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USDOL/OALJ Reporter
Office of Administrative Law Judges 1111 20th Street, N.W. Washington, D.C. 20036 Case No. 79-ERA-1 In the Matter of
CLIFFORD W. RICHTER
vs.
ELLIS FISCHEL STATE
CANCER HOSPITAL
Carl F. Sapp, Esq.
D. B. Kammerer, Esq.
Before: SAMUEL A. CHAITOVITZ
Conclusion of Law and Order Statement of the Case This case arises under Section 210 of the Energy Reorganization Act of 1974, as amended, (Public Law 95-601, 42 U.S.C. 5851). Dr. Clifford W. Rieliter filed a Complaint dated December 13, 1978 alleging that he was discharged in violation of Section 210 of the Act (42 U.S.C. 5851) because [Page 2] he had notified the Nuclear Regulatory Commission concerning certain matters. Defendant requested a hearing in this case. Pursuant to a Notice of nearing issued March 29, 1979 a hearing was held before the undersigned on May 1 and 2, 1979 in Columbia, Missouri. Both Dr. Richter and Ellen Fischel State Cancer Hospital were represented at the hearing, were afforded full opportunity to be heard, to adduce evidence and to examine and cross-examine witnesses. Thereafter, briefs and reply briefs were filed with the undersigned which have been duly considered. Upon the entire record in this case, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following recommended Findings of Fact, Conclusion of Law and Order.
1. Ellis Fischel State Cancer Hospital is a licensee of the Nuclear Regulatory Commission, licensed to use radioactive materials for the purpose of medical therapy. 2. Dr. Clifford Richter, the plaintiff herein, was initially employed by the Ellis Fischel State Cancer Hospital in 1974 as head of the Department of Medical Physics and as Chief Medical Physicist. He was hired pursuant to the recommendations contained in a report of Doctors Almond, Lindberg and Powers, recommending to the Missouri Division of Health that a Department of Medical Physics be established in conjuction with the acquisition of a Linear Accellerator by Ellis Fischel. 3. Dr. Clifford Richter, as an employee and department head, received ratings under the merit system law of outstanding in all categories. The ratings given to him were given by his peers, the Doctors and the then Administrator Virgil Yates and the ratings ranged from 92% to 97%. All these ratings were made prior to the report made by Richter to the Nuclear Regulatory Commission on March 29, 1978 regarding the irridium radiation seeds implanted in Mrs. Martha McClaskey which left the hospital contrary to the law. [Page 3] 4. In December of 1977 irridium seeds for medical therapy were implanted in Mrs. Martha McClaskey and were removed and she was allowed to leave the hospital. Four seeds of irridium were left in her body. These seeds were discovered in March of 1978 and on March 29, 1978 Dr. Clifford Richter, as Radiation Safety officer, made a report to the Nuclear Regulatory Commission which prompted an investigation by that agency. 5. Dr. Clifford Richter was Radiation Safety Officer of Ellis Fischer. State Cancer Hospital at the time he made the report to the Nuclear Regulatory Commission and it was his duty to make reports to the Nuclear Regulatory Commission. 6. At no time prior to the Richter report to the Nuclear Regulatory Commission were there any formal discussions by the staff or by the executive committee pertaining to reorganization of the Medical Physics Department as a division of the Department of Radiation Therapy. 7. In January of 1978 Virgil Yates, then the hospital administrator, wrote a recommendation for a substantial pay raise for Dr. Richter to the Division of Health which would have increased the salary of Dr. Richter from approximately $39,000.00 per year to approximately $49,000.00 per year. This letter was written prior to the discovery of irridium seeds in Mrs. McClaskey and the Richter report to the Nuclear Regulatory Commission. 8. On April 24, 1978, less than one month after the Richter report to the Nuclear Regulatory Commission Virgil Yates, the Administrator of Ellis Fischel, wrote an inter-office communication to Dr. Richter admonishing him for making the report to the Nuclear Regulatory Commission without clearing the report with the administration and the staff. Yates stated that the administration and staff would decide what should or would be reported. In April of 1978 the Executive Committee and staff, without discussing the [Page 4] matter with Dr. Richter, abolished the Department of Medical Physics and made it a division under the Department Radiation Therapy. 9. Following the report of Dr. Clifford Richter, the Nuclear Regulatory Commission made its investigation and report. The Senate of the State of Missouri had a hearing on the matter of Martha McClaskey. The Senate investigation revealed that not only had irridium seeds been left in Martha McClaskey, but that a suture needle was left in Mrs. Martha McClaskey by Dr. Bricker. All staff members, with few exceptions, were required to testify. 10. In October of 1978, without discussing the matter with Nestor Canoy, head of the Department of Radiation Therapy, the administration, executive committee and the staff reorganized the Department of Radiation Therapy to eliminate the position of Chief Physicist although physicists were needed at that time. 11. On December 8, 1978, Dr. Clifford Richter was notified that his job as Chief Physicist had been eliminated and that he would be terminated as an employee. 12. The termination of Dr. Clifford Richter on December 8, 1978 was directly caused by his report to the Nuclear Regulatory Commission that radioactive irridium seeds had been left in Mrs. Martha McClaskey when she was discharged from the hospital and to the series of events that occurred thereafter. 13. Dr. Clifford Richter was paid by the Missouri Department of Social Services through the month of February, 1979, and has received no pay from Ellis Fischel State Cancer Hospital since the dates of his termination, December, 1978. His salary at the time of termination was $39,000.00 per year.
14. Dr. Richter testified that his attorneys fees for
this hearing would be $2,500.00.1
1. It is concluded that the Act (42 U.S.C. Section
5851(a)) prohibits a Nuclear Regulatory Commission licensee
from discharging or discriminating against an employee for
commencing a proceeding for the enforcement of any requirement
imposed under Section 5851 or the Atomic Energy Act of
1954.
2. It is concluded that 42 U.S.C. 5851 (b) (2) (B)
grants the Secretary of Labor the power and the authority
to make such orders as are necessary to protect persons who
have reported infractions of the license requirements of the
Nuclear Regulatory Commission and to protect persons who
have been discharged as a direct result thereof.
3. It is concluded that, under 42 U.S.C. 2014, 2131
and 2134, "person" is defined as "any state or political
subdivision or any political entity within the state . . ."
and that the Ellis Fischel State Cancer Hospital is included
in the definition of "person".
4. It is concluded that Dr. Clifford Richter was
discharged by the Ellis Fischel State Cancer Hospital for
acts falling within the protection of 42 U.S.C. Section 5851
and is entitled to be protected by the Department of Labor.
Thus, although Ellis Fischel is a State Cancer Hospital of
the State of Missouri and has the right to make staff and
departmental reorganization under the law of the State of
Missouri, it may not do so as a pretex to conceal its real
objective of discharging Dr. Richter because he engaged in
conduct protected by 42 U.S.C. 5851.
Based on the pregoing Findings of Fact and Conclusions
of Law it is recommended that the following order be issued:
It is therefore ordered and adjudged:
1. That Ellis Fischel State Cancer Hospital and the
Missouri Department of Social Services restore Dr. Clifford
Richter to his former duties as Chief Medical Physicist
together with retroactive compensation in such sum as he was
receiving on the date he last received compensation from the
Department of Social Services in February of 1979.
2. That Dr. Clifford Richter be restored to his
position as Chief Medical Physicist under the same terms,
conditions and privileges of employment enjoyed by him prior
to his discharge in December of 1978.
3. That the Ellis Fischel State Cancer Hospital of
Missouri pay Dr. Richter for his attorneys fees in the sum
of $2,500.00.
4. That Ellis Fischel State Cancer Hospital of Missouri
remove all adverse references from the personnel file of
Dr. Clifford Richter which are therein and which occurred
subsequent to his reporting the McClaskey incident to the
Nuclear Regulatory Commission.
SAMUEL A. CHAITOVITZ
Dated: JUL 6 1979
SAC:tf
1Counsel for Claimant, in his brief,
refers to an
investigatory finding by the Department of Labor that
Claimant had an additional ,500.00 in legal expenses prior
to the hearing. No evidence was submitted on this issue so,
accordingly, no finding can be made.
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