DATE: October 2, 1997

CASE NO.: 97-ERA-00031

In the Matter of

TED ELTZROTH
    Complainant

    v.

AMERSHAM MEDI-PHYSICS, INC.
    Respondent

Appearances:

    Ted Eltzroth, pro se

    Alan S. King, Esquire,
       On behalf of Respondent

Before: Ainsworth H. Brown
    Administrative Law Judge

    This is a proceeding brought under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851, and the regulations promulgated thereunder at 20 C.F.R. Part 24. These provisions protect employees against discrimination for attempting to carry

out the purposes of the ERA or of the Atomic Energy Act of 1954, as amended, 42 U.S.C. §2011, et seq. The Secretary of Labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC"), who are discharged or otherwise discriminated against with regard to their terms and conditions of employment, for taking any action relating to the fulfillment of safety or other requirements established by the NRC.

   In the instant case, Complainant filed a complaint with the Department of Labor on February 22, 1997. After an investigation by the Department of Labor (DOL), which found Complainant was discharged due to refusal to perform his assigned task, Complainant appealed to this Office by letter received on March 7, 1997. A hearing was held before me in Chicago, Illinois on June 24, 1997 whereupon testimony was presented and exhibits were admitted into the record. The parties were given sixty days to submit written closing arguments in this matter. Additionally, Complainant was to provide Respondent with bibliographic information regarding a scientific text referred to by Complainant in his testimony and subsequently on his written argument. Complainant's argument was received on August 1, 1997 and Respondent submitted his argument on August 25, 1997, whereupon the record was closed.

   This case concerns Complainant's discharge from his position as a radioactive "seed" inspector for Respondent. Complainant contends that he was fired after, and as a result of, his informing Respondent's employees that he perceived a safety hazard in the inspection process which exposed him to high doses of radiation. He initially refused to perform the task and informed Respondent that he would consider whether he would ultimately perform the job. He was terminated the next day. Respondent argues that Complainant was fired solely because of his failure to perform the job for which he was hired, that his activity was not protected under the ERA, and that, even if his whistleblowing activity contributed to his release, Respondent would have been discharged.

   In order for Complainant to prevail under the ERA through reliance upon circumstantial evidence, he must first establish a prima facie case of retaliatory action by Respondent, to wit: he must establish that (1) he was engaged in protected activity, (2) Respondent was aware of the conduct, and (3) Respondent took an adverse action against him. Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996); Dartey v. Zack Co. Of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6-9; Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Complainant must also offer evidence sufficient to raise the inference that the adverse action was likely caused or contributed to by the protected activity. Id.; 42 U.S.C.A. §5851 (b)(3)(C).

    If Complainant establishes this prima facie case, Respondent must

produce evidence that the alleged adverse action was motivated by legitimate, non-discriminatory reasons. The Respondent's burden is one of production only. Zinn, supra; Burdine, supra at 254-255.

   In the event that Respondent is successful in articulating the above, the burden of proof shifts again to Complainant. Complainant must then show that Respondent's proffered business reasons are mere pretext for discrimination. Id.; Frady v. Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995); Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993). At all times during the above analysis, the burden of showing by a preponderance of the evidence that Respondent was motivated by illegal animus rests with Complainant. Samodurov, supra.

   If it is determined that a violation exists, i.e., that Respondent was motivated at least in part by discriminatory animus, then Respondent, in order to avoid liability, must show by clear and convincing evidence that it would have reached the same decision even in the absence of protected conduct. 42 U.S.C.A. 5851(b)(3)(B).

Witness Testimony

   Determination of this matter depends in large part upon evaluation of the testimony presented at the hearing, which consisted of testimony by Complainant, Edward Zdunek, Respondent's Radiation Safety Officer, and Raymond Wronkiewicz, who was a quality control supervisor for Respondent at the time of Complainant's employment.

   Complainant testified that he was hired on a temporary, full-time basis by Respondent in February, 1997 to inspect its "I-125 seeds", which are radioactive, at the rate of fourteen dollars per hour. (TR 10, 12, 21). On the first day of work, February 3, he was provided with radiation training, and he underwent inspection training on the second day. The inspection process entailed placing his hands into gloves, projecting them through an opening in a wall, and, by manipulation of tweezers, picking up and raising a radioactive seed from a collection of ten to thirty seeds placed on a table. The seed is then sized through the use of a tool. (TR 11). On that day he was asked to attempt to perform the inspection, whereupon he inserted a radiation detector into the one of the gloves in order to ensure he was adequately protected from radiation. (TR 11 - 12). At the time the tray had approximately eighty seeds upon it. (TR 40). According to his reading, he concluded that "little to no protection" was afforded from the glove, and he did not perform the task. (TR 12 - 13). His trainer, who was present, was unaware of the level of radiation projected from the seeds, and she referred Complainant to Ed Zdunek. (TR 13). That night, Complainant concluded that the exposure rate was significant, after performing some preliminary calculations. Id. The following day he discussed the matter with Mr. Zdunek, who explained that the company monitored radiation

exposure through nuclear emulsion badges, and that data indicated the exposure rates were within the applicable limits. Id. (TR 13 - 14). Upon indicating that he remained uncomfortable with the task, and that he wanted to verify his calculations, he proceeded to his immediate supervisor, Ray Wronkiewicz, the following day. (TR 14). Both returned to the task area and placed eight layers of gloves over Complainant's detector, which revealed no radiation diminution. He asked if he could confirm his calculations and then inform Mr. Wronkiewicz whether Complainant would perform the job, since he would have left if his rates of radiation were verified, had he not been fired. (TR 14). He was indeed fired the next day, on February 5, 1997. (TR 20). According to Complainant, he believed that he would not have been fired had he performed the inspection work. (TR 38).

   Complainant stated that his calculations were indeed verified by several health physics departments, and they yielded an exposure rate of 1 to 1.5 rads per hour from the seeds, compared to the federal limit of 75 rads annually. (TR 15). The result was theoretical in nature, rather than a direct measurement of radiation exposure, he stated. (TR 37). He used a text by Shapiro to arrive at his results. He cited the same source for the proposition that the monitoring badges were not completely effective, although, to his knowledge, Respondent's monitoring techniques were acceptable to the IDNS. (TR 27, 37). Prior to working for Employer, Complainant had no experience monitoring radiation or conducting testing. (TR 38).

   Aside from the aforementioned persons, whom Complainant contends understood but did not appreciate the serious nature of the exposure issue, Complainant also informed the Illinois Department of Nuclear Safety (IDNS) and the Nuclear Regulatory Commission (NRC). (TR 18, 25). The former also performed the calculation and attained a similar result, but did not proceed since Employer's paperwork was in order, while the NRC believed he had grounds for a discrimination suit, according to Complainant. (TR 18). He acknowledged that the IDNS dismissed the complaint, finding it to be without merit. (TR 32). He also believed neither agency was willing to examine beyond the available paperwork in order to assess the merits of his complaint, but stated that he was unaware of their inspection protocol. (TR 28 - 30).

   Testimony was also given by Edward A. Zdunek, the radiation safety officer at Amersham, and a former inspector for IDNS. (TR 47 - 48). Mr. Zdunek, who attained his Bachelors of Science in industrial occupational safety from Illinois State University, explained that Complainant's work station protected against radiation exposure through the use of a leaded plexiglass shield, tweezers (which provide distance from the radioactive material), leaded gloves and a controlled number of between ten and thirty seeds. (TR 50, 73, 106). Heavier leaded gloves had been used, but were found too cumbersome for the task. Id. The area covered by the gloves varied from person to person according to his/her size. (TR 106 - 107). Radiation exposure rates in that station are among the lowest in the facility. (TR 51).

   Exposure rates are measured by dosimeter badges; one reflects whole body

exposure and another reads the exposure on the employee's hands, and is located on the hand, on a ring under a leaded glove. (TR 53, 74 - 75, 84, 113). They are collected on a bimonthly basis and forwarded to a company that reads the badges, quantifies their rates and forwards the data to Respondent. (TR 53). The results are stored and reviewed, as well as posted for employee inspection. (TR 53 - 54). Extremity exposures in the area are ten percent of the regulatory limit, according to Mr. Zdunek. (TR 82). It was theoretically possible that one's forearm could be exposed to 100 millirems in a 15 minute span, depending upon the number of seeds, and whether the forearm is exposed. (TR 88 - 91). Safety measures are based in part upon these practical measurements, both of which are standard in the industry, as well as upon theoretical values, with a view toward field exposure for the workers. (TR 82 - 84, 113). Never has an employee exceeded the regulatory limits during Mr. Zdunek's tenure, and Complainant's badge results reflected no appreciable exposure. (TR 54 - 55).

   Mr. Zdunek stated that NRC permissible exposure rates for the position were 5 roentgen equivalent man (rem) for the whole body and 50 rems for an extremity. Id. Respondent's in-house limits are 2 rem for the whole body and 30 rem for extremities. (TR 54). In addition, Respondent has a department-by-department program to limit exposure as low as reasonably achievable (ALARA), in which a subcommittee of employees raise issues and concerns. (TR 56 - 58). Further, a safety meeting is held on a monthly basis affording employees the opportunity to voice their concerns on through their ALARA representative. (TR 58). Mr. Zdunek is aware of no employee that has been discharged or disciplined for raising or discussing a safety concern. (TR 58).

   Mr. Zdunek essentially confirmed Complainant's account of the events of February 3, 1997. (TR 62). On February 4th the two gentlemen were introduced, and on the 5th, after being told Complainant did not wish to work with any radioactive materials, Mr. Zdunek met with Complainant to discuss his apparently genuine concerns regarding exposure. (TR 65, 98). The drawbacks of heavier leaded gloves were explained, after Complainant proposed their use. (TR 66). The regulatory, Amersham and ALARA limits were explained, and documents addressing biological effects of radiation and other topics were offered and declined. (TR 66, 68). After the meeting Mr. Zdunek informed Jay Reed, the quality control manager, of Complainant's discomfort and refusal to change his mind regarding the task. (TR 69).

   According to Mr. Zdunek, Complainant's measuring instrument does not measure radiation exposure. Rather, it is designed for environmental monitoring, which entails contamination detection, not dose rates. (TR 67). Thus, it is very radiation-sensitive, in order to determine whether any radiation at all is present. (TR 68). It is used by Respondent to ensure that no radioactive seeds were left behind at the work station. (TR 67 - 68). Moreover, Mr. Zdunek asserted that Complainant's calculation of an exposure rate of 1.4 rads per hour refers to actual contact with the seed, rather than exposure from the task, which is conducted three inches from the radioactive source. (TR 69 - 70). It is possible, but not normal, for the forearm to pass over the seed, according to Mr. Zdunek, and the forearm has no specific badge for monitoring. (TR 76, 80).

   With regard to the one-day investigation conducted by IDNS, a team arrived, interviewed those who had contact with Complainant, and performed radiation surveys of the area with representative samples, in order to ascertain the effectiveness of the gloves and the radiation levels in the area. (TR 116). Mr. Zdunek became acquainted with Mr. Bruce Sanza, the author of the letter from IDNS, from Mr. Zdunek's prior employment at IDNS. (TR 102).

   Raymond F. Wronkiewicz, who was the quality control supervisor at the time of Complainant's employment, provided testimony as well. (TR 118 - 119). He interviewed and hired Mr. Eltzroth, and was his supervisor. (TR 120 - 123). During the interview Mr. Wronkiewicz informed Complainant that he would receive radiation dosage within the NRC and IDNS guidelines during the course of his employment, and the latter indicated that such exposure did not pose a problem for him. (TR 122). During a tour of the facility Mr. Wronkiewicz showed Complainant dosage charts of other employees, and Complainant again indicated that he did not have a problem with the issue of radiation dosage. Id.

   On the February 4, 1997 (the second day of Complainant's employment) Mr. Wronkiewicz was informed that Complainant did not wish to perform the test inspection, and they met to discuss the matter. Complainant stated that he was concerned that he would be receiving too much radiation from the job, and he declined to performed the test. (TR 124). After re-explaining the process and attempting to alleviate this concern, Mr. Wronkiewicz was told by Complainant that he was still unwilling to perform the job. (TR 125). Mr. Wronkiewicz then reminded Complainant that he was informed of, hired and agreed to perform this task. Complainant then requested time to think the matter over, but did not indicate whether or not he would perform the job in the future. (TR 126). He was assigned to work unrelated to radiation, and was directed to Mr. Zdunek. (TR 126 - 127). The following day Mr. Wronkiewicz again met with Complainant, informed him of historical radiation data reflecting results well within "the limits," and reminded him that the visual inspection was a duty he accepted when he agreed to work for Respondent. (TR 127). Complainant stated that he wanted radiation exposure "reduced to zero," and again requested time to think about the matter overnight. (TR 127 - 128). Mr. Wronkiewicz did not recall granting the request, nor being told that Complainant wanted the time in order to verify his calculations. (TR 130 - 131). Mr. Wronkiewicz later informed his supervisor, Jay Reed, of the situation, and they decided Complainant would be uncomfortable with the job, particularly since Mr. Zdunek tried to allay Mr. Eltzroth's fears through historical data and reference materials. (TR 128). They then decided to terminate his employment. Id.

   Mr. Wronkiewicz also testified that safety issues are raised frequently, and are investigated and reported upon. (TR 128).

Exhibits

   Respondent submitted a copy of the IDNS report, dated April 8, 1997,

which set forth the finding of its investigation. (RX 1)¹ . A demonstration of the inspection procedure revealed use of appropriate shielding techniques, and records revealed no employee exposure in excess of the regulatory or administrative limits. The demonstration showed no high radiation area. The report concluded by stating that Complainant was terminated for refusal to perform required duties, rather than because of his safety concerns. (RX 1).

   Mr. Zdunek drafted a file memorandum which essentially echoes his testimony regarding the events of February 5, 1997 and his interaction with Complainant. (RX 3). Attached is a memorandum describing, in substance, Mr. Wronkiewicz's testimony as well. In addition, J. Graney, a coworker, drafted a memo which stated that on February 4, 1997 she trained Complainant to inspect the seeds. (RX 3). In the morning both she and Mr. Eltzroth performed the test, and then, in the afternoon, he was assigned to perform the test alone. It was then that he inserted the radiation meter into the glove, and informed Ms. Graney of the results. She then completed the test, and they both proceeded to confer with Mr. Wronkiewicz. Reports by S. Drews and T. Fraser, co-workers, also appear in the record, indicating various tasks they taught to Complainant. (RX 3). A brief note by K. Foster, a receptionist, reflected that Complainant stated to her that "he was chicken' to work with radioactivity and that he was sorry he was leaving." (RX 3). Various documents pertaining to Complainant's instruction are also in the record. (RX 4).

   It appears from the testimony and exhibits in the record that the occurrences on January 28 and February 3, 4 and 5, 1997 are largely undisputed. Mr. Eltzroth was interviewed on January 28 by Mr. Wronkiewicz, and informed of the nature of the job, which included some exposure to radiation within applicable regulatory and guideline limits. Complainant expressed acceptance of these conditions, and indicated that he was interested in the position. Complainant did not contest this accounting. Further, on February 4, after receiving training for the task, Mr. Eltzroth was charged with performing a seeds inspection, upon which he inserted a radiation detector into the glove, which revealed the presence of radiation. He refused to perform the task. He informed Ms. Graney, who was training him, and she in turn referred him to Mr. Zdunek, the radiation safety officer, who explained the monitoring system and addressed Complainant's concerns regarding undue exposure. Complainant remained concerned, and on February 4 he met with his supervisor, Mr. Wronkiewicz, who reiterated the inspection process and tried to assuage Complainant's apprehension. Undeterred, he continued to refuse to perform the job, and was reminded by Mr. Wronkiewicz that he was hired to, and agreed to, perform the inspection work, with knowledge of the radiation exposure. Complainant requested time to ponder the matter and, prior to his informing Respondent of his decision, Complainant's employment was terminated.

¹ RX refers to Respondent's exhibits and TR refers to the Hearing Transcript.