DATE: MAY 23, 1994
CASE NOS.: 93-ERA-34
93-ERA-36
IN THE MATTER OF
KURT R. ZINN,
COMPLAINANT,
V.
UNIVERSITY OF MISSOURI,
RESPONDENT,
AND
STEVEN J. MORRIS,
COMPLAINANT
V.
UNIVERSITY OF MISSOURI,
RESPONDENT.
Appearances:
Lynn Bratcher, Esq.
For the Complainant Kurt R. Zinn
Cullen Cline, Esq.
For the Complainant Steven J. Morris
Kelly Mescher, Esq.
Phillip J. Hoskins, Esq.
For the Respondent
BEFORE: THEODOR P. VON BRAND
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
FINDINGS OF FACT
I. Identity of the Parties
A. Respondent
1. The Missouri University Research Reactor (MURR) is operated by the
University of Missouri. It holds Nuclear Regulatory Commission License 24-00513-
36E and Nuclear Regulatory Materials License 24-00513-34 and License R-13.
(Stipulation of Fact No. 1).
2. MURR is the largest research reactor in the country. (Zinn 197). The
University derives annual revenues in the area of $6 million from the reactor.
(Sheridan 980). MURR is a relatively large organization by University of
Missouri standards. It has 120 full time employees and about 80 part-time
employees. (Rhyne 1012). Currently there are 20 to 25 research and senior
research scientists at the reactor. (Zinn 169-170). It is considered a close
knit community. (Morris 397; Rhyne 1032).
3. MURR has a Director, Dr. James Jennings Rhyne, an Associate Director,
Charles McKibben, and an Assistant Director, Bill Reilly. (Rhyne 1012). The
reactor's Director reports to the Vice Provost of the University. (Sheridan 93,
et seq.). Mr. McKibben is the direct supervisor of Mr. Reilly. (McKibben 843).
4. The research reactor at the University of Missouri is a source of
neutrons for irradiation of samples to make them radioactive, producing, for
example, radioisotopes for medical treatment. Such irradiation is also a tool
for the analysis of materials. (Glascock 65).
5. The reactor routinely ships radioactive materials. (Morris EX 60). It
makes on the order of 2,000 such shipments a year. (McKibben 790).
B. Complainants
6. Kurt R. Zinn is a research scientist at the Missouri University
research reactor in Columbia, Missouri. (Zinn 169). He has four degrees from the
University of Missouri, a Bachelor's Degree (1981), a Master's Degree in
Chemistry, a Doctor of Veterinary Medicine (1986), and a Ph.D. in Biochemistry
(December 1992). (Zinn 165-166).
7. Dr. Zinn began as a research scientist at MURR in 1983 or 1984. (Zinn
167). In 1986 he became a research scientist at the reactor in a position
created for him. He has worked at MURR in that capacity since 1986. (Zinn 169).
His current rate of pay is $42,000.00 a year. (Zinn 213).
8. Until March 11, 1993, Dr. Zinn was in the Analytical Epidemiology
Nutrition and Biochemistry Group, sometimes referred to as the Epidemiology
Group. Dr. Steven Morris was the group leader. Dr. Tondra Chaudhuri, Dr. Zinn's
wife, was also a member of the group. (Zinn 170-171).
9. Dr. Zinn's research at the reactor involves utilizing neutrons to make
radioactive isotopes. He also developed instrumentation to measure many isotopes
simultaneously. (Zinn 172). His area of research is in two general areas,
nutrition and radiopharmaceutical development. (RX 31).
10. Dr. Zinn, as part of his work at MURR, frequently ships radioactive
materials, i.e., radioactive isotopes. (Zinn 173). He sends 50 to 75 such
shipments year to such institutions as the National Institute of Health and other
universities. (Zinn 173).
11. Steven J. Morris, a PhD. in Chemistry, has been an employee at MURR
since 1973 in various capacities. His work has been consistently related to
nuclear analysis. (Morris 365-366). In 1981 he became adjunct professor of
chemistry and in 1983 he was appointed group leader of the nuclear analysis
group. (Morris 367). He held that position until he was designated interim
director of the reactor for the period 1989 through 1990. He returned to the
group leader position in 1990, holding that position until March 11, 1993, when
he was demoted to senior research scientist. His research is in the life
sciences area, specifically in the area of analytical epidemiology. (Morris 367).
12. Dr. Morris was Dr. Zinn's supervisor when the latter was hired as a
research scientist at MURR. (Morris 370). Their relationship is close. Dr. Zinn
described Dr. Morris as his mentor. (Zinn 355-356).
Identity of Various MURR or University Officials and Employees
13. James Jennings Rhyne is a solid state physicist. He is the Director of
the research reactor at MURR and also a physics professor of the University of
Missouri faculty. (Rhyne 999). Dr. Rhyne's education includes a Ph.D. in
condensed matter physics. (Rhyne 1000). He became Director of the reactor in
December of 1990. (Rhyne 1002).
14. James McKibben is a nuclear engineer and associate director of the
research reactor. Previously he was the reactor manager for the period 1978 to
1989. (McKibben 775). One of his primary duties is regulatory compliance with
federal regulations and licenses, i.e., NRC regulations. He is also concerned
about budget and personnel matters. He focuses on the operations end of the
reactor including supervision of the reactor manager, the facilities manager, and
the health physics manager. His immediate supervisor is Dr. Rhyne. (McKibben
776). Mr. McKibben also gives a lot of supervision to the assistant director
Bill Reilly. (McKibben 777). In addition, he directly supervises Steve Gunn in
the services area. (McKibben 777).
15. Bill Reilly is the assistant director at the reactor and he has been
with the reactor since 1987. He assumed his present position in September of
1988. Essentially Mr. Reilly's function is that of a business manager, he
oversees the service applications group and accounting functions. Service
applications is Steve Gunn's organization. (Reilly 863).
16. Steven Louis Gunn is the reactor service engineer at MURR. He has held
this position since 1974. The shipping of radioactive isotopes is one of his
responsibilities. (Gunn 634).
17. Walter Meyer is the reactor manager at MURR. He has been in an acting
capacity in his present job since 1985. (Meyer 553).
18. Judson D. Sheridan is Vice Provost and Research Dean at the graduate
school at the University of Missouri at Columbia. He is also a professor in the
Department of Physiology and in the Division of Biological Sciences. He is
responsible for overseeing from an administrative point of view the operations
of the Missouri University research reactor. (Sheridan 934-937).
19. Gerald Brouder is Provost at the University of Missouri at Columbia.
He has held this position approximately three and a half years. The Provost is
the chief academic officer for the University. As such he has responsibility for
all facets of teaching, research and outreach activities. (Brouder 583).
Relationship of the Research Reactor to the University Campus
20. The University campus became responsible for the research reactor a few
years prior to the hearing herein in 1993. Before that, the University system
was responsible for the reactor. The University system is basically a
coordinating body which is purely administrative and has no specific
responsibilities for academic programs. When the campus of the University took
responsibility for the reactor, it was assigned to the graduate school, an
academic unit reporting to the Provost of the University through the Vice
Provost. At the time of that transition, Dr. Morris was the reactor's interim
director. (Brouder 584-585).
21. The reactor as it had reported to the University system had been both
a research and a service entity including commercial services such as topaz
irradiation, etc. (Brouder 585-586). After the University became responsible for
the reactor, the decision was made to make the reactor more of an academic
entity. (Brouder 585-586).
22. When the reactor came under the jurisdiction of the Columbia campus, the
decision was made to look for a director with academic credentials who could
fully meet the criteria for tenure, specifically, a nationally recognized
scholar. That search lead to the appointment of Dr. Rhyne. (Brouder 586).
23. According to Dr. Rhyne, he was directed to enhance the integration of
the campus and reactor in the sense of drawing faculty into the administration
and research of the reactor. In this connection he was instructed to enhance the
ties between the reactor and campus, upgrade the reactor staff, emphasize
research and deemphasize project or service orientation. (Rhyne 1002-1003).
24. When Dr. Rhyne came to the reactor there were roughly four research
groups. When he reorganized the reactor, the research groups expanded to twelve.
Faculty members were made group leaders of four of the groups as part of the
reorganization. This was the first time that faculty members had been
incorporated into the administrative structure of the reactor. (Rhyne 1006). The
idea of bringing in faculty members as group leaders met with resistance from Dr.
Morris and others on the reactor staff. (Rhyne 1032; Glascock 160). The proposed
joint appointments at the reactor and on the faculty also met with opposition on
the reactor staff. The feeling was that reactor staff who could not attain a
joint appointment would be "second or even now third class citizens." (Glascock
160).
25. There has been tension among the reactor scientists because of the
feeling that the academic faculty had an advantage over the MURR staff.
(Glascock 110). Specifically there has been tension between the reactor staff
and certain of the faculty, because they are tenured and reactor scientists are
not. Dr. Rhyne is the only individual at the reactor with tenure. (Glascock
162). Among the reactor staff there has also been a long standing split between
scientists in the life science area and others in the material sciences. (Rhyne
1024).
Service Functions of the Reactor
26. The service functions of the reactor include the following: irradiation
of topaz stones to change the color to blue, which generates a significant
fraction of the reactor's income, irradiation of isotopes for medical purposes,
and irradiation of silicon for electronic devices. (Glascock 83).
27. It is an accepted fact that reactor scientists are expected to
contribute towards generating income for the reactor. MURR service generates
such income. (Glascock 164).
The Shipping Task Force and the Irradiation Subcommittee
28. A shipping error occurred on July 27, 1992. Two radioactive holmium
samples were mistakenly switched and shipped to the wrong customers. The
customer expecting the smaller amount of radioactive activity received the larger
amount. (McKibben 778; Zinn 174-175).
29. As a result of that shipping error Charles McKibben, in early August
1992, appointed the Shipping Task Force to review the total shipping program,
i.e., the "global review" thereof; the July 27, 1992 error being the second error
within a year. (McKibben 781, Zinn 176). Dr. Zinn was invited to participate on
the Shipping Task Force. (McKibben 782). McKibben in a general way kept Dr.
Rhyne advised of developments at the Shipping Task Force. (McKibben 848).
30. The first meeting of the Shipping Task Force was in early September of
1992. Initially Steven Gunn was asked to chair this group. (McKibben 785).
31. As a result of the July 27, 1992 shipping error, an enforcement
conference was held in Glenellyn, Illinois on October 2, 1992, by the NRC. (Gunn
661, Zinn 177). At that conference NRC officials stated in effect that if the
reactor shipping problems were not solved they would shut the reactor down. (Gunn
661, 663). Charles McKibben, the Associate Director of the reactor, was
concerned that the NRC might halt shipments. (McKibben 843-844). James Rhyne,
MURR's Director, shared the concern that the reactor could be shut down in case
of another violation. (Rhyne 1073). In fact, as a result of the enforcement
conference there was general concern among MURR employees concerning the
reactor's NRC license. (Meyer 560).
32. During the October 8, 1992 meeting of the shipping task force, Dr. Zinn
and Steven Gunn, then the chairman of that group, had a disagreement over how the
global review should proceed and the areas that should be examined in the global
review. (Zinn 180). The disagreement related to reviewing the target composition
of samples and determining the radioactivity induced in samples following neutron
bombardment at the reactor so that MURR could be certain of the identity of the
radioisotopes in the sample. This is prerequisite to labeling the packages
correctly for shipment. (Zinn 180). According to Zinn, Steven Gunn did not favor
an investigation to determine if this issue was important. Mr. Gunn got very
angry, stating to Zinn that the Complainant simply wanted to shut the reactor
down. (Zinn 180-181). Gunn agrees there was a heated exchange. (Gunn 636, 654).
33. In short, at that point, the Shipping Task Force was focused on the
problem of mix ups in the packaging and destination of irradiated samples and the
remedies therefor. It was not focused on the more fundamental problem that in
certain instances the radioactivity of the packages to be shipped was unknown.
(Morris 398). Put another way "You would like to get the envelope stuffed
correctly before you worry about putting the address on." (Morris 399).
34. According to Dr. Zinn, the minutes of the October 8, 1992 meeting did
not refer to his concern about the target composition problem that he had
expressed in that meeting. (Zinn 181). According to Gunn, Zinn's concern was
related to reporting requirements for trace elements. Gunn felt that this
question, although relevant, was not at issue in dealing with the violation under
consideration. (Gunn 636).
35. After that meeting Dr. Zinn expressed his concerns to Dr. Morris that
the individual in charge of the program, i.e., Steve Gunn, should not be in
charge of the review of that program. (Zinn 182). Dr. Zinn told Dr. Morris that
he contemplated resignation from the Shipping Task Force. Dr. Morris replied
that Zinn's concerns were valid and that he should not withdraw from that
committee. (Zinn 182). When Dr. Zinn expressed these concerns to Charlie
McKibben, the associate director, the latter made himself chairman of the
Shipping Task Force. (Zinn 183).
36. Dr. Zinn's concern was that no calculations were being done to determine
the amount of radioactivity induced in samples. (Zinn 184). This he felt was
crucial; if no one was doing such calculations and the reactor was relying only
on the representations of the customers as to the composition of the samples,
there was a possibility of over exposure to radiation by MURR employees, the
general public, or someone receiving the shipment after radiation. (Zinn 184).
37. When Dr. Zinn received notice of a December 10, 1992 meeting of the
Shipping Task Force, he called Wei Jia, who was in charge of a subgroup in the
services group receiving samples for radiation, irradiating them and then
shipping them out of the reactor. (Zinn 184-185). Zinn at that point was
frustrated because he felt that his concerns were not being addressed. He taped
the conversation with Wei Jia because he wanted evidence of what was taking place
in the global review. (Zinn 185). As a result of his conversation with Wei Jia,
Zinn felt that his concerns were not being followed up. (Zinn 186).
38. On December 10, 1992, Dr. Zinn distributed at the meeting a memorandum
he authored concerning P-32 shipments. Therein he stated that MURR shipped P-32
without listing the S-35 component on the shipping papers and that S-35 accounted
for greater than ten percent of the total radioactivity at shipping. Dr. Zinn
concluded that memorandum stating,
The MURR took great pride recently in a press release about
the fact we supply the country with high specific activity P-32.
This radionuclide perhaps accounts for the largest number of
radioactive shipments from the MURR.
The problem with S-35 in P-32 has been pointed out to MURR
management on several occasions, and no action has been taken on
this matter. Perhaps the MURR management (ie Charlie McKibben)
should explain to the Shipping Task Force the reasons why Ci amounts
of S-35 are not reported on the shipping papers for P-32 shipments.
(Zinn EX 17) (Emphasis supplied)
39. According to Dr. Zinn, the failure to disclose the sulphur 35 content
in the P-32 shipping papers could lead a recipient to believe that such
radioactivity was not there and thus the recipients might not take it into
account in handling the shipment. (Zinn 189-190). At that point Dr. Zinn felt
that he had to put his concerns in writing since he felt they were not being
addressed. (Zinn 189). In summary, Dr. Zinn felt that the other members of the
Shipping Task Force were not taking seriously the question of calculating the
induced radioisotopes and the amounts of resultant activity in the shipments from
the reactor. (Zinn 191).
40. When Dr. Zinn brought his memorandum of December 10, 1992, to the
Shipping Task Force meeting of that date, the memorandum was discussed and
Charlie McKibben appointed the Irradiation Subcommittee comprised of Zinn, Walter
Meyer, Wei Jia, Steve Gunn and Jim Schuh from the Health Physics group. (Zinn
192). The subcommittee was directed by McKibben to look into Dr. Zinn's
concerns. (Zinn 347).
41. Dr. Zinn, after the December 10, 1992 meeting, as a member of the
irradiation subcommittee, requested Wei Jia to furnish information concerning
irradiated samples and he began to look at what was being irradiated. (Zinn 192).
42. On December 16, 1992, Dr. Zinn discovered a shipping error with respect
to YHerbium which had been sent in by a customer to be irradiated. Neither the
customer nor MURR had considered the irradiation caused by the production of
another isotope, which meant that the radioactivity of that shipment after
processing at the reactor would be drastically under reported. According to Dr.
Zinn, he was concerned that no one at the reactor had checked to see that all
induced radioactivity was calculated and this was a problem that he had been
trying to get the Shipping Task Force to address. (Zinn 193-194).
43. At the December 17, 1992 meeting of the irradiation subcommittee, Dr.
Zinn distributed his memorandum of that date outlining the concerns he had
previously raised in the October 8, 1992 meeting. He summarized his concerns as
follows:
In summary, customers send targets to be irradiated at the
MURR. The customers do not fully identify the constituents of the
targets, nor do they identify all major radioisotopes that can be
induced by neutron irradiation. MURR staff do not calculate the
activities that are induced, rather they accept and use the
customers amounts (and radioisotopes) for shipping. MURR staff do
not attempt to obtain further information about the targets. The
MURR has no knowledge about the training of the customers that are
submitting irradiation requests to the MURR. The requirements for
neutron irradiations are completely opposite for in-house
scientists. Individuals such as myself must provide all details
about targets, radioisotopes induced, and how radioisotopes will be
induced, before targets can be irradiated in the reactor.
Furthermore procedures are written to explain how radioisotopes are
processed, and these procedures are reviewed by the Isotope Use
Subcommittee when higher amounts of activity are produced.
A preliminary review by myself of the mechanism that reactor
services uses to allow irradiations has identified major problems
with the currently used irradiation and shipping procedure by
outside customers, which could lead to NRC violations and other
liabilities (Perhaps mistakes that I have identified thus far should
be self-reported to the NRC?). I do not understand why corrective
action has not been taken on this matter. I do not understand how
the MURR can continue to operate on a "status quo" basis, when there
are so many examples of mistakes created by this process. I suggest
that no further irradiations and shipments be allowed for customers
that make such requests, until such time that appropriate review of
the irradiations can be conducted. At this time I am not suggesting
that in-house irradiations and shipments be halted, since these
procedures have already been reviewed.
(Zinn EX 18) (Emphasis supplied)
That memorandum was copied to James Rhyne, Charles McKibben, Bill Reilly, Steven
Morris, and Sue Langhorst. (Zinn EX 18). Dr. Zinn's findings concerning YHerbium
were the genesis of the December 17, 1992 memo. (Zinn 196).
44. Another reason for writing this memorandum was because his prior oral
statements on the subject had not been included in the minutes of the
subcommittee and because his concerns had not been acted on. (Zinn 196).
45. According to Dr. Zinn, he was concerned by Steve Gunn's statement
minimizing the importance of the problem. (Zinn 197). Walt Meyer on the other
hand, in Complainant's view, did take these concerns seriously. (Zinn 197).
46. Dr. Zinn felt that the problem would not be difficult to remedy but did
feel at the time that the reactor should stop shipping all radioactive materials
until they could review what radioisotopes were induced in the samples and had
determined the sample composition with certainty. (Zinn 198). This, in the view
of Dr. Zinn, would not have taken more than a few weeks. (Zinn 200). According
to Dr. Zinn, management of the reactor has not stopped shipments and to this day
many of the customers are not taking the steps necessary for identifying the
composition of their samples. (Zinn 199).
47. On January 6, 1993, Dr. Zinn wrote another memorandum to the irradiation
subcommittee setting forth his concerns about unlisted radioisotopes involved in
the shipments. (Zinn EX 15). Zinn EX 15 was copied to Charles McKibben and James
Rhyne. (Zinn 204).
48. After the December 17, 1992, meeting Bill Reilly indicated to Dr. Zinn
that he would like to speak to him. Reilly was responsible for writing the
minutes of the irradiation subcommittee, although not a member of that committee.
Reilly stated he wanted to be sure that Zinn's concerns had in fact been looked
at. Zinn responded he was not satisfied with what had been done up to that
point. Reilly was upset stating that Zinn's memorandum could be considered very
damaging to the reactor in the future and, according to Zinn, suggested that it
would not be a good idea to put anything more in writing. (Zinn 201-202). Dr.
Zinn felt that if a member of the Director's office was coming to him and making
statements of that nature he was running the risk of adverse actions taken
against him. (Zinn 203-204).
49. Zinn EX 16 is a January 7, 1993, memorandum from Zinn to Bill Reilly.
This was Dr. Zinn's comments on Reilly's minutes of the December 23, 1992,
irradiation subcommittee meeting. Dr. Zinn summarized his concerns in that
memorandum as follows:
In summary, MURR irradiated a Yb target for Amersham and
shipped 16 mCi of Yb-169. Subsequently we have determined the 16
mCi should be 96 mCi of Yb-169, and that approximately 4-5 Ci
(Curies) of Yb-175 should also have been listed on the shipping
papers. I do not feel that simply referring to the Yb-175 activity
as "being higher" is a true reflection of the 50-fold higher
activity for Yb-175. Also, I have a question about whether these
errors are NRC shipping violations, and if so, shouldn't they be
reported?
Your second large paragraph beginning "It was agreed . . ."
should include the following sentences at the beginning of the
paragraph. The past practice of the MURR Services group was to
allow customers to irradiate targets that were not completely
identified either by isotopic enrichments, or total composition.
Furthermore, the customers were allowed to determine the
radioactivities that were induced and shipped, and these
calculations were not checked by the MURR Services group.
(Zinn EX 16) (Emphasis supplied)
50. Dr. Zinn wrote Zinn EX 16, the January 7, 1993, letter to Reilly,
because he was concerned the minutes were not correctly reflecting what was known
about the YHerbium sample. (Zinn 205-206, 207). He further felt that the minutes
as written by Reilly did not reflect what was happening at the meeting. (Zinn
208).
51. Dr. Zinn and Dr. Morris on a regular basis discussed the work of the
irradiation subcommittee. Dr. Morris, moreover, participated on Dr. Zinn's
behalf in some meetings with respect to a letter that had to be submitted to the
NRC by January 15, 1993. (Zinn 208). Dr. Morris participated in such meetings
of the irradiation subcommittee in the period from January 6, 1993 through
January 15, 1993. (Zinn 209).
52. The reactor was to give the NRC a progress report on the global review
with respect to the shipment of radioactive materials on January 15, 1993. (Zinn
210). Dr. Zinn was concerned that not all of his findings would be reported in
the January 15 report to the NRC. This concern arose from conversations with
Steve Gunn, Dan Trokey and Bill Reilly who urged that findings of specific
examples should not be included in the letter. (Zinn 210-212). Reilly advocated
limiting the response to a general statement of the issues involved in Zinn's
concern. (McKibben 805). Ultimately, the letter was drafted to include the three
most significant examples where radioactivity of shipments had been under
reported. (Meyer 558-559). Zinn felt that in this respect Meyer, the reactor
manager, was as supportive as he could be. (Zinn 353).
53. On February 7 or 8, 1993, Dr. Morris informed Dr. Zinn that the former
had written a letter asking for Zinn's promotion and been informed that it would
be put on hold. (Zinn 213).
54. On the morning of March 9, 1993, Walt Meyer was prepared to present the
information from the irradiation subcommittee to the NRC investigators. Charlie
McKibben and Bill Reilly came in and talked to him and McKibben asked Meyer if
he would be willing to present the information differently than he had prepared
it. The alternatives were to hand the NRC inspectors the minutes of the meeting
plus all of the attachments, including the Zinn memoranda, or to hand the
inspectors only the minutes of the irradiation subcommittee, holding the
attachments, and then giving the inspectors the attachments such as the Zinn
memoranda, if they asked for this material. The data in issue was information
from Dr. Zinn with respect to the failure to identify activity on isotopes.
(Meyer 556-557). Meyer advised McKibben and Reilly that withholding the
attachments such as the Zinn memoranda was not the way to go, because as chairman
of the irradiation subcommittee he had referenced Dr. Zinn's memoranda in the
minutes. (Meyer 557-558, Reilly 875-876).
55. During the course of the on-site NRC investigation in the period March
9-11, 1993, Dr. Zinn had an hour and a half interview with the NRC investigators.
They advised Dr. Zinn that in their view his activities had saved the University
from the most serious or level I violations and complimented the irradiation
subcommittee on Zinn's work. (Zinn 234-235; Morris 459-460; Gunn 674). He was
also complimented by Dr. Rhyne and McKibben after the NRC exit interview. (Zinn
235-236; Rhyne 1051).
56. On March 11, 1993, after the conclusion of the NRC investigation, Dr.
Morris advised Zinn of Morris' demotion. Zinn felt this affected him adversely
because the dissolution of Dr. Morris' group would put him in limbo. (Zinn 216).
Thereafter Zinn was told to report to Charles McKibben who is not a scientist and
of whom he had been indirectly critical in connection with his irradiation
subcommittee work. (Zinn 216).
57. After Dr. Morris' demotion, Dr. Zinn called the NRC and wrote them a
letter of complaint on March 16, 1993. The NRC advised him of the whistleblower
statutes and he thereupon sent his letter of complaint to the Department of
Labor, dated April 7, 1993. (Zinn 216-218, Zinn EX 25).
Dr. Morris' Involvement with the Shipping Task Force
and Irradiation Subcommittee
58. Dr. Morris attended meetings of the Shipping Task Force or Irradiation
Subcommittee involving the January 15, 1993 report to be submitted to the NRC
relating to the global review. Dr. Morris filled in for Dr. Zinn at certain of
the meetings and then later attended meetings with him as the letter was being
finalized. Dr. Morris at those meetings was concerned because it was unclear to
him whether the results of Dr. Zinn's work or that of the irradiation
subcommittee in general were to be included in the letter to the NRC. Dr. Morris
expressed those concerns in the presence of Associate Director McKibben and
Assistant Director Reilly. Steven Gunn was also present. Specifically, Dr.
Morris was concerned that the substance of Dr. Zinn's findings were not getting
into the earlier drafts of the letter. Finally, Walt Meyer produced a
handwritten draft including Dr. Zinn's concerns. (Morris 401-405, 408).
59. In attending these meetings, Dr. Morris viewed his role as that of
trying to hold up Dr. Zinn's end of the argument. (Morris 409). Dr. Morris had
also expressed these concerns in other subcommittees of which he was a member,
e.g., the reactor services subcommittee and the safety subcommittee. (Morris 410,
443).
60. According to Dr. Morris, the split at the meetings was as follows:
Yes. I would say that the way it split using Morris as the
detector was that Morris and Zinn and Walt Meyer were carrying the
argument not only for including them, but for including them in a
way that the NRC could read a [sic] the letter and get some sense of
the magnitude of the problem.
There were other people there that I think favored including
them, but perhaps indicating that there were some target
certification problems and that we were going to get to that in
future reports.
Perhaps there were even other people there that felt that we
should be silent on those matters all together.
(Morris 410-411)
61. Dr. Morris had the impression that Mr. Reilly favored an approach
limiting the January 15, 1993, progress report to the types of violation received
from the NRC, i.e., the address switching errors. (Morris 411).
The Exempt License Controversy
62. The reactor has commercialized a process to irradiate silicon resulting
in a product called neutron transmutation doped silicon or NTD silicon. (Morris
412). NTD silicon is a semiconductor material used for electronic devices
including communications equipment. Currently the NTD silicon is being shipped
overseas from MURR and is not regulated by the NRC. (Morris 415). The NTD
silicon process produces significant revenues for MURR on the order of one
million dollars a year. (Morris 413). Fifteen thousand to 20,000 pounds of NTD
silicon are shipped annually, most of it going to Japan. (Morris 417).
63. An exempt license is an NRC license which requires holders of the
license to demonstrate through testing that the materials are at or under
concentrations of radioactivity which the NRC considers below regulatory concern.
No license for NTD silicon has been required to date because the NTD silicon is
shipped exclusively overseas to non-domestic companies. (Morris 414, 424). An
exempt license would be required if the reactor were to release NTD silicon to
the unlicensed public in the United States. In the fall of 1991, the decision
was made to apply for an exempt license. (Morris 418).
64. Dr. Morris, when approached by MURR management, indicated he agreed that
it was a good idea to get an exempt license. (Morris 419). He stated, at the
time, that in his view the testing program under the license should be applied
to all NTD silicon whether its destination is domestic or foreign. (Morris 420;
see also Morris EX 19, Tr. 422). This position brought Morris in conflict with
Assistant Director Reilly who felt that application of the exempt license if
received would not be required in the case of silicon released overseas.
According to Morris, Reilly's position was the license should be utilized only
on materials shipped in the United States, and current testing would suffice for
foreign shipments. (Morris 420).
65. Dr. Morris sees the ethical concern as follows:
I can see no justification for applying one testing program to
materials released in the United States and another testing program,
one which would not have the same degree of accountability, to
materials that are released to the Japanese or to the Europeans or
elsewhere in the world.
I think the ethical concern is that once you developed a
superior testing program -- the one you use -- that it needs to be
applied to all relevant materials.
(Morris 433)
The discussion on this issue has been ongoing since the fall of 1991. (Morris
422, 427-430; Morris EX 93 p. 6).
66. According to Dr. Morris it is Mr. Reilly's position that accepting
Morris' view would be unduly costly and is not required by law or regulations.
Mr. Reilly would apply the exempt license only to domestic shipments of silicon.
(Morris 422, 428; see also Reilly 880-881).
67. The NRC has taken the position that reimported materials must meet the
exempt license concentration applicable to domestic shipments. (Morris 440).
68. On February 18, 1993, Dr. Morris communicated the following action of
the exempt license subcommittee to Messrs. Rhyne, McKibben and Reilly:
It shall be reported to the MURR Director that it is the
consensus of the Exempt License Subcommittee that, within a period
of six months of receipt of a license that meets the terms and
conditions of the application, a QA testing program should be
implemented and applied to all NTD-Semiconductor materials released
by the MURR to the unlicensed public.
(Morris 432; EX 93 p. 10; Morris 488)
69. The license application was filed in February 1993, but has not yet been
granted. (Morris 434).
Reaction to Dr. Zinn's Protected Activity
70. Dr. Zinn had not distributed his letter of complaint to the Department
of Labor but learned that everyone at the reactor had copies of it and that
visitors to the reactor had also been given copies. (Zinn 218). The reaction,
according to Dr. Zinn, was "there were people who thought I shouldn't have done
that and came to tell me I shouldn't have done it." (Zinn 218-219).
71. Bill Reilly, the assistant director of the reactor, responded to Zinn's
letter of complaint to the Department of Labor on April 30, 1993. (Zinn EX 6,
Zinn 220). Reilly's letter was addressed to counsel for the University but he
requested that it be circulated to the reactor's staff. (Reilly 221). It was in
fact distributed by Steven Gunn at Reilly's request. (Gunn 673). Mr. Reilly who
has an ear for a telling phrase stated in pertinent part:
. . . I am greatly distressed and incensed by the lies, half-truths
and innuendos contained in Zinn's complaint.
I am also well aware of and support the individual and
societal need to protect whistleblowers which has developed over the
recent decades. And I am sufficiently enlightened to known that the
process cannot be impeded although in carrying it out, one man's
hero can be another man's Benedict Arnold. It is also unfortunate
but true that the mechanisms that have been established to protect
whistleblowers and others, such as those who allege sexual
harassment, unavoidably provide opportunities for mischief by
disgruntled or incompetent employees. A charlatan needs only to don
the cloak of sanctimony provided by the whistleblower process to
carry out a devious agenda with impunity.
. . . Beginning with his 12/10/92 memo and his actions at the
Shipping Task Force Meeting on that date, Zinn began to act as a
zealot in attempting to go through the isotope group files of
previous radioactive shipments to dig up evidence of shipping
errors. Although this was a week before the irradiation
subcommittee to which Zinn had appointed to investigate such matters
had its first meeting to organize its effort and although it was
very disruptive to the day to day operation of the isotope group,
Zinn was given full cooperation. . . .
Mr. Reilly concluded as follows:
I have only commented on items about which I have some
personal knowledge, but it is clear to me that there have been no
impediments to Zinn's involvement in protected activities as defined
in 10 CFR 50.7. On the contrary, he has been granted full access
and license to pursue his concerns about radioactive shipping at
MURR. I find it completely implausible that there is any linkage
between the fact that he was not promoted and his involvement in
protected activities. I suggest that the twisted and contrived
nature of the part of the complaint of which I have knowledge casts
serious doubt on the entire document.
A final comment. As I was preparing this memo, an apt parody
of an old song title continued to come to mind: "It's a Zinn to
Tell a Lie". I can only hope that he deals more squarely with the
facts in his research than he did in this complaint.
(Zinn EX 6) (Emphasis supplied)
72. McKibben agreed that Dr. Zinn's discovery of shipping errors benefitted
the reactor but he clearly resented Zinn's "adversarial role [rather] than a more
cooperative team role". (McKibben 812). The associate director, objected to Dr.
Zinn's memoranda pertaining to target composition as unduly adversarial. In this
connection he stated in pertinent part as follows:
Q Did you discuss with Dr. Rhyne at any time in characterizing Kurt
Zinn's actions on the Shipping Task Force or the Irradiation
Subcommittee was somehow improper?
A No. I -- I probably -- If I made any -- And I don't know if I
did. If I made any statement, I -- I may have commented about I --
I was bothered by the fact that I -- I didn't know about this
sulphur 35, P32 until I'm sitting at the chair on a meeting that
I've called and I get handed a piece of paper and I get kind of an
adversarial type of position on it.
I was bothered by that because I felt that we've -- we've had
a good successful facility from a team approach to problems, but not
all coming at from the same focus.
And -- And I found myself in the position that I was having to
work harder to try to get this group working -- working together and
-- and to minimize these problems from an adversarial part.
73. Mr. McKibben's response as to whether he had conveyed these views to Dr.
Rhyne was clearly evasive. However, on August 10, 1993, Dr. Rhyne in his
personnel evaluation of Dr. Zinn stated in pertinent part as follows:
I feel it necessary to mention that I perceive a serious
attitude problem on your part with respect to MURR and University
administration and to some degree with your colleagues. Your
adversarial approach to policy decision, procedures, and discussions
with your superiors really has no place in a scientific laboratory
environment such as MURR. Much more can be accomplished by mutual
respect and a collegial approach to concerns and problems.
Persistence in an antagonistic approach can not help but negatively
impact on your future relations with MURR.
Summary: You have made a good start, and certainly have the
potential to develop a truly outstanding research program in radio-
biochemistry here at MURR. For the future I recommend that you
carefully consider the recommendations in this evaluation.
(EX 38) (Emphasis supplied)
Mr. McKibben was present on September 10, 1993, when Rhyne presented this
memorandum to Zinn. (McKibben 852-853).
74. Bill Reilly, the Associate Director, on December 17, 1992, after the
irradiation subcommittee meeting, met with Zinn. The main purpose of Mr.
Reilly's visit to Zinn was to discuss the latter's December 17 memorandum.
Reilly felt Zinn was acting like a zealot, and Reilly was concerned with Zinn's
motivation, "Was it really a concern for health and safety, or was it a
destructive motivation as far as MURR was concerned?" (Reilly 869). Reilly was
concerned that Zinn wanted to shut down the reactor stating in pertinent part:
Q Were you concerned that he wanted to shut down the reactor?
A I thought that might be his motivation, yes.
Q Did you come to the conclusion that that was his motivation?
A I was ambivalent on that. I changed back and forth several
times.
It was accepted and common wisdom -- whether it was right or
wrong it was common wisdom -- that any further violation, and this
was our second violation of shipping within a year, would shut the
reactor down.
This, you know, was a very damaging thing to do, but it was
something that had to be discovered and had to be explored.
(Reilly 872)
At another point, Mr. Reilly stated:
Q Do you believe in looking for those problems for which MURR was
commended and the irradiation subcommittee was commended Dr. Zinn's
purpose was to shut the reactor down?
A I'm still not certain about that.
(Reilly 895-896)
75. Reilly was concerned that at some later point if an NRC investigation
was undertaken and Zinn's December 17 memorandum discovered, MURR would have been
faulted for not self reporting the problem. (Reilly 894).
76. Steven Gunn, the reactor services engineer objected to the tone of
Zinn's memos:
And I -- And I have to talk about the tone of the memos.
Everything that Kurt brought to us was never brought in person. It
was also brought in a memo.
The memos usually were accusatory. They were containing
statements such as, you know, Contrary to the Director's Office.
The way the copies were distributed, I came to the conclusion that
Kurt probably had a dual agenda on this.
(Gunn 642)
* * *
The only thing that made me feel that he had two agendas was
the memos and the way he wrote them and the distribution of them.
(Gunn 643)
77. Mr. Gunn also felt that Zinn's memoranda were not in a problem solving
mode and resented getting these memoranda without previous discussion. (Gunn 655,
672).
78. Mr. Gunn has had discussions with Dr. Rhyne and Mr. McKibben concerning
Zinn's involvement in the Shipping Task Force and irradiation subcommittee. (Gunn
666).
79. On December 5 or 6, 1992, Steven Gunn advised Dr. Glascock of his
concerns about Dr. Zinn's activities on the Shipping Task Force stating Zinn was
being disruptive, that Zinn had an ulterior motive and might be looking into
things that would get the reactor into trouble. (Glascock 84-85). At that time
Gunn also told Dr. Glascock the NRC was not interested in the details about the
samples coming into the reactor [referring to target composition]. (Glascock 85-
86).
80. Dan Trokey in connection with Dr. Zinn's activities on the Shipping Task
Force stated to Dr. Glascock that Zinn was looking for whistleblower protection
because Zinn and Rhyne had come into conflict on other matters previously. He
also said Zinn was exaggerating the hazards of failing to list other isotopes in
shipments. (Glascock 89).
Dr. Zinn and the Promotion Process
81. Dr. Morris had agreed with Dr. Zinn to recommend the latter's promotion
when he secured his Ph.D. (Morris 373). Dr. Morris recommended that Zinn be
considered for promotion on February 3, 1993 (Morris 376, 527, Zinn EX 26). In
this connection, he requested that a committee be established to consider Dr.
Zinn's promotion (Morris 376, EX 26). The first time a promotion committee was
set up was in January 1993 for Dr. Neff. It had been requested on January 28,
1993 (Morris 375-376).
82. Dr. Morris had previously advised Dr. Rhyne that he would recommend Dr.
Zinn's promotion when the latter secured his Ph.D. (Morris 382-384, 527). At
the time that Dr. Morris requested the consideration of Dr. Zinn's promotion, he
was not aware that promotion guidelines were being considered. He learned of
them a short time later (Morris 378-379).
83. On February 4, 1993, a day later, Dr. Rhyne informed Morris that he
would not go forward in considering Dr. Zinn's promotion, since the promotion
policy was under development and that he did not want to initiate other
promotions until that policy had been finalized (Morris 379, 526; Rhyne 1062).
Dr. Morris, on February 8, 1993, requested Dr. Rhyne to reconsider his decision.
(Zinn EX 24, Morris 381).
84. On February 12, 1994, attached to a memorandum from Dr. Rhyne was a
"Draft Version of MURR Policy Guidelines" including promotion criteria from
research scientist to senior research scientist. (Zinn EX 34; Morris 386). This
was the first time that new promotion guidelines had been given to Dr. Morris.
(Morris 386-387).
85. There was no indication to Dr. Morris, at the time he received the
memorandum, that the promotion guidelines would go into effect the following
week. (Morris 387). When he met with Dr. Rhyne on February 4, he was told it
would be a couple of months until they went into effect. (Morris 387). Moreover,
until February 12, he had not been advised that Dr. Rhyne was not considering Dr.
Zinn for promotion (Morris 387-388) and he was never informed that Dr. Rhyne did
not consider Zinn to be at the point where he should have been considered for
promotion. (Morris 388).
86. Dr. Morris gave his written comments on the promotion guidelines to
Rhyne on February 15, 1993 (Morris 389-390, RX 6). At the February 23, 1993
meeting with the group leaders, Dr. Rhyne did not state that he had already
adopted the promotions policy (Morris 390).
87. Rhyne had not told Dr. Morris prior to his demotion that Rhyne felt Dr.
Zinn was not eligible or qualified to be considered for promotion. Nor did Dr.
Rhyne criticize Dr. Zinn's qualifications prior to that point. (Morris 392).
88. On June 7, 1993, Dr. Rhyne submitted classification specifications
Revision for Senior Research Scientists including the following requirement:
A Ph.D. degree with emphasis in an appropriate area of science or
engineering.
Four to six years experience beyond the doctoral degree.
(Zinn EX 11)
89. This requirement had not previously been contained in any of the
promotion guidelines or classification specifications (Rhyne 1093). The
classification specification submitted in June 1993 came after Dr. Zinn's
involvement in the Shipping Task Force and irradiation subcommittee and after the
filing of his Department of Labor Complaint. (Rhyne 1092-1093). If taken as an
absolute, this requirement would have barred Dr. Zinn's promotion. (Morris
395).
90. According to Dr. Zinn, Dr. Rhyne expressed some concern about his
independent research program, since his Department of Labor complaint, but
criticism of that kind was not expressed prior thereto. (Zinn 324-325).
91. Dr. Michael Glascock recommended the promotion of Hector Neff from
research scientist to senior research scientist in July of 1992 in a letter to
Dr. Rhyne. (Glascock 69). In July of 1992, the promotion policy at MURR was not
clear, except that it was the responsibility of a group leader to recommend
promotion when he felt the time had come. (Glascock 70).
92. At the end of January 1993, Dr. Rhyne gave Dr. Glascock a letter stating
that they would go ahead with Dr. Neff's promotion. (Glascock 70). A committee
to review Dr. Neff's suitability for promotion was convened at that time.
(Glascock 71).
93. The drafts of the promotion criteria were not discussed prior to Dr.
Neff's consideration for promotion. (Glascock 71). Nor did Dr. Rhyne indicate
that the new promotion policy would be applied in considering Dr. Neff's case.
(Glascock 72).
94. Dr. Rhyne's letter of January 28, 1993, specified these criteria to be
considered in connection with Dr. Neff's promotion, including:
- Basic or Applied Research - 50%--Development of an independent
research program, development of an international reputation
in the field, securing peer-reviewed external funding,
publication in major journals, invited presentations, national
committees and review panels, etc.
- MURR Service - 25%--Work in support of MURR infrastructure,
e.g. internal committees, service work for other groups,
general instrument development, income generating work, etc.
- MU-MURR Collaborative Service - 25%--Development of
collaborative research programs, classroom teaching,
supervisor or committee member of Ph.D. or M.S. students,
University-wide or departmental committees, etc.
(Glascock 73-74, Zinn EX 12)
95. Dr. Neff did not meet the service requirement. (Glascock 74). Dr.
Rhyne's only comment on February 15, 1993, was that in the summer of 1992 he had
criticized Dr. Neff on this point and that he needed to do more service. In
fact, after December of 1992, Dr. Neff did less service. Dr. Zinn, in fact, met
these criteria. (Glascock 75).
96. Dr. Glascock, who has supervised both Dr. Neff and Dr. Zinn, considers
both to be equally qualified for promotion. He considered Dr. Zinn's research
to be at the highest level (Glascock 76-77). On September 2, 1993, Dr. Rhyne
stated to Dr. Glascock "that a trained monkey could have filtered out Dr. Zinn
as not being qualified for promotion" (Glascock 100).
97. According to Dr. Rhyne, around February 23, 1993, he met with Dr. Morris
advising that Dr. Zinn was not eligible for promotion because he fell short in
the following areas: development of an independent peer reviewed external grant
supported research program; invitations to present papers at major national
meetings or international meetings based on his research; mentoring of graduate
students. In Dr. Rhyne's view, Dr. Neff met those criteria. (Rhyne 1063-1066).
98. Dr. Rhyne began to formulate promotion guidelines in the fall of 1992.
RX 51, a copy of the promotion guidelines, has an original date of October 5,
1992, and revision dates of December 21, 1992, and February 15, 1993. (Rhyne
1033). It was an evolving document but did not change in its essentials from
October 5. (Rhyne 1034). The document was submitted to the Internal Advisory
Committee (IAC) formed in December 1992 and discussed at the IAC meetings in
December 1992 and January 1993. (Rhyne 1035). Subsequently, this packet was sent
to the group leaders and managers for their review and comments. (Rhyne 1035).
99. Dr. Rhyne outlined the promotion process he intended to implement as
follows:
. . . My promotion guideline simply said the process would be the
following. If the group leader recommended for promotion someone I
would then first look at the dossier in the sense of the performance
evaluation form and the CV and make a preliminary check there
whether I thought that based on those two self evaluation documents
the person was ready for promotion.
If I felt that the person was ready for promotion I would then
form a committee to seek outside letters of recommendation and to
assemble a packet which would become the promotion packet to be
forwarded back to my office and then eventually to Dr. Sheridan.
(Rhyne 1038)
100. Dr. Rhyne admitted Dr. Neff was weak in the service category but felt
this was not disqualifying, stating:
Yes. I would agree that he was weak in that category. That
category is an area which we expect people to spend 25 percent of
their time approximately in. A weakness in a category amounting to
only 25 percent, as long as the individual is strong in the other
two categories, is certainly no reason for denying promotion.
(Rhyne 1067; See also Tr. 1096-1098)
101. Such an exception to the Service Requirement, which Rhyne claims is
implied, is not, however, contained in the promotional guidelines as written. (RX
51, See Rhyne Tr. 1098). Dr. Rhyne asserts he used the same promotion
guidelines, RX 51, to evaluate Drs. Zinn and Neff. (Rhyne 1068).
102. Dr. Rhyne concedes that Dr. Zinn has done a good job and that the
quality of his research is good (Rhyne 1100).
The Relationship of Drs. Rhyne and Morris
and Dr. Morris' Demotion
103. Initially, the relationship between Drs. Morris and Rhyne was good.
Within a couple of months, however, Rhyne felt there was a distance coming
between them. Rhyne kept getting rumors that things were being said that were
in opposition to the direction that he was trying to take the center. According
to Rhyne, "I felt stressed." (Rhyne 1010-1011).
104. Dr. Rhyne respects Dr. Morris professionally. Dr. Morris has developed
the nuclear analysis program to be one of the finest in the country. (Rhyne
1011).
105. Before coming to the reactor Dr. Rhyne had been warned by Dr. Werner on
the Physics faculty and by Dr. Boullane Hammouda, a former MURR employee, that
Dr. Morris might covertly oppose the new directions in which he was trying to
take the reactor. (Rhyne 1011-1012).
106. It was common knowledge at the reactor that there was long standing
tension between the Nuclear Analysis Program and the Director's Office. (Ernst
709-710).
107. Friction had developed over a range of issues. Dr. Rhyne resented the
fact Dr. Morris had circulated his comments on Rhyne's proposed personnel
evaluations and related proposals to the junior staff who shared Dr. Morris'
negative response. (Rhyne 1017-1018).
108. Dr. Morris' actions in circulating memoranda in connection with the
building addition also upset Dr. Rhyne. Towards the end of 1991, according to
Rhyne, it became necessary to downsize the addition because of budget
restrictions. (Rhyne 1020). Dr. Rhyne described Morris' action as follows:
Dr. Morris wrote a memo to a selected group of individuals,
not just the people he was responsible for in his focus group but to
at least two other individuals who are on the distribution list, in
the first place saying that the director's office had made a
unilateral decision to remove all of the laboratories associated
with NAP from consideration in the design plan and for consideration
by the board of curators.
(Rhyne 1020-1021)
109. Rhyne, who had not been copied on Morris' memo, received heated letters
from faculty members, who on the basis of Morris' memorandum, considered they
were adversely affected. (Rhyne 1021-1024). Rhyne felt this episode affected his
credibility. (Rhyne 1024-1025).
110. Dr. Rhyne, with respect to Morris' memorandum on space allocation,
complained to Dr. Morris that he had difficulty with supervisors misrepresenting
developments at the reactor outside the center, and was concerned when Rhyne was
not copied with such memos. (Rhyne 1028).
111. On July 2, 1992, Dr. Morris sent a memorandum strongly objecting to a
proposed budget generated by the director's office. The memorandum stated in
pertinent part as follows:
I found this budget process to be distressing and have
pondered several alternative means of protest finally settling on
this memorandum. I feel as if there is a general lack of
sensitivity on the part of the Director's Office which I hope can be
changed. I am also frustrated by what appears to me to be an
inconsistent approach take with regard to the research specialists
in the Analytical Group. I strongly object to a budget process that
requires portions of the salaries of long-term, productive and
valued employees to be requested from a "supplemental" budget
category which will be allowed "resources permitting". This is
particularly insulting when one considers how arbitrary the process
is. . . .
* * *
. . . In the Analytical Group, there is no way to avoid making
requests for support of personnel from this supplemental category.
Since a caveat was included in the June 1 budget instructions
stating that requests from this category would be funded only if
resources permit, this places a number of persons in my group in
some significant risk of being layed off or terminated if the memo
means what it says. If so, I believe that this is the singularly
most insensitive mistreatment of a narrowly targeted set of MURR
personnel that I have witnessed in my 19 years at the MURR. . . .
* * *
In summary, I have been forced by this process to request
almost 43,000 dollars in supplemental support of S&W to cover long-
term productive employees having substantial duties related to the
operational, research and educational base functions at the MURR.
Supplies used by all groups are not covered in the base, even the
rental of the liquid nitrogen tank. QA is over-subscribed now,
there are plans to expand production of topaz, perhaps add NTD-Si,
and the budget doesn't cover the current operation. Reactor Sharing
seems to be taking a new direction which concerns me. As a result
I believe that an unrealistic expectation of the NAP and
particularly the Analytical Group now exists which I would like to
resolve.
(RX 14)
112. Dr. Rhyne was aware of offsite staff meetings by certain members of the
staff. He had no serious objection but would have preferred that such staff
members talk to him directly. (Rhyne 1039-1040). In any event, Dr. Sheridan
advised Rhyne that he had been informed by a senior staff member that Dr. Morris
had proposed a vote of no confidence or petition of no confidence with respect
to the Director. (Rhyne 1040). Rhyne talked to a number of staff members
concerning the incident and concluded such a vote had been proposed but silently
rejected by the majority of those attending the meeting and that the matter was
not pursued. (Rhyne 1040-1041).
113. According to Dr. Rhyne, none of the foregoing incidents in isolation
were grounds for taking personnel action against Dr. Morris. But considering the
sum total of those instances he felt that something had to be done. (Rhyne 1041).
The scale, as far as he was concerned, tipped around January 1993 or early
February 1993. At that point he was getting increasing comments from members of
the MURR staff that things were out of control. He heard from one research
associate that the feeling was that Morris and his group were running the center.
He heard similar comments from individuals on the campus. (Rhyne 1041-1042)
114. Dr. Rhyne began to consult individuals in the center and faculty members
on the campus who had a long-term association with the reactor, on the subject
of Dr. Morris. (Rhyne 1043). The fact that Dr. Morris was an influential
individual at the reactor where a lot of people had a great deal of respect for
him was a consideration. (Rhyne 1047). Rhyne denies that Morris' position
supporting Zinn on isotope reporting errors was a factor in Rhyne's personnel
decision. (Rhyne 1052).
115. Dr. Rhyne met with Drs. Sheridan and Werner to discuss Dr. Morris. He
recommended removing Dr. Morris as nuclear analysis coordinator and group leader.
He felt removing him from management and stopping short of dismissal would be
sufficient. (Rhyne 1052).
116. One week later on February 26, 1993, Rhyne met with Provost Brouder to
inform him of the decision he and Sheridan had reached in the previous week and
to get his concurrence. (Rhyne 1054). Sheridan and Rhyne then exchanged drafts
of the demotion letter and Brouder approved the final version. (Rhyne 1054).
117. Charles McKibben was aware that Rhyne intended to take a personnel
action with respect to Morris on March 9, 1993, the day the NRC onsite
investigation was to start. At the suggestion of McKibben, the Director delayed
notifying Morris until the afternoon of March 11, 1993 when the NRC investigation
had completed their inspection of the reactor. McKibben suggested deferring the
action until after the inspection ostensibly because it would distract MURR staff
while they were attempting to respond to the NRC. (McKibben 806-807, 812, 828-
829).
118. Previously, McKibben had on February 25, 1993, advised Dr. Rhyne against
taking adverse action as to Dr. Morris without first counseling him with respect
to his actions. (RX 15; Morris EX 29). Mr. Reilly was "shocked" when he learned
of the proposed demotion and recommended that no precipitous action be taken.
(Reilly 911-913). Neither Drs. Sheridan or Brouder were made aware of Reilly's
and McKibben's advice to Rhyne concerning the proposed demotion. (Sheridan 988,
Brouder 592-594).
119. Progressive discipline is not required in the case of an exempt employee
such as Dr. Morris. Dr. Rhyne felt that in previous discussions this had been
accomplished as a practical matter and that utilizing the procedure in this
instance would have been overkill. (Rhyne 1055)
120. As already noted, Dr. Morris was demoted on March 11, 1993, almost
immediately upon conclusion of the NRC onsite inspection. On April 27, 1993, Dr.
Morris filed his complaint alleging that his demotion was in retaliation for
protected activity relating to regulatory activities covered by NRC licenses.
(Morris EX 31, Morris EX 93).
The Relationship Between the Director and the
Reactor Scientific Staff
121. The so-called noon staff meetings originated in 1991 because the MURR
scientists were frustrated by a feeling that the academic faculty had advantages
over the reactor scientists. An attempt was made at these meetings to develop
a plan to give the reactor staff more status and equality. In addition, there
was frustration over poor communications between the Director's Office and the
reactor's scientists. The first set of meetings began in the fall of 1991
originated by Ron Berliner and Bill Yelon. (Glascock 111).
122. The staff plan, which was an outgrowth of the noon staff meetings,
designed to enhance the status of the reactor staff was submitted to the Vice
Provost on November 4, 1991. (Morris EX 28; Glascock 114, 117-118). Apparently
there was no response. (Morris EX 25 p. 31).
123. In the fall of 1992, three of the reactor staff were designated by
ballot to take the staff's concerns to Dr. Rhyne. (Glascock 112-113, 118-119).
Dr. Morris was not one of the chosen three. (Glascock 120-121). A memorandum
dated November 23, 1992, written by Dr. W. B. Yelon outlined these concerns in
pertinent part as follows:
Proposed opening remarks in subcommittee dialog with J. J. Rhyne
1) The professional senior staff have met to discuss what they view
as inadequate communication between them and the director's office.
We are looking for a mechanism to improve this dialog.
2) There is a widespread perception that the director's office is
more sensitive to pressures from above than to the needs and
opinions from below. As a result, many of our concerns remain
unaddressed, and there is a fear that decisions have been made
contrary to the best interests of the MURR staff and facility as a
whole.
3) There is more than 200 years experience at MURR represented by
the professional staff. We have witnessed directors, deans,
provosts, chancellors and presidents come and go (often many time)
while we provide the continuity essential to the success of MURR.
There is a natural tendency for these administrators to try to fit
the MURR into models which are more familiar but which may not apply
to our unique circumstances. The present professional staff at MURR
is essentially that which has been responsible for the growth of the
facility, the development of the infrastructure and the emergence of
MURR as world class facility. This experience gives us unique
insights into the working of MURR and convinces us of the merit of
being more directly involved in the decision making (day-to-day) and
long-range planning for the MURR.
I expect that Jim will ask for specific example of problem areas.
I propose that the following be used.
1) The staff plan was generated after considerable thought and
effort to address a real problem (one recognized by both the MURR
staff and the campus administrators). The staff plan has apparently
died. We have had no response from campus and no alternative model
has emerged from any quarter.
2) Many members of the staff opposed the creation of non-staff
group leaders, and yet this was adopted. We never had an
opportunity, except in a Wed. staff meeting, to express our
opinions, (a forum not conducive to frank discussion) and never
heard from the director an explanation as to why "other factors" may
have led to this decision, in spite of our concerns.
3) The joint appointment model is generally opposed by the staff as
creating a new class of scientist. They are, in fact, in
advantageous roles compared to the regular staff who have developed
the resources needed for the joint appointees to succeed. We feel
that this is unfair, and will eventually lead to the disintegration
of MURR as we know it now.
(Morris EX 25 pp. 30-31)
124. There was a lot of free wheeling discussion by a number of individuals
at the noon staff meetings with respect to such concerns. The roles of Drs.
Glascock and Dr. Morris at these meetings were relatively similar. Dr. Glascock,
nevertheless, was offered the position from which Dr. Morris had recently been
demoted. (Glascock 121).
DISCUSSION
These cases arise under the Energy Reorganization Act, 42 U.S.C. 5851.
Kurt R. Zinn and J. Steven Morris, the Complainants herein, respectively research
scientist and senior research scientist at the Missouri University Research
Reactor (MURR) allege that they have been discriminated against in contravention
of the employee protection provisions of the Energy Reorganization Act.
Specifically, they allege that they engaged in protected activity covered by
regulations of the Nuclear Regulatory Commission with respect to the shipment of
radioactive materials. Dr. Zinn alleges that as a result of his protected
activity he has been denied consideration for a promotion from research scientist
to senior research scientist and that his career prospects have diminished as a
result of the demotion of his group leader, Dr. Morris. Dr. Morris alleges that
he was illegally discriminated against because, as a result of his protected
activities, the University relieved him of his administrative duties as a program
coordinator and group leader.
Generally, in order to establish a prima facie case under the applicable
employee protection provisions, a complainant must show that he engaged in
protected activity of which the respondent employer was aware and that the
employer took some adverse action against him. Complainant must, moreover,
present evidence sufficient to at least raise an inference that the protected
activity was a likely motive for the adverse action. Darty v. Zack Company of
Chicago, Case No. 82-ERA-2 Secretary's Decision and Final Order (April 25, 1983)
slip op. at 5-9.
If the employee establishes a prima facie case, employer has the burden of
producing evidence to rebut the presumption of disparate treatment by presenting
evidence that the alleged disparate treatment was motivated by legitimate
nondiscriminatory reasons. Dartey v. Zack Company, supra. If the employer
successfully rebuts the prima facie case, the employee still has an opportunity
to demonstrate that the reasons proffered by the employer were not the true
reasons for the employment decision. In that event, the trier of fact must
decide whether or not a discriminatory reason was a more likely motivation or
whether the employer's proffered explanation was worthy of credence or not. Id.
Finally, if the trier of fact decides that the employer was motivated both
by illegal and legitimate reasons, then the dual motive test comes into play.
Under the dual motive test, the employer, in order to avoid liability, has the
burden of persuasion to show by a preponderance of the evidence that it would
have reached the same decision even in the absence of the protected conduct. Id.
It is undisputed that Complainants' concerns raised in connection with
MURR's radioactive shipments are protected. The record further shows that MURR's
management was aware of Complainant's protected concerns. Respondent denies,
however, that Complainants were subjected to retaliatory action because of such
concerns. The University contends that the actions complained of were taken for
legitimate reasons unconnected to the protected activity under consideration
here.
Dr. Zinn's Concerns Relating to the Target Composition
of Radioactive Materials Shipped From the Reactor
The Missouri University Research Reactor located in Columbia, Missouri, is
operated by the University of Missouri. It holds licenses from the Nuclear
Regulatory Commission and is subject to provisions of the Energy Reorganization
Act (the Act). MURR, the largest research reactor in the country, derives annual
revenues in the area of $6 million from the reactor. It has approximately 120
full-time employees, about 80 part-time employees, and currently there are 20 to
25 research and senior research scientists on its staff. The reactor routinely
ships radioactive materials making on the order of 2,000 such shipments a year.
(Findings 1-2, 5).
A shipping error occurred on July 27, 1992, when two radioactive shipments
were mistakenly switched and shipped to the wrong customers. As a result, the
customer expecting the smaller amount of radioactivity received the larger
amount. Because of that shipping error, Charles McKibben, the associate director
of the reactor, in early August of 1992 appointed the Shipping Task Force, since
the July 27 shipping error was the second error within a year. The purpose was
to review the total shipping program and to conduct a global review thereof. Dr.
Zinn was invited to participate on the task force. (Findings 28-29).
As a result of the July 27, 1992 shipping error, an enforcement conference
was held in Glenellyn, Illinois, on October 22, 1992, by the NRC. At that
conference NRC officials stated in effect that if the reactor shipping problems
were not solved they would shut the reactor down. As a result of that
conference, Charles McKibben, the associate director, was concerned that the NRC
might halt shipments. James Rhyne, MURR's director, shared the concern that the
reactor could be shut down in case of another violation. Moreover, from that
enforcement conference, a general concern arose among MURR employees with respect
to the viability of the reactor's NRC license. (Finding 31).
At the October 8, 1992 meeting of the Shipping Task Force, Dr. Zinn and
Steven Gunn, the reactor engineer, and the then-chairman of the Task Force,
disagreed as to how the global review should proceed and the areas that should
be examined. Dr. Zinn was concerned about the target composition of samples to
be irradiated by the reactor and that the radioactivity induced in samples
following neutron bombardment was not being calculated correctly. He felt that
MURR should be certain of the identity of the radioisotopes in the sample to
ensure accurate disclosure of radioactivity in the samples shipped from MURR.
(Finding 32).
Steven Gunn at that point did not favor an investigation to determine
whether the issue was important or not. The Shipping Task Force was then focused
on the problem of mix-up in the packaging and the destination of the irradiated
samples and the remedies therefore. Gunn felt the target composition question,
although relevant, was not an issue relevant to the mix-up of the shipment
destinations under consideration. Zinn, on the other hand, felt that no
calculations were being done to determine the amount of radioactivity induced in
the samples. In his opinion this was crucial, for if such calculations were not
being done, and the reactor was relying solely on the representations of the
customers, there was a possibility of over exposure to radioactivity by MURR
employees, the general public, or someone receiving the shipment after radiation.
(Findings 32-33, 36).
At the December 10, 1992, meeting of the Shipping Task Force Dr. Zinn
distributed a memorandum he authored concerning P32 shipments. He stated that
MURR shipped the product P32 without listing its S-35 component on the shipping
papers and that S-35 accounted for greater than ten percent of the total of
radioactivity at shipping. P32 is a radionuclide which, according to Dr. Zinn,
perhaps accounts for the largest number of radioactive shipments from MURR.
(Finding 38).
In his memorandum Dr. Zinn stated in pertinent part:
Perhaps the MURR management, i.e., Charlie McKibben, should
explain to the Shipping Task Force the reason why Ci amounts of S-35
are not reported on the shipping papers for P32 shipments.
(Finding 38)
When Dr. Zinn brought his memorandum of December 10, 1992, to the Shipping
Task Force, the memorandum was discussed and Charles McKibben, as a result,
appointed the Irradiation Subcommittee which was directed to look into Dr. Zinn's
concerns. (Finding 40).
On December 16, 1992, Dr. Zinn discovered another shipping error involving
target composition with respect to YHerbium which had been sent by a customer to
be irradiated. Neither the customer nor MURR had considered the irradiation
caused by the production of another isotope, which meant that the radioactivity
of that shipment after processing would be drastically under reported. At the
December 17, 1992, meeting of the Irradiation Subcommittee Dr. Zinn distributed
his memorandum pertaining to YHerbium. There he stated in pertinent part:
The customers do not fully identify constituents of the
targets nor do they identify all major radioisotopes that can be
induced by neutron irradiation. MURR staff do not calculate the
activities that are induced, rather they accept and use the customer
amounts (and radioisotopes) for shipping.
* * *
I do not understand why corrective action has not been taken
on this matter. I do not understand how the MURR can continue to
operate on a "status quo" basis when there are so many examples of
mistakes created by this process. I suggest that no further
irradiations of shipments be allowed for customers that make such
requests until such time that appropriate review of the irradiations
can be conducted.
(Findings 42-43)
Among Zinn's reasons for writing this memorandum was that his prior oral
statements on the subject had not been included in the minutes of the
subcommittee and because he felt that his concerns had not been acted on.
(Finding 44). After the December 17, 1992, meeting, Reilly, the reactor's
Assistant Director, approached Zinn stating that he wanted to be sure that Zinn's
concerns had in fact been looked at. Zinn replied he was not satisfied with what
had been done up to that point. Reilly was upset and stated that Zinn's
memorandum could be considered very damaging to the reactor in the future. Zinn
asserts and Reilly denies that the latter suggested that it would not be a good
idea to put anything more in writing. Zinn, as a result of that interview, felt
that he was running the risk of adverse action being taken against him. (Finding
48).
Zinn, in his January 7, 1993 memorandum to Bill Reilly, stated in pertinent
part that he did not feel that simply referring to the Yb-175 activity as "being
higher" is a true reflection of the 50-fold higher radioactivity for Yb-175. He
again complained that MURR was allowing customers to irradiate targets that were
not completely identified either by isotopic enrichments or total composition and
that the customers were allowed to determine the radioactivities that were
induced and shipped and that their calculations were not checked by the MURR
services group. Zinn wrote the January 7, 1993 memorandum to Reilly because he
was concerned the minutes were not correctly reflecting his concerns about the
YHerbium sample or what was happening at the meeting. (Findings 49-50).
On January 15, 1993, the reactor was to file a report with the NRC
pertaining to the shipping problem. Dr. Zinn was concerned that not all of his
findings would be reported in the January 15 report. This concern arose from
conversations with Steve Gunn, the reactor engineer, Dan Trokey and Bill Reilly,
who had urged that findings of specific examples should not be included in the
letter. Reilly, in particular, advocated limiting the response to a general
statement of the issues involved in Zinn's concern. Ultimately, the letter was
drafted to include the three most significant examples, discovered by Dr. Zinn,
where radioactivity of shipments had been under reported. Zinn felt that Walt
Meyer, the reactor manager was supportive in this connection. (Finding 52).
On February 7 or 8, 1993, Dr. Morris informed Zinn that he had written a
letter asking for Zinn's promotion and was informed that it would be put on hold.
(Finding 53).
On the morning of March 9, 1993, when the NRC onsite investigation at the
reactor was to begin, there was a dispute as to how Dr. Zinn's memoranda should
be handled. The alternatives were to hand the NRC inspectors the minutes of the
irradiation subcommittee meetings plus all attachments including the Zinn
memoranda, or to hand the inspectors only the minutes of the irradiation
subcommittee, holding the attachments and then giving the inspectors the
attachments such as the Zinn memoranda if they asked for this material. The data
in issue was information from Dr. Zinn with respect to the failure to identify
radioactivity in isotopes. McKibben and Reilly asked Meyer if he would be
willing to present the information differently than he had prepared it by taking
the second approach. Meyer disagreed, advising McKibben and Reilly that
withholding the statements such as the Zinn memoranda was not the way to go,
because, as chairman of the irradiation subcommittee, he referenced Dr. Zinn's
memoranda in the minutes. The attachments such as Dr. Zinn's memoranda were in
fact turned over. (Finding 54).
Dr. Zinn's insistence on pursuing the target composition issue forced MURR
to deal with the issue. The record shows that his insistence in pursuing this
subject generated hostility among certain managers at MURR and in the Director's
office. Charles McKibben, the associate director responsible for compliance with
Nuclear Regulatory Commission regulations, agreed that Dr. Zinn's discovery of
shipping errors benefitted the reactor, but he clearly resented Zinn's aggressive
pursuit of the target composition question. He explicitly complained of Zinn's
"adversarial role" as opposed to "a more cooperative team role". He essentially
evaded the question of whether he had discussed with Dr. Rhyne, the Director, Dr.
Zinn's actions on the Shipping Task Force or the Irradiation Subcommittee.
McKibben's answer in response to that question, however, made it very clear that
he resented Zinn's "adversarial position" and, in fact, resented getting Zinn's
memorandum pertaining to the P32 shipments. (Findings 71-72).
Dr. Rhyne's August 10, 1993 personnel evaluation of Dr. Zinn echoed
McKibben's reaction to Zinn's exercise of protected activity. Therein he stated
in pertinent part as follows:
I feel it necessary to mention that I perceive a serious
attitude problem on your part with respect to MURR and University
administration and to some degree with your colleagues. Your
adversarial approach to policy decision, procedures, and discussions
with your superiors really has no place in a scientific laboratory
environment such as MURR. Much more can be accomplished by mutual
respect and a collegial approach to concerns and problems.
Persistence in an antagonistic approach can not help but negatively
impact on your future relations with MURR.
(Finding 73; EX 38) (Emphasis supplied)
Rhyne's complaint of Zinn's "adversarial approach" and lack of a "collegial
approach" echoed McKibben's complaints pertaining to Zinn's pursuit of the target
composition issue. Significantly, McKibben was present on September 10, 1993,
when Rhyne presented this evaluation to Zinn. (Finding 73). The record compels
the inference that Rhyne shared McKibben's hostility to the exercise of, and the
manner of Zinn's exercise of, protected activity in this case.
While Dr. Rhyne was not directly involved in dealing with Dr. Zinn
pertaining to his target composition concerns, it is inconceivable that the
Associate Director and Assistant Director did not contemporaneously keep him
apprised of such events. The record compels that conclusion for a number of
reasons. The management group at the reactor in the Director's Office is small
and closely knit. The animosity in response to Zinn's protected activity in
the Director's Office ran high in the case of Reilly and McKibben. Most
significantly, the management group were afraid that Zinn's discoveries could
lead to NRC regulatory action imperiling the reactor's future. The possibility
of adverse NRC action had been a matter of concern to all of MURR management
including Rhyne, since the Glenellyn NRC conference on October 27, 1982.
Knowledge of protected activity may be inferred from the record as a whole. Cf.
Coral Gables Convalescent Home, Inc., 234 N.L.R.B. 1198 (1978).
Assistant Director Reilly's reaction was that Zinn was acting like a
"zealot". Reilly was also concerned with Zinn's motivation, namely, "was it
really a concern for health and safety, or was it a destructive motivation as far
as MURR was concerned." While Reilly stated that he shifted back and forth as
to Zinn's motivation, he conceded that he thought that Zinn might be trying to
shut the reactor down. (Finding 74).
It is significant that these events transpired against a background of the
possibility of an NRC shutdown. As Reilly stated,
It was accepted and common wisdom -- whether it was right or
wrong it was common wisdom -- that any further violation, and this
was our second violation of shipping within a year would shut the
reactor down.
This you know was a very damaging thing to do but it was
something that had to be discovered and had to be explored.
(Finding 74)
While Mr. Reilly felt these issues had to be dealt with, he also felt that
what Zinn was doing was very damaging and was the action of a zealot. Reilly
also resented the fact that Zinn had suggested in writing that the reactor should
self report the violations to the NRC, feeling that if Zinn's December 17
memorandum making that suggestion were discovered, MURR might have been faulted
for not self reporting the problem. (Findings 74-75).
Reilly's memorandum replying to Zinn's Department of Labor complaint
expanded on these views. Although the University's counsel asked for Reilly's
response to the complaint, Reilly arranged for its circulation to the MURR staff.
In that memorandum his hostility to the whistleblower process is patent. For
example:
And I am sufficiently enlightened that the process cannot be
impeded although in carrying it out one man's hero can be another
man's Benedict Arnold.
* * *
. . . A charlatan needs only to don the cloak of sanctimony provided
by the whistleblower process to carry out a devious agenda with
impunity.
* * *
. . . Beginning with his 12/10/92 memo his actions at the Shipping
Task Force meeting on that date Zinn began to act as a Zealot in
attempting to go through the isotope group files of previous
radioactive shipments to dig up evidence of shipping errors. . . .
Although it was very disruptive to the day-to-day operation of the
isotope group, Zinn was given full cooperation.
* * *
A final comment. As I was preparing this memo an apt parody of an
old song title continued to come to mind: "It's a Zinn to Tell a
Lie." . . . .
(Finding 71)
Zinn had not distributed his Department of Labor complaint to MURR staff.
Nevertheless, copies of Zinn's Department of Labor complaint had been distributed
to the MURR staff as well as to certain visitors to the reactor. The reaction
according to Dr. Zinn was that there were people who thought that he should not
have done that and they told him that he should not have done it. (Finding 70).
Circulation of Dr. Zinn's complaint and Mr. Reilly's memorandum to the MURR staff
can only be construed as retaliation for Dr. Zinn's protected activity in forcing
the reactor to come to grips with the target composition issue as well as for his
filing of the complaint which is also protected under the statute.
Steven Gunn, the reactor services engineer, shared the resentment generated
by Zinn's memoranda:
And I -- and I have to talk about the tone of the memos.
Everything that Kurt brought to us was never brought in person. It
was also brought in a memo.
The memos usually were accusatory. They were containing
statements as you know contrary to the director's office. The way
the copies were distributed I came to the conclusion that Kurt
probably had a dual agenda on this.
(Finding 76)
Gunn, echoing the complaints of McKibben and Reilly, also felt that Zinn's
memoranda were not in the problem solving mode and resented getting these
memoranda without previous discussion. (Finding 77).
Rhyne's statement in the August 10, 1993 personnel evaluation that
"persistence in an antagonist approach cannot help but negatively impact on your
future relations with MURR," in this context, is a not so subtle threat that
further aggressive pursuit of possible NRC violations would damage Dr. Zinn's
career.
The Failure to Consider Dr. Zinn for Promotion
Dr. Morris had agreed with Dr. Zinn to recommend the latter's promotion
when he secured his Ph.D. Dr. Zinn in fact secured his Ph.D. in December of
1992. Dr. Morris recommended that Zinn be considered for promotion on February
3, 1993, requesting that a committee be established to consider his promotion.
The first time that a promotion committee had been set up at MURR was towards the
end of January 1993 in connection with Dr. Hector Neff. (Finding 81).
At the time that Dr. Morris requested the consideration of Dr. Zinn's
promotion, he was not aware that promotion guidelines were being considered. He
learned of them a short time thereafter. On February 4, 1993, the next day, Dr.
Rhyne informed Dr. Morris that he would hold up Dr. Zinn's promotion since the
promotion policy was under development and he did not want to initiate other
promotions until that policy had been finalized. (Findings 82-83).
On February 12, 1994, the draft policy of MURR policy guidelines including
promotion criteria from research scientist to senior research scientist were
circulated to the group leaders including Dr. Morris. This was the first time
that new promotion guidelines had been given to Dr. Morris. Previously, in
January 1993 the document had been discussed at the Internal Advisory Committee
(IAC). The document was subsequently sent to the group leaders and managers for
their review thereafter as already noted. (Finding 84).
Dr. Rhyne began to formulate the promotional guidelines in the fall of
1992. A copy of the promotion guidelines had an original date of October 5,
1992, and revision dates of December 21, 1992 and February 15, 1993. (Finding
98). In short, the guidelines were not formally in effect in the period January-
February 1993 when critical decisions were being made with respect to the
possible promotions of Drs. Neff and Zinn.
Dr. Rhyne stated that he nevertheless in effect applied the promotion
guidelines to both Drs. Neff and Zinn in making his decisions as to whether or
not to set up promotion committees in their case. (Finding 101). However, in the
case of Dr. Neff the promotion committee was set up despite his failure to meet
the 25 percent service requirement under the guidelines as they were written.
(Finding 100). The guidelines, however, were applied across the board to Dr.
Zinn in Dr. Rhyne's determination that a promotion committee should not be
established in his case.
Dr. Zinn has established a prima facie case. He has demonstrated that he
engaged in protected activity and that MURR's officials were aware of it. The
level of animosity on the part of individuals in the Director's Office directed
against him arising out of that protected activity, i.e., the accusations of an
adversarial approach, dual agendas, and attempting to shut the reactor down
further demonstrate that the likely cause of the personnel action he complains
of, was his exercise of protected activity. The timing of the decision following
closely Dr. Zinn's raising of the target composition issues likewise compels that
conclusion.
The University has not made a convincing case that Zinn was denied
promotion consideration for legitimate reasons. He was denied such consideration
on the basis of promotion criteria not yet fully in effect; they were still being
discussed with the group leaders. At the time these actions were taken Dr. Rhyne
indicated that it would be a couple of months until the policies were in fact
finalized. Moreover, the criteria were more rigorously applied to Dr. Zinn than
to Dr. Neff.
The inherent animosity in Dr. Rhyne's remark to Dr. Glascock on September
12, 1993, that "a trained monkey could have filtered Dr. Zinn out as not being
qualified for promotion" further compels the inference that the hostility arising
out of the protected activity was a critical consideration in refusing to set up
a promotion committee. It undercuts the contention that the decision was based
on objective criteria.
If, on the other hand, it were determined that both legitimate and
discriminatory reasons played a part in the decision, the case would have to be
decided under the dual motive analysis. Considering the level of hostility to
Dr. Zinn on the part of individuals in the Director's Office and management of
the reactor, because of his target composition concerns, no finding can be made
that promotion consideration would have been denied him absent the protected
activity in question. "In dual motive cases, the employer bears the risk that
the influence of legal and illegal motives cannot be separated. . ." Pogue v.
U.S. Department of Labor, 940 F.2d 1287, 1291 (9th Cir. 1991).
The Morris Demotion
Dr. Morris encouraged Dr. Zinn to pursue the target certification issue on
the Shipping Task Force and Irradiation Subcommittee. In January of 1993, he
filled in for Dr. Zinn at certain of their meetings and later attended meetings
when the January 15, 1993 response to the NRC was being finalized. In those
discussions it was unclear whether the results of Dr. Zinn's work or that of the
Irradiation Subcommittee in general were to be included in the letter to the NRC.
Dr. Morris expressed those concerns in the presence of Associate Director
McKibben and Assistant Director Reilly; Steve Gunn was also present. It was Dr.
Morris' concern that the substance of Dr. Zinn's findings were not getting into
the earlier drafts of the letter. Dr. Morris, in attending these meetings,
viewed his role as that of trying to hold up Dr. Zinn's end of the argument. In
addition, Dr. Morris expressed these concerns in other subcommittees of which he
was a member, as, for example, the Reactor Services Subcommittee and the Safety
Subcommittee. (Findings 58-59).
The argument essentially came down to a question of whether Dr. Zinn's
concerns and discoveries should be revealed to the NRC in explicit detail or
whether the reactor, although not covering the issue up, should take a low
profile on this question leaving it up to the NRC investigators to request the
details should their interest be aroused. Dr. Zinn's and Dr. Morris' advocacy
of full and explicit disclosure is clearly protected activity. That fact is not
vitiated by the disclosure which, subsequent to the argument on this point, was
subsequently made in the January 15 letter.
The University denies that Dr. Morris' activities in this respect motivated
the demotion of which he complains. To evaluate that contention it is necessary
to consider the background against which this controversy played itself out. The
University contends that Dr. Rhyne, the new Director, who assumed office in
December of 1990, had a mandate of change. Specifically, he was directed to
emphasize the research function of the reactor as opposed to its service function
and to integrate the campus faculty with the reactor. In short, he was to give
greater emphasis to the academic side of the reactor's work.
In summary, the University contends that Dr. Rhyne was attempting to take
the reactor in a new direction and that he had the perception that Dr. Morris,
the former interim director, was attempting to undermine his efforts in that
respect. (Finding 105). The record shows that Dr. Morris and Dr. Rhyne had
disagreements over a range of issues beginning in 1991. The disagreements
included allocation of space among various disciplines at the reactor in an
addition which was to be constructed, budget allocations which Dr. Morris thought
inimicable to his group, a disagreement about personnel evaluations and perhaps
most fundamental, the manner of integrating campus faculty into the operation and
administration of the reactor. (Finding 108). Dr. Rhyne conceded that none of
these matters in and of themselves would have justified the demotion considered
in isolation. However, he felt that taken together the tipping point had been
reached in January-February 1993 when he was apprised of dissension at the
reactor which he felt could be traced to Morris' group. (Finding 113). Dr.
Rhyne's perception in this regard may have played a role in the demotion of Dr.
Morris. Nevertheless, the timing of the action compels the inference that Dr.
Morris' protected activity also played a significant part in the decision to
remove him from his administrative duties. Rhyne initiated the demotion in his
conferences with the Provost and Vice Provost in February 1993 following closely
the controversy on target composition concerns. Rhyne admits that none of the
preceding disagreements by themselves would have justified the demotion. The
record, accordingly, compels the inference that the tipping point leading to the
action was Zinn's and Morris' protected activity in that period.
The friction between Dr. Morris and Dr. Rhyne on the basis of the evidence
of this record went back at least to 1991. Nevertheless, there is no indication
that adverse action against Dr. Morris was seriously contemplated prior to
January-February 1993. In this connection, it should be noted that Dr. Zinn's
pursuit of the target certification issue became contentious in the period
October 1992 to January 1993. Dr. Morris in January of 1993 weighed in on Dr.
Zinn's side at various committee or subcommittee meetings for more explicit
disclosure of the target certification problem. It was also clear that reactor
management in the form of Messrs. McKibben and Reilly were aware of Dr. Morris'
actions in this respect. The level of hostility arising out of Dr. Zinn's
actions was high. He was bringing to light additional shipping violations which
reactor management feared could shut the reactor down. The detail in which Dr.
Zinn's concerns were to be disclosed to the NRC was clearly a controversial
issue. The record compels the inference that that hostility spilled over to Dr.
Morris, who also advocated full disclosure. In short, considering the animus
resulting from the protected activity in question and the timing of the decision
to demote Dr. Morris, the record compels the conclusion that Dr. Morris' support
of Dr. Zinn played a significant part in the decision to demote him. No finding
can be made on the basis of these facts that Dr. Morris would have been demoted
even absent the exercise of protected activity. See Pogue v. U.S. Department of
Labor, 940 F.2d supra at 1291.
Remedy
The record supports the finding that the failure to at least consider Dr.
Zinn for a promotion to Senior Research Scientist was discriminatory. The record
in this proceeding is not designed for an informed determination by the trier of
fact as to whether Dr. Zinn in fact should be promoted. Under the circumstances,
such an evaluation is best left to a committee of his peers. The University
will be required to set up a promotion committee of his scientific peers not
previously involved in this proceeding as witnesses or in the NRC investigation,
to evaluate his suitability for promotion. The members of the promotion
committee shall be selected by a University official not previously involved in
the NRC investigation or this litigation. If the University cannot find a
suitable official on its staff who has the requisite neutrality to fairly select
such a promotion committee, it shall arrange for the selection of the committee
by a suitable official from another University or other appropriate scientific
institution. The procedures for establishing a promotion committee for Dr. Zinn
shall be initiated within ten days of the Secretary's final order.
In the event that Dr. Zinn is found suitable for promotion by the
committee, he is to be promoted and given back pay in the amount of the
differential between the research scientist and senior research scientist
salaries in the period from February 4, 1993 to the date of his promotion.
Dr. Morris, within ten days of the Secretary's final order, is to be
reinstated as Nuclear Analysis Program Coordinator and the Analytic Epidemiology
Nutrition and Immunology group is to be re-established with Dr. Morris as group
leader.
Respondent, in view of the circulation of the Reilly memorandum, is to post
the Secretary's final decision and order for a period of 60 days on MURR bulletin
boards where official documents are posted.
Respondent is to reply to the fee petition of Dr. Morris and his request
for reimbursement of litigation expense within ten days of the issuance of this
decision. Complainant Zinn may file his fee petition at the same time.
RECOMMENDED ORDER
IT IS ORDERED that:
1. The Respondent is to establish a committee to consider Dr. Zinn's
suitability for promotion to Senior Research Scientist in accordance with the
terms and conditions set forth in this decision initiating this procedure no
later than 10 days from the date of the Secretary's final order.
2. Dr. Zinn, if the committee recommends his promotion, is to be promoted
in accordance with that recommendation and to be reimbursed with the differential
between the salary of a research scientist and senior research scientist in the
period from February 4, 1993 to the date of his promotion.
3. Within ten days of the Secretary's final order, Dr. Morris is to be
reinstated as Nuclear Analysis Program Coordinator.
4. Within ten days of the Secretary's final order the Analytic
Epidemiology Nutrition and Immunology group is to be re-established with Dr.
Morris as group leader.
5. Respondent is to post on all bulletin boards of the Missouri University
Research Reactor, where Respondent's official documents are posted, a copy of the
Secretary of Labor's Decision and Order for a period of 60 days, ensuring it is
not altered, defaced or covered by any other material.
THEODOR P. VON BRAND
ADMINISTRATIVE LAW JUDGE
TPVB/jbm
Newport News, Virginia
