. 7PurposeofInvestigation. 7Background. 7InterviewofAleger.... 8Coordination with the Regional Counsel ..................................... 10Review of Documentation .10Review of the DOL Report 11OI Violation .11

ProtectedActivity .. 11Licensee's Knowledge tected Activity.11 A11AdverseAction TakenA ..........................A..; 12Nexus Between lvrotected Activity and Adverse Action .13

Agent's Analysis .15Conclusion 17

SUPPLEMENTAL INFORMATION .19

LIST OF EXHIBITS .21

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LIST OF INTEVIEWEES

~..............

MINCHEFF, Carlos, Security Shift Supervisor ................

SKEEL, GarySecurity Manager............................

THEISEN, James, Security Shift Supervisor...................

ExhibitNo.

..................... 2

.10.......... i

..................... 9

.................... 14 1t"'

.................... 12

.................... 13

.................... 11

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DETAILS OF INVESTIGATION

Applicable Regulations

10 CFR 50.5: Deliberate Misconduct10 CFR 50.7: Employee Protection

Purpose of Investigation

This investigation was initiated by the U.S. Nuclear Regulatory Commission (NRC), Office ofInvestigations (II), Rgion m, on March 5, 2001, to determine

tti deliberately discriminated against by -7't the Davis-Besse Nuclear Plant (Davis-Besse) for raising safety concerns on

Background

On February 9, 20019 Davis-Besse, contacted Kevin ZELLERS,NRC Resident Inspector, Davis-Besse, concerning an allegation of discrimination.related that as a result of writing Condition Report (CRconcerning ajt_ fN12 rijM he was subjected to a fact-finig meeting on hisreason for and failure to notify the licensee m a timely manner that he had written a CR. Under

brola naned the CR by deleting comments that had upsethis concerns of harassment and intimidation to the plant ombudsman,

Alan VANDENABEELE. According to VAND ENABEELE brought the matter tothe attention of Guy CAMPBELL, Site Vice Presfdent uclear, who directed that th

"_th e h o admit that they had nothandled the matter appropriaQt memo documenting the fact-finding meeting wassubsequently removed fromn-ile. 4F(

Subsequentlon during- eeting, i aised aconcerntham violations may have occurred a few days before. The next

SUP .prtnetwi 4%1V2&WWM_ about theinappropriateness ai thi ni ocumented$theconcerns in CR told ZELLERS that because of the way

andled this matter felt that the rviously raised harassment andintimidation issue had not been resolved.

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Case No. 3-2001-009

On March 5, 2001, at an Allegation Review Board, 01 was asked to initiate an investigation ofthis allegation to determine wheth was deliberately discriminated against inviolation of 10 CFR 50.5 and 50.7 (Exhibit 1).

Interview of Allever (Exhibit 2)

On April 3, 200 interviewed under oath by Sr. Special AgentJames N. Kalmn. stated substantially the following:

hsworked in eateta Davis-Besse s-

was involuntarily removed frorwh ed orarily

wehewsofrdan opportunity to reur o p n (Ebbt2p.3-.

Qi,9^ 0IM!!wrote ta condition report (CR) to document his concern that~had not beeny trained on 4 in the owner controlled

area, which h! did not consider the concern as nuclear safetyrelated but it was a concern required to respond t.

te owner controlled area Th were encouraged to usethe CR process to report concerns ared the CR on a new electronic CR rtingsvstem imulemented in_ the firs time he had used that new svstem.

-

advisedsupervisor of the CR prior to the end of his shift on the morning of:-(Exhibit 2, pp. 7-11, 13-16).

On W we, ived for his evening shift, he was notified that hissupervisor would be conducting a "fact-finding" meeting with him because of the CR he hadwritten the previous shift. After shift turnover d witnes .

-. met with the Shift Supervisor, James THEISENa informedthe fact-finding meeting was required to determine rte was a significant time lapsebetween the identification of the concern and whentified management of hisconcern and the CR The meeting consisted responding to a series of predesignedquestions all relating to the preparation of the previous shift's C understood thatTHEISEN as di ed to conductthe ct-finding meeting either by the Supervisor o k

r by the Manager, Gary SKEEL: At the conclusion of themeeting, d whether the fact-finding questions and response would be placed in hispersonnel file. THEISEN initially stated that it would not, but later in the shift, THEISEN

at had directed him to place the fact-finding document in(Exhibit 2, pp. 13, 16-21).

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On January 15,200 went to the Davis-Besse ombudsman to complain about thefact-finding meeting based on the initiation of a CR. According to, the ombudsmansaio that he agreed hould not have been subjected to a fact-finding meeting forwriting a CR and stated that'helwould bring the issue to the Site Vice President. The next day,

_ rceived information from the ombudsman that the Vice Preside ad directednagement to remov fact-finding meeting document fro onnel

The ombudsman advsedthat the Vice President also stashould nothave been pressured to remove editorial language from his original CR. subsequentlyhad a meeting with SKEEL and the Director of Support Services, Lonnie m EY, where hewas informed that the whole situation was poorly handled and toassure th at there would be no repercussions for writing CRs (Exhibit 2, pp. 26-30).

One*d the othe , on his shift attended a monthly'meeting," t the end of th meetingquestioned

about an incident that occurre o where an directed to rwork after he went home from lshif because the shii suprvisor failed to notify thmandatory drug test at the end of his shi. _ aske'whether the itan FFD p re violation and whether management was pursuing the matter.

nvise adde others in attendance that he knew nothing of the incident.asketo look into the issue and determine if a CR was warrantedtha _ ppeared upset that he had raised the FFD issue at the shift meeting (Epp. 30-32).

:'W.

he~Of tLicident was

a. .

0recal FedExhibit 2,

On the follo da whe- arived for his shift, he was asked to attend ameetig wa"iL- EZCarlaccompany him to the meeting as a witneshad S SupervisorCarlos MINHEFF present as a management witness.visethought !-een-bnprofessional and disrespectful toward him by questioning him atthe shift meeting. xplained the actions management to wing the mistakewhere th allowed to leave without t'akin g test. dvised that he didl (,/not believe a procedure violation occurred, but ought there was a violation, hecould prepare a CR w elt like he was being attacked for questioning if there was aproblem for management's viewpoint rather than writin CR Following that

eokte a CR that cited an FFD viation. t later observed thatphad placed a summary document of theemeeting in his personnel file

(Exhibit 2, pp. 32-3 8).

Agent's Note:I II

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Coordination with the Regional Counsel

On May 10, 2001, Region II Coun sel, Bruce BERSON, advised tha._

Review of Documentation

Davis-Bese datcumenting lack ov training Oon*ara(xhbtystem in the owner controlled

Davis-Besswc umentation of fact-findn eting wi datedIlisting eight questions pertaining to reason for £intiating the CR 1/

and why he deayed 6 hours before informing his o f the concern and the CR. Threeofthe questions indicated management's interest inreason for the CR and its narrativecontent (Exhibit 5):

1) What was the reason for writing the Condition Report? -

3) Why did you feel you had to editorialize on the Condition Report i.e., putcomments in other than what were required?

8) Do you still want to pursue filing CR

Agent's Note: The above questions become significant because ag ementstatact-fding meeting was initiated to determine why he failed to I]follow their expectations with regard to the CR proceqs, which could have resulted in ldisciplinary action.

Davis-Besse Ombudsman Concern Report No. 331, dated January 16, 2001, prepared byWORLEY, Manager of Support Services, which indicated, "My investigation revealed that the

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responsible supervisor knew what was ha eing and directed the F tLineSupervisor (J. Theisen) to perform the fact-finding wi It is my opinion that sedpoor judgement by pursuing the CR initiation, content and reason for initiation, hrougfiafact-finding, documenting the fact-finding, and subsequently lac -rsomnel file.Discipline has been administered relative to the incident f( ibit 6).

Davis-Besse memo dated February 7,2001, subject: Expectations and Professional Co esy -meeting notes, summarizing the meeting/coaching session betweendv asdocumented by MINCHEFF (Exhibit 7).

Davis-Besse C teddoumenting an FFD procedure violation thatoccuwred e n nNSO who was scheduled for a random drug test was notnotified bym management, was allowed to leave the plant after his shift, and wassubsequently directed to return to the plant to be tested (Exhibit 8).

Review of the DOL Report

The NRC has no record of fil ing a discrimination complaint with the U.S. Departmentof Labor (DOL).

01 Violation: Deliberate Discrimination Against or Raising Safety Concerns Relatingto Insufficient Training and an FD Procedure Violation

Protected Activity

On'prepared and submitted a CR that documented_concern that d not received trainin installed in

'the owner controlled area of the plant. 0 sed tah s opotntial FFD procedure violation wit hubEequenEly 2 2d

prepared and submitted a CR relating to that sae concern (Exhibit 2, pp. 7-16, 30-34;Exhibit 4; Exhibit 8).

Licensee's Knowledge of Protected Activity

Davis-Besse __mnaers, including THEISEN, MINCHEF KEEL and"i acknowledged tha initiated a CR regarding the lack o0aii on

ysse m. owledged that a i ed an FFDprocedure violation concern at a shift meeting o (Exhibit 11, pp. 5-6;Exhibit 12, pp. 5-8; Exhibit 13, pp. 8-1 1; Exhibit 14, pp. 7-10, 32-43).

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Adverse Action Taken Against

imw as directed to participate in a fact-finding meeting with hisShift Supervisor, THEISEN. The meeting was held at the direction o to gatherinformation about reason for writing the CR. _ also wished to explore

- eparture from the management expectation w aid to immediatenotification to management before writing a CR, and the fact thad inmanagement's view, inappropriately editorialized the CR problem description. _stated,"I directed my day shift supervisor, and I believe I even personally called Jim Theisen to try toget information and directed him to do a fact-finding meeting wi land others to determinewhat happened with th em how it could havAndalso for Jim Theisen to do a specific follow up with 'on the Condition Report ... and I jl/directed Jim Theisen to do a fact-finding with* get information as to the content of theCondition Report.", astated further regarding hiseason for the fact-finding meeting,"Two reasons. One, is the expectation that I had forM Cr any is that, that informationbe shared with a supervisor before writing a Condition Report to ensure we can screen it forsiafeguards.. .. and secondly, th of this facility had been accessed by thecomputer system on the morning of the 12" NN W stated thatlhe3 did not recall directingthe documentation of the fact-finding meeting be placed in personnel file, butaisexpectation was that it would be placed in the supervisor's working file, which is not the officialpersonnel file. anagement stated that fact-finding meetings are not disciplinary 7

actions, but are typically held when a potential for disciplinary action exists (Exhibit 2,pp. 16-25; Exhibit 9, pp. 3-13; Exhibit 11, pp. 7-12; Exhibit 13, pp. 11-33; Exhibit 14,pp. 11-19, 28-30).

OnI w directed by to attend a coaching session withhim, wheU sa s monished for acting in a disrespectful and un rofessional manner awhen he raised the FED concern at the previous day's shift meeting. tated, "The tones L7I got from him was that, you know, that my supervisor violated a procedure, you know, and itwas a more accusatory kind of thing. And he wanted to lead me down this agreeing with himand the whole other ere that I've got a supervisor that violated a procedure, whathave we done with it. I didn't know the facts. I just didn't know. And they knew more than Idid and that's what I recall . . . So that's why I had a follow up meeting to discuss what was yourintent. Because I sensed - was your intent toinflame supervisor or anybody else in open forumlike that and he said, 'no, it wasn't"' (Exhibit 2, pp. 34-38; Exhibit 10, pp. 4-14; Exhibit 12,pp. 16-17; Exhibit 13, pp. 42-58; Exhibit 14, pp. 32-43).

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Nexus Between _ P rotected Activity and Adverse Action

has taken the position that being subjected to a fact-fibding meeting as a result ofwriting a CR is retaliatory and he raised that issue with the Davis-Besse ombudsman.Subsequently, attended a meeting with WORLEY and SKEEL, at which, according to

= ,he was advised the fact-finding meeting was poorl handled and the documentation ofthat meeting would be removed from his personnel file. - was also advised that hismanagement inappropriately sought to have him delete certain statements fro the CR narrativedescription because they perceived those comments as editorialization. ecalled themeeting with WORLEY, "If I remember right, I think they wanted him j:. o change hiswording on the CR and we ended up, we had a shift meeting with the director who's LonnieWorley, and in those meetings he told us that under no circumstances would anybody be asked tochange their wording unless it was safeguards or, you know. And I think the whole basis of thatmeeting with Worley was just so people kne atwhen they wrote a CRthey shouldn't beintimidated or asked to change anything." stated the meeting withWORLEY, "I believe, from what I understand, is they didn't wan to perceive anyconnection, because he had gone to the Ombudsman, and they didn't want him to perceive anyconnection about us challenging his ability to write a Condition Report because we did a fact-finding meeting and he was connecting that with discipline, and wanted to make sure heunderstood that that's not what the intent of that was, and therefore by removing that from thefile he felt whole" (Exhibit 2, pp. 26-30; Exhibit 9, pp. 3-13; Exhibit 1O, pp. 15-18; Exhibit 11,pp. 7-17; Exhibit 14, pp. 45-46).

and SKEEL stated tha was not subjected to the meeting because he wrote aR, but rather because he deviated from management's expectation they be informed of a CR

issue before it is placed in the CR system so as to avoid the potential that safeguards informationbe inappropriately placed on an unsecured system. initiated the CR several hoursbefore his Shift Supervisor was aware of its existence. THEISEN, who conducted thefact-finding meeting wit* stated that one of the reasons for the meeting was to findout why the Cwas written and why he included the last two sentences in the narrative problemdescription. who witnessed the fact-finding meeting, responded to the OIquestion:

Q. .. . did it appear from the meeting that the reason for the meeting was don't writea CR at the beginning of your shift and not tell us about it until the end of the shiftor was it don't write CRs?" I

A. "Like I said, I believe it was don't write CRs. Like I said, that's the impressionthat I got. When we originally went in there and Jimmy [THEISEN] was, youknow, no, this is not going to go in your personnel file. That's fine. _You're just

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consulting somebody on what they expect you to do. And then when they turnaround and to our surprise, and j believe his, too, was told that it was going to goin his personnel file, it really hit home then."

tated that the fact-finding meeting is perceived as disciplinary because in hisestimation, 70 to 80 percent of the time, disciplinary action follows the meeting.THEISEN could not recall another situation at Davis-Besse where Mmployee was givena fact-finding meeting for writing a CR (Exhibit 2, pp. 7-25; Exhibit 9, pp. 17-20; Exhibit 10,pp. 19-22; Exhibit 11, pp. 7-17; Exhibit 13, 17-34; Exhibit 14, pp. 28-30).

perceived he was subjected to a coaching session withbeauhej'raised a potential FFD procedure violation with _ at a shift meeting and that X (

was embarrassed because management had mishandled the issue and did not wish tojustify their actions with th at that meeting. aso had documentation of thecoaching session placed pnel file, witnessed the coaching sessionand perceived tha s aco lan was tha-bro t .ue up in front

toup at the shif meeting an _ thought it was none o business.as not at the shift meeting, but has attended metings where management

encourages open communication and feddback fro andTHHEISN.,statedthey did not feel tha would have been out of line or disrespectful for raisin the FFDconcern at the shift meeting. stated that~he was not embarrassed b -

raising the EFD issue, but did feel tha s~ probing afte Atated he did notknow the facts of the issue was an attempt to bait or set 1iz214up, and that was unprofessional and a;>disrespectful. MINCHEFF witnessed the coaching session and documented the discussion, buthad not been present at h h shift meeting (Exhibit 2, pp. 30-34; Exhibit 10, pp. 6-11;Exhibit 11, p. 19; Exhibit 12, pp. 16-22; Exhibit 14, pp. 32-43).

t the shift meeting where __questione.recalled. ' was sitting own here and I was sitting out at that end.

room e up here ... And ske about the drug test and why was forcedto come back inhere. I said someting to the same manner sitting down at the other end of theroom at the same time. a y says, 'I don't know anything about it. . .' Like I said, Isaid the same thing sitting down there just about the same timef did. Why did he call ameeting wiff;Odown in his office and not me? I don't know." respondedfirther to the 01 question "Do you think that could have perceived tha wasbeing disrespectful todim fbor raising that issue at the meeting?" bd, 'No.What I think is he knew he was wrong in what he done and he di n't want to admit it in front ofeverybody. That's my feeling" (Exhibit 9, pp. 24-30).

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stated that his coaching session wi awas not because of the fact thatd tential procedure violation, rather because of the timing in which it was

adjust spent an hour addressing with the e results of aDeartment survey usedto hel build a cooperative and professional work environment.

reivedv qOuestioning attitude at the shift meeting as disrespectfiil tomanagement and unprofessional. During the coaching sessio- iMadvised thatmanagement did not view the FFD issue as a procedure violation, but wished topursue the concern, he should prepare a CR. MINCHEFF recalled that one day of the allegedFFD violat.. onaad ised him, . . . he asked me to attempt to ge l

back to the plant to provide, because there was a 24 hour providing period. And iwe were able to achieve that we would not be in violation of the procedure." SKEEL understoodtha used the coaching session wil rather than a fact-finding meetinbecause ejialready had the facts, since he was present at the shift meetingSEL also stated that he would have expect , have coaching sessions with any

hose intent was to undermine manage as appeared to have been doing atthe shift meeting. "a CR on and it was later dispositioned ashaving correctly identified an FFD procedure violation (Exhibit 2, pp. 34-38; Exhibit 12,pp. 13-18; Exhibit 13, pp. 42-58; Exhibit 14, pp.32-43).

Agent's Analvsis

and SKEEt stated vas not subjected to the fact-finding meeting becausehe wrote a CR, and they argued tnot subjected to discipline by virtue of thefact-finding meeting, as not all fact-finding meetings result in disciplinary action. According toTHEISEN, management, however, could have garnered the additional information from

without using the official fact-findin meeting process. THEISEN did not anticipatedocumenting the fact-finding meeting s personnel file until directed to do so by

_ 1,stated he was using the fact-finding meeting to gather information aboutwhy-* wfailed to follow establish e .department expectations to immediatelynotify management if a CR concern were identified, a process deviation which could haveresulted in disciplinary actio stated that he was unaware of any requirement toreport his lack of training concern, "not nuclear safety," immediately to management, butheclarified that he understood and would have reported a nuclear safety related concernexpeditiously to management.

Security management had placed an expectation o notify them of any CR issueprior to entering the concern into the computerized reporting system. The fact that §management pressures to edit the narrative of 'CR, honvever, also showsmanagement's interest in' the CR issue itself, not merely ailure to follow CR processexpectations. The last question asked o in the fact-finding meeting, "Do you still

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want to pursue filing C suggested that management sought to dissuadfrom filing the CR, via the fact-finding process. Davis-Besse senior management subsequentlydirected SKEEL anto assure th t hat any narrative content of a CR isacc table with the exception of safeguards infonmation, anws directed tohave

:remove the fact-finding meeting documentation fro personnel file. Itappears, based upon the ombudsman investigative report, that senior management perceived thefact-finding meeting following the submission of a CR as inappropriate action that may haveappeared retaliatory.

raised an FFD duty procedure violation concern -as witnessed by 8 or 10aleast one of whom also vocally suppoe s concern to

to >stated that he was not accusatory and merely wanted to know why anwas directed t re n to work for a drug test when it was management's failure to notify

him before he left sh ft.so suggested toat ement had violatedthe FED procedure. stated that he was not embarrassed b question, butoAce e responded that he did not have the details of what had occurred with the ED issue,

hould have dropped the matter and addr ed the FFD concern with him one-on-oneoutside of the shift meeting setting. Because Que stioned himi fuhperceived tha'was trying to "set him up," and that was disrespectful andunprofessional.

K-

stated that his coaching session wit w was not considered disciplinary actionat Davis-Besse and was not initiated becaus potential procedure violation.During the coaching sessio urage to write a CR even though he didnot think management had violated the FFD procedure. witnessed th

ht meeting and denied tha s was disrespectful of management for questioningbout the FED issue, stated that he also voiced the same concern with

tat that meeting, but did not receive a coaching session with

9stated that he did not wish to discuss the FED issue at the shift meeting because he didnot know the details of the issue at that time, but in fact was involved in the decisionto order the" * back to the plant for the drug test and had already taken the positio a noFFD violation had occurred if th d in a certain time period. Sincedid not have a coaching session wi ho admitted vocally supportinat the shift meeting, it may be inferred th aw ws attempting to cfrom pursuing the FFD issue a a coaching session with him. xplanationfor the coaching session, that exhibited disrespectful and unprofessional behavior,appears to have been pretextual.

/J�/

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Conclusion

Based on the evidence developed, this investigation concluded that in pdeliberately discriminated again I or raisin a safety concesubjecting tfact-finding meeting o and for *sin aconcern on by subjecting that him to a coaching sessiown og

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SUPPLEMENTAL INFORMATION

On August 23,2001, William P. SELLERS, Special Counsel for Administration and RegulatoryAffairs, Criminal Division, Fraud Section, U.S. Department of Justice, Washington D.C., wasappraised of the results of this investigation. Mr. SELLERS advised that in his judgement, thiscase does not warrant prosecution and rendered an oral declination.

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LIST OF EXHIBITS

ExhibitNo. Descrption

1 Investigation Status Record, 01 Case No. 3-2001-009, dated March 5, 2001.

2 Transcript of Interview wtdated April 3, 2001.

3 NRC internal e-mail from Regional Counsel to 01, dated May 10, 2001.

4 Copy of Davis-Besse CR Y date

5 Copy of Davis-Besse documentation of fact-finding meeting wf _dated _-69

6 Copy of Davis-Besse Ombudsman Concern Report No. 331, dated January 16,2001. 9

7 Copy of Davis-Besse Memorandum of Coaching Session, dated

8 Copy of Davis-Besse C date

9 Transcript of Interview withiated June 13, 2001.

10 Transcript of Interview wi ted June 13, 2001.

11 Transcript of Interview with THEISEN, dated July 12,2001.

12 Transcript of Interview with MINCHEFF, dated July 12, 2001.

13 Transcript of Interview with SKEEL, dated July 12, 2001.

14 Transcript of Interview with SK , dated July 12, 2001.

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