U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, NJ 08104
DATE: October 2, 1997
CASE NO.: 97-ERA-00031
In the Matter of
TED ELTZROTH Complainant
v.
AMERSHAM MEDI-PHYSICS, INC. Respondent
Appearances:
Ted Eltzroth, pro se
Alan S. King, Esquire,
On behalf of Respondent
Before: Ainsworth H. Brown
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding brought under the Energy Reorganization Act of 1974
("ERA"), 42 U.S.C. § 5851, and the regulations promulgated thereunder at 20
C.F.R. Part 24. These provisions protect employees against discrimination for attempting to carry
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out the purposes of the ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
§2011, et seq. The Secretary of Labor is empowered to investigate and determine
"whistleblower" complaints filed by employees at facilities licensed by the Nuclear
Regulatory Commission ("NRC"), who are discharged or otherwise discriminated
against with regard to their terms and conditions of employment, for taking any action relating to
the fulfillment of safety or other requirements established by the NRC.
In the instant case, Complainant filed a complaint with the Department of
Labor on February 22, 1997. After an investigation by the Department of Labor (DOL), which
found Complainant was discharged due to refusal to perform his assigned task, Complainant
appealed to this Office by letter received on March 7, 1997. A hearing was held before me in
Chicago, Illinois on June 24, 1997 whereupon testimony was presented and exhibits were admitted
into the record. The parties were given sixty days to submit written closing arguments in this matter.
Additionally, Complainant was to provide Respondent with bibliographic information regarding a
scientific text referred to by Complainant in his testimony and subsequently on his written argument.
Complainant's argument was received on August 1, 1997 and Respondent submitted his argument
on August 25, 1997, whereupon the record was closed.
This case concerns Complainant's discharge from his position as a radioactive
"seed" inspector for Respondent. Complainant contends that he was fired after, and as
a result of, his informing Respondent's employees that he perceived a safety hazard in the inspection
process which exposed him to high doses of radiation. He initially refused to perform the task and
informed Respondent that he would consider whether he would ultimately perform the job. He was
terminated the next day. Respondent argues that Complainant was fired solely because of his failure
to perform the job for which he was hired, that his activity was not protected under the ERA, and
that, even if his whistleblowing activity contributed to his release, Respondent would have been
discharged.
I. Applicable Law
In order for Complainant to prevail under the ERA through reliance upon
circumstantial evidence, he must first establish a prima facie case of retaliatory action by
Respondent, to wit: he must establish that (1) he was engaged in protected activity, (2)
Respondent was aware of the conduct, and (3) Respondent took an adverse action against him.
Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996); Dartey v.
Zack Co. Of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6-9; Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Complainant must also
offer evidence sufficient to raise the inference that the adverse action was likely caused or
contributed to by the protected activity. Id.; 42 U.S.C.A. §5851 (b)(3)(C).
If Complainant establishes this prima facie case, Respondent must
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produce evidence that the alleged adverse action was motivated by legitimate,
non-discriminatory reasons. The Respondent's burden is one of production only. Zinn,
supra; Burdine, supra at 254-255.
In the event that Respondent is successful in articulating the above, the
burden of proof shifts again to Complainant. Complainant must then show that Respondent's
proffered business reasons are mere pretext for discrimination. Id.; Frady v.
Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995); Samodurov v.
General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993). At all times during the above
analysis, the burden of showing by a preponderance of the evidence that Respondent was
motivated by illegal animus rests with Complainant. Samodurov, supra.
If it is determined that a violation exists, i.e., that Respondent was
motivated at least in part by discriminatory animus, then Respondent, in order to avoid liability,
must show by clear and convincing evidence that it would have reached the same decision even
in the absence of protected conduct. 42 U.S.C.A. 5851(b)(3)(B).
II. Testimony and Exhibits
Witness Testimony
Determination of this matter depends in large part upon evaluation of the
testimony presented at the hearing, which consisted of testimony by Complainant, Edward
Zdunek, Respondent's Radiation Safety Officer, and Raymond Wronkiewicz, who was a quality
control supervisor for Respondent at the time of Complainant's employment.
Complainant testified that he was hired on a temporary, full-time basis by
Respondent in February, 1997 to inspect its "I-125 seeds", which are radioactive, at
the rate of fourteen dollars per hour. (TR 10, 12, 21). On the first day of work, February 3, he
was provided with radiation training, and he underwent inspection training on the second day.
The inspection process entailed placing his hands into gloves, projecting them through an
opening in a wall, and, by manipulation of tweezers, picking up and raising a radioactive seed
from a collection of ten to thirty seeds placed on a table. The seed is then sized through the use
of a tool. (TR 11). On that day he was asked to attempt to perform the inspection, whereupon he
inserted a radiation detector into the one of the gloves in order to ensure he was adequately
protected from radiation. (TR 11 - 12). At the time the tray had approximately eighty seeds upon
it. (TR 40). According to his reading, he concluded that "little to no protection" was
afforded from the glove, and he did not perform the task. (TR 12 - 13). His trainer, who was
present, was unaware of the level of radiation projected from the seeds, and she referred
Complainant to Ed Zdunek. (TR 13). That night, Complainant concluded that the exposure rate
was significant, after performing some preliminary calculations. Id. The following day
he discussed the matter with Mr. Zdunek, who explained that the company monitored radiation
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exposure through nuclear emulsion badges, and that data indicated the exposure rates were
within the applicable limits. Id. (TR 13 - 14). Upon indicating that he remained
uncomfortable with the task, and that he wanted to verify his calculations, he proceeded to his
immediate supervisor, Ray Wronkiewicz, the following day. (TR 14). Both returned to the task
area and placed eight layers of gloves over Complainant's detector, which revealed no radiation
diminution. He asked if he could confirm his calculations and then inform Mr. Wronkiewicz
whether Complainant would perform the job, since he would have left if his rates of radiation
were verified, had he not been fired. (TR 14). He was indeed fired the next day, on February 5,
1997. (TR 20). According to Complainant, he believed that he would not have been fired had he
performed the inspection work. (TR 38).
Complainant stated that his calculations were indeed verified by several
health physics departments, and they yielded an exposure rate of 1 to 1.5 rads per hour from the
seeds, compared to the federal limit of 75 rads annually. (TR 15). The result was theoretical in
nature, rather than a direct measurement of radiation exposure, he stated. (TR 37). He used a text
by Shapiro to arrive at his results. He cited the same source for the proposition that the
monitoring badges were not completely effective, although, to his knowledge, Respondent's
monitoring techniques were acceptable to the IDNS. (TR 27, 37). Prior to working for
Employer, Complainant had no experience monitoring radiation or conducting testing. (TR 38).
Aside from the aforementioned persons, whom Complainant contends
understood but did not appreciate the serious nature of the exposure issue, Complainant also
informed the Illinois Department of Nuclear Safety (IDNS) and the Nuclear Regulatory
Commission (NRC). (TR 18, 25). The former also performed the calculation and attained a
similar result, but did not proceed since Employer's paperwork was in order, while the NRC
believed he had grounds for a discrimination suit, according to Complainant. (TR 18). He
acknowledged that the IDNS dismissed the complaint, finding it to be without merit. (TR 32).
He also believed neither agency was willing to examine beyond the available paperwork in order
to assess the merits of his complaint, but stated that he was unaware of their inspection protocol.
(TR 28 - 30).
Testimony was also given by Edward A. Zdunek, the radiation safety
officer at Amersham, and a former inspector for IDNS. (TR 47 - 48). Mr. Zdunek, who attained
his Bachelors of Science in industrial occupational safety from Illinois State University,
explained that Complainant's work station protected against radiation exposure through the use
of a leaded plexiglass shield, tweezers (which provide distance from the radioactive material),
leaded gloves and a controlled number of between ten and thirty seeds. (TR 50, 73, 106).
Heavier leaded gloves had been used, but were found too cumbersome for the task. Id.
The area covered by the gloves varied from person to person according to his/her size. (TR 106 -
107). Radiation exposure rates in that station are among the lowest in the facility. (TR 51).
Exposure rates are measured by dosimeter badges; one reflects whole body
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exposure and another reads the exposure on the employee's hands, and is located on the hand, on
a ring under a leaded glove. (TR 53, 74 - 75, 84, 113). They are collected on a bimonthly basis
and forwarded to a company that reads the badges, quantifies their rates and forwards the data to
Respondent. (TR 53). The results are stored and reviewed, as well as posted for employee
inspection. (TR 53 - 54). Extremity exposures in the area are ten percent of the regulatory limit,
according to Mr. Zdunek. (TR 82). It was theoretically possible that one's forearm could be
exposed to 100 millirems in a 15 minute span, depending upon the number of seeds, and whether
the forearm is exposed. (TR 88 - 91). Safety measures are based in part upon these practical
measurements, both of which are standard in the industry, as well as upon theoretical values,
with a view toward field exposure for the workers. (TR 82 - 84, 113). Never has an employee
exceeded the regulatory limits during Mr. Zdunek's tenure, and Complainant's badge results
reflected no appreciable exposure. (TR 54 - 55).
Mr. Zdunek stated that NRC permissible exposure rates for the position
were 5 roentgen equivalent man (rem) for the whole body and 50 rems for an extremity.
Id. Respondent's in-house limits are 2 rem for the whole body and 30 rem for
extremities. (TR 54). In addition, Respondent has a department-by-department program to limit
exposure as low as reasonably achievable (ALARA), in which a subcommittee of employees
raise issues and concerns. (TR 56 - 58). Further, a safety meeting is held on a monthly basis
affording employees the opportunity to voice their concerns on through their ALARA
representative. (TR 58). Mr. Zdunek is aware of no employee that has been discharged or
disciplined for raising or discussing a safety concern. (TR 58).
Mr. Zdunek essentially confirmed Complainant's account of the events of
February 3, 1997. (TR 62). On February 4th the two gentlemen were introduced, and on the 5th,
after being told Complainant did not wish to work with any radioactive materials, Mr. Zdunek
met with Complainant to discuss his apparently genuine concerns regarding exposure. (TR 65,
98). The drawbacks of heavier leaded gloves were explained, after Complainant proposed their
use. (TR 66). The regulatory, Amersham and ALARA limits were explained, and documents
addressing biological effects of radiation and other topics were offered and declined. (TR 66, 68).
After the meeting Mr. Zdunek informed Jay Reed, the quality control manager, of Complainant's
discomfort and refusal to change his mind regarding the task. (TR 69).
According to Mr. Zdunek, Complainant's measuring instrument does not
measure radiation exposure. Rather, it is designed for environmental monitoring, which entails
contamination detection, not dose rates. (TR 67). Thus, it is very radiation-sensitive, in order to
determine whether any radiation at all is present. (TR 68). It is used by Respondent to ensure
that no radioactive seeds were left behind at the work station. (TR 67 - 68). Moreover, Mr.
Zdunek asserted that Complainant's calculation of an exposure rate of 1.4 rads per hour refers to
actual contact with the seed, rather than exposure from the task, which is conducted three inches
from the radioactive source. (TR 69 - 70). It is possible, but not normal, for the forearm to pass
over the seed, according to Mr. Zdunek, and the forearm has no specific badge for monitoring.
(TR 76, 80).
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With regard to the one-day investigation conducted by IDNS, a team
arrived, interviewed those who had contact with Complainant, and performed radiation surveys
of the area with representative samples, in order to ascertain the effectiveness of the gloves and
the radiation levels in the area. (TR 116). Mr. Zdunek became acquainted with Mr. Bruce Sanza,
the author of the letter from IDNS, from Mr. Zdunek's prior employment at IDNS. (TR 102).
Raymond F. Wronkiewicz, who was the quality control supervisor at the
time of Complainant's employment, provided testimony as well. (TR 118 - 119). He interviewed
and hired Mr. Eltzroth, and was his supervisor. (TR 120 - 123). During the interview Mr.
Wronkiewicz informed Complainant that he would receive radiation dosage within the NRC and
IDNS guidelines during the course of his employment, and the latter indicated that such exposure
did not pose a problem for him. (TR 122). During a tour of the facility Mr. Wronkiewicz showed
Complainant dosage charts of other employees, and Complainant again indicated that he did not
have a problem with the issue of radiation dosage. Id.
On the February 4, 1997 (the second day of Complainant's employment)
Mr. Wronkiewicz was informed that Complainant did not wish to perform the test inspection,
and they met to discuss the matter. Complainant stated that he was concerned that he would be
receiving too much radiation from the job, and he declined to performed the test. (TR 124).
After re-explaining the process and attempting to alleviate this concern, Mr. Wronkiewicz was
told by Complainant that he was still unwilling to perform the job. (TR 125). Mr. Wronkiewicz
then reminded Complainant that he was informed of, hired and agreed to perform this task.
Complainant then requested time to think the matter over, but did not indicate whether or not he
would perform the job in the future. (TR 126). He was assigned to work unrelated to radiation,
and was directed to Mr. Zdunek. (TR 126 - 127). The following day Mr. Wronkiewicz again met
with Complainant, informed him of historical radiation data reflecting results well within
"the limits," and reminded him that the visual inspection was a duty he accepted
when he agreed to work for Respondent. (TR 127). Complainant stated that he wanted radiation
exposure "reduced to zero," and again requested time to think about the matter
overnight. (TR 127 - 128). Mr. Wronkiewicz did not recall granting the request, nor being told
that Complainant wanted the time in order to verify his calculations. (TR 130 - 131). Mr.
Wronkiewicz later informed his supervisor, Jay Reed, of the situation, and they decided
Complainant would be uncomfortable with the job, particularly since Mr. Zdunek tried to allay
Mr. Eltzroth's fears through historical data and reference materials. (TR 128). They then decided
to terminate his employment. Id.
Mr. Wronkiewicz also testified that safety issues are raised frequently, and
are investigated and reported upon. (TR 128).
Exhibits
Respondent submitted a copy of the IDNS report, dated April 8, 1997,