Published: December 12, 2008 09:51 am         

‘Whistle blower’ loses case

The “whistle blower” suit of former Chemical Activity employee Donald Van Winkle was dismissed Friday by a U.S. Dept. of Labor administrative law judge.

He had operated mobile chemical agent monitors and sought $200,000 in damages.

Van Winkle claimed Army officials disqualified him from working in the depot’s restricted chemical weapons area in retaliation for bringing to light misalignment of a nerve-agent detection system and questioning the competence of the supervisor who had authorized the configuration.

Van Winkle also alleged a pattern of adverse action by chemical activity officials, creating a hostile environment, assigning him defective equipment, plus denying him training and overtime amounted to a “constructive discharge” from his job.

In his ruling, Judge Thomas F. Phalen, who conducted four days of hearings in late November and early December 2007, wrote that legal precedent allowed him only to review whether an agency had followed its own procedures, and not its reasons, in revoking a security clearance.

Under Department of Defense regulations, “any display of poor attitude ... as evidenced by aberrant attitude (arrogance, inflexibility or suspiciousness ...) is a a disqualifying factor,” Phalen wrote.

“I find that the reasons given — ‘lack of trust,’ ‘signs of behavior of a disgruntled employee,’ and ‘lack of a positive attitude’ — were sufficient” to remove Van Winkle from his better-paying job in the restricted area, the judge wrote.

In denying his clearance to work in the restricted area, Thomas Bilyeu, the chemical activity’s civilian manager, cited Van Winkle’s “contemptuous and arrogant behavior” plus his overture to 17 fellow employees, seeking their support of his claim against the Army and threatening to subpoena them if they did not.

Bilyeu’s action, supported by the chemical activity’s military commander, Lt. Col. George Shuplinkov, did not violate Van Winkle’s right, Phalen wrote.

Van Winkle voluntarily left his depot job in October 2006 after he filed to run for state senate and was told by the U.S. Office of Special Counsel that his candidacy violated the Hatch Act, which limits the political activities of federal employees.

Unless he withdrew from the senate race, he would face disciplinary action, he was told.

At about that time, Van Winkle qualified for government disability, based on injuries suffered in an accident at home.

His whistle-blower claim, first rejected by federal Occupational Safety and Health Administration, was filed in Sept. 2005.

Attorneys from Public Employees for Environmental Responsibility (PEER) represented Van Winkle at the hearing before Phalen, conducted at the University of Kentucky College of Law.

The PEER attorneys tried to demonstrate a pattern of unsafe procedures in the chemical activity authorized by unqualified supervisors. Employee concerns were ignored and supervisors failed to inform them of their protection under federal “whistle blower” statutes, said attorney Paula Dinerstine.

The threat of demotion or dismissal hung over the head of anyone who questioned safety procedures or hesitated to accept assignments, according to two other former chemical activity employees who testified.

Former depot laboratory technician James Jackson said he left his job to become an instructional laboratory chemist at the U.S. Military Academy because he was “fed up” with chemical activity management.

He and laboratory supervisor Bonnie McCoy “were always at odds over safe ventilation of the laboratory,” he testified. Also, seeing physical scientist Kim Schaefermeyer be dismissed and Van Winkle lose his clearance to work in the restricted area led him to believe safety concerns would not be properly addressed.

Schaefermeyer, who also filed a whistle-blower complaint that was dismissed by Phalen, had his appeal denied by the labor department’s administrative review board in October.

At Van Winkle’s hearing, Schaefermeyer testified that he had demonstrated that calibration settings which McCoy had prescribed for VX nerve-agent monitors rendered them useless.

Van Winkle’s case also can be appealed within 10 days to the labor department’s administrative review board.

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

     

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