Depot whistleblower claim denied

By Ronica Shannon
Register News Writer

October 16, 2008 11:38 pm

— The case of a 2006 Blue Grass Chemical Activity (BGCA) whistleblower has been dismissed by the U.S. Department of Labor Administrative Review Board, according to information sent Wednesday from B. Kevin Bennett, legal counsel for the Blue Grass Army Depot.
According to the court record dated Sept. 30, Administrative Law Judge Thomas F. Phalen Jr.
granted the depot’s motion for summary judgment because he agreed that Kim Schafermeyer, former depot employee, was too late in filing his complaint, the record states.
Schafermeyer, who served as an analytical chemist and industrial hygienist for the Blue Grass Army Depot, was terminated via letter on July 12, 2006, and he filed the appeal on Aug. 17, 2006, which was just outside the 30-day time period.
“We (the U.S. Department of Labor Administrative Review Board members) agree with the (administrative law judge) that Schafermeyer has failed to raise a genuine issue as to any material fact regarding his entitlement to equitable tolling on the grounds that he timely filed the precise statutory complaint in the wrong forum,” the record states. “Accordingly, we accept the (administrative law judge’s) recommendation to grant the depot’s motion for summary judgment and we deny Schafermeyer’s environmental whistleblower complaint.”
His complaint, however, was directed in the wrong direction, Phalen said. He suggested that Schafermeyer file his complaint with OSHA (Occupational Safety and Health Administration), which also investigated and denied his claim, according to the report.
In his original complaint, Schafermeyer admitted that he was aware that his filing was too late.
“He did not submit any whistleblower claims until Sept. 22, 2006,” Phalen wrote in a previous report. “Nearly two-and-a-half months after he received notice of termination.”
No matter what route Schafermeyer would have chosen, the fact that the complaint was not filed during the specified time period does not change.
“There is no evidence the signed statement was signed or sworn to in the presence of an individual authorized to administer oaths under law,” Phalen wrote in his recommended decision made in May, 2007. “Therefore, I find these statements do not hold the weight of sworn testimony — but take them for what they are: unsworn statements.”
Schafermeyer was represented by PEER (Public Employees for Environmental Responsibility).

Ronica Shannon can be reached at rshannon@richmondregister.com or 623-1669, Ext. 234.