In a recent Memorandum and Order (Order), an NRC Atomic Safety and Licensing Board (Board) unanimously granted summary disposition to the Tennessee Valley Authority (TVA), dismissing three alleged violations and partially dismissing a fourth issued by the NRC. The violations arose from an investigation conducted by the NRC's Office of Investigations (OI) into allegations of retaliation against a former TVA employee and former contractor. In its Order, the Board clarified the scope of Section 211 of the Energy Reorganization Act (ERA) (42 USC 5851) and the NRC's implementing regulation in 10 CFR 50.7 (Section 50.7). The Order is favorable to employers covered by Sections 211 and 50.7.
Specifically, the Order: (1) rejects the NRC Staff's position that internal complaints and investigations can be retaliatory actions under Sections 211 and 50.7; (2) confirms that to be protected under Sections 211 and 50.7, an activity must "definitively and specifically" implicate safety; and (3) clarifies that placing a worker on paid administrative leave, in and of itself, will not be considered an adverse action, nor will any other action unless it affects the terms and conditions of employment. Notably, the Board's Order relied on decisions from the US Department of Labor's Administrative Review Board (ARB) and federal courts of appeals issued under Section 211, reinforcing their status as persuasive authority for the NRC.
In October 2020, the NRC Staff issued an order imposing a civil penalty against the TVA based on four alleged violations of Section 50.7, implemented under Section 211. The alleged violations and civil penalty resulted from OI's earlier investigation into whether the TVA (and two TVA employees) retaliated against a TVA employee and contractor for engaging in protected activities. The initiating event occurred in March 2018 when a TVA director filed a complaint alleging that the employee and contractor had harassed her to intimidate and undermine her authority. She also alleged that the employee and contractor were creating a chilled environment in her department.
The TVA investigated the director's complaint. Based on the results of the investigation, the TVA placed the employee and contractor on paid administrative leave, pending further actions. Before any additional actions were taken, the contractor voluntarily resigned to take a new position at a different company. The employee was offered a no-fault separation and at first accepted the offer. She then retracted her acceptance and was terminated. OI investigated whether the employee and contractor were retaliated against for raising safety concerns.
Following OI's investigation, the NRC Staff issued four violations, finding that: (1) the director retaliated against the contractor by filing an internal complaint against the contractor for engaging in protected activity; (2) the TVA discriminated against the contractor by placing him on paid administrative leave; (3) the director retaliated against the employee by filing an internal complaint against the employee for engaging in protected activity; and (4) the TVA discriminated against the employee by placing the employee on paid administrative leave and terminating her employment. The TVA disputed the findings and requested a hearing before the Board challenging the violations and related civil penalty. Following discovery, the TVA filed two motions for summary disposition—one regarding violations 1, 2, and 3 and one regarding violation 4.
INTERNAL COMPLAINTS AND INVESTIGATIONS ARE NOT ADVERSE AND CANNOT BE RETALIATORY
The Board began by examining the types of actions that can constitute retaliation based on whether they meet the definition of adverse employment action under Sections 211 and 50.7. The Board noted that neither provision is as broad as other anti-retaliation provisions. For example, while the False Claims Act protects employees who are "suspended, threatened [or] harassed," Section 211 and Section 50.7 do not. Instead, Sections 211 and 50.7 prohibit "personnel action[s] that ha[ve] a tangible impact, such as termination of employment, failure to hire, demotion, or an unwanted transfer."
Based on this interpretation, the Board held that the director's filing internal complaints against the employee and contractor, as well as the TVA's investigation into those complaints, could not be considered retaliatory or adverse. In reaching this conclusion, the Board also recognized that the TVA's internal policies required it to investigate the director's complaint against the employee and contractor and also required that the employee and contractor cooperate with such an investigation. And the Board, relying on the Sixth Circuit's decision in Kuhn v. Washtenaw County, held that an investigation is neither retaliatory nor adverse when its subject "suffered no disciplinary action, demotion, or change in job responsibilities during the course of the investigation."
NOT EVERY ACTIVITY THAT THEORETICALLY IMPLICATES NUCLEAR SAFETY IS PROTECTED
The Board also found that Section 50.7 provides a non-exhaustive list of protected activity that tracks Section 211, such as providing information about alleged violations to the NRC, testifying before the NRC or Congress, and refusing to engage in unlawful practices. However, Section 211 also contains a "catch-all provision"—"any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended". In interpreting the scope of this provision, the Board cited the Sixth Circuit's American Nuclear decision and the ARB's decision in Hoffman v. NextEra Energy, Inc. each of which held that an activity "must implicate safety definitively and specifically" in order to be protected. As stated in American Nuclear, not every concern that "somehow, in some way, may possibly implicate ... safety" is protected.
PAID ADMINISTRATIVE LEAVE, WITHOUT MORE, IS NOT ADVERSE AND CANNOT BE RETALIATORY
The final question addressed by the Board is whether placing an employee or contractor on paid administrative leave meets the definition of an adverse action and can therefore constitute a retaliatory act. The NRC Staff, relying on a Supreme Court decision interpreting the anti-retaliation provision of Title VII of the Civil Rights Act, argued that whether an employee is ultimately discharged or demoted is irrelevant because the correct inquiry is whether the challenged action would deter a reasonable worker from engaging in protected activity. Phrased differently, the Staff argued that any act having a "chilling effect" on an employee or contractor meets the definition of an adverse action, even if the action has no tangible impact on the terms and conditions of one's employment.
The Board rejected this argument, noting that this may be the relevant inquiry under other provisions but not under Sections 211 or 50.7. Instead, the Board found the language of Sections 211 and 50.7 to be "virtually identical" to the substantive anti-discrimination provision of Title VII rather than Title VII's anti-retaliation provision, and the Supreme Court interpreted this similar language to reach only "actions that affect employment or alter the conditions of the work place." The Board also noted that the ARB's decision in Overall v. TVA, which the Staff relied on, and found that the ARB's test for an adverse action still required there to be a tangible employment action. Based on "overwhelming caselaw," the Board concluded that, placing an employee on paid administrative leave, where there is no presumption of termination, is not adverse action.
The Board's decision, however, stops short of saying that paid administrative leave can never be an adverse action or retaliatory act. Indeed, the NRC Staff previously found paid administrative leave to be retaliatory in an earlier NRC enforcement action involving a different licensee. The impact of the Board's decision on this earlier finding by the NRC Staff is unclear because the facts on which it was based are different from the facts in the TVA proceeding. For example, in the earlier action, the NRC Staff found that the licensee placed a contractor on paid administrative leave to prevent him from working on-site after he raised concerns. The NRC also found that after the contractor was placed on administrative leave, the licensee did not investigate the contractor's safety and retaliation concerns and instead made the contractor the subject of an investigation. "[I]n this specific context," the NRC Staff found that administrative leave "constitutes an adverse employment action." This contrasts with the facts in the TVA proceeding where the former employee and contractor, among other things, were placed on paid administrative leave after an investigation into their conduct had occurred.
Based on the Board's findings, the Board dismissed alleged violations 1, 2, 3, and a portion of violation 4, leaving only the question of whether the TVA's termination of the former employee was retaliatory for a hearing. Nevertheless, after the Board's decision, the parties, including the NRC Staff, jointly moved to terminate the proceeding, which the Board granted.
We will continue to track other developments on these topics.
This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.