The prime contractor at the Energy Department’s Savannah River Site in South Carolina illegally fired an employee in 2014 for cooperating with a congressionally led investigation into whistleblower retaliation at the site, according to DOE’s Office of Hearings and Appeals.
The quasi-judicial Office of Hearings and Appeals (OHA) subsequently ordered Fluor-led Savannah River Nuclear Solutions (SRNS) to reinstate the employee, Sandra Black, to a position comparable with her old job as manager of the company’s employee concerns program.
The office also ordered SRNS to pay Black the salary would have earned if she had not been terminated, in addition to unspecified “compensatory and emotional distress damages” and legal fees.
After working at the site since 1980, Black alleged she was fired in 2014 for cooperating with a Government Accountability Office (GAO) probe into whistleblower retaliation at Savannah River. Black lodged her own whistleblower complaint with the DOE Inspector General’s Office, which in January produced a report that convinced OHA that SRNS had fired Black because she spoke with government investigators.
“SRNS failed to show by clear and convincing evidence that it would have terminated Ms. Black absent the disclosures to the GAO.” OHA wrote in a Feb. 24 order made public Friday by Sen. Ron Wyden (D-Ore.).
Wyden has long criticized DOE and its contractors for mistreating whistleblowers. Last year, he and Democratic colleagues Sens. Claire McCaskill (D-Mo.) and Edward Markey (D-Mass.) held a press conference on Capitol Hill where Black and Walter Tamosaitis — another former DOE contractor who says he was fired for raising major safety concerns at DOE’s Hanford Site in Washington state — discussed the alleged retaliation they faced for blowing the whistle.
Black’s lawyer said her client was not entirely pleased with the ruling because DOE did not order any kind of “corrective action” — often a byword for discipline — for the SRNS employees involved in her firing.
“It was a complete victory in terms of the award: finding of retaliation, ordering her reinstated, back pay, fees and expenses,” Billie Garde, an attorney with the Washington-based firm Clifford and Garde, told Weapons Complex Monitor in a telephone interview Friday. “Unfortunately, working with many of the same people that are now found to have retaliated against her, There’s something kind of fundamentally wrong with that piece of it.”
“In order to bring this issue to resolution, Savannah River Nuclear Solutions intends to fully comply with the Office of Hearings and Appeals (OHA) order and anticipates Ms. Black’s return on April 1, 2017 to be reinstated as the Manager of the Employee Concerns Program,” an SRNS spokesperson wrote in a Friday email. “We value the importance of a robust employee concerns program to resolve employee concerns through collaboration and mediation.”
DOE did not reply to a request for comment Friday.
Wyden and his colleagues remained on the warpath on Friday, asking Energy Secretary Rick Perry whether the agency planned to take action against Black’s former — and perhaps future — SRNS colleagues.
“[W]ill the managers who retaliated against Ms. Black by firing her be subject to disciplinary action, up to and including termination?” Markey, McCaskill, and Wyden asked in a Friday letter to Perry.
Garde told Weapons Complex Monitor she did not asked DOE to fire anyone at SRNS.
One of the key figures in Black’s case has already left the Savannah River Site. Carol Johnson, former chief executive officer at SRNS, gave notice she would retire in July, about a week after the Capitol Hill press conference at which Black told her story. Johnson was replaced by current SRNS CEO Stuart MacVean in September.
Savannah River Nuclear Solutions is a partnership of Fluor, Honeywell, and Stoller Newport News Nuclear. Its missions at the Savannah River Site encompass cleanup, building deactivation and decommissioning, tritium production for nuclear weapons, and operation of the Savannah River National Laboratory. The current $9.5 billion M&O contract is scheduled to expire on July 31, 2018.
New DOE Whistleblower Rule Still Not in Place
Meanwhile, a DOE rule intended to strengthen penalties for agency contractors that retaliate against whistleblowers in their ranks still had not gone into effect as of Thursday after being suspended as part of the Trump administration’s freeze on new regulations.
The Procedural Rules for DOE Nuclear Activities, written by the Obama administration, clarified that the department may assess civil penalties against contractors that punish employees who raise concerns about their work at DOE nuclear sites. The Trump administration’s regulatory freeze delayed the rule’s implementation to at least March 21 from the Obama administration’s planned Jan. 26 phase-in.
The final rule had not been enacted by deadline for Weapons Complex Monitor. A DOE spokesperson did not reply to a request for comment Thursday.
Wyden and his colleagues have urged new Energy Secretary Rick Perry to immediately enforce the Obama administration’s proposed penalties for contractors that suppress whistleblowers.
“DOE has a long history of failing to protect whistleblowers,” Markey, McCaskill and Wyden wrote in a March 6 letter to Perry. “The Department indisputably had the statutory authority to take enforcement action, including the issuance of civil penalties for nuclear safety violations by its contractors.”
The Trump administration, which has professed a general anti-regulatory bent, suspended most pending federal rules and regulations on Inauguration Day so the White House could review them.
Public comments posted in the Federal Register include some very specific objections to the proposed whistleblower DOE rule. One anonymous critic said the measure lacked the teeth to prevent DOE itself from micromanaging contractors into punishing their own employees.
“This rule will not achieve its desired goal because it does not address the root cause for retaliation against whistleblowers — DOE itself,” an anonymous critic wrote in a comment published in the Federal Register on Sept. 29. “Many of the more visible whistleblower cases, including the recent Tamosaitis case, were cause[d] by DOE pressure on the contractor to take retaliatory actions. This puts the contractor in the position of potentially harming an employee or potentially losing their contract or a substantial amount of their fee.”
Tamosaitis, the former DOE contractor, maintains he was fired in 2013 for raising concerns about potentially dangerous design flaws at the Waste Treatment Plant Bechtel National is building to treat more than 55 million gallons of radioactive waste left over from Cold War plutonium production at DOE’s Hanford Site near Richland, Wash.
The agency halted work on key elements of the plant in 2012, forcing Bechtel to substantially modify the plan for treating Hanford’s liquid waste.
Tamosaitis was subsequently fired by Bechtel’s primary subcontractor on the project, URS Energy and Construction. He later sued AECOM, which acquired URS after Tamosaitis blew the whistle, and in 2015 won a $4.1 million settlement that made national news.
The Waste Treatment Plant must be fully online by 2036, a federal judge ruled last year. A part of the plant intended to treat Hanford’s less-radioactive low-activity liquid waste is set to open by 2023.
Meanwhile, a trio of Washington attorneys lauded the rule, writing in a public comment the measure would direct DOE not to take action against alleged whistleblower retaliation until “expert bodies” have determined any such retaliation occurred.
“DOE has taken a reasonable and common-sense approach towards enforcing alleged whistleblower retaliation by deferring action until there is an actual finding of retaliation by the expert bodies tasked with making such determinations,” wrote the three attorneys from the law firm Hogan Lovells.
Attorneys from Hogan Lovells, which maintains offices in downtown Washington, “routinely advise clients on civil enforcement matters, including on nuclear safety and whistleblower retaliation,” according to the firm’s public comment.
