Case No. 79-ERA-1

In the Matter of

CLIFFORD W. RICHTER
    Complainant

    vs.

ELLIS FISCHEL STATE CANCER HOSPITAL
    Defendant

Carl F. Sapp, Esq.
    411 Gister Building
    Columbia, Missouri 65201
       For the Complainant

D. B. Kammerer, Esq.
Curtis Sears, Esq.
    Broadway State Office Building
    Jefferson City, Missouri 65101
       For the Defendent

Before: SAMUEL A. CHAITOVITZ
    Administrative Law Judge

    This case arises under Section 210 of the Energy Reorganization Act of 1974, as amended, (Public Law 95-601, 42 U.S.C. 5851). Dr. Clifford W. Rieliter filed a Complaint dated December 13, 1978 alleging that he was discharged in violation of Section 210 of the Act (42 U.S.C. 5851) because

he had notified the Nuclear Regulatory Commission concerning certain matters. Defendant requested a hearing in this case.

    Pursuant to a Notice of nearing issued March 29, 1979 a hearing was held before the undersigned on May 1 and 2, 1979 in Columbia, Missouri. Both Dr. Richter and Ellen Fischel State Cancer Hospital were represented at the hearing, were afforded full opportunity to be heard, to adduce evidence and to examine and cross-examine witnesses. Thereafter, briefs and reply briefs were filed with the undersigned which have been duly considered.

    Upon the entire record in this case, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following recommended Findings of Fact, Conclusion of Law and Order.

    1. Ellis Fischel State Cancer Hospital is a licensee of the Nuclear Regulatory Commission, licensed to use radioactive materials for the purpose of medical therapy.

    2. Dr. Clifford Richter, the plaintiff herein, was initially employed by the Ellis Fischel State Cancer Hospital in 1974 as head of the Department of Medical Physics and as Chief Medical Physicist. He was hired pursuant to the recommendations contained in a report of Doctors Almond, Lindberg and Powers, recommending to the Missouri Division of Health that a Department of Medical Physics be established in conjuction with the acquisition of a Linear Accellerator by Ellis Fischel.

    3. Dr. Clifford Richter, as an employee and department head, received ratings under the merit system law of outstanding in all categories. The ratings given to him were given by his peers, the Doctors and the then Administrator Virgil Yates and the ratings ranged from 92% to 97%. All these ratings were made prior to the report made by Richter to the Nuclear Regulatory Commission on March 29, 1978 regarding the irridium radiation seeds implanted in Mrs. Martha McClaskey which left the hospital contrary to the law.

    4. In December of 1977 irridium seeds for medical therapy were implanted in Mrs. Martha McClaskey and were removed and she was allowed to leave the hospital. Four seeds of irridium were left in her body. These seeds were discovered in March of 1978 and on March 29, 1978 Dr. Clifford Richter, as Radiation Safety officer, made a report to the Nuclear Regulatory Commission which prompted an investigation by that agency.

    5. Dr. Clifford Richter was Radiation Safety Officer of Ellis Fischer. State Cancer Hospital at the time he made the report to the Nuclear Regulatory Commission and it was his duty to make reports to the Nuclear Regulatory Commission.

    6. At no time prior to the Richter report to the Nuclear Regulatory Commission were there any formal discussions by the staff or by the executive committee pertaining to reorganization of the Medical Physics Department as a division of the Department of Radiation Therapy.

    7. In January of 1978 Virgil Yates, then the hospital administrator, wrote a recommendation for a substantial pay raise for Dr. Richter to the Division of Health which would have increased the salary of Dr. Richter from approximately $39,000.00 per year to approximately $49,000.00 per year. This letter was written prior to the discovery of irridium seeds in Mrs. McClaskey and the Richter report to the Nuclear Regulatory Commission.

    8. On April 24, 1978, less than one month after the Richter report to the Nuclear Regulatory Commission Virgil Yates, the Administrator of Ellis Fischel, wrote an inter-office communication to Dr. Richter admonishing him for making the report to the Nuclear Regulatory Commission without clearing the report with the administration and the staff. Yates stated that the administration and staff would decide what should or would be reported. In April of 1978 the Executive Committee and staff, without discussing the

matter with Dr. Richter, abolished the Department of Medical Physics and made it a division under the Department Radiation Therapy.

    9. Following the report of Dr. Clifford Richter, the Nuclear Regulatory Commission made its investigation and report. The Senate of the State of Missouri had a hearing on the matter of Martha McClaskey. The Senate investigation revealed that not only had irridium seeds been left in Martha McClaskey, but that a suture needle was left in Mrs. Martha McClaskey by Dr. Bricker. All staff members, with few exceptions, were required to testify.

    10. In October of 1978, without discussing the matter with Nestor Canoy, head of the Department of Radiation Therapy, the administration, executive committee and the staff reorganized the Department of Radiation Therapy to eliminate the position of Chief Physicist although physicists were needed at that time.

    11. On December 8, 1978, Dr. Clifford Richter was notified that his job as Chief Physicist had been eliminated and that he would be terminated as an employee.

    12. The termination of Dr. Clifford Richter on December 8, 1978 was directly caused by his report to the Nuclear Regulatory Commission that radioactive irridium seeds had been left in Mrs. Martha McClaskey when she was discharged from the hospital and to the series of events that occurred thereafter.

    13. Dr. Clifford Richter was paid by the Missouri Department of Social Services through the month of February, 1979, and has received no pay from Ellis Fischel State Cancer Hospital since the dates of his termination, December, 1978. His salary at the time of termination was $39,000.00 per year.

    14. Dr. Richter testified that his attorneys fees for this hearing would be $2,500.00.¹

¹Counsel for Claimant, in his brief, refers to an investigatory finding by the Department of Labor that Claimant had an additional ,500.00 in legal expenses prior to the hearing. No evidence was submitted on this issue so, accordingly, no finding can be made.