Published: March 27, 2008 10:40 pm            

Legal brief filed against Army depot

Management of the chemical activity at the Blue Grass Army depot “is still trying to ignore and cover up the existence of a major monitoring failure and safety hazard” at the facility, former depot employee Donald Van Winkle’s attorneys wrote in a legal brief filed this month.

Van Winkle’s claims he was subjected to retaliation that amounted to “constructive discharge” from his job after he gave evidence of unsafe practices at the depot.

Administrative Law Judge Thomas Phelan conducted a public hearing of Van Winkles claims in late November for the U.S. Department of Labor.

Van Winkle, who worked at the depot from 1999 until 2006, is seeking approximately $200,000 in damages.

Attorneys in the case had until March 17 to file post-hearing briefs. The opposing briefs are based on testimony giving at the hearing. Responses to the briefs are due next week.

According to the plaintiff’s brief:

The Army reluctantly agreed to change its procedures for monitoring the air of igloos in which it stores VX nerve agent weapons after Van Winkle leaned in a manufacturer’s training that the depot’s methods would cause its equipment to register false negatives.

Van Winkle’s concerns were addressed only after his union halted work in the chemical limited area and threatened to inform the press of the issue.

After insisting that the Army also investigate his concerns that workers and VIP visitors to the chemical activity could have been exposed in the past to undetected leaks of VX nerve agent, he was subjected to discrimination.

Adverse actions by his employer increased after Van Winkle informed outside agencies about his concerns and then asked co-workers to provide supporting testimony.

Information provided to the Kentucky Department of Environmental Protection prompted a critical letter to the chemical activity managers and Kentucky’s congressional delegation. The Army’s inspector general investigated and passed evidence to the Justice Department that resulted in federal a grand jury investigation

Public Employees for Environmental Responsibility (PEER) agreed to represent Van Winkle and released to the media an affidavit outlining his allegations.

All of this prompted more adverse treatment of Van Winkle in the workplace, according to the brief.

Claimed retaliatory actions include:

• Verbal admonishment for engaging in protected “whistleblower” actions;

• Removal form his high-paying chemical limited area job and loss of certification to work in the chemical limited area;

• Denial of overtime until the union threatened to file a grievance;

• Assignment of malfunctioning, even sabotaged equipment;

• After consistently receiving high evaluations for his work, supervisors wrote critical reviews;

• Denial of training and promised educational opportunities; and

• Shunning and disparaging reports by supervisors and co-workers.

Retaliation against Van Winkle was designed to warn other employees not to question management, according to the brief.

In its response, the brief filed by depot attorney Kevin Bennett said the federal Occupational Safety and Health Administration (OSHA) began an investigation at Van Winkle’s request in 2005.

“The investigator found no reasonable cause to believe the Blue Grass Chemical Activity had violated any environmental statutes and that it did not discriminate against (Van Winkle).”

Van Winkle requested the hearing to challenge the OSHA’s investigator’s findings.

According to the Army’s brief:

Rather than rending the VX testing equipment useless, the depot’s procedures were merely less than optimal. Investigation by an outside quality assurance team did not cite the issue as “a major finding or safety concern.” Still, the procedure was changed.

A Lexington attorney refused to take Van Winkle’s case because he could produce no medical evidence of nerve agent exposure. Van Winkle then contacted activist Craig Williams of the Chemical Weapons Working Group who referred him to PEER.

Three of Van Winkle’s co-workers told a supervisor that Van Winkle had asked them to provide testimony in a legal action. He threatened to have them subpoenaed if they refused.

When questioned about his actions by Thom Bilyeu, civilian chief of chemical operations, with his union steward present, Van Winkle abruptly left the meeting. Based on his unwillingness to discuss the issues with Bilyeu, Van Winkle was removed from his job in the chemical limited area.

In an investigation ordered by chemical activity commander Lt. Col. George Shuplinkov, Van Winkle denied pressuring co-workers or threatening to have them subpoenaed. Most of the 11 people interviewed in the investigation characterized Van Winkle as a “negative presence” in the chemical area. They accused him of being argumentative, non-cooperative and deliberately causing work slowdowns.

During the investigation, Van Winkle’s affidavit was released to the media.

A subsequent meeting with Shuplinkov, Bilyeu, a union representative and others, ended in a “heated exchange” with Van Winkle declaring he could not trust Bilyeu, calling him “incompetent” and “a complete idiot.” The union steward was disturbed by Van Winkle’s behavior, calling it “devastating.”

Based on the investigation, Van Winkle was permanently disqualified from working in the chemical limited area. Shuplinkov then proposed to Van Winkle and his supervisors an unprecedented “rehabilitation” that would restore the employee’s certification to work with chemical weapons.

In the meantime, Van Winkle suffered a potentially crippling injury in an accident at home and went on medical leave. Shuplinkov arranged for other workers to donate medical leave to Van Winkle. When he returned to work, Van Winkle was assigned light duty.

Shuplinkov was promoted and transferred to a new base. Van Winkle applied for permanent medical disability, which he later received.

During this time, Van Winkle filed to run for the Kentucky state Senate, and was warned that his candidacy violated the Hatch Act, which limits political activities of federal employees. He would have to resign or drop out of the political race, and he voluntarily gave up his depot job.

Approval of Van Winkle’s medical disability application after he had left federal employment is contrary to his allegations of a pattern of discrimination, according to the Army’s brief. The recommendation that he apply for permanent disability originated with the union steward, not the government.

Van Winkle’s brief cites quick approval of his disability claim as evidence of the Army’s intent to rid itself of an employee who questioned management.

The Army also claims that Van Winkle never made what he claimed were protected disclosures until after OSHA began its investigation. The overtime issue was resolved internally, according to the Army’s brief.

Prior to the public hearing, Phelan cited a precedent that exempts disqualification from working in the chemical limited area from being used as evidence of retaliation in a whistleblower case. The judge allowed such testimony, but said he would disregard inadmissible evidence in deciding the case. Phelan will render a decision sometime after receiving responses to the post-hearing briefs.

Bill Robinson can be reached at brobinson@richmondregister.com or at 623-1669, Ext. 267.

        

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