Date: March 15, 1996
Case No. 88-ERA-33
In the Matter of
CASEY RUUD,
Complainant,
v.
WESTINGHOUSE HANFORD COMPANY,
Respondent.
Appearances by: Robert A. Jones, Esq.
for Complainant
Stuart R. Dunwoody, Esq.
Robert A. Dutton, Esq.
for Respondent
Before: FLETCHER E. CAMPBELL, JR.
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDERINTRODUCTION
On February 28, 1988, Complainant, Casey Ruud, acting
prose, filed a handwritten complaint with the
Department of Labor against Westinghouse Hanford Company (WHC)
alleging discrimination, harassment and termination as a result
of his testimony before Congress regarding environmental and
safety issues at Respondent's Hanford facility, where he had
worked. The Wage and Hour Division of the Department of Labor
advised Complainant by letter that it would investigate the
complaint under the Energy Reorganization Act (ERA), 42 U.S.C.
5851. Complainant secured legal
[PAGE 2]
representation by the early summer of 1988, after which the
parties reached a settlement agreement. The settlement agreement
was first embodied in a document signed by the parties on July
25, 1988 (CX 57)[1] but was modified two weeks later to drop the
Department of Energy as a party and to alter certain
confidentiality provisions (Tr. 429 - 30). This modification was
accomplished by the document which is in evidence as CX 60, which
deleted the pertinent language. Pursuant to an agreement between
the lawyers for the parties, the new settlement agreement was not
executed, and Complainant simply initialed the places where
language had been deleted (Tr. 656-7; RX 68 at 471; RX 79 at 70-
1).
The then presiding Administrative Law Judge entered an order
of dismissal on August 3, 1988 based on his belief that all
matters were in fact settled. However, this agreement was never
ratified by an Administrative Law Judge despite then Secretary
Dole's order of February 14, 1990 to submit the settlement to her
for approval.
On June 7, 1994, Secretary Reich in effect voided the
Administrative Law Judge's "Order of Dismissal with Prejudice" of
August 3, 1988 and held that a case may not be dismissed on the
basis of a settlement unless the Secretary has found the terms to
have been fair, adequate, and reasonable. Referring to
Respondent's refusal to disclose the settlement terms, the
Secretary found that he could not approve the settlement without
reviewing it, and he rejected the Administrative Law Judge's
("recommended") order of dismissal. Finally, he remanded the
case for hearing.
On March 1, 1995, the case was referred to me to carry out
the Secretary's order. Following completion of discovery and the
disposition of numerous pretrial motions, a hearing was held on
this matter at Richland, Washington on August 8-11, 1995, at
which time the parties were afforded a full opportunity to
present evidence and argument. The findings and conclusions
which follow are based on a complete review of the entire record
in light of the arguments of the parties, applicable statutory
provisions, regulations and pertinent precedent.
ISSUES PRESENTED1. Should the settlement agreement be approved as
fair, adequate and reasonable, or was it obtained by fraud or
invalid for other reasons?
[PAGE 3]
2. Did Casey Rudd engage in protected activity under any
relevant environmental statute?
3. Did WHC discriminate against Complainant because of any
protected environmental whistleblowing activity?
4. What remedies if any should be ordered?
STATEMENT OF FACTS
What follows is a summary of the testimony adduced at the
hearing as well as of deposition testimony introduced and
received in evidence. The testimony of several witnesses (e.g.,
Kurt Linsenmeyer, Robert McCord and Ambrose Schwallie) is not
included because I have concluded that it is irrelevant.
A. Testimony of Casey Ruud
Casey Ruud, the complainant, is employed with the Department
of Energy as an environmental specialist through an agreement
between the Department of Energy and the Washington State
Department of Ecology (Tr. 57-8). This assignment began in April
1994 (Tr. 59). Ruud began working for the Washington Department
of Ecology in May 1991 (Tr. 58).
Ruud is a high school graduate who has attended Boscoe
Institute of Technology for non-destructive testing and also has
taken technical courses in engineering in the commercial nuclear
industry, as well as communications and writing courses and
auditor courses (Tr. 62). Ruud was certified by the American
Welding Society as a certified welding inspector. In 1992 he
became a certified environmental trainer for the Environmental
Training Association (Tr. 62).
Ruud was laid off from Westinghouse Hanford Company (WHC) at
the end of February 1988 (Tr. 63). At that time he was a
certified lead auditor, who was certified to train people in
performing audits and other functions. Ruud had a Q security
clearance (Tr. 63).
[PAGE 4]
Ruud was employed by Triad Engineering in the early 1970s
doing concrete inspection, testing and soils testing. He then
worked for Independent Deputy Inspectors performing inspections
of building construction in the Los Angeles area. For the next
five years he worked for Johnston Pump Company in a job that
involved the fabrication of commercial nuclear pumps. He was a
supervisor of welders and fitters and was responsible for quality
control and inspection of the components being fabricated. He
then worked for Bechtel Power Corporation at the San Onofre
Nuclear Power Plant as a quality assurance engineer, performing
oversight of the design, construction and fabrications of the
nuclear power plant. For Bechtel, he also worked at the
Washington Public Power Supply System facility and the Diablo
Canyon Facility in California and did a number of management-type
system audits throughout the country, evaluating compliance with
the nuclear regulatory requirements for fabrication and design of
facilities. In April 1985 he went to work for Rockwell Hanford
operations as an advanced quality assurance engineer (Tr. 64-5).
Until September of 1986, Ruud's duties as lead auditor at
Rockwell were to perform audits of the plutonium processing
facilities, which included the Purex plant, the Plutonium
Finishing Plant, and the tank farms where the waste is stored.
This involved developing checklists to determine whether the
requirements were being applied as required by law and DOE orders
and then verifying that they are properly implemented (Tr. 65-6).
When Ruud was assigned an audit, an audit plan was generated
which would identify the scope of the audit. He would research
the files for previous audits and any other information related
to the audit. Then, he would develop a checklist and make sure
that other team members developed checklists. Sometimes an audit
will go in another direction or "out of scope" on issues serious
enough to pursue (Tr. 66-7).
From the beginning, Ruud found problems such as inspectors
not properly certified on safety class equipment. He also found
that the actual construction or the fabrication of the components
was faulty in that welds were smaller than they should have been.
There were 27 audit findings in his first audit showing
[PAGE 5]
that the plant was not complying with the requirements for making
safe components (Tr. 67-8). During the first welding audit, Ruud
wrote three priority audit findings, which usually indicate a
show cause for stop work, under which you must either stop work
or show reasons why work should continue (Tr. 68).
Subsequently, Ruud performed a design control audit and
found that the design was being performed without verification
and requirements that were needed to make sure that they had safe
designs. In fact, he found that those designs were in some cases
not safe and did cause a serious harm to workers. Management did
not want Ruud to issue a stop-work order. Instead, he issued a
memo stating that he believed that work should be stopped on all
of the facilities. The procedures as written were not followed
(Tr. 69).
Ruud performed a burial grounds audit to look at the
different aspects of the burial grounds to determine if they were
controlling and disposing of their waste properly within the
quality assurance requirements as well as environmental and
radiologically safe requirements (Tr. 70).
The sign-posting incident involved a misrouting of nitric
acid solution from the Purex facility, which contained plutonium,
to a line in the tank farms which was not designed to handle that
waste. The nitric acid solution leaked through the packings,
flanges and valves into the soil, producing a high radiation area
as well as the hazardous components of the waste. It went under
a roadway, which had to be posted so that no one would enter into
it unknowingly or without authorization. During a tour of the
Hanford site by Governor Gardner, management determined that it
did not want to raise any issues with the Governor and the media;
so, they ordered that all of the flashing lights and alarms
within the farms be turned off and all of the sign postings be
removed. The Governor and the other people in his bus were
driven over the high radiation area, after which the signs were
put back. This incident became publicly known approximately a
year after the event (Tr. 71-3).
During the burial ground audit, someone reported to Ruud
that there was a concern over how the waste that had leaked out
of the lines was being disposed of in a retired burial ground
without authorization. Ruud took pictures and
[PAGE 6]
documented it, as did the person responsible for environmental
activities (Tr. 73).
Ruud received a letter at home signed by "Afraid to be
Blackballed" identifying concerns related to the sign posting
incident. It was copied to the Seattle Times and numerous
congressmen and senators. Ruud took the letter to management and
met with the director of the safety and quality assurance
organization. Ruud was told not to talk to the media (Tr. 74-5).
The nuclear materials control audit involved the processing
and controls of the plutonium solutions ultimately turned into
plutonium buttons to be used in warheads. Those solutions
contained sundry toxic chemicals as well as plutonium. Ruud
recommended a stop work order because there was evidence that the
facility was out of control. They were storing plutonium nitrate
solutions in violation of all requirements and were susceptible
to criticality accidents. A "criticality" accident is a nuclear
chain reaction caused by the configuration of too much plutonium
in one place at one time. Also, there was an obvious opportunity
for theft of plutonium (Tr. 75-6).
When Ruud made the recommendation that work be stopped, a
review of his audit was done. Ruud's first audit was brought to
the attention of the highest level of management. Management was
upset about his findings and demanded that they be corrected and
issued letters, memos and directives on it. Management then
asked Ruud to reconvene about three months later with another
team that management had hand picked (Tr. 76-7).
A second audit's findings were more significant than were
those of the first audit. The manager of the quality assurance
audit group, John Baker, prepared a stop work memo for the
Director of Safety and Quality Assurance to cease operations of
the PFP, Purex and Tank Farm activities that could be stopped.
Clay Crawford, the assistant general manager of the facility,
held a meeting the next day in order to avoid stopping work and
determine how to keep this information from the newspapers (Tr.
77-80).
Albaugh suggested that, if the audit were classified, the
data would not be available under the Freedom of Information Act.
This was considered inappropriate because the audit did not
contain classified information, except for
[PAGE 7]
one observation which remained classified. The result of the
meeting was that management decided that it would continue to
operate the plants because their mission was producing plutonium.
Now would not be the time to bring these issues forward, because
it would impact on Rockwell's ability to get the next contract.
They decided to continue at risk and felt they could fix the
problems. Ruud disagreed and voiced his opposition (Tr. 81-3).
CX 9 page 487 is a copy of the "Mad-As-Hell Memo" written by
the Assistant General Manager of Rockwell regarding the original
audit of the nuclear material control. Page 788 of that exhibit
is a copy of the minutes of the meeting that was held after the
follow-up audit. It stated, "A proposed draft of a stop work
action letter was discussed and all present agreed that such a
letter was not warranted." Ruud was asked to sign off on a
memorandum to that effect but refused to do so, instead writing a
memo stating that he could not agree with the meeting minutes.
CX 9 page 489 is a copy of the memo from Ruud to R. B. Gelman,
who was acting for the Director of Safety and Quality Assurance
Gelman's reaction was that Ruud's memo was not consistent with
what management wanted because it precluded WHC's ability to
operate the facilities. He wanted Ruud to rescind the memo (Tr.
86-9).
Ruud had issued a similar memo in reference to the design
control audit in March or April of 1986, when two individuals
received plutonium puncture wounds. The general manager required
everyone at the site to view a videotape to make sure that they
did not violate procedures. The company claimed that the workers
received puncture wounds when they violated procedures. Ruud
issued a memorandum stating that the cause of the accident was a
failure to resolve the problems with the design control audit
(Tr. 89-90).
As a result of the memo dated August 26, 1986 to Gelman,
Albaugh and Gelman assured Ruud that the plants would be run
safely and, asked if he would then agree that a stop-work order
was not warranted, Ruud said that it was not appropriate: the
plants should be shut down, and they were keeping the plants open
at their own risk (Tr. 91-2).
In the beginning of September 1986 Ruud finally decided to
contact the news media. He told Eric Nalder of the Seattle
Times that the plants were not being operated safely and that
Ruud needed to do what was necessary to get the
[PAGE 8]
attention of the public to try to intervene and stop this
behavior Nalder said that he would take the audit reports but
wanted to have an independent source review them to determine the
validity of the audit reports and the significance of them (Tr.
92-3).
A couple of weeks later, Nalder told Ruud that a University
of Washington professor had reviewed the audit reports and that
the information was serious and needed to be brought to the
public's attention Nalder had also presented this information to
the editors of the newspaper, and they were quite interested
Nalder said that he would try to make sure that the information
was protected and not have Ruud involved directly. Prior to this
incident, Ruud had not supplied any information to reporters
concerning activities at the plant (Tr. 94-5).
Prior to the story being run, Ruud was called to go to the
Richland Federal Department of Energy offices. Higher management
level people were there and played a recording they had made of a
conversation between Rockwell's General Manager and Eric Nalder
Nalder was to come the following day to interview Rockwell
management, and he was telling them the issues that he was
interested in. D.O.E. was concerned with who had talked to
Nalder and how they could show that they had taken corrective
action to resolve these problems. They eventually saw that they
had not corrected their problems, and they were going to have
media exposure. Ruud was asked if he knew who contacted Nalder.
Ruud replied that there were a number of people that were very
discouraged and disgruntled over how things were managed.
Management wanted to find out who leaked the information and how
this could impact the Rockwell attempt to get the contract. They
indicated that the person who leaked the information would be
fired (Tr. 96-7).
Gelman did not advise Nalder that the conversation was being
taped until after 15 or 20 minutes had elapsed (Tr. 98-9).
In the beginning of October 1986, Jeff Hodges of the U.S.
House Oversight and Investigation Subcommittee contacted Ruud.
Hodges said that Chairman Dingell was concerned with the
operation of Hanford and asked if Ruud would be willing to speak
with the subcommittee regarding the audits. Ruud said that he
would. Ruud was flown the next day to Washington, D.C., where he
met for three days
[PAGE 9]
with two congressmen and their staffs, as well as the staff from
the minority side and the majority side (Tr. 99-100).
The day Ruud flew to Washington, D.C., PFP and Purex had
been shut down by the Department of Energy for reasons unrelated
to Ruud's audit reports (Tr. 100-1). In Washington, D.C., Ruud
met with Dr. Russell, an environmental health specialist. Dr.
Russell was concerned about the effects of improper storage and
releases of hazardous and radioactive waste at the Hanford site.
Ruud told her that he had performed an audit that identified
serious concerns about the storage and disposal of these types of
wastes and that he was also concerned. Ruud also met with Jeff
Hodges and Congressman Wyden. Congressman Wyden was extremely
concerned about potential impact of the Hanford operations on his
constituents in Oregon, particularly the release of materials
into the Columbia River as well as into the air. Congressman
Wyden was also concerned about the high level waste storage tanks
that were leaking and getting into the groundwater. Congressman
Wyden had Ruud explain the audits that directly pertained to the
issues the Congressman was concerned about (Tr. 101-3). Ruud
also discussed his burial ground audits (Tr. 104).
Ruud identified CX 106 as the welding audit. He stated
that, during his deposition, it was discovered that large numbers
of pages were missing in particular, page 106056, which was the
computer automated tracking sheet that is used to track the audit
findings and to close out the audit findings.
Ruud identified CX 107 as the burial grounds audit and
determined that there were 90 pages missing from this exhibit
(Tr. 109).
CX 108 was identified as the pages related to the burial
grounds audit which were missing from CX 107. Page 107276 is one
of the computer sheets for closeout of one of Ruud's audit
findings in the burial grounds audit. The audit finding was
"Plutonium Finishing Plant, PFP, managers have not been trained
to WIPP certification requirements." This form indicates that it
was closed out, which means that all the action was completed and
is no longer an issue (Tr. 110-11).
[PAGE 10]
When Ruud was originally questioned by Congress in October
of 1986, their concerns were that there was a major breach of
environmental statutes. Since that time, Ruud has had
discussions with the subcommittee about what the new contractor
is doing about these issues. Ruud told them that many of same
manager personnel at Westinghouse were previously Rockwell people
who were making the same decisions that they had previously made
at Rockwell (Tr. 114-18).
Ruud was not responsible for signing off on audit findings
concerning the dumping on the ground of the contaminated soil and
the dumping into the pits. He was responsible for making sure
that it did get signed off and that the corrective action was
ready. Ruud signed off on some of the findings because there was
pressure by management to close out audit findings, and the best
that could be done was to point them in the right direction
because they did not have the support of management to change the
way things were done (Tr. 118-20).
CX 106, page 106556, is a letter from a QA manager
responsible for one of the priority audit findings on the welding
audit to Ruud's manager, stating his disappointment or concern
about Ruud's reluctance to close out the audit findings and
demanding that the findings be closed. A handwritten note at the
bottom of the letter written by Ruud's manager, John Baker, says,
"Casey, this letter is a much different position on the issue
than previously taken. I suggest we close." After a discussion
with John Baker, Ruud closed the audit, although he did not
agree that it should be closed (Tr. 121-2).
Ruud transferred to the BWIP (Basalt Waste Isolation
Project) project in November 1986. In August, Ruud applied to
be promoted to a Level 9 (senior engineer level) job at BWIP. He
had applied for the position because it was an increase in pay
and it would get him out of an environment in which he could not
make corrective actions that needed to be taken. Prior to the
time when Ruud met with Congress, he was told by Blaine
McGillicuddy, the supervisor filling the open position, that he
had gotten the promotion and would be going to BWIP immediately
after he returned from his meeting with Congress. When Ruud
returned from Washington, his current manager, John Baker, told
him that he would not be getting a promotion, that Rockwell had a
policy that did not allow for promotions on transfers. Prior to
meeting with
[PAGE 11]
Congress, Ruud had been told that he would be promoted if he was
the most qualified candidate and the person selected. Ruud
reviewed the personnel policies on promotions and transfers and
did not find any policy prohibiting his promotion. Harry Lacker
of the personnel department at Rockwell told Ruud that that was
an unchallengeable company policy Lacker did not show Ruud a
policy in writing (Tr. 192-5).
Ruud was transferred to BWIP even though the paperwork had
not been completed. The Director of Safety and Quality
Assurance, Jim Albaugh, wanted him there. Congress requested
that it be supplied with all the documentation concerning Ruud's
transfer. Ruud believes that some of it was supplied but that at
least one document was not. Ruud did not receive his promotion
until April of 1987. He was told by his supervisors at BWIP,
Blaine McGillicuddy, Harry Tuthill and Roger Johnson, that he was
not promoted until April 1987 because he had to prove himself in
the position before he could be promoted. No one had expressed
concern about whether Ruud was qualified for the senior engineer
position at the time he transferred. The documentation
justifying Ruud's selection relied on his past performance and
the work he had performed and indicated that he had exceeded all
of the requirements as a Grade Level 9 senior engineer level (Tr.
196-8).
Between October 1986 and October 1987, Ruud made two or
three additional trips to Washington to work with the
subcommittee investigative team and to help them understand
issues related to the Hanford site. Ruud also communicated on a
regular basis with Congressional representatives. Prior to the
hearing in 1987, the focus of the subcommittee staff was how well
the new contractor was functioning and how well it was doing in
correcting the problems that were there during the previous
contractor's tenure. Ruud told the staff that Westinghouse
continued to utilize the same managers that were involved in the
violations and poor management at Rockwell were now managing the
same facilities (Tr. 198-200). Ruud felt that the changeover had
caused confusion because a new company had been brought in and
had new ways of communicating (Tr. 200).
Ruud had found significant problems with the BWIP supplier
quality program. The data that was being collected by the
scientific laboratories had not been collected under adequate
quality assurance, and, therefore, were of no use.
[PAGE 12]
At the time when the BWIP project was cancelled by Congress,
these problems had not been taken resolved. The Congressional
staff was concerned about situating the facility at Hanford and
whether the site would meet its criteria. Ruud testified before
Congress in October 1987 about these problems (Tr. 201-4).
A couple of weeks before Ruud testified before Congress in
October 1987, Ruud felt that McGillicuddy was trying to put him
into a no-win situation wherein he was constantly asking Ruud to
support the work that he had done McGillicuddy stated, "Casey,
I'm going to keep you so busy that you will never know what the
right answer is, . . . ." McGillicuddy had some private meetings
with Phil Bourne during that period and continued to harass Ruud
by marking up his documents and making multiple requests. CX 117
is a package that Ruud provided to Chris Jensen, an investigator
investigating the concerns raised in the Congressional hearing on
May 11, 1988. Ruud stated that one document missing from the
package had a note saying, "Isn't it tough being an authority?"
at the end of another request for information (Tr. 206-9).
Ruud became aware that McGillicuddy had been keeping notes
on Ruud's activities three days prior to the hearing. Ruud
noticed a change in McGillicuddy's behavior toward him just prior
to when Ruud testified before Congress McGillicuddy retained a
negative attitude afterward also McGillicuddy seemed very
hostile toward Ruud because Ruud was finding problems with the
program for which McGillicuddy had been responsible
McGillicuddy seemed to believe that Ruud thought that Ruud was
the only person who had any intelligence and that everyone else
was not doing his or her job (Tr. 209-13).
Dennis McCain was very angry at Ruud for airing dirty
laundry McCain told him that if the bosses followed a policy
that caused a catastrophic accident, then that's what
they're paid to do and that everyone should support them and not
jeopardize people's jobs regardless of the significance of it
(Tr. 214).
CX 8 is a letter to the editor in which Ruud complained to
Chris Jensen upon his return from the May 11th hearing (Tr. 216).
[PAGE 13]
Exhibit 117 at 1160 and 61 contains "The Legend of Casey
Ruud." Ruud supplied this to Chris Jensen because he thought
that Dennis McCain wrote the article. Ruud was never contacted
further concerning his complaint (Tr. 217).
Ruud was notified around December 17 or 19, 1987 that the
funding for BWIP was ending. On December 18, a Friday, Harry
Tuthill requested that another certified lead auditor go to N-
Reactor. Although this position at N-Reactor was on a temporary
work order basis, it could ultimately turn into a permanent job.
At the meeting, no one accepted the job. Ruud wanted to discuss
the opportunity with his family. On Monday, December 21, Ruud
received a phone call from his brother, John Ruud, who was the
acting audits manager for BWIP. John Ruud had just left a
meeting with Roger Johnson, who had told him that they needed to
find a volunteer or someone would have to be appointed. John
Ruud told Casey Ruud that, if he were interested, he needed to
call Roger Johnson immediately. Casey Ruud called Roger Johnson
around 8:45 to 8:50 a.m. and told Johnson that he was interested
in accepting the temporary auditor job Johnson told Casey Ruud
that he was not sure if there was a need for anyone at that time.
During the conversation, Johnson stated that, if because of
Ruud's notoriety with the subcommittee, other managers did not
want to hire him, then that was "too bad." Ruud told Johnson
that he believed that he deserved an opportunity like other
workers and that he was qualified and ready to work Johnson said
that he would look into it and get back with him. Also, during
that conversation, Ruud was told that another offsite place was
hiring and that he should deliver his resume by noon that morning
(Tr. 217-20).
At 8:55 a.m., Ruud called Bob Fell, the manager at N-
Reactor, who said that he had an opening and that he was waiting
for Roger Johnson to tell him who would be selected. At that
time, Ruud realized that there was a problem. He then called
Roger Johnson's boss, Phil Bourne, and left a message to return
his call (Tr. 221-2).
Ruud went to the site to collect his resume. At that time,
Phil Dahlberg, Ruud's office mate, told Ruud that he had just
been talked into accepting the auditor job at N-Reactor at about
10:30 a.m. (Tr. 222).
The two individuals selected, Dahlberg and Dorsey, were
certified lead auditors. Ruud was the certified trainer for all
of the auditors for the BWIP Project (Tr. 222-3).
[PAGE 14]
At the end of January, Ruud received a layoff letter. At
that time, Ruud applied for a quality assurance engineering
position in the processing plants and a welding engineer position
in the Fast Flux Test Facility. At the time when Ruud applied
for the QA engineer position, he was aware that there were
several jobs available on the job posting. At that time, Ruud
was a senior engineer, and he was applying for a senior-engineer-
level position. This would not have been a promotion for Ruud.
Ruud was interviewed by Gelman for the position.
In his testimony before the subcommittee, Ruud severely
criticized the performance of Gelman in his position of Director
of Quality Assurance (Tr. 223-30).
Gelman rated Ruud eighth out of 40 people who applied for
the QA engineer position. He did not get a job. No one
indicated to Ruud that he lacked the minimum qualifications for
the job, that a bachelor's degree in science was a requirement
for the job, or that Ruud was not qualified for the job that he
was performing (Tr. 230-1).
Ruud using the outplacement service, sent out 20-40 job
applications, but he was not offered a job anywhere within
Westinghouse (Tr. 231-2).
Ruud filed a complaint with the Department of Labor in
February 1988, and Ruud was interviewed by a Department of Labor
investigator in April (Tr. 232).
Ruud complained to Jeff Hodges, the staff investigator for
Chairman Dingell, that he had been retaliated against by not
receiving jobs that he had applied for. Jim Simpkin, another
whistleblower, also complained that he had been retaliated
against by Westinghouse. Ruud did not know Simpkin before Ruud
was contacted by the Congressional Committee in October of 1986
(Tr. 233).
On May 11, 1988, Ruud, Simpkin and Hnatio testified that
they had been harassed and retaliated against. Other individuals
who testified were Joseph Salgado, an under secretary at the
time; Mike Lawrence, the manager of the Richland office; Bill
Jacobi, President of Westinghouse; Joe Wise, Chief Counsel; and
Phil Bourne, Manager of Quality Assurance (Tr. 237-8).
[PAGE 15]
At the hearing, Ruud relayed to the subcommittee the
comment, "if because of my notoriety for working with the
subcommittee, other managers didn't want to hire me, that's too
bad." Ruud felt that Johnson had discriminated against him. At
the time of the hearing, Johnson was in the position of Manager
of Employee Concerns for Hanford (Tr. 238-9).
At the hearing, Jacobi stated that there was an investigator
from the Department of Labor investigating the charges and that
Jacobi would comply with the final ruling (Tr. 239).
Some time in May, there was a meeting between Ruud, Ruud's
attorney, Joe Wise, Jim Cassady and Larry McCormack (Tr. 241).
CX 109 is a chronology that Ruud prepared on June 22, 1988
for Jeff Hodges regarding the negotiations that Ruud was having
with Westinghouse subsequent to the hearing (Tr. 242-3).
CX 34 is a letter to Randall Zuke from Joseph Wise, General
Counsel for Westinghouse, dated May 23, 1988. Ruud understood
from the proposal that, if he agreed to accept one of the jobs
offered him, then he could not speak about Westinghouse issues at
any time in the future. No one explained to Ruud that he would
also be required to dismiss his Department of Labor claim or
waive any other claims he had against Westinghouse (Tr. 244-5).
CX 36 is a letter to Wise in which Ruud stated that he
understood that, if he accepted the job offer, he did not waive
his Department of Labor claim. In joint meetings with Cassady,
Wise and McCormack, Ruud was told he would have to waive his
rights in order to get one of the jobs (Tr. 246).
Ruud had a meeting with Whiting in which Whiting said that
he thought that Ruud and Simpkin had been treated unfairly and
that Whiting would like to see things turned around. Whiting
suggested a college education and a return to work, possibly at a
later time. Ruud stressed that he was interested in continuing to
work for Westinghouse because, with his experience, he could make
a contribution (Tr. 250-2).
At the meetings prior to those with Whiting,
[PAGE 16]
Westinghouse wanted Ruud to be quiet and not publicly raise any
more safety and environmental issues concerning Westinghouse and
Hanford. Ruud told them that his goal was to try to work with
them to try to fix those problems (Tr. 253-4).
Whiting's proposal was approximately an $80,000 cash
settlement, three to four years of working and attending a
university, and then a possible return after that. Ruud was
excited about the proposal. Whiting suggested that Ruud make the
proposal to Cassady and also contact Chairman Dingell's staff so
that they could provide positive support of the proposal. Ruud
called Barrett, the Chief of Staff for Chairman Dingell, and
relayed what Whiting had stated (Tr. 255)
Ruud and Simpkin met with Cassady and McCormack to
present the proposal made by Whiting. Cassady and McCormack
responded that they needed to run it through their system,
including Jacobi, and that they would get back with him. Ruud
received a response late that evening that Westinghouse would not
accept it. Cassady said they did not want Mr Ruud to go public.
Ruud told him that it was clear by the number of discussions they
had had that they were not operating in good faith and that the
public needed to hear that (Tr. 256-8).
Ruud scheduled a press conference for 10:00 a.m. on May 29.
Westinghouse was told of the press conference. Cassady told
Ruud that Westinghouse was a very large corporation that had a
lot of means by which defend itself, and that they would also
make sure that the subcommittee understood that Ruud and Simpkin
were misrepresenting the subcommittee also (Tr. 258-9).
At around 11:45 p.m. that evening, Ruud received a call from
the Seattle newspaper stating that the paper had just received a
faxed press release from Westinghouse (CX 37). The fifth
paragraph states, "To resolve Ruud's concerns and to settle his
claims, Westinghouse offered him a choice of two positions, one
is a quality control surveillance engineer at N-Reactor, and the
other is a technical instructor in industrial and personal
safety." On the next page it says, "Additionally, Ruud was
offered a six percent salary increase and back pay for the time
he was unemployed." As of the time of this press release, May 30
or 31, Westinghouse had not offered Ruud back pay, but he
[PAGE 17]
had indicated that he would accept one of the positions. As of
May 31, Westinghouse had not made an offer of back pay to Ruud.
In the last paragraph, CX 37 states, "Westinghouse offered to
have a third party that specializes in settling disputes resolve
its financial differences with Ruud and Simpkin, and they
rejected this offer." Ruud confirmed that he disagreed with
employing an independent arbitrator. The press release further
stated, "Subsequently ,Westinghouse turned down a counter-offer
that would have cost the company approximately $250,000 for each
individual. Ruud denies a counter-offer involving $250,000" (Tr.
259-62).
Ruud received a letter from Gordon Wilson of the Department
of Labor in Seattle stating that Ruud had rejected Westinghouse's
offer for a job and back pay and that D.O.L. had ruled in his
favor to the effect that Ruud was wrongfully terminated. Ruud
immediately called Wilson and subsequently sent him information
to reflect that the information in the press release was
inaccurate (Tr. 262-3).
CX 38 is a letter dated May 31, 1988 to the U.S. Department
of Labor from J. H. Hammond stating that Westinghouse Hanford
Company (WHC) made an offer of reinstatement to Ruud, including
lost wages. Ruud denies that WHC had made an offer and that he
had refused such an offer (Tr. 264-5).
CX 44 is a letter dated June 1, 1988 to Westinghouse from
Wilson which stated that Ruud had been wrongfully terminated (Tr.
265-6).
CX 47 is a letter from Wilson to James Hammond which stated,
"Since our office has been outside these negotiations between
your representatives and Ruud, and both you and Ruud have stated
to me by telephone that the offer of re-employment and back wages
was tendered and rejected, we plan no further action in this
matter." Ruud denies communicating to Wilson that he had
rejected an offer of back wages or re-employment (Tr. 267).
CX 48 is a "Priority Message to: All Employees; From: W.
M. Jacobi, President" dated June 3. In this memorandum Jacobi
stated that Ruud had been offered a job comparable to his former
position and back pay and that negotiations had broken off when
Ruud and Simpkin wanted large cash
[PAGE 18]
settlements rather than continued employment. Ruud denies these
allegations (Tr. 267-9).
CX 39 is a two-page article entitled, "Westinghouse
Whistleblowers in Word War: Jacobi and Ex-Inspector Trade
Charges". It states, "Westinghouse officials paint a picture of
two extortionists threatening to launch a media campaign to
tarnish Westinghouse's image unless the company pays them at
least $350,000 each." Ruud denies this. He states, that by
threatening to have a press conference, his intent was to prompt
negotiations in good faith (Tr. 269-71).
Ruud had a meeting with Mike Carrol, a branch chief or
director of quality assurance for the Department of Energy,
Richland office prior to testifying before Congress. Carrol
discussed the negative aspects of testifying before Congress.
First, the Hanford site could not tolerate someone having
oversight of how they perform their function, and, second, many
people high up in D.O.E. believed Lawrence was a potential
presidential candidate-type person, and they wanted to defend his
credibility. Carrol said that, if Ruud did not testify before
Congress, he would be hailed within D.O.E. as a savior, and that,
after it all blew over in about two years, he would get a nice
corner office in the federal building and a high-paying
consultant job for the rest of his life. On the other hand, if
he did testify, he would be viewed very negatively within the
Tri-Cities area, and there is probably nothing that D.O.E. could
do to protect him or his family from harm (Tr. 274-6).
In mid-June, Ruud, Hutton (Ruud's new attorney), and
representatives of WHC met. WHC indicated that it desired that
the terms of the agreement remain confidential and that it would
pay him on a periodic basis. To ensure that Ruud would not
breach the confidentiality requirement, he would not receive
forthcoming monies if he did not honor the agreement. WHC also
wanted to ensure that Ruud would not discuss any issues related
to WHC or its operation of the Hanford site (Tr. 277-8).
At the time when the negotiations broke down, it was clear
that Congress would not provide any support to Ruud. A
Congressional staff member told Ruud that WHC had communicated
with Congress that it had made a fair settlement offer and that
Ruud had attempted to exploit Congress to pressure them and
extort large sums of money from Westinghouse (Tr. 280).
[PAGE 19]
During the negotiations, Ruud wanted to be assured that WHC
would not be able to negatively influence Ruud's employment
elsewhere. McCormack assured Ruud that WHC would not do anything
to get in the way of his future employment. At the time of the
agreement, Ruud did not have any indication that WHC was not
going to follow the terms of the settlement. Subsequently, Ruud
accepted a job in the nuclear industry in South Carolina and
relocated his family there. If he had known that Westinghouse
was going to interfere with his employment in South Carolina or
anywhere else in the future, he would not have signed the
agreement. Nor would Ruud have signed the agreement if he had
known that Westinghouse's position was that only Ruud would be
bound by the terms of the agreement but that they could violate
the terms if it were in their best interest (Tr. 280-5).
CX 57 is a settlement agreement dated July 25, 1988.
Paragraph 7 provides that, "Ruud agrees not to make further
additional remarks or comments either verbally or in writing
concerning his employment at Westinghouse or concerning the
safety operations at Westinghouse to anyone; provided that if
Ruud is subpoenaed by a court, administrative body or a
Congressional Committee or Subcommittee or similar entity under
force of law, then the parties agree that Ruud may testify
regarding his employment at Westinghouse or concerning the safety
of operations at Westinghouse." At each of the meetings,
Westinghouse requested that the above language be included in the
final agreement. The purpose of section 6 was to ensure that WHC
did nothing to negatively affect Ruud's future employment (Tr.
286-9).
CX 60 is a faxed copy of the settlement agreement as
modified on August 8, 1988. It was Ruud's understanding that
someone in DOE had objected and demanded that the
"confidentiality clause" be revised. At no time did Ruud insist
that the confidentiality provisions be removed, nor did he share
the agreement with anyone other than his wife and his attorney
(Tr. 289-91).
CX 63 is a letter dated September 1, 1988 from Larry
McCormack to E. E. Pride, Chief Counsel, Office of the Chief
Counsel at the U.S. Department of Energy. Violation of the
confidentiality part of the agreement in itself did not concern
Ruud except insofar as it indicated WHC's willingness to violate
other parts of the agreement (Tr.
[PAGE 20]
291-3).
During the time that Ruud was employed at Westinghouse and
was engaged in settlement negotiations, Ruud became aware that
his telephone had been wiretapped. He read in the newspaper that
Gary Leckvold, who worked in the Safeguards and Security Division
of WHC, had made those allegations. Ruud supplied information to
the Inspector General's office concerning the wiretapping
incident. Ruud has seen evidence that WHC had access to
wiretap and other surveillance equipment. If he had been aware
that WHC had been involved in wiretapping during the settlement
negotiations, Ruud would not have signed an agreement with WHC
(Tr. 293-5).
Ruud was hired by RI-TECH in South Carolina as an
instructional technologist to develop and instruct in the
environmental regulations. The President of RI-TECH said that he
expected the duration of Ruud's employment would be at least five
years. The five-year period prediction depended on good
performance and the ability to produce good quality work.
Subsequent to Ruud's employment at RI-TECH, he became aware that
Wise and McCormack were employed at the Savannah River site and
that Jacobi was in charge of the Gold Coast School for
Environmental Excellence, for which Ruud was producing two of
the technical training modules (Tr. 296-7).
An article from a Northwest newspaper indicated that Ruud
was working at the Savannah River site. As soon as it came to
the attention of Westinghouse Savannah River Company management,
Ruud was removed as the instructor for the classes he was
preparing. Ruud was also not allowed access to the site unless he
was escorted by a Westinghouse employee. Bill Howard, Ruud's
intermediate supervisor, told Ruud that the Chief Counsel at
Savannah River, Wise, issued the order not allowing Ruud on site.
Ruud's boss at RI-TECH told Ruud that it was clear that this was
because Ruud was a whistleblower at Hanford and that there was
nothing he could do about it, because, if he pushed it, they
would go after RI-TECH's whole contract (Tr. 298-300).
Jeff Hodges of Chairman Dingell's subcommittee interviewed
Ruud regarding retaliatory problems Ruud was having at the
Savannah River site. Hodges said that it was clear to him that
Ruud had been retaliated against because he was a whistleblower
at Hanford (Tr. 301).
[PAGE 21]
Ruud was performing services directly for the Department of
Energy at Savannah River through a Westinghouse contract when he
was told that he had five minutes to remove himself from the site
or they were going to send the armed guards to take him away.
Ruud stated that Wise had notified the guards that he should be
removed from the site. When Ruud had run into Wise the previous
day in the hallway, Wise had asked Ruud why he was still on the
site (Tr. 301-2).
After Ruud had been laid off, he realized that his career
was being crushed, that everything he had worked for had come to
an end, and that he could no longer be a contributor. This
realization had a tremendous effect on him as well as on his
family. Ruud felt a lot of stress anxiety, and heart
palpitations and had difficulty sleeping. During the time at WHC
when McGillicuddy had been behaving as he did, Ruud had felt ill
and had a hard time being motivated (Tr. 302-3).
Currently, Ruud's salary with the Department of Energy is
around $53,000. If Ruud were not on special assignment, but
continued to be employed with the Washington State Department of
Ecology, his salary would be somewhere between $38,000 and
$40,000. If his one-year appointment is not extended, he will
revert to the lower salary with the state. Ruud has no assurance
of any future employment with the Department of Energy. If
reinstatement were ordered by D.O.L. to employment with
Westinghouse Hanford Company, Ruud would accept it. Ruud
believes that he would be entitled to receive a staff engineer
level position (Tr. 304-5).
In RX 55 (Ruud's recollection of the statement made by
Johnson when he applied for the temporary position at N-Reactor),
Ruud stated, "During this conversation, he said that he was not
going to treat me any different from anyone else because of my
testifying before Congress, and if I posted for jobs and was
turned down because of my notoriety, then that would just be too
bad." In RX 25, page 8, Ruud stated, "After I had verified the
position opening on 12-21-87 in the a.m., I told Roger Johnson
that I could understand that the company didn't want me at the N-
Reactor because of my testimony. If that was the case, I should
be given consideration for another less critical position." Ruud
continued, "He said he had no intention of doing anything
[PAGE 22]
special for me, and if managers decided because of my involvement
with the subcommittee not to select me for other positions,
that's just too bad." Ruud does not see a difference between
saying that Johnson would not do anything special for him and
saying that he would not treat him any differently (Tr. 330-7).
In CX 9 (now CX 10), page 516, Ruud stated that he had
received from Bechtel Power Corporation a formal engineering
training certification program consisting of hundreds of hours of
classroom study time. Ruud was referring to the Quality Control
of Field Engineering course (Tr. 343-6).
Ruud became involved with the Governor Booth Gardner
incident ("sign incident") as being responsible to ensure that it
was resolved (Tr. 348).
In RX 58, Ruud stated that, on November 12, 1986, he was
"Notified that I was being transferred to the Basalt Waste
Isolation Project (BWIP), because the director of QA wanted me
out of the weapons program." In April 1988, Ruud was quoted in
the Tri-Cities Herald as saying that he was transferred to
BWIP after blowing the whistle at the two plutonium production
plants." However, Ruud requested the transfer to BWIP. Ruud's
transfer to BWIP happened when Ruud was employed by Rockwell.
He also got the raise while still employed by Rockwell, not WHC
(Tr. 349-53).
The stop work order for drilling was in effect before
Ruud testified before Congress in October of 1987 (Tr. 353-4).
Between October 1986 and October 1987, when Ruud testified before
Congress, Ruud had communications with staff members of the
subcommittee. At that time, he was at BWIP and no longer in the
200 area. Ruud did have to go back to the 200 area to close out
some audits that remained after he was transferred to BWIP. By
January 1987, Ruud was no longer going out to the 200 area. Ruud
may have seen some reports done by other auditors identifying
violations in the 200 area (Tr. 354-7).
Ruud is not aware that the Special Nuclear Materials Audit
that he testified about in Congress was closed out. CX 107 and
CX 108 are audit findings in which pages were missing from the
exhibits (Tr. 358-62).
Ruud testified before Congress in October 1987 about
[PAGE 23]
the Burial Ground Audit, the Specialist Nuclear Materials Audit,
the Design Control Audit and other audits he performed at the
BWIP facility (Tr. 362-3).
CX 120 is an instance where Ruud stated that he was under
pressure to close out an audit finding. Above Cole's
signature it states, "I therefore respectfully request that you
close this finding." There is also a handwritten note to Ruud
from John Baker saying, "I suggest we close" (Tr. 364-5).
RX 60 is a document that Ruud wrote in reference to his
experiences at Rockwell and Westinghouse. The entry for
September-October 1987 states, "intimidated or harassed by
management for refusing to cover up problems within the BWIP
program." RX 61 is a note of a telephone conversation that
Ruud had with Jeff Hodges on September 23, 1987, in which Ruud
stated that he was not experiencing any difficulties at the
present time due to his previous involvement with the
subcommittee. Ruud explained that at that time he was unaware of
the difficulties generated by testifying before the subcommittee
(Tr. 366-9).
RX 16 is a "Don't Say It, Write It" memo dated November 6,
1987 from Blaine McGillicuddy. Ruud denies receiving it (Tr.
370-1).
Ruud may have audited some contracts that were originally
let by WHC (Tr. 372).
Ruud is not sure whether a longer commute was a reason he
wanted to think about the temporary assignment. A factor would
have been that Ruud was concerned that choosing the temporary
assignment might preclude other opportunities (Tr. 373-4).
On the morning of December 21, Ruud returned his brother's
phone call. Ruud then called Johnson, and Johnson said that
he was not sure if he had a need for a volunteer. Ruud recalls
hearing that Johnson had a need for a volunteer. Ruud recalls
that he met with Dahlberg around 11:30 that day (Tr. 374-81).
After speaking with his brother on December 21, Ruud called
Phil Bourne, the Manager of Quality Assurance for Westinghouse
Hanford Company, who was Roger Johnson's boss.
[PAGE 24]
Bourne returned Ruud's call later that day. Ruud told Bourne
that it was clear to him, based on his and his brother's
discussions with Roger Johnson and Ruud's discussions with Fell
and Dalhberg, that Roger Johnson was trying to make sure that
Ruud did not get employment out there. Ruud also told Bourne
that, if he felt that N-Reactor was too sensitive a position for
him to have, he should be given a fair shot at other positions
(Tr. 391-3).
In RX 55 and RX 25, Ruud did not state that Johnson told
him, "If because of your notoriety, other managers wouldn't hire
you, that's just too bad" (Tr. 393-5).
In CX 9 (now CX 10), page 36, Ruud states that, "Another
individual, who was a manager of quality assurance at Rockwell
was removed (Cole), and when I asked the then-head of QA for the
Richland DOE office why they put an individual in his place with
absolutely no QA experience(Gelman) his statement was that, 'This
manager was replaced because he was so bad that any change was a
good change." Ruud continued saying, "But now Westinghouse has
taken that individual (Cole) that was replaced and put him in
charge of all the audits for the whole Hanford reservation."
Ruud responded affirmatively to Wyden's question, "So someone
who is truly incompetent, someone that you and everyone else has
identified as truly incompetent is in charge of all the audits
now at the reservation?" (Tr. 396-9).
CX 9 (now CX 10), page 510, of Ruud's Congressional
testimony refers to Ruud's issuing a formal letter to Gelman and
John Baker's denouncing the meeting minutes. Ruud did not send
the letter to the other committee members or to anyone higher up
(Tr. 400-2).
In February 1988, Gelman interviewed Ruud as well as 40
other applicants for a position as a quality assurance engineer.
Ruud may or may not have known the qualifications of the persons
selected (Tr. 402-6).
RX 62 is a series of questions and answers apparently
coaching Ruud on his testimony before Congress (Tr. 407-10).
RX 63 is a settlement letter written by Randy Zuke to Joe
Wise and Jim Cassady stating that Ruud and Simpkin each will be
willing to settle their cases for an amount between $350,000 and
$450,000, plus attorney's fees. On page 1 of
[PAGE 25]
RX 63, the first issue stated is the question of future
employment. Ruud and Simpkin stated that they could no longer
pursue a career at the Hanford facility (Tr. 410-2).
CX 109 is Ruud's recollection of settlement negotiations
with WHC as of June 22, 1988 (Tr. 413).
On page 2 of CX 109 Ruud referred to a telephone
conversation that he had had with Cassady on May 27, 1988.
Cassady said that Westinghouse wanted to bring in an arbitrator,
but that they would have to sign a binding agreement that would
prevent public disclosure or appeal. They said that, if Ruud
accepted this proposal, he did not need to take either of the
jobs and he would be given back pay from the time he was
terminated (Tr. 414-5).
RX 34 is a memorandum for the file written by Area Director
Gordon Wilson dated May 31, 1988. Ruud had told him that he had
rejected Westinghouse's offer of a job or back pay. There was
also a discussion about WHC's not negotiating in good faith.
Ruud does not believe that Wilson's recording of the
conversation was accurate (Tr. 415-6).
The purpose of Ruud's letter to Hodges dated June 22, 1988
(CX 109) was to give him Ruud's side of the settlement
negotiations with WHC. Ruud was trying to lay out the facts and
inform Hodges that Westinghouse was attempting to keep Ruud
quiet (Tr. 417).
At the press conference of Ruud and Simpkin on June 1, 1988,
Ruud stated that the figures that Westinghouse gave the press
were accurate figures (Tr. 420).
Ruud first spoke with Carpenter of the Government
Accountability Project sometime in April or May 1988. Ruud
described to him the events which had transpired at Hanford.
Ruud hired Carpenter in June or July 1988. Ruud understood
that the Government Accountability Project had experience
representing people who claimed to be whistleblowers other than
at Hanford (Tr. 421-7).
Ruud also hired James Hutton, from Yakima, Washington as
legal counsel in June 1988. Ruud hired counsel outside the Tri-
Cities area because he wanted to find someone who would not be
afraid to take on WHC and who had no ties to
[PAGE 26]
Westinghouse (Tr. 427-8).
CX 57 is the settlement agreement that Ruud and his wife
signed with WHC Hanford Company on July 25, 1988. CX 60 is the
document that modified the settlement agreement to take out the
Department of Energy as a party and to change the confidentiality
agreement. The modification of the confidentiality provision
allowed Ruud to speak out publicly about WHC and Hanford, which
Ruud has done. Ruud has not returned any cash payments made to
him by WHC. Ruud is not sure that the settlement agreement
terminated his Department of Labor proceeding. Ruud spoke with
Ken Rosenbaum, a staff member of Representative Wyden. Rosenbaum
was opposed to the confidentiality clause in the settlement
agreement. Ruud did not give Rosenbaum a copy of the
settlement agreement, and the only other copy of the settlement
agreement, to Ruud's knowledge, was possessed by WHC. At the
time, Hutton was working on revising the confidentiality clause
(Tr. 429-37).
Ruud was employed by RI-TECH in South Carolina. RI-TECH
hired Ruud but supplied his services to others. Westinghouse
Savannah River Corporation issued a purchase order to RI-TECH for
Ruud's services. The term of the purchase order was May 29, 1990
through December 28, 1990. While Ruud was working at the
Savannah River site, he reported environmental and safety
concerns (Tr. 439-42).
Ruud began work with RI-TECH in May 1990. His family moved
to South Carolina in July 1990. In October of 1990, the sale of
his house in Washington state fell through. In October of
November of 1990, Ruud's wife and children moved back to
Kennewick, Washington while Ruud was still working for RI-TECH at
the Savannah River site. In January of 1991, Ruud had a
conversation with Henry Wiedrich, the then-president of RI-TECH,
concerning his resignation. Ruud had a letter of resignation
delivered to Wiedrich (Tr. 442-7).
Ruud does not know for a fact that he was the subject of
wiretapping or other surveillance (Tr. 447-8).
Ruud has had contacts with Congress beginning in October
1986 and continuing through 1991. He took notes of some of those
contacts, most of which were lost or stolen when he moved to
South Carolina in July 1990. Ruud also kept notes of when he
thought he was being improperly passed over for a temporary
position at N-Reactor (Tr. 450-1).
RX 67 describes the qualifications, duties, and the
[PAGE 27]
responsibilities of the weld engineer position which Ruud
applied for. He was interviewed by Robert McCord. Ruud's
experience in welding consists of having been a welder and of
inspecting welds. He developed welding procedures for several
years and was offered a job as a weld engineer with Bechtel.
Ruud does not have a degree in weld engineering or metallurgical
engineering. Ruud has ten years minimum experience in the
welding and joining of stainless steels for nuclear applications.
Ruud does not have extensive working experience with electron
beam and laser beam welding. He has used the pulse magnetic
welding process. Ruud has only a sketchy knowledge of the ASME
Code. He also stated that he has experience in designing weld
joints (Tr. 452-6).
Ruud recalls telling the subcommittee during his testimony
on May 11, 1988, that Bob Gelman was not qualified for his job
(Tr. 457-8).
In reference to CX 109, Ruud understood the proposal
to be that Westinghouse wanted to get a third party to arbitrate
and come to a resolution. He was never offered his job back with
back pay. In RX 34, Wilson's memo to the file dated June 4,
1988, Ruud denies that he told Wilson that he had rejected an
offer of a job and back pay (Tr. 458-61).
Ruud moved his family to South Carolina in an attempt to
start a new life. When he got the call from Simpkin's manager
that she had been ordered to have them removed and ousted from
the site because they were whistleblowers and there was nothing
she could do about it, Ruud realized that his hopes of starting
anew were destroyed (Tr. 461-3).
Tom Carpenter approached Ruud and asked him to write a sworn
statement concerning the events that he testified to earlier
about the taping. Ruud believes that it was for information that
was requested by an inspector general regarding an investigation
that the IG was performing (CX 132; Tr. 1153-4).
Ruud believes that he paid Hutton a percentage of his
settlement. According to Ruud's deposition testimony, he thought
it might have been $5,000 (Tr. 1155-9).
B. Testimony of James L. Spracklen[PAGE 28]
Spracklen is Director of Safeguard and Security for the U.S.
Department of Energy (D.O.E.) in Richland. He has held this
position for three years. Spracklen has been assigned to the
safeguards and security for D.O.E. in Richland for the past
twelve years. On October 31, 1990, Spracklen was either
administrative officer or the branch chief for security
operations (Tr. 578).
CX 85 was prepared by Spracklen as a direction to Hanford
Patrol on how to secure some sensitive equipment that was made
available to the Richland Police Department should the need arise
for hostage negotiation purposes. The equipment was a hostage
negotiation kit contained in an aluminum briefcase. It included
a telephone set for the negotiator, a headset, a dial-up
capability for the phone, a map light, a clock, and a throw
phone, which is for the hostage taker to use in negotiating with
the hostage negotiators. Spracklen does not recall whether the
kit contained any listening devices. The kit was destroyed as a
result of an Inspector General inspection into surveillance
activity at Hanford. D.O.E. concluded that, although there was
nothing illegal about the equipment, it would be best not to have
it. Spracklen felt that the throw phone could be used as a
listening device but that it would be a conspicuous piece of
equipment. Because the kit contained a tape recorder, D.O.E.
felt that it was not in keeping with the regulations and policy
put forth after the Inspector General inspection, and, therefore,
it was destroyed. There were two kits. Richland police had a
need for one, which was kept in the Federal Building (Tr. 579-
84).
Hanford Patrol is a function of WHC safeguards and security.
Page two of the document is a separate document, not an
attachment to the DSI. Page two is in reference to the patrol
people ensuring that the briefcase is in the safe and that there
is a proper sign-in-and-out register. Spracklen believes that
the equipment may have been destroyed some time after August 16,
1991, when the sign in/sign out paragraph was deleted, but he is
not sure (Tr. 585-9).
C. Testimony of James W. Simpkin
In 1978 Simpkin was employed at Hanford with UNC as an
[PAGE 29]
NDE Level 3 examiner, and, when Westinghouse took over, he was an
NDE specialist. Early in 1987, Simpkin was assigned to the N-
Reactor, and, when Westinghouse took over, he was transferred to
300 Area (Tr. 590-1). Simpkin met Casey Ruud on October 20, 1987
on his way to the Congressional hearings (Tr. 592). Simpkin's
testimony before the subcommittee in October of 1987 involved
different issues from those to which Ruud testified (Tr. 592).
After Simpkin testified before Congress on October 22, 1987,
he complained to Congress of retaliation by Westinghouse. On May
11, 1988 a hearing was held concerning his allegations. After
the May 11 hearing, Simpkin participated in negotiations with
Westinghouse Hanford Company personnel concerning a possible
settlement of his complaints against Westinghouse (Tr. 591-2).
Simpkin and Ruud jointly retained counsel after the May 11
hearing. Ruud was not present in the initial meeting with their
counsel and representatives for Westinghouse, Wise and
possibly Cassady or McCormack. This was the only meeting that
Simpkin had with his initial counsel and representatives from
Westinghouse. Simpkin engaged in subsequent negotiations without
counsel where Ruud was present. Simpkin does not believe that he
engaged in any negotiations after that first meeting in which
Ruud was not present. Simpkin recalls two or three meetings,
maybe more. He does not recall an offer to Ruud for
reinstatement with back pay. Simpkin and Ruud had the same goal
in the negotiations: if they were going to remain at Hanford,
they should have meaningful jobs to help WHC to correct problems,
rather than an adversarial relationship. WHC's primary concern
was that Simpkin and Ruud not speak to the public on the issues.
This was a pre-requisite to continue negotiations (Tr. 592-5).
At one point during the negotiations, it appeared that
Ruud was not going to be offered a return to work. Their concern
after the college education proposal fell through was how they
were going to protect their jobs in the future. Simpkin was
present when Ruud expressed his concerns concerning future
employment. WHC representatives indicated that they would not
interfere with their future employment. When negotiations came
to an impasse, Simpkin quit his job (Tr. 596-8). Simpkin was
technically never laid off by WHC but applied for a dismissal as
part of a voluntary reduction in force (Tr. 617).
[PAGE 30]
Simpkin was at Ruud's house when Whiting called Simpkin's
house and left a message with Simpkin's wife to return the call.
Simpkin returned the call from Ruud's house, and Whiting proposed
that Westinghouse would pay him a salary as well as tuition for
college, and he would be able to make a choice at the end of that
time whether he would go to work for Westinghouse or whether he
would choose to go somewhere else. The proposal was for Simpkin,
but Ruud was not included. Simpkin proposed including Ruud in
the proposal suggested by Whiting. Subsequently, Simpkin and
Ruud had a meeting with WHC representatives in which Simpkin
was put in the position of presenting the proposal himself. WHC
said it would get back to them. At each meeting with
Westinghouse, Simpkin and Ruud were asked not to go to the press.
At length, WHC representatives told them that too much money was
involved, and the college education proposal did not sound like
it would work (Tr. 599-602).
Subsequently, in a letter sent to his attorney, Simpkin
was offered the same position that he had held but with some
different managers (Tr. 602).
Simpkin signed a settlement agreement with Westinghouse on
December 5, 1988. At the time, Simpkin and Ruud were represented
by Hutton. Simpkin did not discuss the confidentiality provision
with Hutton, leaving it to his attorney (Tr. 603-5).
CX 63 is a letter dated September 1, 1988 from McCormack
to Pry concerning violations of the confidentiality provisions of
the settlement agreement. Simpkin first became aware of
McCormack's letter either the day of this hearing or the day
preceding this hearing. Ruud had never showed his settlement
agreement to Simpkin (Tr. 605-7).
Simpkin assisted Ruud in securing employment at Savannah
River, South Carolina with RI-TECH. Prior to assisting
Ruud,Simpkin discussed with his managers Simpkin's and Ruud's
prior whistleblowing activities at Hanford. Simpkin discussed
this with Margie Beckmeyer, Simpkin's boss, who was employed by
Westinghouse Savannah River Company, and Henry Wiedrich,
President of RI-TECH. Simpkin was forced to stop working at the
Savannah River facility. Wiedrich told Simpkin that he and Ruud
were removed because
[PAGE 31]
they were whistleblowers, and the Hanford thing had caught up
with them (Tr. 608-10).
Simpkin held a press conference after an impasse was reached
in 1988. Back pay was not an issue for Simpkin because he was
employed by WHC at that point. Simpkin is a plaintiff along with
Ruud in a South Carolina lawsuit against Westinghouse Savannah
River Company, Joe Wise, Larry McCormack and Thomas Anderson.
Simpkin liked the proposal that Whiting suggested (Tr. 611-5).
In 1988, Simpkin filed for bankruptcy (Tr. 615-6).
Simpkin was first employed by RI-TECH to perform services at
the Westinghouse Savannah River site. At some point, he stopped
performing services at the Savannah River site but continued to
be employed by RI-TECH. After Simpkin stopped working at the
Savannah River site (January of 1991), he worked in the Aiken,
South Carolina office. He continued working for RI-TECH for
approximately five years, finally being terminated on January 13,
1995 while working in Amarillo, Texas (Tr. 617-8).
D. Testimony of Larry McCormack
McCormack is currently employed by Westinghouse Savannah
River Company (WSRC). He started working there during the
transition after the company got the contract in late 1988.
Prior to this, he was an attorney for Westinghouse Hanford
Company (WHC), which employment began in November 1988 (Tr. 642).
McCormack first became aware of Casey Ruud during the first
quarter of 1988, when he heard that WHC had to testify before a
Congressional committee responding to allegations that Ruud that
he had been retaliated against (Tr. 643).
In May of 1988, McCormack became involved in negotiations
with Ruud concerning claims that he had against WHC. McCormack
recalls that Ruud was offered back pay to the time when he had
been laid off in February, and any other damages would be
submitted to arbitration. McCormack believes that reinstatement
to one of two jobs was offered at the same time as back pay (Tr.
643-5).
[PAGE 32]
CX 35 is a letter which McCormack wrote to clarify what he
believed to be the then-state of negotiations between Ruud,
Cassady and himself. CX 35 was written after the impasse was
reached. McCormack does not recall receiving a response from
Ruud to the letter. Wise had primary responsibility in the WHC
legal office for negotiations with Ruud, but this responsibility
was transferred to McCormack later (Tr. 645-6).
In July of 1988, Hutton contacted WHC concerning settlement.
McCormack, Hutton, Ruud, and Jim Cassady met. Hutton stated
that he wanted to resolve the differences between the parties and
wanted to have a neutral letter of recommendation placed in
Ruud's file in case there was contact by future employers.
Westinghouse representatives said that they desired to have the
terms and conditions of the settlement kept confidential. Hutton
stated that his clients were willing to forego continuing
comments in the media on the settlement (Tr. 646-9).
Ultimately, McCormack and Hutton came to an agreement on a
settlement. Discussions with Hutton after the July 1988 meeting
only involved dollar figures. McCormack contacted Gene Pride,
the then-general counsel for the Department of Energy, for
approval as required (Tr. 646-50).
RX 39 is a letter McCormack sent to Pride confirming a
telephone conversation they had on July 15 concerning the
proposed settlement with Ruud (Tr. 651).
CX 57 is the initial settlement agreement between and
Mrs. Ruud and WHC reached on July 25, 1988. Hutton wrote the
first draft of the settlement agreement. McCormack suggested
some changes. Hutton drafted the sentence, "Ruud agrees not to
make further additional remarks or comments." McCormack took
steps to make the payments to Ruud set out in paragraphs 4(A) and
4(B). McCormack submitted a neutral letter of recommendation for
future employment to Hutton, which was eventually placed in
Ruud's file (Tr. 652-4).
RX 41 is a letter from McCormack to Hutton accompanying the
signed copy of the settlement agreement and enclosing a check for
the $55,000 payment (Tr. 654).
The neutral letter of reference, signed by Cassady and then
by McCormack, was forwarded to Hammon, who was in
[PAGE 33]
charge of personnel records for the company. McCormack did not
personally take steps to ensure that "negative comments, file
memos or other documents with respect to Ruud's employment with
Westinghouse shall be purged from his personnel file or files."
McCormack notified Cassady that it was part of the agreement and
that any negative comments should be removed from the file (Tr.
654-5).
McCormack stated that the original settlement agreement
included the Department of Energy as a party, and it was
forwarded to them for review and approval. The Department of
Energy notified Westinghouse that it did not want to be a party
to the agreement, did not want to sign the agreement, and wished
to have the confidentiality agreement changed. McCormack called
Hutton and asked if he would agree to those proposals, which he
eventually did, and the clauses were amended (Tr. 655-6).
RX 68 is a letter dated August 8 to McCormack from Hutton
enclosing the amended pages of the settlement agreement deleting
the Department of Energy and changing the confidentiality
section. McCormack and Hutton agreed to exchange only the pages
of the settlement agreement affected by the changes (Tr. 656-7).
McCormack wrote a letter to Pride on September 1, 1988.
Previously, McCormack had provided Pride with a copy of the
settlement agreement. McCormack was required to submit a copy of
the settlement agreement to DOE as part of their contractual
requirement, and DOE was to be a signatory. McCormack learned
that Congressman Wyden was requesting a copy of the document from
D.O.E. It was McCormack's belief that release of the document by
DOE to Congressman Wyden would violate the terms of the agreement
(Tr. 657-9).
McCormack believes that Westinghouse intended to honor its
commitments under the settlement agreement and has done so (Tr.
659-60).
While in South Carolina and since August 8, 1988,
McCormack has not had contact with Ruud, nor has he taken any
action with respect to Ruud (Tr. 660-2).
McCormack recalls that at some point in the negotiations,
back pay was discussed with Simpkin and Ruud (Tr. 666).
[PAGE 34]
McCormack understood that, under the agreement, its terms
could not be released to the public. In fact, at
WHC's insistence, a liquidated damages provision was inserted
(Tr. 673-4). E. Testimony of William M. Jacobi
Jacobi received a bachelor's degree in chemical engineering
from Syracuse University, a master's in chemical engineering from
the University of Delaware, and a doctorate in chemical
engineering from Syracuse University (Tr. 680-1).
In 1985, Jacobi led the team that competed for the Hanford
consolidation contract and then came out in January of 1987 to
lead first the transition team and then Westinghouse Hanford
Company (WHC) as consolidator. The date of the consolidation was
June 29, 1987, at which point Jacobi was President of WHC.
Jacobi left in November of 1988 and went back to Westinghouse
headquarters as Vice-President of Government Operations. He
retired in 1991 (Tr. 681-2).
In October 1986 Jacobi was aware that there were newspaper
articles written concerning audits that Casey Ruud had performed.
Jacobi thought that the newspaper articles might be good for
Westinghouse in the sense that it cast some serious aspersions on
Rockwell's operations, and Westinghouse Electric in its proposal
had made safety and its long experience in discipline in nuclear
operations a key factor (Tr. 683-4).
Around the late 1970s or 1980 Congress passed the Nuclear
Waste Policy Act, which established that the Department of Energy
would take title to high level nuclear waste and would provide a
repository for it. Three locations were to be studied as
potential repository sites. One of the them was the volcanic
tuft in Yucca Mountain, another was a salt bed in Deaf Smith
County, Texas, and the third location was in the Hanford
Reservation in the basalt that underlies the approximately 500
feet of gravel that is over the top of the site. The BWIP, the
Basalt Waste Isolation Project, was designed to determine the
properties and extent of the basalt, its permeability, the ground
water
[PAGE 35]
flows, etc., and to evaluate whether it was a suitable site (Tr.
687-8).
After the May 1988 Congressional hearing, the Chairman of
the committee gave a lecture that the Committee strongly desired
to see its informants continue in employment and be well treated.
At that time, there were about 1,100 people working at BWIP that
were affected by the shutdown of BWIP. All of the non exempt
employees were put through a seniority control process, and all
of the exempt employees were given notification that they would
no longer have a job at BWIP as of a certain date. Ruud was one
of the individuals affected. Ultimately, about 700 people left
the payroll as a result of that action.
When Jacobi returned from the hearing, he asked Jim Cassady
to see if some suitable employment could be found for Ruud
elsewhere on the site. Jacobi recalls that Jim Cassady told him
that he had identified two jobs, and Jacobi told him to make
an offer (Tr. 689-90).
In reference to the settlement agreement, Jacobi was aware
of the money that was paid and the confidentiality clause (Tr.
690-1).
F. Testimony of Joseph G. Wise
Wise has a bachelor's degree from Brigham Young University
and a law degree from George Washington University. Wise began
employment with Westinghouse Hanford Company (WHC) in 1974 as a
contracts manager. In 1978 he went to work for Westinghouse
Electric Corporation and returned to WHC as general counsel in
December of 1986, when the consolidation took place. Wise became
the general counsel for Westinghouse Savannah River Company
(WSRC) on April 1, 1989, and that is his current position (Tr.
697-9).
Wise had worked for Westinghouse Electric Corporation on the
preparation of the proposal for the Savannah River contract in
May of 1988 (Tr. 699).
Wise had one meeting with Ruud, Simpkin and their attorney
in May of 1988 to discuss settlement. They did not reach an
agreement at that time. He did not participate in any other
settlement negotiation meetings after that (Tr.
[PAGE 36]
699-700).
Larry McCormack, Wise's labor counsel, became involved in
the settlement negotiations because Wise was out of town
frequently (Tr. 700).
Wise had a telephone conversation with Hutton at the
beginning of the settlement negotiations and an exchange of
letters but did not have any face-to-face meetings with Hutton
(Tr. 700-1).
Wise was aware that WHC had reached an agreement with and
Mrs. Ruud but was not aware of the specific terms. Wise was
generally aware that there was some kind of a dollar settlement,
an agreement to give a neutral recommendation, and a
confidentiality provision in the agreement (Tr. 701).
Wise had no involvement in the drafting of the settlement
agreement or making modifications to the agreement. He has not
interfered with Ruud's employment, nor does he have any reason to
believe that Westinghouse did not intend to abide by the terms of
the agreement (Tr. 702).
Wise is currently the Secretary of WSRC (Tr. 703).
Wise was aware that Ruud was employed by a subcontractor of
WSRC at the Savannah River site. Wise did nothing to prevent an
extension of Ruud's contract for work at the Savannah River site,
nor did he cause Ruud to be escorted from the Savannah River site
(Tr. 703-4).
Wise does not recall a firm offer being made to Ruud at the
settlement negotiation meeting he participated in. Wise had
never been specifically authorized to make a settlement. Wise
received an authorization to make an offer of employment through
a couple of jobs that were available, but he does not recall the
issue of back pay. Later, around June 6, Wise recalls that he
discussed with McCormack the offer of reinstatement with back
pay, but he did not discuss it at the time when Wise was
personally involved in the negotiations. Wise remembers hearing
that arbitration was proposed but not being at the meeting. Wise
understood that Ruud wanted the neutral letter of recommendation
for future employment without interference from Westinghouse (Tr.
705-7).
[PAGE 37]
Jacobi, who was the only person in the corporation who had
the authority to authorize a settlement offer, did not
specifically give Wise any authorization to offer a settlement
(Tr. 708-9).
G. Testimony of James G. Cassady
Cassady is employed by Westinghouse Electronic Systems Group
as the Vice-President of Human Resources. He began working for
Westinghouse in 1960. Prior to his current job, which began in
1987, he was the Director of Human Resources (Tr. 126).
In the spring or early summer of 1988, Cassady became
involved in negotiations with Ruud. Cassady does not remember
back pay being offered to Ruud but recalls that Ruud was
offered a return to work, which he does not recall Ruud
accepting (Tr. 127-32).
At one point, an impasse in negotiations was reached, and
Ruud and Simpkin had scheduled a press conference. Cassady
tried to discourage Ruud from having the press conference.
Cassady only offered Ruud an opportunity to return to work as a
settlement to his claim. Prior to that press conference,
Westinghouse went public with a press release (Tr. 132-5).
Early in the negotiations, Ruud stated that he would like to
return to school in addition to working for Westinghouse.
Cassady does not recall Ruud expressing concern about
Westinghouse interfering with his future employment in the
nuclear industry (Tr. 127-44). Cassady does recall that Ruud was
very concerned about having materials removed from his file.
Cassady signed a neutral letter of reference for Ruud (Tr. 144-
9).
There was a period when Ruud was not represented by counsel
(Tr. 152).
In 1988, under the employment verification policy at WHC,
the employment office would give to the inquirer only the dates
the employee was hired and departed and his job title (Tr. 153).
[PAGE 38]
Cassady did not know the terms of the settlement agreement
between WHC and Mr. and Mrs. Ruud. He has no knowledge that WHC
did not intend to keep the settlement agreement at the time that
it entered into it, nor is he aware that WHC has breached the
settlement agreement (Tr. 154-6).
RX 12 is a publication that represented WHC's first day of
increased responsibility for the Hanford site on June 29, 1987.
WHC had been on the site for a number of years operating the
Hanford Environmental Development Laboratory, which included the
Fast Flux Test Facility. On June 29, 1987, WHC began operating
the entire site under contract (Tr. 156-7).
On December 17, 1987 the Basalt Waste Isolation Project
(BWIP) was notified that it would be shut down because Congress
had ended funding. As a result, BWIP and another site were
closed and were given 90 days to shut down. There had been
speculation that BWIP might be shut down, but Westinghouse
thought the decision would go the other way. They felt that this
site represented a far better technical approach to
characterization. There were 700 or 800 people affected by the
shut down. The union contract governed the disposition of any
union employees. Cassady issued a memo on January 4, 1988
setting forth the guidelines for the reduction in force of BWIP
personnel. Guideline number 2 stopped the procedure in which
employees could be moved between different departmental funding
arrangements in order to give the BWIP employees priority for any
job openings. The third guideline: "If you wish to make an
offer to an employee, you must thoroughly document your selection
process. Such offers must be reviewed and coordinated by the job
placement center," was imposed because of EEO requirements.
There was also a means by which employees could be temporarily
loaned by work order across funding programs. Loaning of
employees could continue, but, if the person being loaned was
funded by BWIP funding, employment could be terminated after the
loan period (Tr. 157-64).
Cassady did not know Casey Ruud before these policies were
initiated (Tr. 164).
RX 8 is the staff paper that was prepared to support
management when it began notifying employees they would be laid
off. The letters were sample letters to notify
[PAGE 39]
employees of the layoff (Tr. 165).
A job placement center was staffed to help laid-off
employees procure other employment. Its purpose was to help
individuals prepare resumes, develop interview skills, and do job
searches. It would post open jobs for outside opportunities. In
other words, it was an employment office (Tr. 165-6).
RX 12 is an article entitled, "We Don't Shoot the Messenger
Here." WHC was trying to promote the notion of open and candid
communications and appropriate employee relations, a management
model. This is the model given to employees if they had a
concern. Cassady was not aware of any regulations that required
the employer to inform the employees, that if they had a serious
concern, they had a right to go to the Department of Energy. The
model only referred to internal procedures (Tr. 168-71).
Cassady first came to Hanford in March 1987. As of January
1988, he did not know Casey Ruud (Tr. 171-173).
Prior to January 4, 1988, Cassady had not been informed that
assurances had been made to the Congressional Committee by
representatives at the under secretary level in a Congressional
hearing that Casey Ruud and Jim Simpkin would not be retaliated
against because of their testimony (Tr. 173).
Mary Walker was a DOE manager of environmental safety.
Bourne came to talk to Cassady in December 1987 specifically
about Ruud. Bourne was concerned that Ruud's job was in
jeopardy and that he might be laid off. Cassady felt that
they had to follow the guidelines and see what would happen (Tr.
173-4).
Cassady vaguely recalls a controversy arising around
Bourne's statements that were allegedly made to the press to the
effect that internal audits were of no concern to the public (Tr.
175).
Cassady believes that only a small number of former BWIP
employees were able to remain with Westinghouse (Tr. 176-7).
Cassady does not recall a company policy that required
quality assurance auditors or engineers to have a B. S.
[PAGE 40]
Degree in science, math or engineering or one of the related
fields (Tr. 178-9). According to his recollection, the subject
was debated internally, but the policy that prevailed required
either a degree or equivalent experience (Tr. 178-9).
Bourne's conversation with Cassady about Ruud took place
after the decision to "draw the circle around" BWIP had been
made. A second wave of layoffs occurred in February 1988
involving approximately 1,200 employees. Because a large number
of people were laid off, the guidelines had to be applied (Tr.
182-4).
Cassady was aware of an investigation by Hodges in
connection with Ruud's not being offered a job. Cassady did not
participate in putting together the testimony that Jacobi,
Wise and Bourne were preparing to give before Congress on May 11
concerning retaliation charges (Tr. 185).
H. Testimony of Chris W. Jensen
Jensen is employed by Westinghouse Hanford Company (WHC) as
the manager of the business conduct office. Jensen has management
and oversight responsibility for litigation support, company
internal investigations, and the undertaking of the business
ethics program for WHC. Jensen reports to Sandra Marino, the
general counsel (Tr. 466).
When Jensen went to work for Rockwell in 1986, he was with
the Safeguard and Security Division as a security specialist.
The safeguard and security division included the Hanford Patrol,
which is the law enforcement and uniform security force for
Hanford. The division that Jensen was in was the security
investigations office, which primarily handled security procedure
compliance matters and protection of classified information.
There was also a security audits group, which accomplished the
personnel security operations background investigations for new-
hire employees (Tr. 469).
In 1987 Jensen became a WHC employee. As such, he held a
number of positions within the safeguard and security department.
Jensen was first assigned to the law department directly in
December of 1990. Prior to December of 1990, Jensen performed
certain investigations, such as personnel
[PAGE 41]
or internal company-type investigations for the General Counsel's
Office. Prior to being assigned to the Law Department, Jensen
was a member of the Safeguard and Security Department (Tr. 471-
2).
For the last two years, WHC has placed more emphasis on
business ethics. Jensen believes that he has had quite a
bit of training on the job in ethics as a result of his career in
law enforcement, security and the General Counsel's office (Tr.
473).
Jensen was involved with an investigation of Ruud's
complaints to the Department of Labor. In January of 1990
Jensen testified in an administrative review hearing regarding
Gary Leckvold, in which Jensen related the "sign incident"
involving the Governor of Washington. Jensen was tasked to
investigate what happened to some 16 or 18 historical cards that
articulated the radiation survey checks that the radiation
protection people performed at
the time. It was Jensen's impression that Ruud may have
expressed some concern about the control of radiation
survey cards, but he does not remember Ruud's particular
involvement (Tr. 480-6).
Jensen does not recall trying to take photographs from
Ruud (Tr. 487-8).
Jensen investigated whistleblowers, including Ruud,
Bricker, Leckvold, Oglsbee, Simpkin, and Brown. Given his
current position in the Law Department, Jensen would probably be
aware of every whistleblower who has filed a complaint since 1986
(Tr. 489-94).
In his investigation of Gary Leckvold, Jensen found
that some of Leckvold's complaints concerning protection
of classified information and misuse of company time and
equipment were valid (Tr. 494-5). Some of Jensen's
investigations of other whistleblowers demonstrated the validity
of their concerns and others did not (Tr. 502-4).
Jensen was aware that, during Walker's investigation of Ruud
in 1986, Walker had set up a complete room to analyze data that
had been developed in connection with his investigations (Tr.
508-10). Jensen worked for Walker after consolidation with
Westinghouse in 1987 for a short period
[PAGE 42]
of time (Tr. 510-2).
Jensen helped to prepare WHC's defense at the May 11 hearing
through helping prepare the testimony of Dr. Jacobi, Wise and
Bourne. Jensen's investigation of Ruud's complaints was limited
to the Department of Labor complaints and what Ruud voiced at the
Congressional hearings. Jensen does not recall specifically
seeing any documents gathered by Walker (Tr. 512-4).
Jensen summarized the findings of his investigation on the
four issues listed. Issue 2 alleges that Ruud was sent to BWIP
even though transfer documents were not completed as required by
company policy. Jensen found no retaliation in this action, just
that the paperwork had not caught up. Issue 1 alleges that Ruud
was transferred to the Basalt Waste Isolation Project (BWIP)
because the Director of Quality Assurance wanted him out of the
weapons program. Jensen concluded that Ruud had applied for
both of the positions. He was selected for one of the positions
and accepted the position voluntarily. Jensen found that Ruud
was not transferred because someone wanted him out of the
program. Issue 3 alleges that Ruud was harassed by management
because he refused to cover up problems with the BWIP quality
assurance program. Jensen found no evidence
of any specific cover-up; in other words, his finding was
inconclusive. Issue 4 alleges that Ruud was the only volunteer
for a temporary auditor's job at the 100 N Area, and management
pleaded with Dahlberg to take the assignment. Jensen's
conclusion was that management had offered Dahlberg the job on
two separate occasions. On the second offering, Dahlberg
accepted. Jensen concluded that Dahlberg accepted the
position prior to Ruud's making his interest known. In reaching
this conclusion, Jensen relied at least in part on a chronology
of events supplied by Johnson, among other pieces of evidence,
including an interview of Dahlberg, which was not attached to the
report until later (Tr. 517-23).
In investigating Issue 4, Jensen looked at whether
Dahlberg was importuned to take the job and whether Ruud had
volunteered for a temporary job prior to Dahlberg's being asked
to take that job (Tr. 524-5).
Jensen relied primarily on the testimony of the individual
witnesses, and the only witness that felt that he
[PAGE 43]
had asked for the job at N-Reactor first was Ruud. Dahlberg
said that Ruud called to apply for the job at 7:30 (Tr. 538-44).
Tuthill refused to talk to Jensen unless he was paid.
Wise made the determination that Tuthill would not be paid for
his time. Thus, he made no statement (Tr. 546).
McGillicuddy admitted that he had written the statement, "I
know it's tough being an authority," on a piece of paper. He
later apologized for the comment and expressed that he did not
harbor ill feelings toward Ruud. Pfluger was present during some
of the interviews, and Pfluger felt that McGillicuddy was not
holding a grudge, and that this conduct was just a result of
McGillicuddy's personality and typical of his behavior (Tr. 547-
53).
Jensen interviewed Donovan Dorsey, who stated that Ruud
had told him that he had applied to Johnson for the position at
N-Reactor before it was given to Dalhberg. CX 33, page 2, states
"Phone conversation with Donovan Dorsey," who said "Viens did
tell him in so many words that Roger Johnson wanted someone other
than Casey for N job. Dorsey did not recall Johnson's exact
words, but they were something like, 'Find another volunteer and
fast'" (Tr. 556-7).
In notes from an interview with Viens, Jensen recorded that
Viens "Did not tell Dorsey Johnson stated he [Viens] didn't want
Ruud for job as stated in page 7 of Subcommittee Memorandum" (Tr.
558). Jensen did not put Dorsey's statement concerning Ruud in
his report (Tr. 559-60).
If Jensen had been aware that McGillicuddy had been keeping
notes (CX 122), Jensen would have asked for them and made them
part of the file, but he was not aware of them (Tr. 561-2).
Jensen felt that his investigations of Ruud's allegations
were impartial (Tr. 566-8).
I. Testimony of Philip Barry Bourne[PAGE 44]
Bourne has a B.S. degree in electrical engineering from Duke
University, and he was a certified lead auditor. Bourne began
work with Westinghouse Hanford Company (WHC) in 1974 as a
consulting engineer to the Manager of Quality Assurance. He was
promoted to Manager of Quality Assurance in 1979 and remained in
that position through the consolidation, when Westinghouse took
over the entire management of the site that Rockwell UN has been
performing.
At that time, he had all of the site quality assurance
people reporting to him. He held that position until 1990 and
retired in 1992 (Tr. 729-31).
Prior to the consolidation, WHC required that new hires in
the Quality Assurance Department be graduate engineers or have a
four-year graduate degree in an associated technical field, i.e.,
a degree (B.S. degree) in electrical, mechanical or civil
engineering. An equivalent amount of experience in related
fields could be substituted for the education. WHC required a
two-for-one year substitution. Experience as a quality assurance
auditor would not necessarily be equivalent (Tr. 731-3).
WHC wanted engineers with a technical degree because it felt
that quality assurance was an ancillary part of the operations,
and that employees with technical backgrounds who were aware of
the technology made much better quality assurance engineers.
After consolidation, Westinghouse decided that it would keep
people in the positions that they were already in and then try to
upgrade them or change their job requirements to fit their
capabilities. However, if the person did not have a degree but
held a job for which management felt a degree was required, the
person was retained (Tr. 733-4).
Westinghouse has a policy of paying for advanced education
at the local universities. Time was also made available for
employees to change their work hours so they could attend classes
(Tr. 734).
Bourne initiated a meeting with Ruud in the summer of 1987,
because Bourne wanted to learn what Ruud's concerns were and
whether there were any other concerns beyond what he had written
down in his audits for Rockwell (Tr. 735).
Bourne was told by upper management that Ruud, along
[PAGE 45]
with several other people, were going to testify before Congress,
and that they were to be given time for preparing that testimony
and for setting up separate charge accounts for both their travel
expenses and their time (Tr. 736-7).
Bourne had two telephone conversations with Ruud in December
of 1987 concerning whether Ruud had been fairly treated in the
decision to select two quality assurance engineers to verify
audit findings at N-Reactor on a temporary assignment. In the
first conversation, Ruud wanted Bourne to be aware that he felt
that he had volunteered for one of these temporary assignments
and that it had been given to somebody else. Because of the
timing of the assignment, he felt that he had been mistreated.
Ruud did not tell Bourne about Johnson's comment, "If because of
your notoriety with the subcommittee, other managers won't hire
you, that's too bad." That comment would have got Bourne's
attention. As a result of Ruud's telephone call, Bourne
conducted an investigation to determine what had happened.
Bourne inquired of all the individuals who were involved in
making the decision and tried to determine whether Ruud's
accusations were true. Bourne concluded that it was a close
call, but everyone had assured Bourne that he had treated Ruud
fairly and that the positions had in fact been filled before they
were aware that he was interested. Bourne explained that, by
"close call," he meant that there was a half hour difference in
the timing (Tr. 737-9).
In Bourne's second telephone conversation with Ruud,
Bourne told him what he found the chronology to be and that he
was satisfied that Ruud had been dealt with fairly. Ruud
responded, "I didn't expect anything else" (Tr. 740).
The purpose of the temporary assignments at N-Reactor was to
resolve all of the issues that the Department of Energy had
brought up prior to the restart of the N-Reactor. One of the
requirements was to verify that all of the open items had been in
fact resolved, and they wanted to do that with an independent
check from the Quality Assurance Department. The N-Reactor was
terminated in January or February of 1988 (Tr. 740-1).
The termination of BWIP eliminated about 60 quality
assurance positions. Bourne made sure that these employees were
made aware of any open positions in the rest of the Westinghouse
system and that they were given assistance in
[PAGE 46]
preparing resumes and interviewing people for outside jobs (Tr.
742).
Bourne wrote the cover letter that is RX 21. Gelman prepared
RX 3. This document was the rationale for the filling of two
permanent jobs in the chem plants. It describes the
qualifications of the candidates for the two positions (Tr. 742-
5).
Bourne was interviewed once by Eric Nalder of the Seattle
Times. Bourne told Nalder that he did not think that audit
reports should be put in the newspaper. Bourne feels that it is
much more productive for organizations to conduct their internal
audits privately so that they can get more open and candid
responses from them and so that their comments will not be
published in the newspaper (Tr. 746).
Bourne testified before Congress on May 11, 1988 that he
felt that Nalder took his comments out of context (Tr. 747-8).
Unusual occurrence reports are reports that are issued on
unusual things that happen, such as safety issues of concern to
the public. The reports are placed in the public reading room in
the library, the press is free look at them, and a copy is given
to the Department of Energy. Bourne thinks that he had been more
than candid with the public and
that Nalder was trying to make it look like Bourne was trying to
cover things up, which he was not (Tr. 748-9).
Bourne was first certified as a lead auditor around 1978-
1980 at Westinghouse. Bourne's main responsibility was
the Fast Flux Facility, but he was not physically located there
(Tr. 750).
When BWIP was shutdown, Johnson was put into an audit
administration position. Equivalent experience was substituted
for the degree requirement. This also applied to Tuthill. Ruud
was not selected because he did not have a degree and because
there were others who applied for the job who did have degrees
and who were better qualified in the opinion of the hiring
manager, Gelman (Tr. 752-4).
Bourne was responsible for auditing at the PFP and Purex
facilities. They were shut down after Bourne took
[PAGE 47]
over. PFP was later reopened, and Purex went for a couple of
short runs (Tr. 757-8).
Bourne was not aware of any connection between Ruud's being
summoned to Washington, D.C. and the plants being closed or that
Ruud had issued the stop work order (Tr. 759-60).
Bourne believes that it was not proper to release an audit
report to the public even if it were the only way in which Ruud
could get Gelman to shut those plants down. The concern should
have been resolved internally (Tr. 762).
In connection with CX 24, Bourne stated that he told
Brown that he should have taken his concerns to Westinghouse
first, and that D.O.E. would have appreciated that (Tr. 771-2).
In investigating Ruud's complaint of not being hired for the
temporary position, Bourne talked to Pete Praetorious, Roger
Johnson, Viens and Bob Fell. Bourne completed his investigation
by December 23. At some point, Bourne took the position that it
was not really important because it was a temporary appointment.
The appointment was for six or eight weeks (Tr. 773-81).
CX 129 is a WHC requisition status change and an internal
work order signed by Bourne dated February 1 rescinding the
temporary jobs which were to run until September 30, 1988 (Tr.
781-4).
RX 21 refers to 16 exempt personnel who were reassigned. O.
Daukins' work order was extended to February 28. Dorsey's
temporary work order was for ten weeks. Not everyone who was on
a work order was allowed to continue until the end of that work
order. McDougall was extended
until April. Dorsey and Dalhberg were brought back because the
work they were doing was terminated (Tr. 786-8).
RX 21 was supplied to Wise in order to document what
happened to other people in relation to Ruud. Bourne thought
that this was necessary because Ruud had testified before
Congress (Tr. 790-4).
The work order which showed a schedule completion date of
September 30, 1988 was changed to expire on February 1, because
the first work order was not identified to Bourne or
Praetorious. When they realized that the work order was issued
for almost a year, they corrected it (Tr. 799).
[PAGE 48]
Bourne was aware that Ruud had testified before Congress in
October to the effect that Gelman was placed in a position for
which he was not qualified. Bourne thinks that Gelman acted in
an unbiased manner in the filling the temporary positions (Tr.
801-2).
Bourne recalls that notification posters with a telephone
number for DOE were posted. Bourne recalls being informed in the
management guides that managers who retaliated against employees
who reported concerns outside the company would be disciplined
(Tr. 811-2).
In RX 21 there is a paragraph that states that
McGillicuddy will be offered a permanent position (Tr. 821).
McGillicuddy assisted in approving material control and
receiving inspection techniques at N-Reactor. Material was being
received for six months after the project had been shut down
because those contracts were still in existence (Tr. 826-7).
Dorsey and Dalhberg were issued layoff notices because BWIP
was terminated (Tr. 829-30).
J. Testimony of Blaine McGillicuddy
McGillicuddy went to Oregon State for three years in forest
engineering, then into the military for three years, and then to
the University of Southern California in civil engineering for
two years (Tr. 832).
When McGillicuddy first went to work for Rockwell, he was a
quality assurance engineer in the 200 Area. He maintained the
quality assurance aspects of the B Plant, a standby facility to
process plutonium as it comes out of the Purex facility. He
remained in the 200 area at B Plant for probably three years (Tr.
833-4).
McGillicuddy then transferred to BWIP in Richland in
approximately 1986. He was the supervisor of the Procurement
Quality Unit, which was an organization set up to control the
quality aspects of the suppliers they had subcontracted with.
The subcontractors supplied technical and research services. The
most prominent ones were: 1)
[PAGE 49]
the Rockwell Science Center in Los Angeles; 2) Temple University,
which was doing basalt studies; 3) the University of Miami, which
was doing tritium analysis of waters; and 4) Argonne Laboratory,
which was doing basic research (Tr. 834-6).
The mission of McGillicuddy's organization was to monitor
the subcontractors' quality assurance programs, essentially to
assure the government that the subcontractors were establishing
programs and maintaining those programs as they had established
them (Tr. 836-7).
The program required that audits be performed once in the
life of the contract or a minimum of every two years (Tr. 837).
McGillicuddy first worked with Ruud in the 200 Area, the
2750 Complex. In late 1987 or 1986, McGillicuddy interviewed
Ruud for a position as quality assurance engineer with the Basalt
Waste Isolation Project (BWIP). McGillicuddy believes that
three or four others were interviewed. McGillicuddy recommended
Ruud for the position because Ruud was a certified auditor, and
McGillicuddy was under the impression that Ruud worked at Bechtel
as an auditor, and, therefore, was well-qualified for the
position (Tr. 837-9).
McGillicuddy believes that he made his recommendation
to Harry Tuthill, and Ruud was transferred into the BWIP
organization in January or February 1987 (Tr. 839).
McGillicuddy recommended Ruud for a Grade 9 position.
Ruud's grade level prior to his transfer to BWIP was Grade 6.
When Ruud was first transferred into BWIP, he did not get the
increase to Grade 9 because the Personnel Department would not
allow an upgrade because it felt that, if it did so, too many
people would be seeking to make changes (Tr. 840).
Before Ruud transferred to BWIP, McGillicuddy did not inform
Ruud that there was a problem with the grade. Within four or
five months, Ruud received the elevated grade and salary (Tr.
841).
Ruud's duties were to conduct audits, review QA programs for
approval, and conduct surveillance of various purchasing
activities. McGillicuddy felt that he and Ruud
[PAGE 50]
had a good supervisor-employee relationship. In September-
October 1987, their relationship began to change. CX 122
contains notes that McGillicuddy wrote to himself regarding
incidents that took place in September, October and November
1987. McGillicuddy began keeping notes because he had concerns
about Ruud's work. Jensen was aware that McGillicuddy was
keeping these notes 5 or 6 years ago (Tr. 841-7).
Page 7 of a memo dated October 5, 1987 concerns an article
in the Times in which Ruud had stated that 5 out
of 7 of their suppliers' programs were out of compliance.
McGillicuddy felt that the article was critical of him and his
group. The purpose of the memo was to find the basis for Ruud's
comments. In his memo, McGillicuddy listed a number of items for
Ruud to address as a result of that newspaper article (Tr. 847-
52).
RX 69 is Ruud's typewritten response to McGillicuddy's memo.
McGillicuddy did not think that Ruud's response adequately
addressed the concerns raised but just consisted of general
statements, not specific responses to McGillicuddy's
questions. McGillicuddy responded to Ruud's memo by
requesting that Ruud provide him with information on items 2, 3
and 4 of his original memo. McGillicuddy requested that Ruud
respond more specifically to his memo. At the bottom of the memo
McGillicuddy wrote, "I know it's tough being an authority."
McGillicuddy did not intend to offend Ruud. McGillicuddy
apologized to Ruud in a DSI ("Don't Say It, Write It") memo.
Ruud never completed the assignment of October 16, 1987, because
projects were being cancelled, and they had no work (Tr. 853-9).
As a result of WHC's losing the funding for the BWIP,
McGillicuddy was slated to be laid off. After receiving his
layoff notice, McGillicuddy was work ordered to the 100-N Project
doing receiving QCP work for 3 to 4 months. McGillicuddy was
then offered the opportunity to go back to BWIP with a guarantee
that there would be 2 or 3 years of shutdown on BWIP before that
job would be terminated, which he accepted. McGillicuddy was at
BWIP for about three weeks when he was terminated in May 1988.
McGillicuddy is now retired (Tr. 861-6).
McGillicuddy brought Ruud to BWIP because he needed
[PAGE 51]
someone with his certification as a lead auditor.
McGillicuddy was certified as a lead auditor in 1973 or
1974 with Bechtel, but he was not certified when Ruud came to
work at BWIP (Tr. 868-72).
When McGillicuddy interviewed Ruud, it was Ruud's
understanding that Ruud was going to be promoted from a Level 6
to a Level 9. In fact, it was months later before Ruud got
promoted. McGillicuddy only learned that Ruud could not be
promoted about the time that he met with Congress and the plants
were shut down (Tr. 872-4).
Ruud was given the option of transferring laterally as
a Level 6 after he met with Congress, which he accepted (Tr. 875-
6).
On November 23, McGillicuddy wrote, "Based on my present
informed assessment of Casey's value to procurement quality
activity, a further raise will not be forthcoming without a
greater display of dedication to the goals of the unit and less
to his own personal ambitions" (Tr. 884-6).
McGillicuddy gave Ruud one month to explain what was
required to bring each element of each program into compliance
but never received a response (Tr. 893-4).
McGillicuddy is certain that Ruud received a copy of his
apology to the "It's tough to be an authority" comment (Tr. 895-
7).
McGillicuddy was promoted to principal engineer and was not
told that he had to have a degree (Tr. 903).
McGillicuddy never took action against Ruud based upon the
notes found in CX 122 (Tr. 905).
K. Testimony of Harry R. Tuthill
Tuthill attended New Mexico Military Institute from 1961
through 1963 and received an associates in arts degree. He then
transferred to the University of Nebraska and studied mechanical
engineering for two and a half years (Tr. 908).
In 1985 Tuthill worked for Rockwell International as a
[PAGE 52]
senior quality engineer. He then was assigned to BWIP as a
special staff assistant to Roger Johnson. After the
consolidation he remained within the BWIP organization at
Westinghouse Hanford Company. He is presently employed as a
principal specialist in quality engineering and inspection (Tr.
908-11).
In the fall of 1986, McGillicuddy recommended Ruud for a
position with Tuthill. Ruud was given the position but was not
promoted. Tuthill stated that it's company policy not to promote
at the time of transfer but to wait until the individual is in
the organization. Tuthill attempted to promote Ruud after he
transferred into BWIP (Tr. 911-3).
Tuthill recalls that Ruud was put in for promotion when he
transferred to BWIP but was not promoted immediately. Ruud
received the promotion effective April 6 (Tr. 914-5).
On December 17 or 18, Tuthill called a meeting and informed
his staff that Congress had removed funding from two of the three
sites to be studied for the nuclear waste repository. The only
one to be funded was in Nevada. All funding for BWIP would end
shortly and, if Westinghouse did not have positions for them,
they would be laid off. At the meeting Ruud in essence stated
that Westinghouse could not lay him off because, if it did, it
would really have problems (Tr. 916-7).
Tuthill left BWIP in May of 1988. He did not try to find
another job within Westinghouse Hanford because there were no
positions available within his career goals, and the jobs he
might have been interested in required a degree. He was aware
that he could have posted for the positions even without a
degree, but Westinghouse had stated that it needed and degree;
therefore, Tuthill did not post for them (Tr. 917).
Tuthill is fairly certain that he did not say to Ruud,
"Management's position is that you have made your bed, now you
have to sleep in it." Tuthill believed that he had to be very
careful what he said to Ruud because the latter was a
whistleblower (Tr. 918-9).
Shortly after Tuthill moved to Las Vegas, he received a call
from someone in the Westinghouse Hanford Company legal office
inquiring about Ruud's claims. Tuthill told this person that he
would help in the future for $200 an hour. Tuthill was
compensated for his time testifying at this
[PAGE 53]
hearing at $30 an hour plus expenses and transportation (Tr. 920-
1, 926-7).
Tuthill once heard McGillicuddy and Ruud in loud discussion
(Tr. 924-925).
RX 71 states that Ruud exceeded his job performance
requirements. Tuthill felt that Ruud did an excellent job
and that the only person who exceeded his abilities was
McGillicuddy (Tr. 933-4).
Ruud was hired to be certified lead auditor and to train and
certify people (Tr. 934).
L. Testimony of Robert Gelman
Gelman retired December 30, 1984, prior to which he was
employed by Westinghouse Hanford Company (WHC) in the tank farms
working for the manager of plant engineering. Prior to that he
was employed by Rockwell Hanford beginning in 1976 (Tr. 950-1).
Gelman received a B.S. in chemical engineering at Carnegie Tech
and an MBA from the University of Pittsburgh (Tr. 951-2). Gelman
has managed the Plutonium Finishing Plant and had an operations
management position in the tank farms. He also managed a thoria
production line at Westinghouse in Pittsburgh (Tr. 952). Gelman
has had to shut down a facility for safety reasons at
Westinghouse, Bettis Atomic Power Laboratory in Pittsburgh.
Since that time he has not been afraid to shut down a facility
(Tr. 952-3). Gelman became manager of 200 Area QA for Rockwell
in September of 1986 (Tr. 953-4).
After the consolidation, Gelman retained many of the same
responsibilities, but, as QA manager for the 200 Areas, he
reported to the site QA manager (Tr. 965-6). In October-November
1987, Gelman received approval to requisition two engineer
positions. Gelman wanted to fill four positions but only got
approval for two of them (Tr. 985). He received 40 applications.
Gelman first separated the qualified from the unqualified
applicants by determining which applicants met the education and
experience requirements. He hired one individual (Dana Farwick),
who had a B.S. in geological engineering with many years
experience, and another individual (Shafik Rifaey), who
[PAGE 54]
had an M.S. in nuclear engineering and who had reactor commercial
experience and compliance auditing experience (Tr. 966-8).
RX 4 is the standard Westinghouse application evaluation
form that Gelman filled out when he interviewed Ruud for the
positions (Tr. 968). RX 3 lists individuals that Gelman
interviewed for the positions (Tr. 974-6). RX 11 is a note to
Gelman's immediate supervisor concerning Ruud's interview. It
stated, "When I asked him to discuss the possible weaknesses, he
said it was his image and how he felt people felt about him." At
the time of the interview, Gelman was aware that Ruud was a
public figure. Gelman was aware that Ruud had testified to
Congress concerning Gelman's lack of QA experience (Tr. 977-
9).
Gelman offered the position to Forsberg, Tominey and Adair,
all of who turned it down. When Rifaey was offered the position,
he accepted. Gelman offered the other position to Farwick, who
applied to the generic posting, and he accepted it (Tr. 979-80).
Ruud did not have the educational background, the quality
engineering background or the experience that Farwick had. In
addition, Farwick was also already in BWIP (Tr. 981). Gelman
sent a memo to Bourne concerning Ruud's application because
Ruud was a public figure and because Bourne was working on issues
associated with Ruud. Gelman did not send memos concerning
other applicants to Bourne (Tr. 984).
Rifaey had had no QA experience. However, he had had
operational compliance assessment experience, which is
equivalent. Rifaey had a significant amount of experience in the
licensing area, in compliance assessments against licensing rule
requirements, and in the Congressional nuclear field (Tr. 989-
90).
In the August 1988 meeting, there was no finding that
Clegg or anyone else thought was significant by itself to shut
down any operations. Gelman was ordered by Clegg to write up the
minutes of the meeting. Gelman wrote the minutes, got Baker's
concurrence, and then distributed the minutes. Gelman received
Ruud's memo regarding the minutes on August 26. On the Friday
prior to Labor Day, Ruud agreed that if certain actions were
taken and if they had a QA-QC
[PAGE 55]
audit early Tuesday morning, the plant could run. The audit took
place on Tuesday morning, and a surveillance was done the
following day. Then, the plant started running (Tr. 998-1004).
The plant was shut down on October 5 as a result of the DOE
review of the audit's finding of over 50 criticality violations.
Both the Purex facility and the PFP facility were restarted later
(Tr. 1005-8).
Gelman was made manager of the 200 QA Area a week
after the meeting in August because of his management and
technical expertise, although he had no QA experience. Gelman
is appointed to the QA-1 Committee on the basis of
recommendations by other QA people (Tr. 1008-12).
Gelman was aware that there was an investigation concerning
allegations that Ruud was retaliated against by not being
selected for a position (Tr. 1014).
Gelman was responsible for the quality engineering and the
inspection functions, not the audit functions, at the PFP and
Purex plants (Tr. 1018).
Gelman corrected his testimony to reveal that he offered
positions to Dennis Forsberg, Shafik Rifaey and Kathryn Tominey.
Forsberg and Rifaey accepted. Farwick, whom he previously
identified as being offered a position, actually came into the
organization before this time frame (Tr. 1049).
RX 77 is a request for status change on Dennis Forsberg from
a senior engineering position in the BWIP organization to a
senior engineer in Gelman's organization. This relates to the
posting that is on the second page of RX 73.
Forsberg stayed in the position about four months (Tr.1050-4).
RX 78 is a letter from Dennis Forsberg to John Shaffer
giving two weeks' notice for his termination from employment (Tr.
1055).
RX 76 is a request for status change for Shafik Rifaey from
the BWIP organization to Gelman's organization and relates to the
posting in RX 73 (Tr. 1056).
[PAGE 56]
RX 75 is a transfer request for status change for Dana
Farwick into Gelman's organization and does not relate to the job
posting in RX 73. It has a different position number, PT4E, and
is dated December 16, 1987, which is before Gelman started the
interviews for the job posting described in RX 73 (Tr. 1057-8).
Rifaey has a M.S. in nuclear engineering. Farwick
has a B.S. in metallurgical engineering (Tr. 1058).
Gelman does not remember creating a list of candidates for
the job posting that came after Ruud applied (Tr. 1059).
Forsberg came out the BWIP QA organization (Tr. 1060).
The selection for the job posting was made some time before
February 29, 1988. Gelman interviewed Ruud on February 23.
Forsberg started work after March 9, 1988 and terminated on April
30, 1988. Gelman knew that Forsberg was probably going to do
that, because he wrote, "Appears to be searching outside of
Hanford position, directly related to his geological background,
but he was offered the job anyway" (Tr. 1063-6).
Gelman assumes that Farwick came on board some time after
December 20, 1987. Gelman doubts that the document transferring
Farwick into Gelman's organization was back dated. Gelman
interviewed Farwick. It appears that Schaffer did not know
what the position was when he signed the form recommending that
Farwick be transferred. Gelman did not move Ruud into his
organization because he did not have an opening for an auditor.
Farwick's position was in addition to the other two positions
which were filled (Tr. 1066-74).
Gelman offered the two positions to three people because
there was hesitancy on the part of Forsberg and he wanted to have
a backup. Tominey turned Gelman down (Tr. 1075-6).
CX 131 is a memo dated February 25, 1988, to File from J. H.
Hammond, who was in Human Resources. The memo reads:
He was one of 40 bidders for several QA engineer
positions. The hiring manager reduced the list to 17
who were interviewed. Nine showed
[PAGE 57]
interest for future consideration. Ruud was ranked eight of
nine in this latter group. The manager selected the top
three, one of whom is a female, and offers are in process
for them. The fourth position will remain unfilled, pending
additional candidates from the N-Reactor shutdown.
Requisitions and documentation attached.
(Tr. 1080-1).
Gelman recollects that there were four positions open in the
entire QA organization, but only two were open within Gelman's
group (Tr. 1081-2). Gelman believes that CX 28 may be in error.
He only remembers two positions being filled (Tr. 1083-5).
Gelman does not recall why he told a DOL investigator that
he was considering Ruud for a position on May 5, and it was not
true (Tr. 1086-91).
RX 73 page 252 is a requisition form for the internal
posting system within Westinghouse dated January 27, 1988. It
was a supersedure of a requisition issued late in 1987 that
Gelman wrote. Gelman was not the author of this specific
requisition. The requirements for this position were for a
generic quality engineer for the total site. Gelman's
requisition was much more focused to the 200 Area (Tr. 1091-2).
Gelman requested in his requisition that the applicant
possess an education requirement of a B.S. degree in engineering
from an accredited university or possibly a B.S. degree in
science or mathematics. Gelman first became aware that
experience could be substituted for education when he saw the
posting which was tailored and modified by Human Resources to put
the equivalency in.
Gelman considered the education and experience. If he had
not, Ruud would not have made the cut (Tr. 1093-5).
Gelman noted Ruud's weakness as lacking necessary technical
degree or equivalent technical education to effectively overview
engineering performance. The other applicants who were not
selected were limited to construction QA (Tr. 1096-8).
Gelman was responsible for QA for the PFP and Purex
facilities. Gelman is a chemical engineer. The hazardous waste
goes through pipes to the Tank Farms. Only the steam
[PAGE 58]
coolant went to the ponds. One function of the incumbent is
making sure that the configuration of pipes was done to prevent
the material from being piped to the wrong location (Tr. 1098-
103).
Among the hazardous materials being routed to the Tank Farms
were fission produce waste, alpha and beta emitters, tributyl
phosphate, and other partitioning eluents, which is a class of
solvents (Tr. 1104).
There has been for many years seismic analysis on both PFP
and Purex. There would be a serious threat to the environment
from a release of chemicals, if the plants collapsed during an
earthquake. This would include not only radioactive material,
but also hazardous waste materials (Tr. 1105-1108).
Hanford's mission is environmental clean-up and restoration
of the site. Gelman would say that it is one of the largest
toxic waste sites in the country (Tr. 1109-10).
From the time BWIP was closed down, the primary mission was
to produce nuclear weapons material (Tr. 1112).
Gelman was looking for a quality assurance engineer, not a
quality assurance auditor (Tr. 1113).
When Gelman hired Forsberg for the quality assurance
engineer position, he hoped that he would remain in that position
(Tr. 1115).
Hammond was not personally involved in the selection of
candidates for the quality assurance engineer positions (Tr.
1115-6).
Frequently, authorization for filling open positions
was terminated because of funding shortfalls, hiring freezes, and
budgetary considerations. Budgetary considerations start with
Congressional appropriations, and they work themselves down to
the Department of Energy and then to the contractor (Tr. 1116).
Gelman says that he signed the statement given to the DOL
investigator, but those were not his words (Tr. 1117).
Gelman reviewed Ruud's QA engineering experience found in RX
73 (Tr. 1118-20).
[PAGE 59]
Gelman ranked Ruud eighth out of nine candidates. All of
the candidates except Ruud had four-year degrees (Tr. 1126).
M. Depositions of Thomas M. Anderson
Thomas Anderson was Vice-President for Environment, Safety,
Health and Quality Assurance at Westinghouse Savannah River
Company, a completely separate wholly-owned subsidiary of
Westinghouse Electric Corporation beginning in the fall of 1988
(CX 135 at 19, 23).
Before Anderson went to Savannah River, he knew that
Congressional hearings involving Casey Ruud and Jim Simpkin were
taking place (CX 135 at 94).
After Anderson left Savannah River, he became president of
Westinghouse Hanford Company from 1991 through January 1994. He
was then reassigned to his current position as Director in the
Energy Systems Business Unit in Monroeville (CX 136 at 12).
Anderson had several meetings in Tri-Cities with Ruud, an
employee of a subcontractor for one of his managers, Mary Dodgen,
at Savannah River. Anderson also met with Ruud in South Carolina
in 1991 about training in Anderson's division (CX 135 at 10-
11).
Anderson does not believe that Ruud was hired as an
instructor. When Anderson visited with Ruud, Ruud was preparing
materials but not teaching the course (CX 136 at 42-3).
Anderson had a discussion with Jim Bush, a vice president
reporting to him, concerning whether to hire a whistleblower.
Anderson also had a meeting with Schwallie and Moore to decide
what disciplinary action should be taken against Bush (CX 135 at
77, 89). As a result of these discussions, Anderson gave Bush a
written reprimand concerning retaliation against an employee for
filing a safety-related concern (CX 135 at 46, 52, 55, 64).
Bush had recommended Goad's demotion (CX 136 at 92).
Although Anderson never saw the letter of reprimand in
[PAGE 60]
Bush's personnel file, he assumed it was there (CX 136 at 91).
For the year 1990, Anderson considered that Bush's
performance was good (CX 136 at 90).
Anderson does not recall any discipline of any manager other
than Bush (CX 135 at 76).
Anderson discussed the possibility of disciplining
Beckmeyer, Manager of the Assessments Administrative Group within
the Separations organization, because she was not dealing with
subcontractors at arm's length. Beckmeyer told one of the
subcontractors that Bush was retaliating against his employee (CX
136 at 93-4).
Anderson does not recall a discussion that took place after
the Bush reprimand decision about sending a corrected notice to
Silverman, Assistant Manager for Project Management of the
Department of Energy, as to what
discipline would be meted out. Anderson may have made the
determination of what action would be taken regarding Ruud (CX
136 at 117).
Anderson became involved in putting together information
about how Westinghouse Hanford operated employee concern programs
for other Westinghouse GOCO sites for Dr. Jacobi to use in his
testimony before Congress (CX 135 at 95).
N. Deposition Testimony of Margy Beckmeyer
Beckmeyer is Manager of the Assessments Administrative Group
in Separations Quality at Westinghouse Savannah River Corporation
(CX 137 at 3). She brought in Ruud and Simpkin as subcontractors
to do work for her (CX 137 at 6).
Beckmeyer believes that Simpkin and Ruud had a negative
impact on RI-TECH's ability to maintain a contract at Savannah
River (CX 137 at 49).
Bush told Beckmeyer that Jim Simpkin and Casey Ruud were
whistleblowers (CX 137 at 50-1).
[PAGE 61]
Beckmeyer believes that Luce wanted to know why Ruud and
Simpkin were still working at the Savannah River facility. No
one ever indicated to Beckmeyer why Ruud and Simpkin should not
continue to work at the site (CX 137 at 53).
During a telephone conversation, Bush indicated to Beckmeyer
that she could not hire Simpkin because he was a whistleblower
(CX 137 at 77).
Bush told Beckmeyer that Simpkin and Ruud should not have
been allowed on the site because they were whistleblowers (CX 137
at 83).
Mary Ellen Dodgen told Beckmeyer that Dodgen no longer
wanted to use Simpkin because he was a whistleblower (CX 137 at
84).
Henry Wiedrich of RI-TECH indicated to Beckmeyer that,
whenever Simpkin and Ruud were seen in the hall by Wise,
security was involved, and they wanted to pull their clearances
to have them removed (CX 137 at 90).
O. Deposition Testimony of James Rankin
Bush
Bush was the Manager of Quality Assurance at WSRC in
February 1990 (CX 138 at 38).
Because of newspaper articles about Jim Simpkin's
whistleblowing activities, Bush directed Margy Beckmeyer that
Simpkin should not be involved in training anymore (CX 138 at
63). For these actions against Simpkin, Bush was counseled and
received a letter of reprimand signed by Anderson (CX 138 at
96). However, this letter was not placed in Bush's file until he
himself placed it there at least in part as a result of
litigation (CX 138 at 121).
P. Deposition Testimony of Mary S. Dodgen
Mary S. Dodgen was the ESH in QA Division training manager.
Her responsibility was to be supportive of the efforts of
training integration (CX 140 at 13). She was
[PAGE 62]
Casey Ruud's direct supervisor at WSRC because Ruud worked under
a contract for which she was responsible (CX 140 at 20).
Bill Quinn advised Dodgen of a newspaper article that
referred to Ruud and Simpkin as whistleblowers employed at
Westinghouse Savannah River Company (CX 140 at 29-30).
After Dodgen read the newspaper article, there was a meeting
between Dodgen, McCormack and Quinn. The purpose of the meeting
was to make Dodgen aware of the newspaper article concerning Ruud
and his whistleblowing activities. Dodgen was given no guidance
other than that she had a whistleblower reporting to her and that
she was to get her job done. Dodgen recalls that Anderson told
her to focus on accomplishing her assigned task and to treat
people fairly according to procedure and protocol. She does not
recall being given any instructions concerning providing Ruud
with an escort (CX 140 at 31-5, 38, 42).
Q. Deposition Testimony of William Luce
Luce is the Manager of Regulatory Compliance at Westinghouse
Savannah River Company (CX 143 at 5).
After his investigation of Bush's actions concerning
Simpkin, Luce concluded that the actions by Bush were a form of
reprisal against Simpkin for his actions at Hanford (CX 143 at
141).
R. Deposition Testimony of William A. Quinn
Quinn was Manager, Human Resources at Westinghouse Savannah
River Company when he retired (CX 145 at 4). He joined
Westinghouse Electric Corporation, the parent company, in 1957.
(CX 145 at 12-3). He never met Casey Ruud (CX 145 at 8).
Quinn recalls Bush receiving a letter of reprimand but does
not recall when he received it. Bush does not recall anyone else
receiving a letter of reprimand (CX 145 at 23, 34). Quinn
recalls Anderson being involved in meetings concerning Bush's
reprimand but does not recall who else was present. The letter
of reprimand went to the President's level, as did all
disciplinary actions which might result in
[PAGE 63]
an employee losing time in salary or any other disciplinary
action (CX 145 at 34-5).
Quinn first became aware that Ruud was at the Savannah River
site by reading it in the Augusta Chronicle. Quinn called
Jim Hedges, manager of professional staffing, and asked him if
Ruud was employed by Westinghouse (CX 145 at 37-8).
Quinn was interviewed by Congressional investigators, who
asked if he was aware of the newspaper article. Quinn told
them that he had seen an article in the Augusta Chronicle
and checked to see if the individual was employed (CX 145 at
118).
S. Deposition Testimony of Edgar Alan
Vickery
Vickery worked for Rockwell in the security organization in
1986 and 1987 (CX 147 at 14).
Vickery's present job is project manager at Kaiser. He
manages the supply of engineering and project management services
to Westinghouse in the operation of the waste tank remediation
systems program (CX 147 at 25).
Vickery first heard of Ruud through newspaper articles in
the Tri-Cities newspaper (CX 147 at 27).
Vickery never conducted surveillance of Ruud or anyone in
his immediate family (CX 147 at 28).
Vickery feels that the situation with Ruud was primarily a
Rockwell matter (CX 147 at 30).
T. Deposition Testimony of Henry Wiedrich
Wiedrich is president and chairman of the board of RI-TECH
(CX 148 at 7). He hired Casey Ruud to train WSRC and DOE
personnel on environmental matters (CX 148 at 72).
According to Wiedrich, Ruud speculated that Wise had him
escorted off the site (CX 148 at 53).
[PAGE 64]
Ruud was not allowed to instruct in the GOCO seminar in
Pittsburgh (CX 148 at 59).
On the day that Ruud's subcontract lapsed, Wiedrich received
a call that Ruud was to get off the site within five minutes (CX
148 at 60-1).
Ms. Dodgen told Wiedrich that she thought Ruud was doing a
wonderful job and could not have asked for better (CX 148 at
113).
Bill Howard told Wiedrich that he had a problem with Ruud
because he was a whistleblower (CX 148 at 116).
Wiedrich felt that Ruud and Simpkin thought that Wise was
the reason that the one-year rule was put into effect (CX 148 at
125-6).
Within months after Simpkin and Ruud left, Beckmeyer and
Wiedrich's firm were investigated by WSRC for ethical violations
(CX 148 at 137).
Wiedrich felt that Luce had asked Beckmeyer why Ruud and
Simpkin were still on the site. Beckmeyer felt that they were
doing good work (CX 148 at 145). An armed security guard
escorted Ruud off the site. Wiedrich stated that it would be
unusual to have Rich involved because he was not involved with
badging (CX 148 at 148-9). Wiedrich testified that it was
ridiculous that Ruud and Simpkin could not visit the plant
without an escort, and that a class Ruud was scheduled to teach
had been canceled (CX 148 at 151-2). Wiedrich said that it
was very unusual that Ruud was escorted off the site because his
contract had expired (CX 148 at 232-3).
Wiedrich was not aware that Ruud or Simpkin had ever
reported anything to DOE at either Hanford or Savannah River that
he had not first attempted to report using the internal system
(CX 148 at 157).
Wiedrich made an offhand comment that he was surprised that
Westinghouse had not hired a hit man for Ruud and Simpkin.
Wiedrich had no reason to doubt Ruud's and Simpkin's sincerity
in saying that they were concerned about
[PAGE 65]
the safety of their families (CX 148 at 171-3).
Wiedrich is aware of a couple of occasions in which people
had indicated that they could not use Ruud or Simpkin because
of their whistleblowing activities (CX 148 at 180).
Beckmeyer told Wiedrich that she feared for her job because
she stood up for Ruud and Simpkin (CX 148 at 185).
Westinghouse Savannah River Company never asked Weidrich
to remove Ruud or Simpkin from the site (CX 148 at 245).
U. Deposition Testimony of David S. Grotyohann
Grotyohann is the quality control manager employed by
Atlantic Coast Mechanical, Inc. (CX 150A at 1).[2]
Grotyohann received a telephone call from Jon Samuels and
was told that Joe Wise was listening on the speaker phone.
Grotyohann was asked if Ruud was on contract to him. He told
them that Ruud's contract had expired, but he thought that Ruud
was on contract to Margy Beckmeyer. At the end of the telephone
conversation, he was told that Samuels and Wise were going to
find Ruud and take some action at that time. Grotyohann said
that it made sense that Joe Wise was on the phone because he
remembered that Ruud had told him that Wise was at a church
basketball court and got upset when he saw Ruud (CX 150A at 32-3,
61-2).
Mary Dodgen told Grotyohann that Jacobi did not want Ruud
on the contract and to take all the subcontractors off the
contract (CX 150A at 39).
Grotyohann was told not to let Ruud have an escort (CX 150A
at 41).
Sometime between the first of June and the end of August
1990, Dodgen told Grotyohann that they could not use Ruud to
teach courses. This was sometime after the newspaper article
appeared, but before the course was completed (CX 150A at 46-9).
Grotyohann felt that it was part of Samuels' job to keep
tabs on Ruud (CX 150A at 52).
[PAGE 66]
Ruud told Grotyohann that Wise was an attorney who was
involved in the whistleblower case but did not explain why
Wise triggered him more than anyone else (CX 150A at 102).
Grotyohann believes that Dodgen said that they could not use
Ruud as an instructor. As a result, all three contractors were
taken off the list (CX 150A at 191, 193-4).
There are DOE personnel on the Savannah River site who are
not contractor employees of Westinghouse (CX 150 at 195).
V. Deposition Testimony of Jon M. Samuels
Samuels is an Assistant to the President and Manager
of the Productivity and Quality Programs Division at Westinghouse
Savannah River Company (CX 152 at 3).
Samuels vaguely recalls discussing with Wise concerning
where Ruud and Simpkin were working. He also vaguely recalls a
phone call to Grotyohann also concerning where they were working.
It is possible that he made the telephone call to Grotyohann from
Mr Wise's office but does not recall. He does remember that
Grotyohann was to check on something and call him back (CX 152 at
34-5).
At a staff meeting, Samuels may have mentioned to
Grotyohann that he understood that Grotyohann had a whistleblower
named Casey Ruud working for him (CX 152 at 36).
Anderson and WSRC had a very clear policy about how to deal
with people who raised complaints. Anderson was determined that
they would not have the problems that they had had at Hanford
(CX. 152 at 36).
Samuels recalls that someone asked him if it was true that
Ruud and Simpkin were working for them. Samuels must have found
out they were working in the training organization before he
called Grotyohann (CX 152 at 37-8).
In January of 1991, Samuels was aware that Ruud had been
removed from the site by Security (CX 152 at 44).
[PAGE 67]
Samuels may have learned from Wise that Ruud was working
there, or possibly from Tom Anderson or Fritz Strankman. One of
these individuals may have asked Samuels to find out where Ruud
was working. Samuels does not specifically recall discussing
Ruud with Anderson, but it's highly likely that he did. Samuels
does recall discussing Ruud with Wise (CX 152 at 45-8).
Samuels believes that Wise stopped him in the hallway and,
in a light-hearted manner, asked what kind of security manager he
was if people whose contracts have expired still have their
badges and access to the site. Wise told him that Ruud's
contract was expired and that he still had his badge. Samuels
called Personnel Security (Guy Rich) to verify this information.
Samuels assumes that he told Rich to find out if Ruud had a
contract, if he had a reason to be on the site, and if he had a
badge. If Ruud had a badge, Rich was to retrieve it (CX 152 at
49-50, 52).
Samuels recalls Wise asking him to check out one other
individual under a different set of circumstances (CX 152 at 53).
Wise had told Samuels that he had run into Ruud somewhere
and noticed that Ruud was wearing his badge (CX 152 at 54).
There should be an incident report concerning Ruud's
situation (CX 152 at 63).
W. Deposition Testimony of Merideth Metz
Metz is Manager, Westinghouse Employee Concerns Program at
Westinghouse Savannah River Company (CX 153 at 3).
In preparation for her deposition, Metz brought with her the
original notes she took from her meeting with Grotyohann (CX
153 at 8-9).
Metz guesses that Luce tasked her with contacting
Grotyohann and getting information about Ruud. It is also likely
that Luce asked her to get him a copy of the newspaper article
that Grotyohann referred to (CX 153 at 12, 15).
[PAGE 68]
Metz understood that an employee was reporting to her that
Wise may have engaged in illegal activities (CX 153 at 19).
Metz did not prepare a report of her meeting with
Grotyohann, and no one has mentioned this meeting (CX 153 at 35-
6).
In Metz' notes of her meeting with Grotyohann, she wrote
only what Grotyohann told her (CX 153 at 42-4, 50).
Metz specifically remembers Grotyohann stating that Jon
Samuels and Joe Wise had not done anything and he hated "to see
Westinghouse get hung for the stupid moves of a few people" (CX
153 at 45).
DISCUSSION
I. APPROVABILITY OF THE SETTLEMENT AGREEMENT
The history of the settlement agreement (CX 60) is recounted
above. The first issue before me is a) whether the agreement was
fair, adequate and reasonable and should be approved, or b)
whether the agreement was fatally vitiated by WHC's actions or by
the confidentiality terms.
Settlement agreements in cases such as these are "favored
and encouraged." Macktal v. Brown & Root, 86 ERA 23 at 16
(Secretary, November 14, 1989), rev'd on other grounds subnom. Macktal v. Secretary of Labor, 923 F. 2d 1150
(5th Cir. 1991). They are to be approved if they are "fair,
adequate and reasonable." Porter v. Brown & Root, 91 ERA
4 at 7 (Secretary, February 25, 1994), appeal dismissed,
46 F. 3d 65 (5th Cir. 1995); Macktal, supra 86 ERA
23 at 4 (Secretary, November 14, 1989); Poulos v. Ambassador
Fuel Oil Co., 86 CAA 1 at 2 (Secretary, November 2, 1987).
I find that this settlement was fair, adequate and
reasonable. First, it was voluntarily entered into, as all
concede. Secondly, it was achieved by arms-length negotiation,
not by any collusion. Next, both sides were
represented by attorneys, and there is no allegation that Casey
Rudd was incompetently represented.
[PAGE 69]
Fourth, and perhaps most importantly, by the agreement Ruud
was paid $115,000, a substantial amount that was more than six
times his back pay claim.[3] I note that Ruud has not refunded
any of this even while challenging the settlement (Tr. 431).
Then, too, the agreement conferred other substantial benefits on
Complainant: removal of adverse information from his file and the
inclusion in that file of a "neutral letter of recommendation"(CX
60).
Finally, in entering into the agreement, Ruud avoided what
would have been a substantial risk that he would end up with
nothing or much less than $115,000. As will be seen from the
subsequent discussion, the jurisdiction issue in this case is
somewhat difficult and, whereas I find that Ruud engaged in
protected activity, this is by no means obvious, and reasonable
people could differ on the issue. Also, although I have found
that discrimination in violation of one of more environmental
statutes did occur, at least some of WHC's objections are
substantial and, indeed, some actually have prevailed in this
recommended decision and order. Also, as will be seen,
infra, at 97 in my hypothetical award, I have actually
recommended a slightly smaller amount than was paid under the
settlement.
For the above-stated reasons, I find that Ruud did not get a
bad deal at all. Complainant does not seriously dispute: 1) that
both sides were represented and that Ruud was competently
represented; 2) that the amount paid was substantial under the
agreement; 3) that the agreement conferred significant benefits
to Ruud; and 4)that WHC's defenses are substantial. Because he
voluntarily consented to the settlement agreement, Ruud should
not be allowed to withdraw from it or oppose the Secretary's
approval of it unless he can show that the agreement was vitiated
by fraud or coercion, or unless important provisions of the
agreement are contrary to law or public policy.
Both sides agree that, in order to show that the agreement
was invalid because of fraud, Complainant must establish all of
the elements of fraud. Complainant must demonstrate the
existence of 1) knowingly false material misrepresentations 2)
with intent to deceive and 3) Complainant's reliance thereon.
Beckendorf v. Beckendorf, 457 P. 2d 603, 606 (Wash. 1969).
Ruud has the burden of satisfying all of these elements by
"clear, cogent and convincing evidence." Beckendorf,
supra.
Complainant suggests that fraud was committed in
[PAGE 70]
several ways:
1. Ruud argues that WHC violated an oral commitment not to
affect Complainant's employability adversely. However, in light
of the settlement's integration clause (RX 57 at 3), I cannot
find that anyone would have been bound by implied commitments.
Indeed, Complainant acknowledged that he did not rely on any
promises made by WHC outside the settlement agreement because, in
light of what he believed to be false statements to the press and
to Congress, he did not trust WHC management (RX 80 at 103-4).
Thus, reliance, an important element of fraud, is absent.
2. Ruud argues that Respondent's breach of the
confidentiality argument constituted fraud. However, it is
arguable whether the confidentiality provision was ever violated.
Attorney McCormack obviously believed that he had himself
breached the confidentiality provision (CX 63). However, it is
uncertain whether a violation occurred, because disclosure to
DOE, a party to the original agreement (CX 57), should probably
not be seen as a violation. The same goes for disclosure to DOL,
which provides the forum for resolution of this dispute.
Most important, however, is the fact that, even if it were a
breach, disclosure in violation of the agreement would not have
been a material breach since Complainant has repeatedly stated
that he did not care about the confidentiality provision (Tr.
292-3).
Of course, a breach, even if material, is not by itself
sufficient evidence of fraud. Milwaukee Auction Galleries,
Ltd v. Chalk, 13 F. 3d 1107, 1109 (7th Cir. 1994). Further,
I have found no evidence that, at the time it entered into the
agreement, Respondent intended to violate it.
3. Ruud alleges that WHC used illegal economic coercion
against Complainant by denying him employment. I agree with
Respondent that, at bottom, Complainant is arguing that firing an
employee creates economic duress that invalidates any settlement
agreement that the employee and employer may enter into. The
Secretary has rejected this argument in Macktal v. Brown &
Root, supra, at 9, rev'd on other grounds subnom. Macktal v. Secretary of Labor, 923
[PAGE 71]
F.2d 1150 (5th Cir. 1991). I reject it here also.
4. Complainant also argues that Respondent's alleged lies
to Congress and the press constituted fraud. However, whereas
these misrepresentations (which I accept as such for purposes of
argument) may have misled Congress and the public, I know of no
way in which they could have constituted fraud for purposes of
invalidating the settlement agreement.
5. Finally, Complainant argues that WHC's litigation
conduct invalidates the settlement agreement. In this case, I
believe that counsel for both sides acted in good faith and
ethically throughout. True, both sides made a number of
unfortunate omissions during discovery. I do not believe that
WHC's counsel's pretrial errors establish bad faith. Much less
did they demonstrate the kind of fraud that would invalidate a
previously entered-into agreement.
For the reasons set forth above, I find that Complainant has
not satisfied his burden of demonstrating that the settlement was
fatally contaminated by fraud.
Nevertheless, Claimant argues, the settlement should not be
approved because its terms preclude approval by the Secretary of
Labor. According to the August 8, 1988 agreement (CX 60), the
parties agreed that the terms of the settlement should remain
"strictly confidential and shall not be disclosed to any other
person (Id.)." The settlement went on to provide a
liquidated damages provision. Ruud argues that the settlement
agreement itself prohibited its submission to the Secretary
which, as the Secretary has already ruled, is a necessary
precondition to its validity.
Thus, the argument goes, by its own terms, the settlement self
destructed.
True, a WHC employee, Charles McLeod, who was not involved
in negotiating the agreement, did suggest that disclosing its
terms to the Secretary would breach the agreement (CX 72 at
2749). However, I find that, because disclosure to and approval
by the Secretary are necessary elements of the settlement
process, the agreement should not be read to prohibit disclosure
to the Secretary. To do otherwise would be to attribute to the
parties ignorance of
[PAGE 72]
the law or an intent to destroy the settlement, an absurd
result.[4]
Even more important, as stated, the confidentiality
provision should under no circumstance render the settlement
unapprovable because neither party now cares about the
confidentiality provision, and only WHC ever cared about it at
all in the first place (Tr. 292-3). To allow Complainant to
torpedo a settlement agreement on the basis of a provision that
he never cared about and which was only
included at the instigation of WHC and for its own benefit would
be a gross miscarriage of justice.[5]
Therefore, I recommend to the Secretary that he approve the
settlement agreement. Theoretically, I could end my discussion
here. However, to aid the parties and the Secretary, I will
proceed to make findings and draw conclusions concerning the
other issues in case the Secretary disagrees with my
recommendation concerning the approvability of the settlement.
II. THE BURDEN OF PROOF
Under the burdens of production and persuasion in
whistleblower proceedings, the complainant first must present a
primafacie case by showing that: (1) the
Complainant engaged in protected conduct; (2) the employer was
aware of that conduct; and (3) the employer took some adverse
action against him. Dean Dartey v. Zack Company of
Chicago, 82-ERA-2 (Secretary, April 25, 1983). The
complainant must also present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Id. See also Varnadore v.
Oak Ridge National Laboratory and Lockheed Martin Energy Systems,
Inc., 92 CAA 2, 5; 93 CAA 1 (Secretary, January 26, 1996)
("Varnadore I").
The respondent may rebut the complainant's primafacie showing by producing evidence that the adverse
action was motivated by legitimate nondiscriminatory reasons.
Complainant may counter the respondent's evidence by proving that
the legitimate reason proffered by the respondent is a pretext.
In any event, the complainant bears the ultimate burden of
proving by a preponderance of the evidence that he or she was
retaliated against in violation of the law. St. Mary's Honor
Center v. Hicks, 113 S. Ct. 2742 (1993);
[PAGE 73]
Varnadore I, supra, at 84.
III. PROTECTED ACTIVITY (JURISDICTION)
I will begin my discussion of the jurisdiction issue by
briefly considering the statutes under which, it has been
suggested, jurisdiction may lie in this case. All of the
statutes prohibit discrimination in terms of employment against
any employee who performs some kind of environmental
whistleblowing actions. However, the statutes do differ somewhat
with regard to the kind of whistleblowing activity that is
mentioned.
1. The Toxic Substances Control Act (TSCA) prohibits an
employer from discriminating against a person because that person
has taken any action to carry out the purposes of the act. 15
U.S.C. 2622. The primary purpose of the act is "to assure that
chemical substances and mixtures do not present unreasonable
risks of injury to health or the environment." 15 U.S.C.
2601(b)(3). However, 15 U.S.C. 2602(2)(B)(iv) exempts "special
source material," "special nuclear material" and "byproduct
material" as defined by the Atomic Energy Act (42 U.S.C. 2014)
from the ambit of the statute.
2. The purpose of the Clean Air Act (CAA) is, among other
things, to "protect and enhance the quality of the nation's air
resources." 42 U.S.C. 7401(b). The act prohibits discrimination
in terms of employment against any person "carrying out the
purposes of the act." 42 U.S.C. 7622(3).
3. The purpose of the solid waste disposal act (SWDA or
RCRA) is, among other things, to "assure that hazardous waste
management practices are conducted in a manner that protects
human health and the environment." 42 U.S.C. 6902(a). Further,
the act seeks to "minimize the generation of hazardous
waste"(Id.). Congress stated its intention that the
"generation of hazardous waste be reduced or eliminated as
expeditiously as possible." 42 U.S.C. 6902(b). The act further
provides that no person shall discriminate against any employee
who has testified in any proceeding resulting from the
administration of the act. 42
[PAGE 74]
U.S.C. 6971.
4. The Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) prohibits discrimination against any
employee who testified in "any proceeding resulting from the
administration or enforcement of" the act. 42 U.S.C. 9610(a).
The purpose of the act is to prevent the release of hazardous
substances into the air or water (Id.).
5. The purpose of the Safe Drinking Water Act (SDWA) is
clearly to promote safe drinking water, although there is no
"purpose" section in the act, which prohibits an employer from
discriminating against an employee who "assists in an
proceeding to carry out the purposes of this subchapter."
42 U.S.C. 300j-9.
6. The Water Pollution Prevention and Control Act, or
Clean Water Act (CWA) is, by its terms, designed to "restore and
maintain chemical, physical, and biological integrity of the
nation's waters." 33 U.S.C. 1251. The whistleblower provisions
of the act prohibit "discrimination against persons filing,
instituting, or testifying in proceedings under this chapter."
33 U.S.C. 1367.
From the above, it can be seen that the TSCA and the CAA are
the most liberal insofar as coverage is concerned. Both provide
protection for anyone discriminated against for any action taken
in furtherance of the very broad purposes of these acts. The
other four statutes are somewhat less broad. The SDWA and the
SWDA protect those who "testify in any proceeding resulting from
the administration (or, in the case of the SDWA, "assist in any
proceeding"). The language in CERCLA is to the same effect
(i.e., "testify in any proceeding"). The language of the
CWA is slightly broader, protecting anyone who has "filed,
instituted, or caused to be filed or instituted any proceeding
under this chapter, or has testified or is about to testify in
any proceeding resulting from the administration or enforcement
of the provisions of this chapter." 33 U.S.C. 1367[6]
This case was initially brought under the ERA but, as
stated in my recommended decision and order of April 12,
[PAGE 75]
1995, I found that, prior to 1992, the Hanford facility was not
covered by the ERA. However, I ruled that Complainant could
amend his complaint to allege jurisdiction under any other
appropriate environmental whistleblower statute. This he did,
although I cautioned that he was still required to prove
jurisdiction at the hearing.
I find that Complainant has demonstrated jurisdiction under
the CAA and under CERCLA. I base this on the following:
1. Concerning Ruud's so-called PFP audit:
A. Complainant noted that "a seismic event
(earthquake) will release at least 17.9 grams of plutonium into
the environment" (RX 83).
B. Ruud reported that cracks in cinder block primary
containment walls have occurred and that, if they occur again,
could release plutonium into the environment (Id.).
C. Ruud reported that there are no facilities to
separate radioactive and non-radioactive liquid waste before it
is discharged into a ditch (Id.).
D. Ruud noted that "zone one exhaust" does not have a
filter, and any flow reversal during a contamination incident
might force radioactivity into zone one and then directly into
the atmosphere (Id.).
E. Ruud noted a potential for "unavoidable plutonium
releases into the air space and out roof vents" in 291-Z Building
when maintenance work is done (Id.).
2. Concerning his "burial ground audit," which was a
subject of his Congressional testimony, Complainant testified
about "environmental statutes that govern how waste was supposed
to be disposed of, and that this appeared to be a major breach of
those statutes" (Tr. 116).
[PAGE 76]
3. Meeting with Congressional staff people, Complainant
described "his concerns regarding the effects of releases of
hazardous and radioactive wastes at the Hanford site and its
potential impact on workers, the environment, and the public"
(Tr. 102).
4. Complainant, in meetings with Representative Wyden,
made disclosures about releases of materials into the Columbia
River, into the air, and from high-level nuclear waste tanks that
were leaking (Tr. 103).
I find that jurisdiction under the other environmental
statutes has not been demonstrated. Both the TSCA and the SWDA
exclude "source material," "special nuclear materials" or
"byproduct material" as defined by the Atomic Energy Act (42
U.S.C. 2014) from their coverage. 15 U.S.C. 2602(2)(B)(iv); 42
U.S.C. 6903(27). Although Complainant makes a game effort to
demonstrate that he was also concerned about nitric acid, which
is (or can be) a non-radioactive compound, I find no mention of
nitric acid in his audit reports, in his discussions with
Congress people and their staffs, or in his testimony. In
addition, nitric acid would not be covered under the SWDA because
it is a liquid, not a solid.
Also, I find no evidence that Ruud was concerned about
contamination of drinking water or other surface or subsurface
water. WHC scientist Robert Gelman testified that WHC was no
longer dumping chemicals into surface pools of water at the times
in question (Tr. 1101). True, Representative Wyden was concerned
about the pollution
of the Columbia River, but there is no evidence that Casey Ruud
was (Tr. 103).
However, there is ample evidence that Ruud was very much
concerned about air pollution, especially pollution from
radioactive discharges. Because both the CAA and CERCLA do not
exclude radioactive emissions into the air from their coverage, I
find that Ruud has established jurisdiction under them.
I find that in both his PFP audit and his burial ground
audit, as well his discussion with and testimony before the
Congressional subcommittee, Complainant expressed concerns about
the possible pollution of the air through accidental
[PAGE 77]
discharge of radioactive materials. Thus, he has established
jurisdiction.
Against this, WHC makes a number of arguments, which I now
consider:
1. WHC argues that, to establish jurisdiction under
CERCLA, a complainant must have a reasonable belief that a
reportable quantity of a hazardous substance has been or is about
to be released, citing Du Jardin v. Morrison Knudsen
Corp., 93 TSC 3 at 6 (ALJ, November 29, 1993). The
Administrative Law Judge in that case did not so hold. In fact,
he stated that complaints regarding possible violations and
"quality problems" are protected.
2. WHC also argues that, while Ruud claims that his audits
and testimony disclosed various deficiencies that could have led
to emissions into the air, he offers no supporting record
citations and does not explain why he had a reasonable belief
that the CAA had been or was about to be violated. However,
Complainant does not have to "explain why he had a reasonable
belief." Suffice it to say that I find that Complainant's belief
was reasonable based on the findings and conclusions in the
various audits that Ruud performed (RX 83; CX 9). In these
audits, Ruud extensively documented threats to the environment
from potential emissions of radioactive materials. From reading
the audits, even WHC acknowledges that these threats were not
imaginary.
3. WHC argues that, in order to establish entitlement to
relief, Complainant must show that the particular WHC managers
who discriminated against Complainant knew about his particular
disclosures or complaints. Floyd v. Arizona Public Service
Co., 90 ERA 39 (Sec'y September 23, 1994). However, where a
complainant's whistleblowing activity is generally well known
among corporate management, there is a high likelihood that a
specific manager is aware of it. In this case, Casey Ruud's
whistleblowing activities were widely publicized. Indeed, Ruud
was a minor celebrity in the Pacific Northwest in the late 1980s,
and he still is
(CX 2, 39, 40, 42, 52, 53, 64, 77, 79; Tr. 35-7, 57). That Ruud
cannot document that a specific official was fully aware of each
audit report, each telephone call, and each
[PAGE 78]
meeting with a Congressional staff person by a particular time
should not defeat an otherwise meritorious claim. Knowledge is,
of course, an element that Complainant must prove, but a general
knowledge of Ruud's whistleblowing activities, which knowledge
can be imputed from his notoriety, will usually suffice.
4. WHC further argues that Ruud's whistleblowing related
to safety concerns more than environmental concerns. It is
sometimes impossible to separate environmental and safety
concerns, particularly at the Hanford site. However,
as I have stated above, I find that Ruud's whistleblowing
activities extended to some discreetly environmental concerns as
well as to safety concerns.
IV. RETALIATION (ADVERSE ACTIONS)
Complainant cites a number of adverse actions against him in
his job which, he contends, were unlawful violations of
whistleblower provisions of various environmental statutes. I
will consider each action in turn.
A. The transfer to BWIP in October 1986. This adverse
action was taken by Rockwell, WHC's predecessor in interest,
and I find that the action cannot be attributed to WHC,
despite the fact that Westinghouse retained some of
Rockwell's former managers. Ruud makes a novel argument
that Respondent "ratified" and should be held responsible
for all prior illegal and improper acts of Rockwell. As
Ruud cites no case for this proposition, I reject it.[7]
B. Harassment of Complainant by Blaine McGillicuddy.
Ruud alleges that his immediate supervisor at BWIP, Blaine
McGillicuddy, intentionally and maliciously retaliated
against him because of Ruud's cooperation with Congress.
McGillicuddy's notes establish knowledge of Complainant's
testimony before Congress and McGillicuddy's own malice
towards Ruud (CX 122). McGillicuddy's testimony reveals
that he did in fact retaliate against Ruud by sarcastically
assigning him to provide extensive information within a
short time concerning all "out-of-compliance" supplier
[PAGE 79]
quality assistance programs (CX 122 at 7; RX 69).
The sarcasm dripping from the phrase, "it's tough being an
authority" is ample support for my finding that
McGillicuddy's harboured a discriminatory animus (Tr. 857-
8). WHC acknowledges that relations between the two
deteriorated after October 1987(Tr. 842) but contends that
this was caused by Ruud's "arrogance and insubordination."
I find that the arrogance present here was mostly
McGillicuddy's. Thus, Ruud has established an inference of
retaliation.
WHC argues that McGillicuddy's actions at BWIP were not
related to any protected activity by Ruud and that there was
a legitimate non-discriminatory reason for them. However,
although WHC might have benefited from Ruud's task (if it
had been completed), I find that the rationale ("the need to
know how they were out of compliance") is pretextual.
McGillicuddy knew or should have known very well from the
SeattleTimes article and RX 69 how WHC was
out of compliance. Further, even if there were a dual
motivation for the assignment, I find that WHC has not
proved that it would have assigned the task even if Ruud had
not engaged in whistleblowing.
Lastly, I reject the argument that McGillicuddy's
actions caused Ruud no harm. Ruud obviously had to do a
three-week project for McGillicuddy, which imposed a
substantial but unnecessary burden on him.
C. Failure to select Ruud for the position of
temporary auditor at N-Reactor (December 1987). Complainant
alleges that Respondent retaliated against him by making
certain that Ruud would not be selected for a temporary job
at the Capital N-Reactor upon Complainant's becoming aware
that he was to be laid off. The retaliation in question
consisted of ensuring that someone else got the job and that
Ruud did not. The evidence shows that Ruud had requested
assignment to the position prior to the company's soliciting
the person who eventually got the job (CX 123; CX 55).
WHC argues that its failure to give Complainant the
temporary assignment of auditor at N-Reactor did no harm to
Ruud because it cost him no work at all in light of the fact
that it was not a permanent job. In other words, WHC
contends that Ruud would have been laid off at the same time
regardless of whether he worked as an auditor at N-Reactor.
[PAGE 80]
However, an assignment to N-Reactor might have led to a
permanent position (Tr. at 372). Even if not, the fact that
Ruud wanted the job at N-Reactor but was denied it
constituted an adverse action, even if did not ultimately
cost Ruud any money.
WHC further argues that Ruud never expressed an
interest in the position until after it was filled.
Although the evidence is conflicting, I find that it is more
probable than not that Ruud called Roger Johnson, who filled
the position, early on the day on which the position was
filled and before the announcement of the selection (Tr.
219; CX 26; CX 114 at 2: CX 43, att. 6). Also, according to
a statement given to a company investigator by Johnson, who
is now deceased, Johnson told Ruud that "we did not have any
additional need for auditors at N-Reactor." However, later
that day, another person was selected to fill that job.
According to an internal company investigation, Johnson may
have stated to Ruud, "if, because of your notoriety with the
subcommittee, other managers choose not to hire you, then
that's just too bad" (CX 43, p. WHC/S&R-1038).
The heavy sarcasm, apparently infectious among WHC
managers (see, e.g., Tr. 857-8), is a hallmark of
their attitude toward Ruud. Because the typicality of the
remark is significant evidence of its authenticity, I find
that the quotation is probably authentic and adds evidence
of malice to the equation.
WHC argues that Johnson did not know of Ruud's
protected activity. I disagree. Unfortunately, Johnson is
dead, and we cannot ask him what he knew or did not know.
However, WHC acknowledges that Johnson was aware of Ruud's
activity with the Dingell subcommittee (post-hearing brief
at 26), and there is significant evidence that Johnson
resented Ruud for his environmental whistleblowing (CX 43,
attachment 6 at p. WHC S&R-1038).
Because of these facts and because of Ruud's high
credibility,[8] I find that Complainant has demonstrated
that Johnson's failure to hire Ruud was motivated by
discriminatory animus and that the reason given (late
application) was false and, hence, pretextual.
D. Failure to select Complainant for permanent senior
quality assurance engineer positions. At first, Complainant
was not hired for one of these jobs because, it was alleged,
[PAGE 81]
although he was otherwise qualified, he had no college
degree. There were at least two and possibly four quality
assurance engineer positions available between the time when
Complainant was laid off and May 11, 1988, when company
officials were subpoenaed to testify before Congress (Tr.
1073; CX 28). At least one of the individuals chosen for
the position by QA manager Robert Gelman subsequently
resigned, but the position made vacant by the resignation
was never offered to Ruud and was left vacant (Tr. 1065).
Almost immediately after the Congressional hearing,
Respondent found two jobs for Ruud, but, after he accepted,
WHC withdrew the offer unless Ruud agreed to drop all claims
for retaliation against WHC (CX 34; Tr. 224-45). When this
is added to the fact that Ruud had criticized Gelman's
qualifications for the positions that Gelman currently held,
and to the fact that Gelman was responsible for filling
these jobs, there is ample direct and circumstantial
evidence of discrimination against Ruud with regard to the
filling of these positions.
WHC argues that 1) Ruud has not shown that Gelman's
decision not to hire him had any connection to any protected
activity; and 2) that WHC had a legitimate nondiscriminatory
reason for not selecting Ruud.
I find that there is sufficient circumstantial evidence
to establish that Gelman's actions in not hiring Ruud were
in retaliation for Ruud's testimony before Congress in which
he had criticized Gelman for not being qualified for his
position (CX 9 at 36). In light of the sensitivity of
Gelman's position insofar as environmental protection is
concerned, I find that this had a direct relation to Ruud's
environmental whistleblowing activities. Gelman may believe
that it did not (Tr. 977), but I find his testimony to be an
exercise in self delusion. Any person who was not affected
by a criticism like that leveled by Ruud in his
Congressional testimony[9] would be a candidate for
sainthood. My observation of Gelman and my review of the
record lead me to conclude that he is not such a
candidate.[10]
Hence, Complainant has shown discriminatory animus and
adverse action, entitling him to an inference that protected
activity was the likely reason for the adverse action.
However, Respondent argues that its actions were motivated
[PAGE 82]
by a nondiscriminatory reason, namely that WHC selected
"better qualified" people for the quality assurance engineer
positions. It is true that the two individuals chosen
(Forsberg and Rifaey) did have B.A. degrees, whereas Ruud
did not. However, as WHC acknowledges, Ruud had
substantially more experience. WHC argues that that
experience was not enough to beat the academic
qualifications of Forsberg and Rifaey. However, WHC has
not demonstrated the relevance of a B.A. degree or that
management could have reasonably concluded that a B.A.
degree was important for this position.
Also, WHC attempts to distinguish the quality engineer
position, which this position was, from that of an auditor,
which Ruud held. Citing the testimony of one of its retired
quality assurance managers at Tr. 733, WHC argues that it
wanted to hire individuals with "technical backgrounds" for
these positions "because they would understand WHC's
operations better and make better QA engineers." This does
not make sense. Logically, people with experience at the
Hanford site ought to understand WHC operations as well as
or better than those whose qualifications are primarily
academic.
In addition, the stated distinction between quality
engineer and auditor (see WHC brief at 36-7) has not been
shown to have any relevance to the positions being filled.
In any case, Ruud had been a quality engineer at Hanford in
previous positions (RX 73 at 262-3).
Hence, I find that the asserted reason for denying Ruud
the position has been shown to have been pretextual.
E. Respondent's alleged refusal to deal in good faith
with Complainant after the 1988 hearings. Ruud alleges
that, in negotiating with him, Respondent, through its
general counsel's office, attempted to resolve disputes with
Ruud, but, in doing so, did not negotiate in good faith. I
find that tough negotiating does not equal bad faith
retaliation here. Ruud complains particularly about WHC's
refusal to offer reinstatement and back pay without a
release of claims. This is not a failure to negotiate in
good faith but is merely a failure to make Ruud a
satisfactory offer, which is not the same thing as
[PAGE 83]
retaliation. The failure to make such an offer can be
distinguished from the withdrawal of the already-made offer,
which incontext I have found to have
constituted a retaliatory act.
F. Retaliation against Complainant at the Savannah
River site. Ruud argues that, through its sister company,
Westinghouse Savannah River Co. ("WSRC"), and through its
former general counsel, WHC continued to retaliate against
Complainant when he was at WSRC working for a contractor in
a subsequent job. I agree with Ruud on this point. The
corporate connection between WHC and WSRC is close enough to
attribute the actions of one corporation to the other for
purposes of whistleblower protection. WSRC and WHC are both
wholly owned subsidiaries of Westinghouse Electric
Corporation (CX 135 at 19, 23). In addition, important
principals in this case have been top executives at all
three corporations (e.g., Anderson (CX 135 at 15-6);
Wise (Tr. 678-9); and McCormack (CX 149 at 34)). Respondent
does not seriously contest this point in its brief.
The Secretary has held that whistleblower protection
extends to former employees as well as to present ones.
Cowen v. Bechtel Construction, Inc., 87 ERA 29
(Secretary, August 9, 1989); Flanagan v. Bechtel Power
Corp., 81 ERA 7 (Secretary, June 27, 1986). See
also DuJardin, supra, 93 TSC 3 at 6-7.
Next, I find that there were at least two acts of
retaliation against Ruud at WSRC that are attributable to
his whistleblowing activities at WHC. First, Complainant
was prohibited from performing his duties training DOE
personnel at the Savannah River site shortly after
management there received copies of newspaper articles
telling of Ruud's presence at WSRC and remarking on his past
whistleblowing activities (CX 149 at 152). This action
against Ruud was taken because of his whistleblowing
activities at WHC (Tr. 300; CX 148 at 126, 180, 185; CX 150A
at 32-3, 39, 46-9 and appendix, p. 000010). No other reason
has been suggested.
Secondly, Complainant was summarily removed from the
premises at WSRC under threat of force (he was given five
minutes to get off the premises on orders by Wise, the
General Counsel of WSRC, who had been General Counsel at WHC
at the time of Ruud's whistleblowing activities there (Tr.
[PAGE 84]
302; CX 149 at 208)). Wise's denial of culpability (Tr.
703-4) is not believable in light of the testimony of Ruud
(Tr. 302) Wiedrich (CX 148 at 52-3), and Grotyohann (CX 150A
at 39, 61-2) that the order probably came from Wise in
retaliation for Ruud's previous whistleblowing activities at
WHC.[11] The reason given for his expulsion (CX 149 at
204-5) was, in my view, transparently pretextual, because of
the flimsiness of the "reason" and because of the animus
that Wise and Jacobi harbored against Ruud - animus that was
remarked on by several people (CX 148 at 33, 171-3; CX 150A
at 28, 32-3, 39, 62 and appendix, p. 000010).[12]
In fact, Respondent does not contend in its brief that
Ruud was not retaliated against at WSRC for whistleblowing
activities at WHC.
G. Illegal surveillance. Complainant argues that he
was the victim of illegal surveillance conducted of him
while he was employed at the Hanford facility. However, I
find that the circumstantial evidence of the occurrence of
this surveillance is weak and, thus, the allegation is
unproved. The evidence demonstrates only that WHC had a
motive to conduct surveillance and possibly the opportunity
to have done so. However, there is no direct evidence of
record that any such surveillance ever occurred (See CX 147;
Tr. 579-89).[13] Indeed, Ruud himself appeared unsure of
whether his phone was ever wiretapped (Tr. 295; 447-9).
* * * *
WHC argues that Ruud's claims concerning harassment by
McGillicuddy and WHC's failure to give him the N-Reactor
position are untimely because complaints were not filed
within 30 days of the date of the violation as provided in
29 C.F.R. 24.3(b). As I found in my April 12, 1995 order,
the date of Ruud's complaint was February 28, 1988.
According to the statutes under which Complainant's
claim has viability, Ruud indeed had thirty days from the
date of the alleged violation to file a complaint with the
Department of Labor. 42 U.S.C. 7922(b)(1); 42 U.S.C.
9610(b). Respondent concedes that Complainant's claim was
timely as to the denial of the quality engineer position in
February 1988 because he received the notice of the layoff
on January 29 of that year (RX 60 at 1125). However, WHC
[PAGE 85]
insists that the complaint is not timely as to any event
that allegedly took place before January 1988 -
i.e., McGillicuddy's harassment of Ruud
(October 1987) and Ruud's failure to obtain the N-Reactor
assignment (December 1988).
Respondent is correct in urging that the decision to
implement an adverse action, rather than the date when the
consequences are felt, marks the occurrence of the
violation. United Airlines v. Evans, 431 U.S. 553
(1977). However, I find that the complaint was timely as to
the 1987 violations under the "continuing violation rule,"
and that the continuing nature of the violation tolled the
running of the statute of limitations.
In order for an environmental whistleblower complaint
to be timely filed under a continuing violation theory, the
complainant must show a course of related discriminatory
conduct and that the complaint was filed within 30 days of
the last discriminatory act. Varnadore I at 73. In
this case, I find that WHC management engaged in a "course
of related discriminatory conduct," beginning with Ruud's
delayed promotion during the Rockwell years at BWIP (Tr.
196-8), continuing into 1987 with McGillicuddy's harassment
under WHC management and Ruud's failure to obtain the N-
Reactor assignment (December 1987) and the quality engineer
positions (January 1988). It did not end until 1991, when
Wise and Jacobi forced Ruud out of his job with a contractor
(RI TECH) at WSRC (CX 150A at 39, 46-9, 191, 193-4).
In addition, as WHC concedes, at least one
discriminatory act (the denial of the quality engineer
position in January 1988) occurred within 30 days of the
filing of the complaint (brief at 15, n. 12). Thus, I find
that the statute of limitations is tolled as to all previous
discriminatory acts.
WHC does not suggest that harassment at WSRC in 1990
and 1991 is not independently actionable despite the fact
that Complainant never attempted to amend the complaint to
include these events. Even Ruud's supplemental complaint of
August 23, 1994 did not mention the Savannah River site
harassment.
However, because a complaint had already been filed in
1988, putting Respondent on notice of Ruud's allegations of
discrimination generally, and because Respondent was clearly
on notice by the time of the hearing that Ruud intended to
[PAGE 86]
pursue the Savannah River site allegations (e.g., see
Complainant's trial brief at 19-26), there has been no
prejudice to WHC from failure to amend the complaint to note
the South Carolina violations. Also, at least until June 7,
1994, when the Secretary remanded the case for hearing, Ruud
had every reason to believe that the case had been
settled.[14]
IV. RELIEF
I have found that WHC unlawfully discriminated against
Casey Ruud in at least four significant ways: 1) harassment
by Blaine McGillicuddy; 2) failure to select Ruud for the
temporary auditor position at N-Reactor; 3) failure to
select Ruud for a temporary auditor position in December
1987; and 4) expulsion of Ruud and removal of him from
performing any duties at the Savannah River site subsequent
to his layoff at WHC.
However, because I am recommending approval of the 1988
settlement agreement, I am not recommending the award of any
relief other than what has already been paid under the
settlement agreement.
Nevertheless, in order to allow the Secretary to render
a final decision and order if he decides not to approve the
settlement, I make the following findings and conclusions
which I believe the record justifies with respect to Ruud's
entitlement to relief if the settlement is not approved.
1. Complainant would be entitled to reinstatement in
the position he held prior to layoff.
2. Ruud would be entitled to back pay from and after
1988. In this regard, I have considered the computations
proffered by the parties (See appendix A hereto). I agree
with the assumptions and computations contained in Exhibit B
to WHC's main brief. WHC's computations give Ruud average
increases through 1989 (CX 150 at 2), then assumes a
promotion to Grade 34 and would award him a 17.21% increase
to raise him to the minimum pay for that grade. From 1991
on, WHC assumes that Ruud would get average pay raises.
Complainant and Respondent assume different annual
percentage increases. I find Respondent's increases to be
more realistic. For example, I can find no basis for
Complainant's raising his hypothetical salary to mid point
in Grade 34 in 1990 but find that a raise to step 1 of that
grade is reasonable. Also, Ruud's speculation that, if
reinstated at WHC, he would be entitled to the position of
staff engineer (Tr. 305) is unexplained and unsubstantiated.
WHC's calculations exclude benefits for the period
after May 1991, allegedly because Ruud "must have had good
benefits after May 1991, when he became an employee of the
Department of Ecology and then DOE" (reply brief at 14).
Because I have no basis for determining what his benefits
if any should have been for the period 1991-5, I have not
provided for them in this hypothetical computation (the
burden of proof being Ruud's).
3. Attorneys' fees are to be decided upon separate
motion if Complainant prevails.
4. Should Respondent refuse to reinstate Complainant,
or should the Secretary find that reinstatement is not
feasible, Ruud would be entitled to front pay calculated on
the basis of his remaining expected professional life
(including fringe benefits), less the salary he would be
expected to earn in his job with the Washington State
Department of Ecology, the remainder being discounted at 4%
for its present value.
5. I find that WHC's discriminatory actions caused
Ruud some emotional distress (as he testified, without
contradiction, Tr. at 303). He would have been an
extraordinary person had he not suffered some emotional
distress through all of the travail to which he was
subjected. Unfortunately, I have no expert medical
testimony establishing the nature and the amount of this
distress, but, in part for reasons discussed at n. 8 above,
I find that Ruud's report of emotional distress is entirely
credible. Thus, I would hypothetically recommend that he be
awarded $15,000 for that distress. This figure would have
been higher had his emotional distress required that he
obtain professional help.[15]
6. Because I have found that Complainant has not shown
protected activity under the SWDA and TSCA, which are the
only environmental protection statutes to provide for
exemplary damages, I find that Ruud would not be entitled to
such damages. If I had found that exemplary damages could
be awarded, I would have awarded $12,500, which is somewhat
less than that awarded by the Administrative Law Judge in
Varnadore, supra, 95 CAA 2 at 81, a case in
which company retaliation was considerably more serious. On
a scale of zero to ten (zero representing blameless non-
discriminatory conduct and ten representing the most
execrable discriminatory conduct), I would place WHC's
conduct toward Ruud at about 4.5, whereas I would rate that
in Varnadore at about 7.0. WHC's conduct was bad
enough to justify some exemplary damages but not an
astronomical amount.[16]
As can be seen from appendix A to this recommended
decision and order, I find that Complainant would be
entitled to $98,236.82 in lost wages, from which the amount
paid under the settlement ($115,000) should be deducted. To
this should be added $15,000 for mental distress, giving
Complainant a hypothetical award of ,763.18 less than he
received under the settlement. If exemplary damages were
allowed, this figure would be augmented by $12,500.
VI. RECOMMENDED ORDER
IT IS RECOMMENDED that the proposed settlement
agreement (CX 60) be approved.
FLETCHER E. CAMPBELL, JR.
ADMINISTRATIVE LAW JUDGE
FEC/lfrl
Newport News, Virginia
[ENDNOTES]
[1] The following abbreviations are used throughout this
Recommended Decision and Order:
CX - Complainant's exhibits
RX - Respondent's exhibits
Tr. - Transcript of the hearing
[2] In a previous order, I incorrectly designated this deposition
CX 150, an already used exhibit number. I am here redesignating
Grotyohann's deposition as CX 150A.
[3] When Complainant was laid off, he was earning approximately
$35,000 per year. Ruud executed the settlement agreement five
months after he was laid off, and five months of back pay would
roughly be $14,600.
[4] Gillilan v. Tennessee Valley Authority, 89 ERA 40
(Secretary, April 12, 1995)is not on point to the contrary
because, in that case, the agreement stated that it would be null
and void if it could not be reviewed incamera and
kept under seal. Similarly, the settlement agreement in Brown
v. Holmes & Narver, 20 ERA 26 (Secretary, May 11, 1994), had
a much more rigid and expansive confidentiality clause that
forbad the parties from disclosing "all matters arising or
relating to" the settlement. I note that the Secretary approved
the settlement in Brown, supra, finding the
offending confidentiality provision to be severable. However, on
the severability question, seeMacktal v. Secretary of
Labor, 923 F.2d 1150 (5th Cir. 1991).
[5] The Secretary has construed a confidentiality term as not
restricting any disclosure required by law, including disclosure
to the Secretary for approval of a settlement. See,
e.g., Green v. Management Analysis Co., 94 TSC 9,
95 TSC 1 (Secretary, June 20, 1995); Bragg v. Houston Lighting
and Power Co., 94 ERA 38 (Secretary, June 19, 1995); Ing
v. Gerry L. Pettis Veterans Affairs Medical Center, 95 ERA 6
(Secretary, May 9, 1995).
[6] The courts have broadly interpreted this and other
whistleblower protection statutes to cover almost any
whistleblowing activity whose intent is to carry out the purposes
of the statutes. See, e.g., Passaic Valley
Sewage Com'rs v. U.S. Department of Labor, 992 F. 2d 474 (3d
Cir. 1993), in which the court held that even ill-formed
intracorporate complaints were protected under the CWA.
[7] However, I do find that the actions of holdover managers such
as Blaine McGillicuddy while they worked for Rockwell are
admissible to show a pattern of retaliation and discrimination.
Further, they help prove a continuing violation within the
meaning of Varnadore I.
[8] Respondent attacks Casey Ruud's credibility (brief at 1-7).
WHC's exhaustive litany of alleged inconsistencies with the
record serves only to establish how truthful Ruud really was.
All that Respondent has done is establish that Rudd is not a
totally objective person and thus not super human. After
observing and listening to Rudd during a four-day hearing, I
have concluded that he is what he seems to be - a concerned
person who is willing to risk his career and livelihood to report
serious environmental and safety problems. I found his testimony
to be quite truthful and more objective than most in his position
would have been.
[9] I accept WHC's argument that Ruud's criticism of Gelman was
not as stinging as Ruud has implied. See WHC reply brief
at 3-4.
[10] See, e.g., his resistance to a stop-work order after
presentation of an alarming audit during the Rockwell days at
BWIP (Tr. 86-9).
[11] Indeed, a WSRC manager, James Bush, was reprimanded
(albeit quite gently and he was subsequently promoted) by
the company for his retaliatory actions against another
whistleblower, James Simkin (CX 135 at 64; CX 145 at 23; CX
83). I find that the retaliation against Simkin is evidence
of a pattern of corporate misconduct at WSRC against
whistleblowers such as Simkin and Ruud (CX 149 at 174; CX
138 at 63, 72; Tr. 610).
[12] The pretext was, "there was a problem with us hiring somebody
on contract and then sending them to do DOE's work" (CX 149 at
205). Further, Ruud's badge had expired (Id. at 208).
These are insufficient reasons to have Ruud expelled from the
premises under guard.
[13] Ruud cited one Gary Leckvold, who was quoted in a newspaper
article to the effect that Ruud had been wiretapped (Tr. at 294),
but I regard this double hearsay as unreliable, and Complainant's
brief does not even mention it.
[14] Even if failure to amend the complaint means that the
Savannah River site events cannot be considered independently
actionable, they are evidence of Westinghouse animus. My
hypothetical award of damages would be the same either way.
[15] In Varnadore v. Oak Ridge national Laboratories, 95
CAA 2 (ALJ, June 27, 1993), the Administrative Law Judge awarded
$10,000 in compensation damages for emotional distress (slip op.
at 80-1). In doing so he noted the difficulty of placing a
dollar value on psychological harm. In Varnadore, unlike
in the instant case Complainant presented expert psychiatric
testimony supporting his claim. However, because the stress that
Ruud was subjected to lasted longer than did that which Varnadore
endured, and because Ruud's stress was compounded when he
actually lost his job at RI TECH because of retaliatory conduct,
I am hypothetically recommending slightly more in compensation
for emotional distress than did the Administrative Law Judge in
Varnadore.
[16] Initially, Respondent argued that Complainant should have
any back pay award limited to an amount which he would have
received had he been employed from February 29, 1988 to August
15, 1988. The reason Respondent gives for such a limitation is
Ruud's alleged responsibility for the seven-year delay in the
matter coming to hearing. I find that there is no evidence on
the record placing the sole blame on Casey Ruud for the hearing
being delayed. Indeed, if anything, the blame belongs on WHC
because of its excessive concern about nondisclosure.
