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Summary of Decisions - September 16, 2013 – September 20, 2013

September 20, 2013 - 7:46am


Personnel Security Hearing (10 CFR Part 710)

On September 19, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should restore an individual’s access authorization.  As a security concern, a Local Security Office cited the report of the DOE psychologist, in which he concluded that the individual met criteria found in the Diagnostic and Statistical Manual of Mental Disorders IV-TR (DSM-IV-TR) for Opioid Dependence, and that this condition causes, or may cause, a significant defect in judgment and reliability.  In accord with the hearing testimony of the DOE psychologist, the Hearing Officer found that there was a low risk that the individual’s condition would, in the future, cause significant defects in his judgment or reliability.  First, the Hearing Officer noted that the individual has been using prescribed opioid medications for approximately 10 years, and that this use resulted in an incident of concern only once over that period of time.  Second, while the Hearing Officer found that the individual’s use of more than the prescribed amount of medication in response to his severe pain in January 2013 represented a lapse in judgment and reliability, he also found that the individual exercised good judgment by following the proper protocol when he ran short on his prescribed dosage, by notifying his medical provider of that fact, who prescribed him enough medication to tide him over during the remaining days of his regular prescription.  Reducing the risk even further was the fact that the individual is scheduled for double knee replacement surgery within the next two months, which the DOE psychologist described as the “best chance” of ridding him of his dependence on narcotic drugs.  The Hearing Officer therefore concluded that the DOE should restore the individual’s access authorization. OHA Case No. PSH-13-0074 (Steven J. Goering, H.O.)

On September 18, 2013, an OHA Hearing Officer issued a decision in which she concluded that the DOE should not restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual to administrative review, citing as security concerns issues pertaining to: (1) various work-related incidents involving dishonesty or violations of workplace rules, which called into question the individual’s honesty, reliability, or ability to follow rules and regulations; (2) the individual’s excessive consumption of alcohol – including his diagnosis of Alcohol-Related Disorder Not Otherwise Specified (NOS) by a DOE psychologist; and (3) the DOE psychologist’s opinion that the individual had “demonstrated a need to maintain an inflated self-image and a willingness to protect himself through dishonesty,” which was a mental condition that causes or may cause a significant defect in his judgment or reliability.  After reviewing the documentary and testimonial evidence, the Hearing Officer concluded that the individual had successfully mitigated the concerns raised by his pattern of dishonesty as a mental condition affecting his judgment or reliability.  However, the individual did not present evidence to fully resolve the remaining concerns.  Specifically, the Hearing Officer concluded that the individual had made progress in addressing his alcohol problem, but was early in his recovery process and, therefore, insufficient time had passed to conclude that he was rehabilitated from his diagnosis of Alcohol-Related Disorder NOS.  Similarly, although the individual took responsibility for his pattern of prior workplace incidents which involved unreliable or otherwise questionable conduct, there was an insufficient period of subsequent responsible behavior to establish that the irresponsible conduct was unlikely to recur in the future.  Accordingly, the Hearing Officer determined that the individual had not fully resolved the security concerns and the DOE should not restore his suspended security clearance.  OHA Case No. PSH-13-0065 (Diane DeMoura, H.O.)

“Whistleblower” Complaint Proceeding (10 CFR Part 708)

On September 18, 2013, an OHA Hearing Officer issued an Initial Agency Decision considering a Motion to Dismiss filed by the Battelle Energy Alliance, LLC (BEA) against its former employee, Vincent Daniel, in connection with Mr. Daniel’s Complaint of retaliation filed against BEA under the DOE’s Contractor Employee Protection Program and its governing regulations set forth at 10 CFR Part 708.  Mr. Daniel complained that as a result of certain protected disclosures that he made, BEA retaliated against him when he was placed him on a performance improvement plan, was given negative performance ratings, was reassigned duties, and was terminated.  The Hearing Officer concluded that the complainant did not make a protected disclosure as defined under Part 708 when he complained about a discrepancy in two databases that measured nuclear accountable materials.  Thus, the Hearing Officer granted BEA’s Motion to Dismiss and dismissed Mr. Daniel’s Complaint. OHA Case Nos. WBH-13-0006/WBZ-13-0006 (Shiwali Patel, H.O.)

On September 19, 2013, OHA issued a decision denying Ms. Sabine Lauer’s Appeal of the NNSA’s dismissal of her whistleblower complaint for lack of jurisdiction.  The OHA agreed with NNSA’s dismissal of Ms. Lauer’s Complaint, finding that Ms. Lauer had entered into a separation agreement with her employer which waived her claims and released her employer from any liability resulting from her period of employment.  Therefore, the OHA denied her Appeal.  OHA Case No. WBU-13-0013 (Steven L. Fine, H.O.)