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Summary of Decisions - April 28, 2014 – May 2, 2014

May 2, 2014 - 11:26pm

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Personnel Security (10 CFR Part 710)

On April 30, 2014, an OHA Administrative Judge issued a decision in which she concluded that an individual’s security clearance should be restored.  In October 2013, as part of a background investigation, the local security office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about his one-time use of his wife’s prescription medication.  The individual’s behavior raised security concerns under the Bond Amendment and Criterion K.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Administrative Judge found that the individual’s use of his wife’s prescription medication happened under unusual circumstances that are unlikely to recur in the future; and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment.  To the extent that the individual’s behavior raised security concerns under Criterion K, the Administrative Judge found that such concerns have been successfully mitigated.  She also concluded that the individual is not “an unlawful user of a controlled substance or an addict” within in the meaning of the Bond Amendment.  Accordingly, the Administrative Judge concluded that the individual’s security clearance should be restored.  OHA Case No. PSH-14-0003 (Kimberly Jenkins-Chapman)

Contractor Employee Protection Program (10 CFR Part 708)

On April 29, 2014, OHA issued a decision denying an Appeal of an Initial Agency Decision (IAD) issued in response to a  complaint filed by Denise Hunter (Hunter) against the Whitestone Group under the DOE’s Contractor Employee Protection Program, 10 CFR Part 708. In the IAD, the Hearing Officer found that Hunter had made a protected disclosure concerning theft of official equipment, and had participated in a protected activity by filing a Part 708 Complaint. The Hearing Officer also found that these actions were contributing factors in Hunter’s termination by Whitestone and that Whitestone had not provided clear and convincing evidence that it would have terminated Hunter notwithstanding her protected disclosure and activity. Consequently, the Hearing Officer awarded Hunter back pay and attorney’s fees. Whitestone appealed the Hearing Officer’s findings that Hunter’s disclosure and her filing of the Part 708 Complaint were protected activities. Specifically Whitestone argued that Hunter never alleged that these activities were contributing factors in her termination.  OHA found that the Hearing Officer findings in this regard were proper based upon evidence presented and the close time proximity between the protected activities and Hunter’s termination.  Additionally, OHA found that, even accepting Whitestone’s claim that Hunter allegedly prepared a company form solely to support her Part 708 complaint, such an action would not subject her to workplace discipline by Whitestone.  Accordingly, OHA upheld the Hearing Officer’s legal conclusion that Whitestone had failed to provide clear and convincing evidence that it would have terminated Hunter notwithstanding her protected activities. OHA Case No. WBA-12-0004

On April 28, 2014, OHA issued a decision granting Appeal filed by Ed Boettcher (Appellant) of the DOE’s Officer of River Protection’s (ORP Manager) dismissal of his whistleblower complaint for lack of jurisdiction or good cause pursuant to 10 CFR §§ 708.4 and 708.17.  The Appellant alleges that, while employed at Washington River Protection Solutions (WRPS) as an electrician, he made several protected disclosures concerning worker health and safety and, as a result of these disclosures, he was terminated from his position. The ORP Manager determined that dismissal of the Appellant’s Complaint was appropriate under 10 C.F.R. § 708.4(b) because his termination allegedly resulted from his own willful misconduct in deliberately contaminating a co-worker.  The ORP Manager also determined that 10 C.F.R. § 708.17(c)(3) prevented further consideration of the Appellant’s Complaint because the Appellant was simultaneously pursuing a union grievance procedure regarding his termination.  OHA found, however, that Part 708’s Section 708.4 bars complaints that citing deliberate misconduct as a protected disclosure or activity and not complaints where the alleged retaliation, in this case termination, is alleged to be the result of deliberate misconduct. In the present case, the Appellant’s alleged protected disclosures concerned worker health and safety. Consequently the bar of Section 708.4 did not apply to the present case.  As to the other cited ground for dismissal, Section 708.17(c)(3) bars consideration of complaints that have been filed in alternative forums.  However, OHA found that under Section 708.13, the Appellant’s grievance was not a bar to the processing of his Complaint under Section 708.17. Consequently, the Director of OHA granted the Appellant’s Appeal.  OHA Case No. WBU-14-0008 

Application for Exception

On May 2, 2014, OHA issued a decision denying an Application for Exception filed by Felix Storch, Inc. (FSI) for relief from the provisions of 10 CFR Part 430, Energy Conservation Program: Energy Conservation Standards and Test Procedures for Residential Refrigerators, Refrigerator-Freezers, and Freezers (Refrigerator Efficiency Standards).  In its exception request, FSI asserted that it will suffer a serious hardship, gross inequity, and an unfair distribution of burdens if required to adhere to the new Refrigerator Efficiency Standards, effective September 15, 2014 (2011 Final Rule), with respect to its Summit Upright Freezer, Model FSM50LESADA.  FSI maintained that, although the firm has explored various alternatives, the unit is unable to attain the lower maximum energy usage prescribed by the new standards.  In reviewing FSI’s request for exception relief, OHA noted that FSI did not introduce the Summit model FSM50LESADA into the market until December 2011, three months after the promulgation of the 2011 Final Rule which implemented the new Refrigerator Efficiency Standards, and several years after the DOE began the rulemaking process which led to the new standards.  Thus, OHA determined that, to the extent that any inequity exists in FSI being unable to market the product at issue, such inequity is attributable to FSI’s discretionary business decision to enter the market with a product without first ascertaining that the product would comply with the impending standards.  Consequently, OHA concluded that FSI had failed to meet its burden of showing that the firm is subject to special hardship, gross inequity, or an unfair distribution of burdens resulting from a DOE-issued rule, regulation, or order, and, therefore, exception relief is not warranted in this case.  OHA Case No. EXC-14-0001

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