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Summary of Decisions - August 5, 2013 - August 9, 2013

August 9, 2013 - 8:32am


Personnel Security Hearing (10 CFR Part 710)

On August 9, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should restore an individual’s access authorization.  As security concerns, a Local Security Office (LSO) cited the individual’s inconsistent statements regarding his use of marijuana over 30 years ago.  After considering all the evidence, the Hearing Officer found that the individual’s apparently inconsistent statements did not constitute deliberate misrepresentations of significant information.  OHA Case No. PSH-13-0050 (William M. Schwartz, H.O.)

“Whistleblower” Complaint (10 CFR Part 708)

On August 5, 2013, a Hearing Officer issued an Initial Agency Decision involving a complaint filed by Denise Hunter against The Whitestone Group (Whitestone) under the DOE’s Contractor Employee Protection Program, 10 CFR Part 708.  In her complaint, Ms. Hunter alleged that she was placed on probation and later terminated in retaliation for activity protected under Part 708.  The complainant alleged that she made disclosures pertaining to (1) Whitestone’s improper billing practices, (2) Whitestone’s failure to complete a required pre-employment check on a new employee, and (3) the theft of official property and Whitestone’s failure to report that theft.  The Hearing Officer found, with regard to the first alleged disclosure, that the complainant could not reasonably believe that her disclosure revealed a substantial violation of a rule, and therefore she had not made a “disclosure” as that term is used in Part 708.  With regard to the second disclosure, the Hearing Officer found that the company officials responsible for the probation and the termination did not have actual or constructive knowledge of the disclosure, and therefore the disclosure was not a contributing factor in either personnel action.  However, the Hearing Officer found that the complainant met her burden of establishing that her third disclosure was protected under Part 708, as was her filing of a Part 708 Complaint, of which the company official responsible for her termination had actual knowledge at the time of his decision.  He also found that the termination followed in close temporal proximity to both the third disclosure and the company’s receipt of the Complaint.  Having determined that the complainant had met her burden under Part 708, the Hearing Officer considered the company’s argument and found that it had not met its burden of showing, by clear and convincing evidence, that it would have terminated Ms. Hunter even if she had not made a protected disclosure and engaged in a protected activity.  The Hearing Officer therefore concluded that the complainant was entitled to relief under Part 708 and ordered the parties to submit calculations of relief.  OHA Case No. WBH-12-0004 (William M. Schwartz, H.O.)