On March 26, 1998, Mark A. Graf ("Complainant") filed a complaint of retaliation against Wackenhut Services L.L.C. ("Respondent"), a subcontractor at the Rocky Flats Environmental Technology Site ("RFETS") in Golden, Colorado. RFETS is run by the Kaiser-Hill L.L.C. for the U.S. Department of Energy ("DOE"). The Occupational Health and Safety Administration, U.S. Department of Labor, conducted an investigation and determined that the complaint had merit. (CX-134.) Respondent appeals the findings and remedies proposed by David W. Decker, Regional Supervisory Investigator, of the Occupational Health and Safety Administration, as set forth in a letter dated June 30, 1998. (See CX-134.)

   On March 26, 1998, Complainant, Mark A. Graf, filed a complaint with the U.S. Department of Labor alleging that Respondent, Wackenhut Services, L.L.C., took a series of adverse employment actions in 1997 and 1998, in retaliation for engaging in activities protected under the Act. On April 1, 1999, Complainant filed a prehearing brief alleging that Respondent engaged in additional retaliatory actions spanning back to 1995 and 1996.

   Rocky Flats Environmental Technology Site is owned and operated by the U.S. Department of Energy. As a result of a joint decision by Congress and the DOE, RFETS is scheduled to close in approximately 2006. Kaiser-Hill L.L.C. has contracted with the DOE to provide the site management services, including the integration of security and closure procedures. Respondent has subcontracted with Kaiser-Hill to provide site security services. Worldwide Security holds the subcontract for protecting classified information at the site.

   In early 1995, Complainant was one of two Central Alarm Station lieutenants that was assigned administrative and operational duties. The other lieutenant was Michael T. Angelo. In this capacity, their primary responsibilities were carried out during a five-day work week. Additionally, they shared the responsibility of providing relief for shift supervisors that were assigned to the twelve-hour shifts. Due to a reduction-in-force, Mr. Angelo was assigned to backfill a shift supervisor vacancy in approximately September 1995. As such, Complainant became the only shift relief lieutenant.

   In the spring of 1996, Complainant participated in a joint investigation conducted by the DOE and the OPM concerning Mr. Peters' whistleblower complaint. Complainant also expressed his site safety concerns to the Defense Nuclear Facilities Safety Board in September 1996 and February 1997. Furthermore, Complainant's concerns were reviewed by the General Downing Committee on behalf of Kaiser-Hill, and the Mollar Group. All of these investigations were completed prior to Complainant's communication with the news media.

   In April 1997, Michael M. Cosgrove become Respondent's senior vice president and general manager, replacing Mr. Gillison. At this time, major enhancements were made to security program areas that were considered to be at risk. In May 1997, Complainant was interviewed by a Denver Post reporter about his site safety and security concerns. On May 20, 1997, the Denver Post published an article wherein Complainant and Mr. Cosgrove were quoted. Shortly thereafter, Mr. Cosgrove held a series of "all-hands meetings" in which he explained that all employees were expected to abide by the existing site policies and procedures and that said procedures would be enforced.

   In September or October 1997, Complainant met with CBS News representatives concerning site safety and security issues. Complainant disclosed potentially classified information to CBS News representatives and to Mr. Peters. During this time, Mr. Cosgrove was also participating in interviews with CBS News representatives.

   On or about October 28, 1997, Mr. Cosgrove became aware of Complainant's participation in the CBS News team investigation when he read a CBS News press release attributing information to Complainant. On November 6, 1997, Mr. Cosgrove asked Complainant to respond to questions concerning his compliance with the classification review policy procedures prior to disclosing information to CBS News. In a written response, Complainant conceded that he had not asked Worldwide Security's Classification Office to perform the requisite classification review. The CBS News report was aired on November 24 and 25, 1997.

   In late November or early December 1997, Mr. Cosgrove initiated an administrative investigation into whether Complainant had released classified, sensitive, or proprietary information to the news media. On December 17, 1997, the manager of the Classification Office issued a "White Paper" concerning the freedom of speech. In late January 1998, Respondent's internal investigators informed Mr. Cosgrove that Complainant had refused to answer questions pertaining to the content of his disclosures. Hence, Mr. Cosgrove held a second meeting with Complainant on January 28, 1998. At this time, Mr. Cosgrove personally requested that Complainant answer the questions and explained that the answers would not be used against him in any type of criminal proceeding. He further explained that Complainant's failure to answer the questions could lead to disciplinary action, including termination. Complainant responded by providing detailed information in writing. In addition, Complainant agreed to voluntarily participate in the Employee Assistance Program.

   Based on the parties' opening statements, as well as their proposed decisions and orders, it is apparent that the following issues require resolution herein:

1. Whether Complainant has proved by a preponderance of the evidence that Respondent retaliated against him for engaging in activities protected by the ERA.

2.If Complainant has proved by a preponderance of the evidence that Respondent's decisions were based, at least in part, on impermissible motives, whether Respondent proved by clear and convincing evidence that it would have taken the same actions in the absence of the protected activity.

   At the formal hearing, Complainant elicited testimony from the following witnesses: William Armijo, Gail L. Bange, Steven L. Cunningham, William R. Gillison, Denise A. Graf, Mark A. Graf, Marcy A. Nicks, Jeffrey B. Peters, David E. Ridenour, and James A. Vissar. In addition, Respondent called the following witnesses: Michael T. Angelo, Michael M. Cosgrove, Ronald Leach, and Bryan Siebert. Respondent also recalled Ms. Bange. Complainant's Exhibits 1-147 and Respondent's Exhibits A-M were also admitted into evidence. The relevant portions of the record are summarized herein.

1. General Employment History at RFETS

   Complainant is currently employed by Respondent as an alarm station supervisor and earns a salary of approximately $71,000. (Tr. at 555.)

2. Educational Background

   Complainant is a high school graduate with approximately one year of college education. (Tr. at 650.) During 1979, 1982 or 1983, and 1989, he attended three different colleges or universities where he enrolled in courses toward a degree in electrical engineering. (Tr. at 650- 51.)

   Prior to his employment at RFETS, Complainant was employed at Empire Welding. (Tr. at 650-51.) Complainant has never held a security position outside RFETS and has never been employed at another secured facility. (Tr. at 653-54.)

3. Security Training, Clearance, and Certification

4. Classification Policies and Procedures

    a. Levels of Restricted Data

   Complainant described the different levels of restricted data. (Tr. at 566-69.) "Unclassified controlled nuclear information" ("UCNI") is information that may be shared with noncleared personnel, provided that said personnel understand its dissemination requirements. (Tr. at 566.) "Secret restricted data" may only be shared with persons having "Q" level security clearances. (Tr. at 568.) "Formally restricted data" is predominately weapons design information which Complainant is not authorized to review. (Tr. at 568-69.) "Confidential information" may be accessed by individuals with limited security clearances. (Tr. at 569.) The final category was identified as "national security information." (Tr. at 569.)

5. Classification Review Policy

    a. EG&G Policy No. 2-9

   Complainant identified Respondent's Exhibit B as EG&G Rocky Flats, Inc. Policy No. 2-9, which became effective on September 30, 1992. (Tr. at 658, 661. See also RX-B; CX-40.) Complainant received a copy of this policy during the course of his employment at RFETS, and produced a copy of this policy during the course of discovery in this matter. (Tr. at 658-61.) Complainant was unable to testify about whether said policy had been changed or canceled after Respondent assumed the security subcontract, and conceded that he did not make any inquiries in this regard. (Tr. at 662-64.)

   Likewise, Complainant identified Complainant's Exhibit 8 as the EG&G Classification and UCNI Fact Sheet that he produced during discovery. (Tr. at 665-66. See also CX-8.) Complainant testified that, to his knowledge, the policy requiring that "[d]ocuments for [p]ublic [r]elease must be reviewed by the Classification Office staff" has not changed or been canceled. (Tr. at 666. See also CX-8, p. 4.)

    b. Kaiser-Hill Directive CAHW-001-96

   On cross-examination, Complainant was questioned about "Kaiser-Hill Directive CAHW-001-96," which became effective on March 28, 1996. (Tr. at 666. See also CX-80.) This policy applies to information released to persons not employed by Kaiser- Hill or a Kaiser-Hill subcontractor. (Tr. at 667-68.) To his knowledge, this policy has not been changed or canceled. (Tr. at 667-68.) He also understands that this Directive prohibits him from serving in a classification capacity during arbitrations, depositions, and trials. (Tr. at 676.)

   Complainant conceded that CBS News is not part of the "Kaiser-Hill Team" as referenced in this document. (Tr. at 667.) Nonetheless, Complainant testified that he did not see this Directive until after the CBS broadcast. (Tr. at 668.) Nevertheless, Complainant was informed during ADC training that he was not authorized to approve information for public release. (Tr. at 668.)

   In 1991, Complainant was under the impression that an ADC could review his own work product for classification. (Tr. at 767.) He reportedly engaged in "numerous self-reviews," including deposition and arbitration testimony discussed hereinafter. (Tr. at 767-68.) According to Complainant, the only written "documents" that he generated, reviewed, and released to the public were the letters to Congressman Skaggs and the letter to the Defense Nuclear Facility Safety Board ("DNFSB"). (Tr. at 768.)

    c. DOE Order No. 5650.2B

   Complainant concedes that at the time he made disclosures to CBS News, he was aware of the policy requiring employees to go through the Contractor Classification Office before releasing information to the media. (Tr. at 620, 646.) Nonetheless, Complainant did not go through the Classification Office prior to disclosing information to the media. (Tr. at 674.) He defends his actions on the ground that said policy was not being enforced against him. (Tr. at 646.) Complainant testified that he did not make inquiries as to whether the classification review policy was being enforced against others. (Tr. at 648.)

       (2) Congress

   Likewise, Complainant concedes that he was aware of the policy requiring employees to go through the Contractor Classification Office at the time he disclosed information to Congress. (Tr. at 619.) Again, he defends his actions on the ground that said policy was not being enforced against him. (Tr. at 619.)

       (3) Meetings with Mr. Cosgrove

   Complainant conceded that he never told Mr. Cosgrove that the classification review policy had not been enforced against him in the past. (Tr. at 648-49.) Rather, he told Mr. Cosgrove that he believed that he was authorized to approve information for public release in his capacity as an ADC. (Tr. at 648.) He also told Mr. Cosgrove that he refused to go through classification review in the future. (Tr. at 649.)

    e. Depositions and Arbitration

   Complainant testified that his authority to conduct classification reviews of information intended for public release stems from Respondent's practice of sending him to depositions and arbitrations. (Tr. at 669-70.) He explained that he did not see any difference between testifying at a deposition or arbitration and disclosing information to the media. (Tr. at 674.)

    f. All-Hands Meeting

   In April 1997, Mr. Cosgrove became Respondent's general manager. (Tr. at 657.) Mr. Cosgrove held several "all-hands" meetings in May or June 1997. (Tr. at 656- 57.) Complainant attended an all-hands meeting after the Denver Post article was published on May 20, 1997. (Tr. at 656-57.) At the meeting, Mr. Cosgrove announced that the site rules and procedures were going to be enforced and complied with. (Tr. at 656.) Complainant made no inquiries as to whether the classification review policies were going to be enforced. (Tr. at 657- 58.)

    g. Peters Audiotapes

   Complainant was questioned about Complainant's Exhibit 3, which was identified as an index of the tape recorded conversations that Complainant produced during discovery. (Tr. at 663.) He testified that there appears to be over 100 different conversations on the audiotapes. (Tr. at 664.) There are no tape recorded conversations pertaining to whether Complainant was required to go through the Contractor Classification Office before disclosing information to the media. (Tr. at 665.)

   For example, he recently sought classification review of information that he intended to disclose to the public. (Tr. at 647.) According to Complainant, he was informed that an accurate classification review could only be performed by reviewing the entire package of information that he intended to disclose. (Tr. at 647.) Since he intended to combine his information with information in Mr. Peters possession, such a review was not possible. (Tr. at 647.)

6. Security Concerns

   In 1995, Complainant became concerned about security and safety issues at RFETS. (Tr. at 565.) He recounted a 1995 incident in which a guard was removed from a classified storage area that contained an unprotected trailer. (Tr. at 565, 569.) The trailer was later discovered to contain "secret restricted data." (Tr. at 565, 569.) Complainant reported this incident to Collis Woods, manager of investigations, and Barbara Brant, a senior investigator. (Tr. at 566.) Mr. Woods and Ms. Brant determined that an investigation would not be necessary. (Tr. at 566.) Complainant disagreed with their assessment. (Tr. at 566.)

   Complainant was "very disappointed" with this conclusion. (Tr. at 592, 731.) He opined that an accurate investigation had not been conducted and that he was never contacted by Mr. Solich or Mr. Syzmanski. (Tr. at 592, 722, 731.) While he does not think they were obligated to interview him, he was told that several people had suggested that they contact him. (Tr. at 732.) Even though Complainant did not agree with all of the conclusions contained in the report, he never submitted any written comments or criticisms. (Tr. at 731.) He believed that such activity would be "ineffective." (Tr. at 731-32.)

    b. Mohler Group

   The "Mohler Group" also reviewed the security at RFETS. (Tr. at 732-33.) Complainant was aware of the Mohler Group, but he did not submit any documents or criticisms about site security to the Group. (Tr. at 733.)

    c. General Downing Committee

10. Overtime Assignments

   The reassignment impaired his ability to interface with the planning and maintenance operations. (Tr. at 585-87.) He was no longer responsible for the armory operation. (Tr. at 587.) However, he was still instructed to write some technical papers. (Tr. at 587.)

14. Congressional Aides

(Tr. at 729-30. See also RX-I at 17.) Complainant testified that when he contacted CBS News, he was hoping to make "as big a pop" as possible. (Tr. at 730.)

   On redirect, Complainant was asked about the following excerpt:

Mark Graf:   But we also want you to - you know, there - there's a feeling - Jeff is gone - long gone, now

David Adelson:   Yep.

Mark Graf:   at Rocky Flats - uh - I

David Adelson:   Jeff would have been gone anyway -

Mark Graf:   Yeah - maybe

David Adelson:   by the time he approached us.

Mark Graf:   Yeah. The - the - uh

David Adelson:   I mean, the letter sealed his fate.

(Tr. at 766. See also RX-I at 5.) Complainant testified that Mr. Abelson was referring to the letter sent to Congressman Skaggs. (Tr. at 766.)

15. Document Review for Mr. Peters

   Complainant reviewed the documents and audiotapes for classification purposes. (Tr. at 600-01.) After he had reviewed the material, Complainant contacted Steve Cunningham and received marking guidance. (Tr. at 602.) Mr. Cunningham explained that there was an ownership issue which precluded the Classification Office conducting the review. (Tr. at 602-04.)

   The Long & Jaudon letter presented Complainant with philosophical and technical problems. (Tr. at 742. See also CX-92.) He explained that even though the Classification Office was willing to review his material, such a review would be incomplete when he combined his material with Mr. Peters' material. (Tr. at 743-44.) Complainant said that he provided Mr. Cosgrove with a copy of the Long & Jaudon letter "on the day of [his] discipline". (Tr. at 744-45. See also CX-92.)

16. Ridenour Resignation Letter

   In May 1997, Ed McCallum called Mr. Peters to inquire about David Ridenour's resignation letter. (Tr. at 606.) Complainant testified that he had listened to a tape recorded conversation between Mr. Peters and Mr. McCallum, and that it had given him a sense of urgency. (Tr. at 761-63.)

17. Denver Post Article

   In September or October 1997, Complainant and Mr. Peters had several meetings with representatives from CBS Evening News. (Tr. at 620-21, 624, 683.) Complainant agreed to accompany Mr. Peters to these meetings to discuss his site security concerns and to serve as a classifier for Mr. Peters and himself. (Tr. at 621.) He had been encouraged by "our congressional representative and Ed McCallum" to garner media attention. (Tr. at 683-84.)

   Complainant was aware that the representatives from CBS News did not have security clearances. (Tr. at 683.) Nevertheless, Complainant did not go through the Classification Office prior to disclosing information to the CBS News correspondents. (Tr. at 674.) He defended his actions on the ground that the classification review policy was not being enforced against him. (Tr. at 646.)

(Tr. at 690-92. See also CX-119.) Complainant thought that he was the most qualified person to perform the classification reviews because he was a subject matter expert ("SME"). (Tr. at 692.) However, Complainant conceded that RFETS should not have a policy that allows each ADC to determine whether he believes that he is the most qualified person in the subject matter. (Tr. at 692.)

   Complainant also stated that he did not think that his conduct constituted a violation of DOE procedure, and that the following statement was an inaccurate representation of his remarks:

Graf stated no classification information was discussed and offered three reasons why he knowingly violated the procedure.

(Tr. at 690 (emphasis added). See also CX-119, 118.) When Complainant met with CBS News, he thought that he was authorized to disclose information to the media without going through the Classification Office because he was an ADC. (Tr. at 688.) He conceded that he never claimed to be asserting "the personal opinion exception" to the classification review policy. (Tr. at 688.) He was unable to recall whether or not he told Mr. Cosgrove that he thought that an exception to the classification review policy had been created because he had been sent to depositions in the past. (Tr. at 688.)

    b. Employee Assistance Program

   Complainant told Mr. Cosgrove that he was having difficulty sleeping because of his site safety and security concerns. (Tr. at 721.) He also showed a picture of his children to Mr. Cosgrove and expressed concerns about the safety of his children. (Tr. at 721.) Complainant conceded telling Mr. Cosgrove that, "If I were you, I might refer me to EAP." (Tr. at 721.) He further stated that, as a supervisor, he might have ordered a person like himself to participate in the EAP. (Tr. at 720-21.)

    c. Chain of Command

   On direct examination, Complainant was asked about the following language contained in Complainant's Exhibit 125:

I expect you to adhere to the chain of command in all issues that pertain to this company and the security of this site.

(Tr. at 627. See also CX-125.) Complainant understood this statement to mean that he could not engage in whistleblower activities unless he had previously discussed his concerns with the individuals in his chain of command. (Tr. at 627.) He thought this was an unacceptable limitation because "[i]n some cases, the time for the chain of command to react [would] take longer than the threat would allow." (Tr. at 629.)

   Complainant described his chain of command as follows: captain, major, colonel, deputy general manager, and general manager. (Tr. at 627.)

    d. Return to Work Agreement

   Ms. Bange asked Complainant if he would be willing to sign a return-to-work agreement. (Tr. at 628.) He said that he would be willing to sign an agreement provided that an additional statement, which he faxed to her, was incorporated into such an agreement. (Tr. at 628.) Ms. Bange later told Complainant that his proposed revision was unacceptable to Mr. Cosgrove, and, as such, that he would remain on paid administrative leave. (Tr. at 628.)

   On September 28, 1998, Complainant returned from paid administrative leave. (Tr. at 632.) Complainant had been on paid administrative leave for eight months. (Tr. at 718.)

19. Cartoons

24. Relief Requested

   It was later determined that a full background investigation was not necessary. (Tr. at 205.) Approximately eighteen months elapsed before Mr. Armijo's security clearance was reissued. (Tr. at 188-89.) In this interim period, Mr. Armijo worked as an unarmed security guard. (Tr. at 189.) Ultimately, Mr. Armijo received a satisfactory settlement of his whistleblower grievance. (Tr. at 190.)

   Mr. Armijo further testified that Jim Vissar and Phil Cruz contacted the media about security-related issues at RFETS. (Tr. at 191.) According to Mr. Armijo, neither Mr. Vissar nor Mr. Cruz contacted the Classification Office prior to making their disclosures. (Tr. at 193-93.)

   Mr. Cruz contacted the media in his former capacity as union vice president. (Tr. at 192.) Later, when Mr. Armijo asked Mr. Cruz whether he had gone to the Classification Office before contacting the media, Mr. Cruz denied contacting the Classification Office. (Tr. at 192.)

2. Change in Compensation Policy

   In 1994, the compensation policy for salaried sergeants, lieutenants, and captains was changed. (Tr. at 925-26.) As a result, salaried protective force supervisors no longer qualified for overtime compensation or "comp time" based on the number of hours that they worked. (Tr. at 926-27.)

3. December 1995

   According to Ms. Bange, Mr. Walsh wrote a letter to Mr. Gillison informing him that Complainant allegedly complained to Mr. Peters about the number of hours he had been assigned and that he thought he was being discriminated against. (Tr. at 927.) Upon receipt of the letter, Mr. Gillison asked Mr. Walsh to meet with Complainant and resolve the issue. (Tr. at 928.) Mr. Gillison sent a copy of his response to Ms. Bange. (Tr. at 928.) He included a handwritten note in which he asked her to facilitate the meeting and send a representative from the Human Resources Department. (Tr. at 928.) Barbara Airsman, a Human Resources employee, attended the meeting and reported that the parties appeared to have an amicable relationship and that Human Resource intervention was not needed. (Tr. at 929.) No further complaints or problems were brought to the attention of the Human Resources Department until Complainant filed the above-entitled action. (Tr. at 929.)

4. Mr. Cosgrove

   Mr. Cosgrove became Respondent's general manager in April 1997. (Tr. at 947.) Ms. Bange opined that he has a different management style than Mr. Gillison. (Tr. at 947-48.) She explained that Mr. Cosgrove places greater emphasis on the rules, the regulations, and the accountability of management. (Tr. at 948.) Within the first few days on the job, Mr. Cosgrove met with all of the employees that reported directly to him. (Tr. at 948-49.) During that meeting, he discussed his management style and philosophy. He also explained that once a final decision was made it should be followed, unless it was illegal, unethical, or immoral. (Tr. at 949.)

   Mr. Cosgrove also held "all-hands meetings" with the salaried and hourly employees. (Tr. at 949-50.) At these meetings, Mr. Cosgrove emphasized the importance of following the company's rules, regulations, and policies, and explained that the employees would be held accountable for their actions. (Tr. at 950-51.)

5. Disciplinary Action Taken Against Complainant

   Complainant's Exhibit 120 was identified as Ms. Bange's typed notes of the meeting between Mr. Cosgrove, Complainant, Larry Barela, and herself on January 28, 1998. (Tr. at 951-53, 965-66; CX-120.) Similarly, Complainant's Exhibit 112 was identified as Ms. Bange's typed notes of the meeting between Mr. Cosgrove, Complainant, Bud Isom, and herself on November 6, 1997. (Tr. at 953-54, 965-66; CX-112.) Ms. Bange also participated in the meetings concerning the proposed "Return to Work Agreement." (Tr. at 956.) Mr. Cosgrove appeared somewhat concerned that Complainant had not exhausted the internal remedies before publicly disclosing his security concerns. (Tr. at 967-68.)

   At these meetings, Complainant did not defend his actions on the ground that the classification review policy was not being enforced at RFETS. (Tr. at 954-55.) Rather, Complainant defended his actions on the ground that he was an ADC and that ADC's were not required to go through the Classification Office before making public disclosures. (Tr. at 955.) According to Ms. Bange, Mr. Cosgrove disagreed with this assertion. (Tr. at 955.) The proposed Return to Work Agreement contained a condition requiring Complainant to obtain a review from the Contractor Classification Office before publicly releasing information in the future. (Tr. at 956.) Complainant refused to abide by this condition. (Tr. at 956.) Until Monday, April 5, 1999, Complainant apparently took the position that he had a right to disclose information to the media without going through the Classification Office. (Tr. at 957.)

   The Human Resources Department is responsible for overseeing the check-out procedures for individuals leaving Respondent's employment. (Tr. at 1402-03.) Ms. Bange testified about some of the procedures that were in place when Mr. Peters left his employment in June 1996. (Tr. at 1403-04.) She explained that individuals leaving their employment were required, among other things, to participate in a security debriefing conducted by the Security Department. (Tr. at 1403.) At that time, such individuals were asked to sign documents stating that they had turned over all government documents and materials, and agreeing that they would not disclose any classified information. (Tr. at 1403-04.)

8. Marilyn Mulhall

9. Gary Cupp

   Mr. Cupp was considered to be a whistleblower. (Tr. at 968.) Complainant's Exhibit 108 was identified as Ms. Bange's typed notes of the meeting between Mr. Cosgrove, Gary Cupp, Bud Isom, and herself on October 22, 1997. (Tr. at 968; CX-108.) Therein, Mr. Cosgrove tried to dissuade Mr. Cupp from continuing his internal letter writing campaign to Respondent's employees. (Tr. at 969; CX-108.) Mr. Cosgrove further remarked,

Well, your letter to DOE was a means to intimidate me wasn't it? You could have come to any one of us with your concerns. I am not saying you can't utilize the Whistle blower Program. But you owe it to us to try to work these issues [out] before you go to DOE.

(Tr. at 970; CX-108 at MG2713.)

10. Liaison to Respondent's Attorneys

   Ms. Bange served as Respondent's corporate representative throughout the discovery phase of this matter. (Tr. at 869.) On February 11, 1997, Ms. Bange posted an employee bulletin requesting that all future document and deposition requests be referred to the Human Resources Department. (Tr. at 892-96; CX-93.)

   Steven L. Cunningham is the manager of the Contractor Classification Office. (Tr. at 850.) His direct supervisor for classification matters is Mr. Hoffman, the DOE manager at the site. (Tr. at 852.) For other matters, his chain of command runs through the managers at Worldwide Security, Respondent, and Kaiser-Hill. (Tr. at 852.)

1. Contractor Classification Office

   The Contractor Classification Office provides classification guidance and seeks to avoid the inadvertent release of classified information. (Tr. at 843-44.) This office provides briefings for individuals that intend to make public disclosures of potentially classified information. (Tr. at 834, 836, 843.) Such a briefing takes anywhere from a few minutes to a half-hour. (Tr. at 834, 836, 843.) The length and nature of the briefing will depend on the subject area to be discussed. (Tr. at 836, 841, 843.) It is not necessary to conduct such a briefing when a trained classification officer will be present during the interview. (Tr. at 838.)

2. EG&G Policy No. 2-9

   EG&G Policy No. 2-9 was in effect until 1995, when EG&G's contract was terminated. (Tr. at 846.) Hence, this policy was not in effect in late 1997. (Tr. at 846.) Nevertheless, Mr. Cunningham testified that he was informally following this policy from the date of its expiration to the date of the "white paper." (Tr. at 850-51, 855.)

3. "White Paper"

   Complainant's Exhibit 117 was identified as a "white paper" written by Mr. Cunningham on or about December 17, 1997. (Tr. at 851, 866; CX-117.) The defense industry uses the term "white paper" to describe a position paper that is offered for the sole purpose of facilitating a discussion. (Tr. at 858, 860.) It is neither a policy nor a directive. (Tr. at 861.)

    a. CBS Evening News

   Mr. Cunningham testified that no classified information was contained on "the CBS tapes." (Tr. at 840.) However, Complainant was speaking about "Category II" or "Category III" information. (Tr. at 854. See also CX-20; RX-A.)

   Mr. Cunningham was interviewed by Respondent's internal investigators as to whether Complainant had violated policies or procedures in connection with the CBS News release. (Tr. at 852.) He told the investigators that Complainant erred by speaking to the media in an official capacity. (Tr. at 853.) He testified that if someone identified himself as "Lieutenant Graf," he would be speaking officially. (Tr. at 856.) However, Mr. Cunningham conceded that he does not know whether Complainant portrayed himself as a lieutenant to the media or whether he was cast into that role by the media. (Tr. at 865-66.)

   According to Mr. Cunningham, if Complainant intended to grant an interview to CBS News about security and guard training at RFETS, he needed to go through the Classification Office before making such a disclosure. (Tr. at 864.) He opined that it would be difficult for Complainant to have a "personal opinion" about security and guard training issues because Complainant is a subject matter expert ("SME") in the area of safeguards and security. (Tr. at 862-63. See also Tr. at 842.) He explained that:

[I]t's for a person to have a personal opinion . . . about a subject matter in which they're considered an expert. The value added by their experience, their background, [and] their training [] tends to make their personal opinion an educated opinion. It has value added and my understanding of a personal opinion is someone offering their personal views about a subject in which they're not an expert.

(Tr. at 863.) However, Mr. Cunningham conceded that subject matter experts were not dealt with separately in this white paper. (Tr. at 865.)

1. Education and Employment History

   William R. Gillison has a bachelor's degree in criminal justice from Eastern Kentucky University, and a master's degree in criminal justice from Webster University. (Tr. at 1108.) He served in the United States Army for over twenty-one years where he was involved in the command and control of nuclear forces. (Tr. at 1108.) He also spent a portion of his military career engaged in nuclear security. (Tr. at 1109.) Subsequent to his retirement as a lieutenant colonel, he joined the Tennessee Valley Authority where he was responsible for nuclear power plant security. (Tr. at 1109.)

   Mr. Gillison began working at RFETS in January 1990, as EG&G's manager of protective force operations. (Tr. at 993, 1109.) He became Respondent's general manager on April 13, 1992. (Tr. at 993.) He left his employment at RFETS prior to the CBS News broadcast of November 1997. (Tr. at 1113.) Mr. Gillison is currently the manager of security training and customer service at the Nonproliferation and National Security Institute in Albuquerque, New Mexico. (Tr. at 1018-19.)

   As general manager, he reported to Respondent's President Jim Long. (Tr. at 1021-22.) Mr. Gillison considered himself to be a very good manager. (Tr. at 1021-22.) He also opined that he was a political manager. (Tr. at 1022.) Mr. Gillison explained that there were occasions when the DOE and Kaiser-Hill required things to be done for expedience's sake, without regard to what their orders prescribed. (Tr. at 1023.) He was concerned that Kaiser-Hill did not always rely upon the expertise of Respondent's security professionals. (Tr. at 1077.)

2. Whistleblowers

   Mr. Gillison does not consider whistleblowers to be disloyal employees. (Tr. at 1035-36.) He believes that employees should be able to come forward with their concerns without fear of retaliation. (Tr. at 1035.) Nevertheless, he opined that some employees abuse the whistleblower program when they are disciplined for other reasons. (Tr. at 1035-36, 1039.) He further opined that management should be given a reasonable opportunity to resolve internal problems before involving outside entities. (Tr. at 1035-36, 1038.)

    a. Jo-Marie Lisa

   Jo-Marie Lisa was identified as a whistleblower and was ultimately terminated by Mr. Gillison. (Tr. at 1023.) He became aware of her whistleblower status after she had been terminated. (Tr. at 1023.)

    c. Mr. Armijo

   Mr. Armijo was identified as a whistleblower and was terminated by Mr. Gillison's predecessor. (Tr. at 1026.) Mr. Gillison became involved in a controversy arising under Mr. Armijo's employment screening. (Tr. at 1028-29.) Allegations had been made that Mr. Armijo was engaged in the sale of government equipment from his home. (Tr. at 1029, 1032-33.) However, these allegations were later determined to be unsubstantiated. (Tr. at 1028, 1033-34; CX-41.) When Mr. Gillison left his position as general manager, Mr. Armijo was still employed by Respondent. (Tr. at 1029.)

    d. Jeffrey B. Peters

   During Mr. Gillison's tenure at RFETS, Mr. Peters served as director of protective force operations and director of training. (Tr. at 996.) Mr. Gillison considered Mr. Peters to be trustworthy. (Tr. at 996.) He further opined that "for the most part, [Mr. Peters] did a very good job." (Tr. at 996-97.) Mr. Gillison explained that Mr. Peters chose to conduct himself in the way he thought was best, which was not necessarily in accordance with what the corporation would have wanted him to do. (Tr. at 997-98.) He recounted the following example:

3. Classification

   From 1992 to 1995, Mr. Cunningham was employed by EG&G and had a "Q" clearance. (Tr. at 1009.) During that time, Mr. Gillison would typically contact the DOE if he had classification questions. (Tr. at 1009.) In approximately July 1995, Mr. Cunningham became an employee of Worldwide Security. (Tr. at 1009-10.) From that point on, Mr. Gillison relied on Mr. Cunningham for classification guidance. (Tr. at 1010.)

   Mr. Gillison testified that he would generally contact the Classification Office for specific guidance before communicating with the media. (Tr. at 1010.) He understood that he was supposed to go through the Classification Office before making official representations to the media. (Tr. at 1011.) Mr. Gillison conceded that he did not follow the classification review procedure on one isolated occasion. (Tr. at 1010-12.)

4. Complainant's Whistleblower Activities

   Mr. Gillison opined that Complainant was a good worker. Complainant was extremely knowledgeable about the RFETS alarm system, and served as chairman of the Alarm Station Working Group for a period of time. (Tr. at 1053-54.) In 1996, Mr. Gillison considered Complainant to possess the greatest expertise in the site alarm system technology. (Tr. at 1073.)

   Mr. Gillison was aware that Mr. Peters and Complainant wrote a letter to Congressman Skaggs dated December 8, 1995. (Tr. at 1054-55.) He opined that they had legitimate security concerns. (Tr. at 1082-87, 1090-1101.)

   In February 1996, Mr. Peters and Complainant created a classified document discussing their concerns and made said document available to Mr. Gillison. (Tr. at 1055, 1130-31.) He reviewed the classified document which set forth their security concerns in great detail. (Tr. at 1059, 1064.) He decided not to discuss the security concerns with them in person because he was in the process of disciplining Mr. Peters for disobeying a public order. (Tr. at 1059-60.) Rather, he assigned a Blue Ribbon Panel to evaluate the concerns set forth in the letter to Congressman Skaggs and the classified document. (Tr. at 1061, 1131-33.) The Blue Ribbon Panel consisted of the chief of security plans, a captain of protective force operations, and a manager of security support operations. (Tr. at 1063.) Mr. Gillison opined that these individuals were better equipped to assess the validity of the security concerns than he was. (Tr. at 1063, 1131-32, 1156-58.)

   In the spring of 1996, Complainant and Mr. Gillison had a meeting to discuss their working relationship. (Tr. at 1055-56, 1134.) Complainant also conveyed his sincerity about the security concerns articulated in the classified document. (Tr. at 1056-57.) Although he was upset that Complainant "did not trust him to present his concerns," Mr. Gillison testified that he "felt no animus toward [Complainant]." (Tr. at 1057, 1064.) Mr. Gillison testified that he never retaliated against Complainant for this conversation. (Tr. at 1136.)

   Denise A. Graf has been married to Complainant for seventeen years. (Tr. at 933.) They have three children aged fifteen, twelve, and three. (Tr. at 933.) Complainant has been employed at RFETS during their entire marriage. (Tr. at 934.)

   Prior to December 1995, they had a "normal marriage" with its "ups and downs." (Tr. at 934.) Complainant spent his free time with his family or at the airport. (Tr. at 934.) She opined that the most important things in his life are his family and his airplane. (Tr. at 939.)

   Approximately five years ago, Complainant built the airplane with his father and learned to fly. (Tr. at 942.) Complainant spent time away from the children when he was learning to fly. (Tr. at 943.) Since receiving his pilot's license, Complainant's children have occasionally accompanied him on flights. (Tr. at 943.) Flying gives him a chance to relax. (Tr. at 935, 943.) He continues to fly "occasionally." (Tr. at 943.)

   According to Mrs. Graf, Complainant became "grumpier" after December 1995. (Tr. at 935.) She further opined that he became "a lot grumpier" after he was placed on administrative leave. (Tr. at 935.) The quality of their home life varied while Complainant was on paid administrative leave. (Tr. at 935-36.) She enjoyed spending more time with him. (Tr. at 936.) He was also able to spend more time with the children. (Tr. at 936.) Complainant has a good relationship with his children. (Tr. at 935.) Nevertheless, Mrs. Graf testified that the children have become less inclined to discuss their problems with him. (Tr. at 940.)

   Since he returned to work, he does not spend as such time with his children. (Tr. at 940.) He also spends time working at home on this case. (Tr. at 940.) This case also limited the amount of time he could spend with two friends that recently died. (Tr. at 941.)

1. General Employment History

   Jeffrey B. Peters is a former employee of Respondent. (Tr. at 278.) He graduated from high school in 1978, and served in the U.S. Air Force from 1979 to 1993. (Tr. at 504-05.) During that time, he took some community college courses. (Tr. at 504-05.) Mr. Peters began working at RFETS in 1984. (Tr. at 288, 387.) During his tenure at RFETS, he held the positions of protective force instructor, security manager, director of protective operations, and director of training. (Tr. at 279, 505.)

2. Security Concerns

   In October 1995, Mr. Peters became concerned about the safety and security at RFETS. (Tr. at 299-300.) Mr. Peters recounted an incident involving the movement and temporary storage of special nuclear materials. (Tr. at 300-35.) According to Mr. Peters, the required vulnerability analysis had not been conducted which was a direct violation of the Site Safeguard and Security Plan. (Tr. at 300-06, 516-17.) He further opined that an inadequate number of security officers had been assigned to guard the material. (Tr. at 311-14, 410-13. See also CX-78.)

   Mr. Peters testified that he expressed his concerns to the DOE, Kaiser-Hill, and Respondent. (Tr. at 336-38.) Later, he told Respondent's general manager, Mr. Gillison, that he was going to contact the Office of the Inspector General and possibly the FBI. (Tr. at 336-37. See also Tr. at 362.) With respect to the FBI, Mr. Peters told Mr. Gillison that if he received an illegal order that significantly affected the security of the nuclear materials, he "would take over the site . . . as federal law requires." (Tr. at 514-15.) Mr. Gillison appeared to be supportive of Mr. Peters position. (Tr. at 337.)

   In December 1995, the special nuclear materials were moved back to their original location. (Tr. at 338-39.) Mr. Peters opined that inadequate protection was employed during the move. (Tr. at 341-55.) He expressed his concerns during a meeting with managers from the DOE and Respondent. (Tr. at 353-54.) Mr. Peters found the meeting to be unproductive and started to leave. (Tr. at 345-55.) Even though Mr. Gillison asked him twice to stay, Mr. Peters left the meeting. (Tr. at 355.) On cross-examination, Mr. Peters conceded that he disobeyed a direct order from Mr. Gillison, his superior. (Tr. at 519-20.) He reasoned that it was more important to set up a "critical point target response" than participate in the meeting. (Tr. at 519-20.)

   Mr. Peters conceded that Mr. Gillison had an obligation to refer him to the Personnel Security Assistance Program ("PSAP") if he was genuinely questioning his emotional well-being. (Tr. at 513.) He explained that this mechanism is employed to reduce internal threats to security. (Tr. at 512-14.) He also testified that Respondent could be described as a paramilitary group, and that failure to obey an order is potentially insubordination. (Tr. at 519.) Mr. Peters further testified that he is a very proud man. (Tr. at 513.)

3. Letters to Congressman Skaggs

   Dr. Furman conducted Mr. Peters' fitness for duty review. (Tr. at 420.) He recommended that Mr. Peters receive stress management instruction and return to work without restrictions. (Tr. at 419-20.) Ms. Bange informed him that a disciplinary investigation was being conducted and that a Return to Work Agreement would need to be drafted. (Tr. at 420-21.) During a meeting with Mr. Gillison, Mr. Gilmer, and Ms. Bange, Mr. Peters was provided with a disciplinary letter stating that he had violated work rules, including insubordination. (Tr. at 421-22.) Mr. Peters was also asked to write down his security concerns. (Tr. at 422.)

   In February 1996, Mr. Peters and Complainant wrote an eight page document detailing their security concerns. (Tr. at 422, 517-18.) Complainant also classified this document. (Tr. at 422.)

4. DOE Investigation

   In early 1997, Mr. Peters met with representatives from the Defense Nuclear Facility Safety Board ("DNFSB") on two occasions to discuss site security concerns. (Tr. at 530-31.) Said meetings were held at Complainant's home. (Tr. at 531.) Mr. Peters was satisfied with their responses and reactions to his stated security concerns. (Tr. at 531-32.) Later, a Board representative expressed his appreciation to Mr. Peters for providing information which ultimately resulted in the passage of legislation. (Tr. at 533-34.)

7. Denver Post and CBS News

   In 1997, Mr. McCallum provided Mr. Peters with some documents and suggested that he contact the news media about the security at RFETS. (Tr. at 460-62, 473-74; CX- 1, 138.) In May 1997, Complainant served as a classifier during Mr. Peters' interview with the Denver Post. (Tr. at 462, 469-70, 472.) Mr. Peters chose not to contact the Classification Office because the DOE had previously declined to review documents in his personal possession. (Tr. at 470-71; CX-92.) The Denver Post published stories on May 20, 1997, and May 21, 1997. (Tr. at 473-76; CX-11, 97, 115.)

   Later, a producer from CBS News contacted Mr. Peters. (Tr. at 477.) Mr. Peters, Mr. Ridenour, and Complainant met with representatives from CBS News to discuss site security issues on two separate occasions. (Tr. at 477, 521-22, 528-29.) The first meeting was held at the Briarwood Inn restaurant and the second meeting was held at a hotel in South Denver. (Tr. at 528.) In addition, they provided CBS News some aerial footage of RFETS which was taken from Complainant's airplane. (Tr. at 529.) Mr. Peters also played a twelve-minute excerpt of a audiotaped conversation between himself, Mr. Gillison and Mr. McCallum. (Tr. at 530.)

8. Skaggs Committee Investigation

   In 1998, an investigation into site security was also conducted by the "Skaggs Committee." (Tr. at 497-500.) Mr. Peters was not interviewed by any of the Committee members prior to the issuance of their reports. (Tr. at 500.) Nevertheless, he opined that his letter dated December 8, 1995, prompted the investigation. (Tr. at 499.) He further opined that he disagrees with the conclusions and recommendations contained in the Skaggs Committee reports. (Tr. at 500.)

9. Classification Policies and Procedures

   In 1994, ABC World News interviewed Mr. Peters at RFETS concerning $32 million in stolen government property. (Tr. at 366-74.) The interview was conducted on the site. (Tr. at 528.) During the interview, he was asked general questions about RFETS security. (Tr. at 371-72.) Mr. Peters did not go through the Classification Office before the interview, and he was not reprimanded or disciplined for failing to do so. (Tr. at 370.)

   During a union strike in 1994, Mr. Peters was asked to sign a letter concerning the security at RFETS. (Tr. at 375-76.) Said letter did not contain a classification review stamp. (Tr. at 375.) It was sent to the local media. (Tr. at 375-76.) Mr. Gillison participated in a media interview concerning the adequacy of site security during the strike. (Tr. at 382.) Mr. Peters was present when the DOE public affairs office notified Mr. Gillison that the media was on site. (Tr. at 382.) He did not observe Mr. Gillison contact the Classification Office prior to the interview. (Tr. at 382.) Mr. Peters opined that there was a potential for releasing classified information, and that a prudent person would have contacted the Classification Office. (Tr. at 382-83.)

   According to Mr. Peters, Dave English spoke on the Militia News Network about site security issues. (Tr. at 377.) Mr. Peters discussed this incident with Mr. Gillison. (Tr. at 378.) Mr. Gillison informed him that Mr. English was exercising his freedom of speech and no action could be taken against him, provided that no classified information was released. (Tr. at 378- 79, 381.) Management conducted an investigation to determine whether classified information had been released. (Tr. at 379-81.) Indeed, Mr. Peters asked Bud Isom, director of operations administration, to conduct an investigation. (Tr. at 381.) Later, he was informed that no classified information had been released to the public. (Tr. at 381.)

   From January 1997 to April 10, 1997, David E. Ridenour served as the DOE's director of safeguards and security at RFETS. (Tr. at 770-72.) Mr. Ridenour submitted a resignation letter on March 31, 1997, which was identified as Complainant's Exhibit 138. (Tr. at 772.)

   Mr. Ridenour received a temporary "Q" clearance approximately five to six weeks before his resignation. (Tr. at 784.) Prior to that time, he did not have access to classified information. (Tr. at 784.)

   Complainant's Exhibit 1 was identified as the Status of Safeguards and Security report prepared by Edward J. McCallum, the DOE's national director of safeguards and security. (Tr. at 778-79; CX-1.) Therein, RFETS received an "unsatisfactory" program management rating for the 1996 calendar year. (Tr. at 780; CX-1.) Mr. Ridenour received a copy of this document in January 1997, during the course of his employment at RFETS. (Tr. at 779.)

   Complainant's Exhibit 140 was identified as a copy of the 22nd Annual Report to the President on the Status of Safeguards and Security. (Tr. at 781.) Therein, RFETS received a "marginal" program management rating for the 1996 calendar year. (Tr. at 781-82.) Mr. Ridenour did not receive a copy of this document during the course of his employment at RFETS. (Tr. at 781-82.)

   Mr. Ridenour is a professional engineer and lives approximately five miles from RFETS in Arvada, Colorado. (Tr. at 776, 783-87.) Prior to joining RFETS, Mr. Ridenour served as the manager for technology implementations at the DOE's Fernald Site for approximately five years. (Tr. at 771.) He also served in the U.S. Air Force where he received ten years of nuclear weapons experience. (Tr. at 771.)

   Michael T. Angelo began working at RFETS in 1980. (Tr. at 1168.) He has been employed by Respondent since 1989, when Respondent assumed the RFETS security contract. (Tr. at 1168.)

1. Education and Training

   Mr. Angelo is a high school graduate with two years of college education. (Tr. at 1181-82.) He took courses at Colorado State University, Fort Collins, toward a degree in business management. (Tr. at 1181-82.)

3. Affidavit

   On February 17, 1999, Mr. Angelo signed an affidavit which was identified as Complainant's Exhibit 145. (Tr. at 1184-86; CX-145.) Mr. Angelo testified that he received his reassignment to program operations approximately five weeks after he had signed this affidavit. (Tr. at 1185.) Complainant's counsel questioned Mr. Angelo about the statements contained in his affidavit, in an unsuccessful effort to impeach him. (See, e.g., Tr. at 1186-93, 1199-1201, 1203-04. See also Tr. at 1202-03.)

4. Letter to Congressman Skaggs

1. Education and Employment Background

   Michael M. Cosgrove is Respondent's senior vice president and general manager for security programs at RFETS. (Tr. at 1208.) Mr. Cosgrove has an associate's degree in criminology from Miami Dade Community College, a bachelor's degree in criminal justice from Florida International University, a master's degree in adult education with a human resource concentration from Florida International University, and a doctorate in criminal justice management from La Salle University. (Tr. at 1208.)

   Mr. Cosgrove was employed by the City of Miami, Florida Police Department, for eighteen years where he served as a police officer, sergeant, lieutenant, captain, major, assistant chief, and acting chief. (Tr. at 1209.) In the capacities of police sergeant, lieutenant, and captain, Mr. Cosgrove was responsible for ensuring that the Department's policies and procedures were implemented in the field. (Tr. at 1212.) Moreover, he was responsible for enforcing departmental policies and procedures while serving as a major and an assistant chief. (Tr. at 1212.) During his tenure at the Miami Police Department, Mr. Cosgrove adopted the philosophy that policies and procedures exist to provide guidance and establish parameters for employees, and, as such, that employees should work within the established parameters. (Tr. at 1213.)

   In 1984, Mr. Cosgrove joined the Central Training Academy in Albuquerque, New Mexico, which was operated by Wackenhut Services, Inc. (Tr. at 1209-10.) This DOE facility trains security police officers on how to protect nuclear weapons and components. (Tr. at 1209-10.) When Mr. Cosgrove departed, he was serving as general manager and vice president. (Tr. at 1210.)

   Next, Mr. Cosgrove served as general manager and senior vice president of protective force operations at the Savannah River nuclear facility in South Carolina, which was operated by Wackenhut Services, Inc. (Tr. at 1210.) The Savannah River facility is governed by the same DOE rules and regulations that govern RFETS. (Tr. at 1215.) For example, the Savannah River nuclear facility had a policy requiring employees to go through the Classification Office prior to releasing information to the public. (Tr. at 1215.)

   Mr. Cosgrove was also employed as the chief instructor and program manager for the U.S. Department of State's antiterrorism assistance program. (Tr. at 1210.) He eventually rejoined Wackenhut Services, Inc. in Washington, D.C., where he interfaced with the Central Intelligence Agency and the Federal Bureau of Investigation on crisis management, special weapons, and tactical response capabilities. (Tr. at 1211.)

   RFETS was described as a small city with hundreds of buildings on the site. (Tr. at 1219.) The protected area alone encompasses approximately four miles. (Tr. at 1219.) Five to six thousand people and thousands of cars enter the site each day. (Tr. at 1219-20.) RFETS has its own infrastructure including snowplows, traffic control, pedestrian control, and emergency vehicles. (Tr. at 1220.) It also has its own fire and police departments. (Tr. at 1220.)

   As a result of a joint decision by Congress and the DOE, RFETS is scheduled to close in approximately 2006. (Tr. at 1218, 1220-21.) Consequently, employee certification and training programs are being established to equip employees with the skills necessary to gain employment after the closure of RFETS. (Tr. at 1221-22, 1396-97.) For example, Complainant will become eligible for college tuition reimbursement. (Tr. at 1222-23.) In addition, some employees will be reassigned to other sites. (Tr. at 1398.)

   On November 6, 1997, Mr. Cosgrove held a meeting with Complainant. (Tr. at 1243-44.) During that meeting, Complainant opined that he had not disclosed any classified information to CBS News, and conceded that he chose not to go through the Classification Office before making public disclosures. (Tr. at 1243, 1246, 1309.) Moreover, Complainant never told Mr. Cosgrove that he was expressing his personal opinion, and that there is a personal opinion exception to the site disclosure rules. (Tr. at 1398.)

    c. Disciplinary Action

(Tr. at 1257-59; CX-125.) Mr. Cosgrove interpreted the post-script to be Complainant's refusal to comply with the classification provision. (Tr. at 1259-60.) Consequently, Complainant was not permitted to return to work on the ground that he had refused to abide by the classification review procedure. (Tr. at 1260-63.) About this time, Complainant filed this whistleblower complaint. (Tr. at 1261. See also CX-128.)

    d. Chain of Command

   Mr. Cosgrove described Complainant's traditional chain of command as his captain, the major, the director of operations, the deputy, and himself. (Tr. at 1340, 1343.) He testified that Complainant could properly comply with the classification review requirements without going through his chain of command. (Tr. at 1340.) Mr. Cosgrove also encouraged Complainant to be a "team player" and work within the organization before taking his security concerns outside the system. (Tr. at 1365-67. See also CX-120.) Nevertheless, Mr. Cosgrove acknowledged his inability to prevent Complainant from taking his security concerns outside the organization. (Tr. at 1365-69, 1370-71.)

   Complainant was also informed that, as the holder of a "Q" clearance, he has a duty to bring his security concerns to Mr. Cosgrove's attention. (Tr. at 1368; CX- 111.) Mr. Cosgrove explained that, as general manager for site security, he needs to be informed about Complainant's security concerns in order to address those concerns. (Tr. at 1369-70.)

    e. Temporary Agreement

   The parties eventually entered into a temporary return to work agreement in which Complainant agreed to comply with classification review procedures through the duration of this litigation. (Tr. at 1262. See also CX-147.) Mr. Cosgrove further testified that Complainant would have been permitted to return to work in March 1998, if he had agreed to comply with the classification review procedures in the future. (Tr. at 1262-65, 1379-81.)

    f. Cosgrove Deposition

   During Mr. Cosgrove's deposition in this matter, no classifier was present. (Tr. at 1294-96.) Mr. Cosgrove did not think that a classifier's presence was necessary because he did not intend to discuss any potentially classified information in specificity. (Tr. at 1294-95, 1358.) He further opined that, in retrospect, it would have been prudent to have a classification officer attend the deposition. (Tr. at 1295, 1358.) Nevertheless, failure to have a classification officer present at a deposition does not violate the site rules. (Tr. at 1295-96.)

4. Change in Disciplinary Policy

   In approximately November 1997, Respondent's disciplinary policies for salaried employees were changed. (Tr. at 1394.) Ms. Bange requested the change based upon her discussions with Kaiser-Hill representatives. (Tr. at 1394.) Mr. Cosgrove approved the policy change. (Tr. at 1394.)

   Mr. Cosgrove also testified about some of the benefits that salaried employees receive. (Tr. at 1397-98.)

5. Comparator Evidence

    a. Classification Review

   Mr. Cosgrove conceded that it is possible that, during his tenure at RFETS, other employees have made disclosures to the media without following the classification review procedures. (Tr. at 1316. See also Tr. at 1317-21.) He further testified that ninety percent of Respondent's media contacts are coordinated through Kaiser-Hill's Public Information Office. (Tr. at 1339.) The Public Information Office coordinates these interviews with the Contractor Classification Office. (Tr. at 1339.)

   When an employee is referenced in the media, Mr. Cosgrove does not automatically initiate an investigation into whether the employee followed the classification review procedures. (Tr. at 1316.) Rather, he deals with all potential policy violations on a case-by-case basis. (Tr. at 1321.) Mr. Cosgrove expects all of his employees to follow classification review procedures before making public disclosures (Tr. at 1321.) If he determines that employees are failing to comply with the classification policies because of insufficient training, for example, he will institute the necessary training aspects to correct the problem. (Tr. at 1318.)

   Complainant is the only employee that has told Mr. Cosgrove that he does not intend to abide by the classification review policy before making public disclosures. (Tr. at 1318.)

    b. Gary Cupp

   Gary Cupp is a veteran and has a post-traumatic stress disorder. (Tr. at 1268.) Mr. Cupp was experiencing periodic traumatic episodes that were interfering with his work. (Tr. at 1271.) Mr. Cosgrove had experience dealing with employees suffering from post-traumatic stress disorder when he was employed by the Miami Police Department. (Tr. at 1271-72.) Mr. Cosgrove confronted Mr. Cupp about his problem and agreed to counsel him as needed. (Tr. at 1271-72.) As a result, Mr. Cupp has become a very productive employee within the organization. (Tr. at 1272.)

(Tr. at 813; CX-2 at MG0099.) Mr. Leach explained that he wanted Mr. Angelo and Complainant to be transferred back in his section. (Tr. at 813.)

6. Claims of Retaliation

   Complainant had told Mr. Leach that he had written a classified letter and a letter to Congressman Skaggs. (Tr. at 806.) Nevertheless, Mr. Leach never tried to stop Complainant's whistleblower activities. (Tr. at 806.)

   Complainant also commented that he wanted to protect Mr. Leach from any repercussions from his whistleblower activities. (Tr. at 807.) Nevertheless, Mr. Leach denied counsel's suggestion that he limited his supervisory responsibilities in order to protect himself. (Tr. at 807.) Mr. Leach's career has not been adversely effected by Complainant's whistleblower activities. (Tr. at 807.)

   Mr. Leach was not involved in the decision to place Complainant on administrative leave in January 1998. (Tr. at 807-08.) At this time, Complainant and Mr. Angelo were primarily working for John Trantanella, the shift captain. (Tr. at 808-09.)

   Mr. Leach accompanied Complainant to a meeting with Mr. Horton and Ms. Davis. (Tr. at 808, 810.) Mr. Trantanella was not present at this meeting. (Tr. at 810.) According to Mr. Leach, Complainant did not exhibit any "bizzare" behavior. (Tr. at 808.) Rather, Complainant "seemed fine" and behaved professionally during the meeting. (Tr. at 808.)

   Bryan Siebert is the Director of the Office of Declassification for the U.S. Department of Energy in Washington, D.C. (Tr. at 23.) He has held this position for approximately eight years. (Tr. at 23, 96.)

1. Office of Declassification

   According to Mr. Siebert, the Office of Declassification exists so that individuals having access to classified information are not making their own, individual judgments as to what information may be disclosed to the public. (Tr. at 164.) Without a uniform classification system, the government would lose control over information that could potentially damage our national security. (Tr. at 164.)

    a. Classification Officers

   Classification officers are responsible for identifying classified information, and often review sensitive matters that would be of interest to other people in the DOE. (Tr. at 45- 46, 50, 52.) Nonetheless, they do not make judgments about the veracity of the information contained in these documents. (Tr. at 45-46, 51.) Mr. Siebert explained that one of their goals is to develop trustworthy relationships with the people seeking classification review. (Tr. at 52.) If classification officers made judgments about the contents of documents they review, individuals would become less inclined to bring sensitive information to them in the future. (Tr. at 51-52.) Consequently, classification officers do not disseminate the substantive matters contained in documents that they review. (Tr. at 52.)

    b. Interrelationship with RFETS

   Highly sophisticated technology and special nuclear materials are stored at RFETS. (Tr. at 164.) As such, RFETS is a major point in our nuclear weapons chain. (Tr. at 164.)

   The Office of Declassification is responsible for overseeing classification policy matters at RFETS. (Tr. at 26, 100.) Moreover, the Office of Declassification reviews the qualifications of field classification officers prior to their appointment, and conducts performance appraisals for DOE employees at RFETS. (Tr. at 26, 100-01.)

   During Mr. Hoffman's tenure, there have been some deficiencies in the management of the classification functions at RFETS. (Tr. at 93-95, 97.) Nonetheless, the deficiencies have not been of the magnitude to warrant Mr. Hoffman's removal. (Tr. at 97, 101.) In response to a question about whether Mr. Hoffman oversees Worldwide Security on a "daily" basis, Mr. Siebert explained that Mr. Hoffman has physical disabilities that may limit his ability to be physically present at Worldwide Security on a daily basis. (Tr. at 93-94.)

    c. Authorized Derivative Classifiers

   An authorized derivative classifier ("ADC") is a person that has been trained and licensed to determine whether or not particular information is classified. (Tr. at 48, 87.) An ADC training is limited to particular areas or subject matters. (Tr. at 87.) Therefore, an ADC may be unfamiliar with all of the classification rules that are applicable in a given situation. (Tr. at 87, 88.)

   Furthermore, ADC's generally perform classification duties on a part-time basis. (Tr. at 163.) In contrast, classification officers work full-time on classification issues. (Tr. at 163.) Thus, an ADC's authority is limited to classifying information. (Tr. at 48.) They are not authorized to declassify information. (Tr. at 48.)

   Thus, even though an employee is an ADC, he is still bound by the classification review requirements set forth in DOE Order No. 5650.2B. (Tr. at 48, 85; CX-20.) In other words, prior to making a public disclosure, an ADC is required to have Category II and Category III information reviewed by the contractor Classification Office or the federal Classification Office at the site. (Tr. at 48-49, 85; CX-139 at 92-93. See also RX-A; CX- 20.)

2. DOE Order No. 5650.2B

(Tr. at 75-77; CX-139 at 109-110.)

   Mr. Siebert further opined that an individual with a "Q" security clearance could tell a journalist that, "I don't think Rocky Flats is adequately protecting plutonium," without seeking the guidance of the Classification Office. (CX-139 at 99-104.) He explained that this would be a Category I activity, provided that the individual does not make any additional remarks. (CX-139 at 99-104.)

   Likewise, Mr. Siebert opined that cleared individuals are not expected to go through classification review before discussing an unclassified subject with their uncleared spouses. (Tr. at 86.) Nonetheless, persons with security clearances must be careful not to disclose classified information to their uncleared spouses during the course of normal marital relations. (Tr. at 84-86; CX-139 at 91-92.)

   If Complainant wanted to disclose information to the media pertaining to the current inadequacies or adequacies of security guard training at RFETS, such information would clearly fall within the definitions of Category II or Category III activities. (Tr. at 54, 166-67.) Consequently, Complainant would be required to have the Classification Office review the information prior to making the disclosure. (Tr. at 54, 166-67.) Failure to do so could result in an inadvertent release of classified information. (Tr. at 54.)

   Mr. Siebert testified that a whistleblower's obligation to follow the classification review procedures is not excused even if the whistleblower perceives the classification officers as being untrustworthy. (Tr. at 60-61.) He reasoned that employees have an over-arching responsibility to protect national security. (Tr. at 60-61.)

    d. Releasing Information to Congress

   Policies pertaining to the disclosure of classified information to Congress may be different than the policies pertaining to the disclosure of potentially classified information to the media. (Tr. at 57-59.) The Atomic Energy Act authorizes the DOE to grant certain congresspeople access to classified information without conducting full background investigations. (Tr. at 57-59.) Nonetheless, this special provision does not apply to congressional aides or staff members. (Tr. at 57-59.)

   Therefore, a prudent person with access to classified information would participate in a classification review prior to making disclosures of potentially classified information to an uncleared congressman. (Tr. at 59-60.) Mr. Siebert reasoned that even if the disclosure is directed to a particular set of congresspeople, congressional staff members may also be present. (Tr. at 60.)

    e. Disclosing Information at Depositions

   Similarly, individuals testifying at depositions and public hearings that have the potential for using or generating classified information (i.e., a Category II activity) should comply with the classification review procedures. (Tr. at 117.) Mr. Siebert opined that a prudent person would also request that a classification officer accompany him to any depositions or public hearings in which he was testifying. (Tr. at 113.) He reasoned that having a classification expert present at a deposition, for example, would assist him in identifying and avoiding sensitive matters. (Tr. at 115-16.) Nevertheless, an individual's failure to request that a classification officer accompany him to a deposition or formal hearing would not be a violation of DOE Order No. 5650.2B. (Tr. at 113, 116. See also CX-20.)

    f. Complainant's Exhibits

       (1) "White Paper" (CX- 117)

   On cross-examination, Complainant's counsel tried to elicit testimony concerning a "white paper" which was introduced into evidence as Complainant's Exhibit 117. (Tr. at 90-110.) However, Mr. Siebert testified that neither he nor the Office of Declassification had prepared or approved this document. (Tr. at 90.) Furthermore, Mr. Siebert was not aware of this document's existence until Complainant's counsel showed it to him during his deposition on February 25, 1999. (Tr. at 90; CX-139 at 74, 76.)

   Nevertheless, Mr. Siebert opined that an individual may express his "personal opinion" about a subject that has no possibility of generating classified information (i.e., Category I information), without seeking classification review. (Tr. at 102.)

       (2) Status of Safeguards and Security for 1996 (CX-1)

   Complainant's counsel also tried to elicit testimony concerning the "Status of Safeguards and Security for 1996" which was introduced into evidence as Complainant's Exhibit 1. (Tr. at 138-50.) This document was prepared by the Office of Safeguards and Security, not the Office of Declassification. (Tr. at 144; CX-1 at MG2255.) As such, Mr. Siebert did not have the expertise to testify as to the analysis and assessments contained within this report. (Tr. at 144-48.)

       (3) Letter from David E. Ridenour (CX- 138)

   Finally, Complainant's counsel tried to elicit testimony about a letter written by David E. Ridenour, which was introduced into evidence as Complainant's Exhibit 138. (Tr. at 151-53.) However, counsel was unable to lay the proper foundation for this testimony. (Tr. at 151- 53.)

3. Former Employees

1. Education

   On September 27, 1991, and January 25, 1993, Complainant's performance of specific job skills was rated "competent" to "distinguishable," and his overall performance was rated "competent." CX-2 at W0153-0154. See also CX-130.) On October 28, 1993, and June 21, 1994, Complainant's performance of specific jobs skills was rated "commendable" to "distinguishable," and his overall performance was rated "commendable." (CX-2 at W0143-0146, W0150-0152. See also CX-130.) In November 1995, June 1996, and June 1997, Complainant's specific job skill ratings ranged from "meets standards" to "exceeds standards," and his overall performance ratings were "exceeds standards." (CX-2 at MG0097-0099, MG0100-0102; CX-13.)

   On October 8, 1997, Mr. Leach wrote a memorandum to Gary Cupp, manager of CAS Operations, extolling Complainant's and Mr. Angelo's job performance. (CX-2 at MG0096; CX-13, 102.) Therein, Mr. Leach opines that Complainant and Mr. Angelo are "more than capable of fulfilling the responsibilities of any Lieutenant [sic] position and/or that of Acting Captain [sic]." (CX-2 at MG0096; CX-13, 102.)

1. EG&G Classification and UCNI Fact Sheet

   EG&G will respect the right of employees to express individual opinions on public issues, and there is no intention on the part of plant management to influence or control the relationship of Rocky Flats personnel as individuals with the news media or the public. When an employee does express an individual opinion, it should be clear to the audience that the employee is speaking as an individual and not as a Corporate or Plant representative (or
spokesperson). . . .

SCOPE:

1.   All public statements, written, oral, voluntary, or solicited, that may tend to imply through use of . . . organization title, inference, or otherwise that such statement is authorized by, or reflects, the official position of the Corporation, require advance approval. Public statements include, but are not limited to . . . news releases, radio or television appearances, responses to questions from news media . . .

. . . .

ACTION REQUIRED:

. . . .

5.   All information for public release must be reviewed by a representative of the Classification Office.

(CX-40; RX-B. See also Tr. at 848, 863-64.)

3. Kaiser-Hill Directive CAHW-001-96

   On March 28, 1996, Kaiser-Hill adopted Directive CAHW-001-96 which pertains to the release of information and documents. (CX-80.) It provides in part:

When materials are to be released to an agency or company not contractually related to the Kaiser-Hill Team (for example: the media [and] Defense Nuclear Facility Safety . . .), prior approval from the Contractor Classification Office is required. ADCs are not authorized to approve information for release to the general public.

(CX-80.)

4. Respondent's Security Manual

1. Document originators are responsible for ensuring information is properly reviewed for classification and UCNI.

   i. An ADC shall be consulted for a classification review when matter is believed to be classified or where doubt exists as to the classification level of matter.

   . . . .

Authorized Derivative Classifier

2. The ADC shall determine the classification level and category in accordance with existing guidance or source documents.

   . . . .

Employee Responsibility

3. Employees shall ensure that all matter that is to be released to the public receives prior review and approval from the Rocky Flats Contractor Classification Office.

(CX-88 at MG2489-2490. See also CX-12 at W0296-0297.)

5. DOE Order No. 5650.2B

   Chapter V, Part G of DOE Order No. 5650.2B sets forth the procedures for classification review of all newly generated documents and provides in pertinent part:

d. Oral Presentations. The review requirements described in subparagraphs a, b, and c, above, are also applicable to any oral presentations, including speeches, briefings, or interviews, to be made by DOE or DOE contractor personnel. Whenever possible, the speakers should use prepared texts, reviewed in accordance with the requirements outlined above. When such prior review is not possible, or when extemporaneous remarks are likely, local DOE or DOE contractor classification office representatives will prebrief the speaker on classification guidance pertinent to the presentation subject matter, including danger areas in post-presentation discussions.

3. DOCUMENTS ORIGINATED BY OTHER THAN DEPARTMENTAL ELEMENTS OR DEPARTMENTAL PERSONNEL. The following procedures apply to documents submitted by other than DOE or DOE contractor personnel with (a) active DOE or other Government agency security clearances, (b) inactive security clearances issued by DOE or other Government agencies, or (c) no security clearance.

a. Documents written by persons with active security clearances are subject to the requirements described in paragraph 2, above. The local DOE and DOE contractor classification office or SA-20 will conduct the classification review and will request that any classified or unclassified but controlled information be removed from the document prior to its unclassified publication.

b. Documents written by persons who have had but no longer have a security clearance will normally be treated as outlined in subparagraph 3a, above, unless the document deals with information to which the author previously was not authorized access. Those cases will be referred to SA-20.

(CX-92.)

7. Classification Office White Paper

   On December 17, 1997, the Contractor Classification Office Manager Steve Cunningham issued a Classification Office White Paper concerning the "freedom of speech." (CX-117.) The White Paper provides in part:

   No one is permitted to disclose properly classified information; and unless empowered to speak officially on behalf of an agency, no one is permitted to represent the government in conveying official information to the media. . . .

   . . . [T]he local classification office has purview over information release if the information is related to the government facility and operations covered by that classification office. Individuals planning to convey that information to the public must have that information reviewed per DOE Order 5650.2B, Ch. 5, Part G, 2.c. . . .

   However, when individuals are expressing their personal opinion, [sic] as entitled under their Constitutional Rights, they may do so without interference from classification authorities, provided no classified or sensitive information is to be expressed. It also must be made EXPLICITLY CLEAR by the individuals that they are expressing an INDIVIDUAL opinion, and are not speaking on behalf of any agency. Individuals must also attempt to ensure they are not portrayed by the media as speaking officially through conveyance of title, manner of dress, backdrop, introduction, or any other means of implication. . . .

   At Rocky Flats, this delicate balance of information control has been covered in the past by a policy statement (EG&G 2-9) and is practiced by the Contractor Classification Office. It is recognized that many individuals speaking personal opinions do not seek contact with the Contractor Classification Office in advance.

(CX-117.)

1. Administrative Discipline Policy

   On January 8, 1991, Respondent enacted an Administrative Discipline policy to ensure that work rule infractions or misconduct were timely and equitably administered and were proportionate to the offense. (CX-17 at MG2779.) This progressive discipline policy requires management to consider mitigating circumstances when determining the appropriate level of discipline. (CX-17 at MG2779-2780.) Work rule 39 was defined as a "[v]iolation of a safety rule or safety practice." (CX-17 at MG2786. See also CX-100.)

2. DOE Contractor Employee Protection Program

   On May 1, 1992, the DOE issued a "Notice to Employees" concerning the implementation of the Contractor Employee Protection Program to serve contractor and subcontractor employees that believe they have suffered reprisal after engaging in protected activities. (CX-28 at W0100.) A similar notice was apparently posted on Respondent's bulletin boards on or about November 20, 1995. (CX-28 at W0101.)

3. Positive Corrective Action

   On March 20, 1995, Respondent implemented a Positive Corrective Action program that "provides, where appropriate, a progressive series of steps when performance problems arise." (CX-65.) Mitigating and aggravating circumstances may be considered in determining the appropriate level of corrective action. (CX-65.)

4. Kaiser-Hill Personnel Security Assurance Program

   Kaiser-Hill's Personnel Security Assurance Program ("PSAP"), as revised on July 29, 1996, sets forth the policies and procedures for all site employees, supervisors, and managers that have access to classified matter or significant quantities of special nuclear material. (RX-D.) Candidates for PSAP positions must consent to psychological, medical, and background evaluations. (RX-D.) PSAP participants are required to submit to annual comprehensive medical examinations and psychological or psychiatric evaluations. (RX-D.) Based upon the recommendation of a physician from the Site Occupational Medical Department, a temporary reassignment or restriction may be placed on a PSAP position if security concerns are observed. (RX-D.)

5. Kaiser-Hill Team Standards of Conduct

   In September 1997, the Kaiser-Hill Team issued a revised brochure which sets forth the "common Standards of Conduct for employees of Kaiser-Hill, LLC; . . . and Wackenhut Services, LLC." (CX-100.) This document provides in part:

Unacceptable employee conduct includes but is not limited to the following:

. . . .

15)   Unauthorized distribution of written or printed material of any description, including computer links and/or electronic mail on Company premises.

. . . .

38)   Violation of a safety rule, procedure, regulation, order or any applicable safety practice either by committing a wrongful act or failure to act or report. Falsifying documents, gross negligence, willful disobedience, or engaging in such activity represents endangerment to human life or risking serious bodily injury.

39)   Violation of a safety rule or safety practice.

(CX-100. See also CX-17.)

1. Classified Document

   On January 15, 1996, Mr. Gillison requested that Mr. Peters place his security concerns in writing. (CX-131.) On February 5, 1996, Mr. Peters and Complainant generated a classified document detailing their perceived security concerns. (CX-131.) Said document was addressed to Mr. Gillison and titled "Security Concerns at Rocky Flats." (CX-131.)

2. Defense Nuclear Facility Safety Board

   On September 26, 1996, Complainant sent a letter to the Defense Nuclear Facility Safety Board ("DNFSB") concerning security issues at RFETS. (CX-96.) Therein, he opined that the DOE investigation was incomplete, the DOE report contained misrepresentations, and the conditions at RFETS had continued to decline. (CX-96.)

3. Denver Post Article

   For the first time on national television, Rocky Flats Security Force Lt. Mark Graff [sic] reveals that government safety tests at the country's largest former nuclear weapons plant are serious safety flaws. . . Senior investigative correspondent Rita Braver . . . learns that in the most recent computer tests of Rocky Flat's security plan, terrorists succeeded in seizing plutonium 100 percent of the time.

   . . . .

   Graff [sic] tells PUBLIC EYE that Rocky Flats security passed a government security test because 'everyone knew the attack was coming.' He explains, "Yes, Rocky flats won. If I tell you that I'm going to hit you in the jaw in the next five minutes, for the next five minutes you're going to be extremely alert.' Graff [sic] confirms that he participated in numerous other security tests in which he played the role of a terrorist and successfully broke into the complex.

(CX-109.)

5. CBS Evening News Broadcast

   On November 24, 1997, CBS Evening News broadcasted the first of a two-part series on security at RFETS, which included the following report by Rita Braver:

Could terrorists get their hands on nuclear weapons material at this site? The government ran this exercise at Rocky Flats to answer that question. Rocky Flats security manager Mike Cosgrove [] was happy with the result.

Mike Cosgrove (Security Manager, Rocky Flats Nuclear Weapons Plant): The bottom line is the adversaries were defeated. Initially, in regards to the initial engagement, they were not able to even come close to removing plutonium or special nuclear material from this site.

Braver: Not quite so, says Lt. Mark Graf [], and he's one of their own, a member of the Rocky Flats security force who says everyone knew the attack was coming.

Lt. Mark Graf (Security, Rocky Flats Nuclear Weapons Plant): Yes, Rocky Flats won. If I tell you that I'm going to hit you in the jaw in the next five minutes, for the next five minutes, you're going to be extremely alert.

Braver: Are you saying this was staged?

Graf: It was scripted.

(CX-116 at MG2224; RX-C.) The second segment was broadcast on November 25, 1997. (CX-116; RX-C.)

1. Review of Issues Raised in Memorandum

   On or about March 29, 1996, Mr. Gillison directed Messrs. Anderson, Gross, Isom, and Wood to review the issues raised in Complainant's and Mr. Peters' memorandum to Mr. Gillison titled "Security Concerns at Rocky Flats," dated February 5, 1996. (CX-87; CX-131 at W0202. See also CX-131 at W0199; RX-E.) On May 10, 1996, the results of the review were presented to the Kaiser-Hill Verification Board. (CX-131 at W0199.) On July 11, 1996, Mr. Gillison requested that the Kaiser-Hill Verification Board reconvene to review and validate Respondent's report. (CX-87. See also CX-84, 99; RX-E.)

2. DOE Investigation

CX-76 at W0004-0006.)

3. Status of Safeguards and Security

1. Central Alarm Station Assignments

   On April 4, 1996, Joe Walsh sent a letter to Mr. Gillison concerning Complainant's job responsibilities, including shift assignments. (CX-144.) Mr. Walsh states, among other things, that Complainant will be assigned to fill the position vacated by Mr. Couper. (CX-144 at MG1108.) Mr. Walsh denies treating Complainant adversely, claims to be unaware of the letter to Congressman Skaggs, and explains that the reassignment is necessary due to a reduction-in-force. (CX-144.)

2. OPM/DOE Investigation

(CX-86 at MG0518.) This document was dated June 6, 1996. (CX-86.)

3. Employee Bulletin

   On February 11, 1997, Gail Bange posted an employee bulletin requesting that all document and deposition requests made by outside counsel be referred to the Human Resources Department. (CX-93.) Said bulletin was removed on February 18, 1997. (CX-93.)

4. Cosgrove Meeting on November 6, 1997

   On November 6, 1997, Mr. Cosgrove held a meeting with Bud Isom, Gail Bange, and Complainant to discuss Complainant's disclosures to CBS News. (CX-112.) Mr. Cosgrove read a letter out loud and asked Complainant to respond to several questions in writing. (CX-112. See also CX-111.) Complainant complied with his request. (CX-112. See also CX-110.) During the meeting, Complainant said that he did not release any written documents to CBS News, and that some of the information attributed to him by CBS News was not entirely accurate. (CX-112.)

   The information that Complainant disclosed to CBS News was not cleared for release by the Contractor Classification Office. (CX-112. See also CX-110, 111.) However, Complainant talked to Mr. Cunningham about the classification review process as it pertained to Mr. Peters. (CX-112.) According to Complainant, Mr. Cunningham indicated that the Contractor Classification Office did not want to review information that was in Mr. Peters' personal possession. (CX-112. See also CX-110, 111.)

5. Cosgrove Letter Re: Release of Information

   On November 6, 1997, Mr. Cosgrove wrote a letter to Complainant concerning the potential release of classified information to CBS News personnel and other individuals. (CX- 111.) The letter provides in part:

   Your status as a WSLLC employee and uniformed supervisor, who maintains a 'Q' clearance and participates in the PSAP program, makes you a part of [Respondent's contractual] obligation and responsibility [to protect all classified matter]. I believe that status includes the duty to bring to my attention, or any other proper authority, any concerns regarding the security posture at RFETS. . . .

   . . . I am concerned that classified security information may have been disclosed to individuals who may not have been cleared or have a need to know based upon the information I have to date. I request that you provide me answers to the following questions:

   . . . .

3.   Did you have reason to believe that the CBS news personnel or others were not cleared or would potentially broadcast classified information?

4.   Did you make the comments to CBS or others that are attributed to you in the attached CBS news release? (Why?)

5.   Did you release any potentially classified information?

6.   In your contact with the media, was any of the information you may have provided cleared for release by the RFETS Contractor Classification Office?

   . . . I request that you provide to me a copy of all documentation provided to CBS personnel or others . . . so that it can be reviewed for classification by the proper authorities.

(CX-111.)

6. Complainant's Handwritten Response

   Complainant apparently responded in writing to the questions raised in Mr. Cosgrove's letter dated November 6, 1997. (CX-110.) His handwritten reply is undated. (CX-110. But see, CX-112.) Therein, Complainant states that he reviewed all of the information that he released for classification purposes. (CX-110 at W0216.) Complainant opined that, "as a subject matter expert, [he was] best suited to understand and classify this information." (CX- 110 at W0216.) He further replied that:

I have a memorandum stating that the information in Mr. Peters' position [sic] is his to release, protect, review [sic] (WSLLC did not want to have the information reviewed). I did discuss the process with Mr. S. Cunningham, and he implied that he wanted nothing to do with it. I also received guidance from other ADCs on specific classification points that I may not have been familiar with.

(CX-110 at W0128.)

7. Internal Investigation

(CX-118 at MG0375. See also CX-119 at 6.)

   In addition, Complainant allegedly offered a fourth reason:

[4.] I have been the reviewer for previous pieces in depositions and arbitrations, information that is subject to public release.

(CX-118 at MG0375.) However, the Investigations Report made no reference to this particular assertion. (See CX-119.)

(CX-119 at 1; CX-100. See also CX-20; CX-65 at 27, 30.)

8. Cosgrove Meeting on January 28, 1998

   On January 28, 1998, Mr. Cosgrove met with Complainant, Larry Barela, and Ms. Bange to discuss Complainant's failure to adequately respond to the investigators questions about the specific information that he disclosed to CBS News. (CX-120, 121.) Mr. Cosgrove informed Complainant that his refusal to fully cooperate with the internal investigation could lead to discipline, up to, and including, termination. (CX-120.) After consulting with his attorney, Complainant complied with Mr. Cosgrove's request to write down all information that he shared with CBS, Mr. Peters, and the DNFSB. (CX-121; CX-120 at W0233.)

   Later, Mr. Cosgrove asked Complainant for his assurances that he would comply with all site rules and regulations in the future, while he was trying to resolve these issues. (CX-120 at W0233.) Complainant told Mr. Cosgrove that he would "consider it," but that he was very disturbed over the way things were being handled at RFETS. (CX-120 at W0233.)

(CX-120 at W0234. See also CX-121.)

9. Administrative Leave

   On January 31, 1998, Complainant was placed on administrative leave with pay. (CX-122.) Complainant was also scheduled to meet with an Employee Assistance Program ("EAP") counselor. (CX-122.)

10. Fitness for Duty Evaluation

Mr. Graf is considered fit for duty and suitable for return to work with the following recommendations:

1)   A clarification session with supervisors to specify company guideposts on what is and is not permitted regarding the release of security information.

2)   Employee Assistance Program counseling for Mark to deal with his frustrations and discouragement.

3)   Removal from his position if he exhibits future areas of concern.

(CX-123 at MG0109.)

11. Cosgrove Meeting on March 24, 1998

   On March 24, 1998, Mr. Cosgrove, Complainant, Mr. Jamsay, and Ms. Bange met to discuss Complainant returning to work. (CX-126.) Mr. Cosgrove gave Complainant two pieces of correspondence to read before beginning the meeting. (CX-126 at W0194. See also CX-124, 125.)

13. Corrective Action Plan

   Mr. Cosgrove also issued a Corrective Action Plan on March 24, 1998. (CX- 13 at MG0104; CX-125.) Therein, Mr. Cosgrove states that the Employee Assistance Program ("EAP") and subsequent psychological evaluation by Dr. Nicolletti have concluded that Complainant is fit to return to work. (CX-13 at MG0104; CX-125.) As such, Mr. Cosgrove set forth five specific guidelines that Complainant was expected to abide by, including,

2.   As an Authorized Derivative Classifier, you above all others are aware of the procedures for releasing security information to the public and others as defined in the Rocky Flats Security Manual in Chapter 6. I must have your assurances that site security information is not divulged in any form to those individuals or organizations that do not have a need to know and/or do not have the appropriate clearances to include the media, former employees, etc.

3.   I expect you to adhere to the chain of command in all issues that pertain to this company and the security of this site.

   . . . .

5.   In an effort to re-establish your credibility in this Organization [sic], and your smooth transition back into the workplace you are being placed on the day shift and will be working a normal AWS schedule. You will report directly to Mark Jamsay. Your progress will be monitored for a period of at least 60 days. At that time I will determine your capabilities to assume normal CAS Lieutenant duties.

Failure to abide by the above stated conditions will result in further disciplinary action up to and including termination.

(CX-13 at MG0104-0105; CX-125.)

   On March 24, 1998, Complainant signed the Corrective Action Plan. (CX-125 at MG0390.) However, Complainant's compliance was contingent upon the following addendum:

I reserve my right to make disclosures of violations or perceived violations of the Energy Reorganization Act and/or the Atomic Energy Act. I do not admit that I have acted improperly in the past and protest this discipline.

(CX-125 at MG0390.)

14. Telephone Conversation on March 25, 1998

15. Continuation of Administrative Leave

   On March 26, 1998, Respondent issued a letter to Complainant stating that:

Due to conflicts in your return to work on March 24, 1998, you will remain on administrative leave with pay until further notice.

(CX-128.)

16. Revised Corrective Action Plan

   On April 7, 1998, Mr. Cosgrove transmitted a revised Corrective Action Plan to Complainant. (CX-129 at MG0332-0333; CX-130 at MG0332-0333.) The revised Corrective Action Plan provides in part:

The following is an acknowledgment statement to be signed by you.

It is imperative that I adhere to the prescribed company Standards of Conduct and its corresponding Work Rules along with the applicable RFETS rules and regulations.

I will adhere to the chain of command in all issues that pertain to this company and the security of this site.

I understand that Wackenhut is concerned about the improper disclosure of classified information. Accordingly, to work for Wackenhut at RFETS, I agree to abide by and comply with the following:

• PSAP Implementation Plan, particularly but not limited to Section 6.2
• Company Standards of Conduct in corresponding work rules
• Rocky Flats Security Manual, particularly but not limited to Chapter 6
• DOE Order 5650.2B, Chapter 5, Part G, 2.c and 2.d (12/31/91)
• K-H directive-CAHW-001-96 (3/28/96)
• Kaiser Hill Team Standards of Conduct, particularly but not limited to Sections 15, 38, and 39

I understand that it is the responsibility of each Wackenhut employee to ensure the proper release of information in accordance with applicable laws, DOE orders, and company policies and that each employee must identify the necessity of acquiring classification and other reviews for documents they prepare.

I understand that such rules and regulations are not meant to, and do not, abridge any rights or remedies afforded to me under the Whistle Blower Statutes or other related Federal or State Laws.

. . . .

Failure to abide by the above-stated conditions will result in further disciplinary action up to and including termination.

(CX-129 at MG0332-0333; CX-130 at MG0332-0333. See also RX-D; CX-12; CX-88; CX-20; RX-A; CX-80; CX-100.)

   On or about September 25, 1998, the parties signed a Temporary Return to Work Agreement which enabled Complainant to return to his position as a CAS Lieutenant while this matter was being litigated. (See CX-147.) Complainant testified that he returned to work on September 28, 1998. (Tr. at 632.)

17. Cartoons

   Complainant's Exhibit 10 contains three cartoons. (CX-10.) First, there is a cartoon with a person's head in the ground. (CX-10 at MG0425.) The typed words "Graf's return main talk in Berlin" appear at the top of the cartoon, and the handwritten word "Kleo" appears on the person's back. (CX-10 at MG0425.)    Second, a Drabble cartoon was altered to depict Complainant as a modest hero. (CX-10 at MG0426.) Third, there is a Ziggy cartoon that makes no apparent reference to Complainant and states, "Hi, I'm from the government and I'm here to help you!" (CX- 10 at MG0426.)

   The figures in the following table reflect the total number of shift hours that each lieutenant reportedly worked.

                    11/95     12/95      1/96     Total
  Angelo              109       171       173      453
  Chamberlin          168       120       176      464
  Couper              156        97       191      697
  Cseh                156       156       180      492
  Graf (Complainant)   12       175        23      210
  Pomeroy             153        72        72      297

   On July 6, 1994, Ms. Bange transmitted correspondence to the DOE Chief Counsel's office concerning the current status of whistleblower claims and other legal matters. (CX- 62.) Therein, Marilyn M. Mulhall was identified as having filed a formal whistleblower complaint. (CX-62.) Mark J. Jamsay, Jeffrey B. Peters, Timothy T. Powell, and James A. Vissar were identified as having filed informal whistleblower complaints. (CX-62.) Complainant's counsel also introduced a Salary Discipline Log, which was dated August 22, 1994. (CX-63, 64.)

1. William S. Armijo

   In June 1991, and August 1991, William S. Armijo expressed health and safety concerns to his supervisors. (CX-47.) On August 22, 1991, Mr. Armijo was responding to an intrusion alarm which was activated in a radiologically controlled area. (CX-18, 19, 47.) Mr. Armijo was concerned because he was not wearing the proper protective clothing. (CX-19, 47.) He contacted a supervisor and was told to enter the contaminated area without the proper protective clothing. (CX-19, 47.) Mr. Armijo followed those instructions. (CX-47.) On September 6, 1991, Respondent issued Mr. Armijo a fourteen-day suspension notice for failing to properly respond to the alarm on August 22, 1991. (CX-18, 47.)

   On October 7, 1991, Mr. Armijo filed a whistleblower complaint with the DOE. (CX-19.) On November 26, 1991, Mr. Armijo wrote a memorandum to Robert Nelson, DOE site manager, in an apparent effort to settle his whistleblower complaint. (CX-19.)

2. Gary L. Cupp

   On March 28, 1995, Gary L. Cupp participated in the Employee Assistance Program ("EAP"). (CX-66.) On or about September 12, 1995, Mr. Cupp filed a whistleblower complaint with the DOE. (CX-70.) Mr. Cupp alleged that

he was retaliated against and removed from the Training Division with a reduction in pay grade as a result of [Respondent] gaining knowledge of statements he provided to the United States Department of Labor's Office of Federal Contract Compliance Programs, as well as his participation in an interview conducted by the DOE Inspector General's office.

   On September 16, 1997, Mr. Cupp, manager of alarms and communications, advised Ms. Bange, director of human resources, about inquiries he had received concerning Respondent's compliance with equal employment opportunity regulations. (CX-101.) On October 20, 1997, Mr. Cupp sent an e-mail message to four persons, including Mike Cosgrove. (CX-104.) Therein, Mr. Cupp inquired as to whether Respondent's contract prohibited him from communicating directly with DOE personnel, and explained that he was advised that all such communications must go through Kaiser-Hill. (CX-104.)

   On October 22, 1997, Mr. Cosgrove reprimanded Mr. Cupp on four grounds, including his "reaction to Kaiser-Hill's request [that he] follow proper protocol when dealing with technical taskings from DOE." (CX-105.) Mr. Cupp was "suspended with pay until further notice." (CX-105.) On the same day, Mr. Cosgrove and Mr. Cupp met for the purpose of discussing correspondence that Mr. Cupp had sent to the DOE. (CX-108.) During the course of this meeting, Mr. Cupp opined that Mr. Cosgrove was violating the terms of his settlement agreement. (CX-108.) Mr. Cosgrove replied:

I will be glad to work with you on your cc:mail concerns and your memos. We can go over them line by line, but you've got to stop this letter writing campaign. This is disrupting the work place and is counter productive. You've got to turn this behavior around and stop this intimidation through your memos or we'll never work together as a team. . . . I am not saying you can't utilize the whistleblower program. But you owe it to us to try and work these issues here before you go to DOE.

(CX-108 at MG2717.) Later that day, Mr. Cupp transmitted correspondence to Mr. Cosgrove stating that he wanted to be part of his management team. (CX-106.) Mr. Cosgrove questioned Mr. Cupp's sincerity in a letter dated October 22, 1997. (CX-107. See also CX-108 at MG2715.) Mr. Cupp was also encouraged to participate in the Employee Assistance Program. (CX-105, 107.)

   On November 7, 1997, Mr. Cosgrove met with Mr. Isom, Ms. Bange, and Mr. Cupp to discuss a variety of issues relative to Mr. Cupp's conduct. (CX-113.) Mr. Cupp signed a Corrective Action Plan requiring, among other things, that he maintain professional behavior and utilize a "cooling off" period when he becomes upset about an issue. (CX-114.)

3. Jo-Marie Lisa

   On June 17, 1992, Joseph F. Weiss sent Ms. Lisa a letter of reprimand for unprofessional conduct in her dealings with Frances Chaves and Denise Hayden. (CX-34.) The letter also referenced a counseling session on May 29, 1992, in which her corporate loyalty and lack of professionalism were at issue. (CX-34.) Ms. Lisa was placed on a sixty-day monitored probationary period. (CX-34.)

   On June 18, 1992, Ms. Lisa sent a response to Mr. Weiss. (CX-35.) Therein, Ms. Lisa states that her corporate loyalty was questioned relative to Ben Bonner's and Robert Atkinson's termination of employment. (CX-35.) Ms. Lisa questioned whether the May 29, 1992, meeting constituted a "counseling session" and asked Mr. Weiss to provide further information to support his allegations. (CX-35.)

(CX-58 at MG3211.)

   On May 9, 1994, DOE Manager Mark N. Silverman advised Mr. Gillison that Ms. Mulhall had filed a whistleblower complaint. (CX-54.) Mr. Silverman's memorandum provides, in part:

   Ms. Mulhall alleges that she is suffering retaliatory action for raising various concerns about WSI's failures to adhere to the terms of the contract with DOE, as well as instances of possible fraud, waste, and abuse. The alleged retaliatory actions include several disciplinary actions, removal of "Q" clearance, removal from and deletion of her position of Director, Administration, placement into an untitled, non-specific position, as well as removal from her office.

   . . . .

   As part of the informal resolution process outlined in section 708.7, we ask that you review this matter and provide a written response concerning WSI's position on Ms. Mulhall's allegations, and on affording the relief she is requesting.

(CX-54.)

   On May 25, 1994, Mr. Gillison provided the DOE with a written response refuting Ms. Mulhall's whistleblower claims. (CX-58.) On June 6, 1994, Ms. Mulhall's employment was terminated on the grounds that she had violated several of Respondent's work rules. (CX-60, 61.) Respondent's Discipline Review Board determined that Ms. Mulhall had exhibited inappropriate behavior towards other employees, had failed to comply with the travel policies, and had refused to cooperate with the internal investigation. (CX-60, 61.)

   On September 2, 1995, Ms. Mulhall signed an affidavit in support of her claims against Respondent. (CX-67.) Therein, Ms. Mulhall states that there are sound medical reasons for her behavior on January 6, 1994. (CX-67 at MG3101, MG3104-05. See also CX-69.) She also admits to having used profanity in the work place. (CX-67 at MG3103.) Nevertheless, Ms. Mulhall contends that Respondent did not provide her with the requisite counseling sessions and performance appraisals. (CX-67.) She also asserts that some of her male colleagues were not disciplined for similar conduct. (CX-67. See also CX-69.) Moreover, Ms. Mulhall received a $3,000 bonus which appears to be inconsistent with any performance problems during 1993. (CX-67 at MG3104.) She also recounted the series of events leading up to her termination, which have been summarized above. (CX-67.)

5. Jeffrey B. Peters

   On January 23, 1993, Ms. Mulhall transmitted a memorandum to Bill Gillison concerning the unresponsiveness of Mr. Peters and his staff to her requests. (CX-43.)

    a. Letters to Congressman Skaggs

    b. Alleged Retaliation

   On December 5, 1995, Mr. Peters was placed on administrative leave. (CX- 75.) On January 17, 1996, Mr. Peters agreed to abide by the standards of conduct set forth in the Corrective Action Plan identified as Complainant's Exhibit 75. (CX-75. See also CX-86.) Mr. Peters was also encouraged to continue voicing his security concerns. (CX-75 at MG3274.)

(CX-82. See also Tr. at 1080-81.) Mr. Waller apparently sent a copy of these messages to Mr. Gillison on April 1, 1996, and included the following handwritten note:

Bill, You can see I am getting a lot of cc mail on Mr. Peters. Cal.

(CX-82. See also Tr. at 1077-82.)

    c. OPM/DOE Investigation

   On February 4, 1996, Mr. Peters' attorney sent a draft complaint to the DOE headquarters in Washington, D.C. (CX-86 at MG0512.) Mr. Peters claimed that he was reassigned from his director of protective force operations position to the director of training position on January 17, 1996, in retaliation for making safety and security complaints to Respondent, Kaiser- Hill, and the DOE. (CX-86 at MG0512.) Respondent asserted that Mr. Peters was disciplined for leaving a meeting, where security concerns were being discussed, against his supervisor's instructions. (CX-86 at MG0512, MG0525.) Respondent also contended that the reassignment was necessary to alleviate Mr. Peters' stress and was not retaliatory in nature. (CX-86 at MG0512.) The DOE's Office of Internal Assessment investigated this matter. (CX-86.)

6. Michael Angelo

   On February 17, 1999, Michael Angelo signed an affidavit which provides in part:

4.   I am familiar with the letter that Jeff Peters wrote to Congressman Skaggs. Mr. Peters sought and received my input on this letter to Congressman Skaggs concerning RFETS security concerns and issues. I was also present when Mr. Peters sought and received Mark Graf's input on this letter to Congressman Skaggs concerning security concerns and issues. Mr. Peters also sought and received input on this letter to Congressman Skaggs from other Wackenhut employees.

. . . .

6.   I was never retaliated against for my participation in Mr. Peter's [sic] letter to Congressman Skaggs.

7.   Over the years there have been times that both Mark Graf and I have had to work long hours or lots of hours. These extended hours have mainly been due to mitigating circumstances. It has not been in retaliation for something either of us has done.

(CX-145.)

   Complainant's Exhibit 3 contains a listing of approximately 120 tape recorded conversations that Complainant produced during discovery in this matter. (CX-3.) Several of these recordings, or portions thereof, were introduced into evidence at the formal hearing. (See CX-4, 5, 89, 95; RX-H, I, J.)

1. Peters' Conversations with McCallum

   On February 7, 1996, Mr. Peters tape recorded a telephone conversation with Edward McCallum of the DOE. (CX-89.) Mr. Peters called Mr. McCallum to ask how he could keep a copy of the classified letter to Mr. Gillison at an off-site location. (CX-89 at 2-3, 7, 9.) They also discussed Mr. Peters' security concerns, his whistleblower activities, and investigations into his allegations. (CX-89.) In addition, Mr. McCallum suggested that Mr. Peters contact the Defense Nuclear Facility Safety Board ("DNFSB"). (CX-89.)

   Early in the conversation, Mr. Peters states that he is going to follow up with Congressman Skaggs' staff. (CX-89 at 6.) Mr. McCallum replies, "I think they're going to take a dodge and say, well, the material's bad so any temporary things are you know, no big deal, and take a dodge like that." (CX-89 at 7.) Complainant takes the position that Mr. McCallum is referring to the DOE investigators. (CX-89 at 31.) However, it appears that Mr. McCallum is referring to Congressman Skaggs or his staff. (CX-89 at 6-7.) The DOE investigation was not discussed until later in the conversation. (See CX-89 at 10-15.)

   On May 7, 1997, Mr. Peters tape recorded another telephone conversation with Edward McCallum. (CX-95.) At that time, they discussed the Annual Report to the President, Mr. McCallum's security concerns, and recent inquiries being made by the DNFSB. (CX-95.)

2. Complainant's Conversation with Abelson

   I have thoughtfully considered and evaluated the rationality and internal consistency of the testimony of all witnesses and the manner in which the testimony supports or detracts from the other record evidence. In so doing, I have taken into account all relevant, probative, and available evidence and have attempted to analyze and assess its cumulative impact on the record. See Frady v. Tennessee Valley Auth., 92-ERA-19 at 4 (Sec'y Oct. 23, 1995)(citing Dobrowolsky v. Califano, 606 F.2d 403, 409-10 (3d Cir. 1979)); Indiana Metal Prod. v. Nat'l Labor Relations Bd., 442 F.2d 46, 52 (7th Cir. 1971).

   Credibility is that quality in a witness which renders his evidence worthy of belief. See id. For evidence to be worthy of credit,

[it] must not only proceed from a credible source, but must, in addition, be 'credible' in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe it.

Indiana Metal Prod., 442 F.2d at 51. An administrative law judge is not bound to believe or disbelieve the entirety of a witness's testimony, but may choose to believe only certain portions of the testimony. See Altemose Constr. Co. v. Nat'l Labor Relations Bd., 514 F.2d 8, 15 n.5 (3d Cir. 1975)(citing National Labor Relations Bd. v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), vacated and remanded on other grounds, 340 U.S. 474 (1951)).

   Moreover, based on the unique advantage of having heard the testimony firsthand, I have observed the behavior and outward bearing of the witnesses from which impressions were garnered as to their demeanor. In short, to the extent credibility determinations must be weighed for the resolution of issues, I have based my credibility findings on a review of the entire testimonial record and exhibits with due regard for the logic of probability and the demeanor of witnesses.

1. Complainant

   Generally, Complainant was a very slow, methodical, and disingenuous witness. When compared with Mr. Angelo, Complainant had almost a colorless personality. His overall demeanor did not inspire confidence in his credibility. Furthermore, his testimony contained inconsistencies which called his credibility into question.

   Based on the foregoing, I find and conclude that Complainant's testimony is generally unreliable, and absent corroborating evidence, is insufficient to establish any controverted fact. I further find that Complainant's noncompliance with the classification review policy was primarily motivated by his personal disagreement with said policy. (See Tr. at 677.) In addition, Complainant's noncompliance appears to have been partially motivated by the fact that the classification review policy had not been enforced against him during Mr. Gillison's tenure as general manager. (See, e.g., Tr. at 619, 646. But see Tr. at 648-49.)

   Finally, the record reveals that portions of Complainant's testimony are misleading. For example, Complainant testified that he did not receive overtime compensation in December 1995. (Tr. at 580-81.) However, the uncontroverted evidence shows that in March 1995, Complainant's annual salary was adjusted from $44,279 to $68,692, resulting in a 55% annual increase. (CX-15 at W0130.) This increase was due to a change in Respondent's compensation system for "top level operations exempt personnel from a base plus overtime to an annual salary." (CX-15 at W0132. See also Tr. at 801-02, 925-27.) As such, Complainant was compensated for anticipated overtime hours in December 1995, because he had recently received a 55% increase in his annual salary. (See Tr. at 801-01, 1178; CX-15.) Hence, I find Complainant's misleading testimony to further compromise his credibility.

2. William Armijo

   William Armijo appeared to have a particularly hostile demeanor with respect to Respondent. Indeed, he seemed to have "his own score" to settle with Respondent. Mr. Armijo did not have a demeanor that inspired confidence in his credibility.

3. Gail L. Bange

   Gail L. Bange appeared to be a loyal employee of Respondent and part of the "team." Nevertheless, she had a sincere demeanor and provided detailed testimony at the hearing. Though I find most of her testimony to be credible, I question her accuracy as a shorthand reporter. (Tr. at 966, 970.) Ms. Bange conceded that her shorthand speed had decreased since her secretarial days. (Tr. at 966.) When asked to translate a simple shorthand sentence, however, Ms. Bange was only able to identify two of the four words in the sentence. (Tr. at 970.) Hence, Ms. Bange has either misrepresented her shorthand ability or has developed her own shorthand style over the years. Accordingly, this testimony calls into question the credibility of Exhibits 112, 120, 126, and 127. (See Tr. at 951-54; CX-112, 120, 126, 127.)

4. Steven L. Cunningham

   Steven L. Cunningham's sincerity and overall bearing on the witness stand was consistent with the demeanor of a person who was telling the truth regardless of whether his answers would be favorable to Respondent. His testimony did not waiver in the face of probing questions from Complainant's counsel. Hence, I find Mr. Cunningham to be a credible witness.

5. William R. Gillison

   William R. Gillison was an impressive witness in terms of confidence and forthrightness. His testimony was straight-forward and presented in a detailed, consistent manner. Mr. Gillison appeared to be a highly credible witness.

6. Denise A. Graf

   Denise A. Graf was a timid but sincere witness. Her demeanor was consistent with a person who was telling the truth to the best of her ability.

7. Marcy A. Nicks

   Marcy A. Nicks appeared to be a disgruntled employee, which perhaps was due to her receiving an unfavorable job performance rating and filing of a gender discrimination complaint. In short, her demeanor did not inspire confidence in her credibility.

8. Jeffrey B. Peters

   Jeffrey B. Peters is an intense and proud man who appears to believe that any means are acceptable if, in his view, the ends are desirable. For example, Mr. Peters continued making secret audiotapes of Mr. Levernier's conversations despite Mr. Gillison's express instruction to stop making these tapes. (Tr. at 1000-01.) Similarly, despite repeated orders from Mr. Gillison that he remain in a management meeting concerning the movement of special nuclear materials, Mr. Peters declined to do so. (Tr. at 353-55, 519-20.) His "ends justifies the means" philosophy tends to compromise his credibility.

   Although I found Mr. Peters to be knowledgeable about the circumstances surrounding this complaint, he appeared to be emotionally involved in this case. Mr. Peters' overall demeanor and testimony caused me to ponder whether he had manipulated Complainant. In short, I found him to be a hotheaded person who was lacking good judgment.

9. David E. Ridenour

   David E. Ridenour was a poor witness and seemed to lack self confidence. Nevertheless, there did not appear to be any inconsistencies in his testimony.

10. James A. Vissar

   Similarly, I found James A. Vissar to be an average witness in terms of his overall bearing on the witness stand. He appeared to be forthright when answering questions from opposing counsel.

11. Michael T. Angelo

   Michael T. Angelo's testimony was presented in a reasonably detailed and sincere manner. I also found him to be much more personable than Complainant. Hence, I found Mr. Angelo's testimony that his managerial and interpersonal skills were superior than Complainant's to be credible. (See Tr. at 1170-71, 1201-02.)

   Although there was conflicting testimony as to whether he had contributed to the letter sent to Congressman Skaggs, Mr. Angelo appeared to have a sincere belief that he had contributed to said letter. (See Tr. at 426-27, 576, 1189-92.) Moreover, Complainant testified that some of the information contained in this letter was gathered from employees assigned to the protective force. (Tr. at 576.) Nevertheless, I do not find this information to be relevant comparator evidence because there is no evidence indicating that Respondent had knowledge of Mr. Angelo's involvement. (See Tr. at 1194.)

12. Michael M. Cosgrove

   Michael M. Cosgrove appeared to be an extremely intelligent and capable manager. He was a forthright witness whose testimony did not waiver in the face of probing questions from Complainant's counsel. He appeared to answer questions to the best of his ability regardless of whether the answers given would or would not be favorable to his side of the litigation. Hence, Mr. Cosgrove appeared to be a credible witness.

13. Ronald Leach

   Ronald Leach appeared to be a credible witness. At times, however, Mr. Leach was somewhat reluctant to commit himself to particular positions and appeared to be part of Respondent's team.

14. Bryan Siebert

   Bryan Siebert's testimony was presented in a straight-forward and detailed manner. Despite repeated attempts by Complainant's counsel to discredit him, I found Mr. Siebert's testimony to be reasonably consistent. He appeared to be testifying truthfully about the DOE's classification policies and procedures.

   Although no formal stipulations were read into the record at the hearing and the parties did not file stipulations signed by both counsel, it is apparent from the parties' proposed decisions and orders that there is no disagreement as to the following issues:

1.   Complainant is an employee governed by the ERA and Respondent is an employer governed by the ERA.

2.   Respondent had knowledge of Complainant's protected activities when it allegedly took adverse employment action against him.

3.   Complainant was subjected to the following adverse employment actions:

a.   In December 1995, Complainant received additional overtime assignments;

b.   In April 1996, Complainant was reassigned from a program management position to a supervisor position for the "A" day shift;

c.   Complainant's participation in meetings and interface with the planning and maintenance departments decreased;

d.   On January 28, 1998, Complainant was asked to voluntarily report to the EAP for evaluation;

e.   On January 31, 1998, Complainant was placed on paid administrative leave;

f.   In February or March 1998, Complainant was removed from his PSAP position; and

g.   In March 1999, Mr. Angelo, rather than Complainant, was reassigned from a twelve-hour shift to a five-day work week.

4.   "Temporal proximity" exists between the protected activities and the above-mentioned adverse employment actions.

(See RDO at 17-18, 20; CDO at 49-50, 53-59.)

   Because the record clearly reflects that the parties do not dispute the foregoing, and because their agreements are amply supported by the evidence, the same are hereby accepted as preliminary findings of fact and conclusions of law.

   Complainant correctly asserts that he engaged in several protected activities. (CDO at 50-53.) It is protected conduct for an employee to express nuclear safety and security concerns to Congress. See Kansas Gas and Elec. Co. v. Brock, 780 F.2d 1505, 1510-13 (10th Cir. 1985); Ruud v. Westinghouse Hanford Co., 88-ERA-33 at 9 (ARB Nov. 10, 1997). Hence, Complainant engaged in a protected activity when he assisted Mr. Peters' in composing a letter to Congressman Skaggs dated December 8, 1995, concerning site safety and security issues. (Tr. at 358, 360-61, 423-25, 574-77. See also CX-72, 77.) Said letter was at least partially responsible for prompting the formation of an independent review panel to examine the safeguard and security measures employed at RFETS. (See RX-F; Tr. at 737-39. See also RX-I (Complainant later urged Congressman Skaggs' staff to investigate the security issues raised in the letter dated December 8, 1995).)

   Likewise, it is well settled that providing nuclear safety information to governmental agencies is protected under the Act. See 42 U.S.C. § 5851(a); Kansas Gas and Elec. Co., 780 F.2d at 1510-13. Consequently, sending a copy of said letter to Mr. McCallum, director of the DOE Office of Safety and Security, was protected activity. (CX-72, 77.) The record reveals that DOE officials conducted an investigation into the allegations raised in the letter to Congressman Skaggs. (CX-76; Tr. at 592, 684, 731.) Complainant also engaged in protected activity when he sent a letter to the DNFSB dated September 26, 1996, and met with DNFSB members in February 1997. (CX-96; Tr. at 593, 619, 740-41.) Later, a DNFSB representative informed Complainant that, due in part to his efforts, Congress had created an independent review board for security concerns at nuclear facilities. (Tr. at 629, 740.)

   Similarly, disclosing information to government agency representatives that are investigating a fellow employee's whistleblower complaint is protected under the Act. See Floyd v. Arizona Pub. Serv. Co., 90-ERA-39 at 2, 4 (Sec'y Sept. 23, 1994). Hence, Complainant's participation in the investigation conducted by DOE Employee Concerns Manager Marcy Nicks and OPM investigator Linda Weghorst concerning Mr. Peters' whistleblower complaint is protected activity. (Tr. at 696-97, 713, 921-22; CX-86.) Additionally, Complainant's filing of this whistleblower complaint on March 26, 1998, is protected activity. See McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).

   Internal reporting of safety and security concerns to company supervisors is also protected activity under the Act. See 42 U.S.C. § 5851(a)(1)(A); Kansas Gas and Elec. Co., 780 F.2d at 1513 (citing Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1162-63 (9th Cir. 1984)). Thus, Complainant engaged in protected activity when he submitted an eight page classified document to Mr. Gillison, Respondent's general manager, detailing his perceived security concerns at RFETS. (Tr. at 594; CX-131.) In response, Mr. Gillison directed a team of four managers to investigate the issues raised in said memorandum. (CX-87, 131; RX-E; Tr. at 604-05. See also CX-84, 99.)

   Finally, Complainant engaged in protected activity when he was interviewed by reporters from the Denver Post and CBS News about his site safety and security concerns. (Tr. at 606-08, 621-22, 624, 683.) On May 20, 1997, the Denver Post published an article wherein Complainant was quoted. (CX-97; Tr. at 606, 608.) Likewise, CBS News attributed certain information to Complainant in a press release and a two-part broadcast on RFETS security. (CX-109, 116; RX-C; Tr. at 625-26.) The Secretary of Labor has ruled that speaking with the news media about nuclear safety concerns is protected activity under the Act. See Floyd, 90-ERA-39 at 4 (citing Pooler v. Snohomish County Airport, 87-TSC-1 at 3 (Sec'y Feb. 14, 1994)); cf. Crosby v. Hughes Aircraft Co., 85-TSC-2 at 23 n.15 (Sec'y Aug. 17, 1993)(contacting the media was not protected under an environmental acts' analogous whistleblower provisions because the subject matter raised with the media was not an environmental concern).

(See CDO at 54-56; RDO 17-20.)

   To constitute an adverse action, Complainant must demonstrate by a preponderance of the evidence that the action had some adverse impact on his employment. See Trimmer, 174 F.3d at 1103 (citing Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)). The Tenth Circuit liberally defines the phrase "adverse employment action" and "takes a case-by-case approach to determining whether a given employment action is 'adverse.'" Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998)(employment action is not required to be materially detrimental).

   In Jeffries, for example, verbal interrogation and reprimand were sufficient to constitute adverse employment actions even though said actions did not actually have an adverse impact on the terms and conditions of the employee's employment. Id. Other examples of adverse actions include "decisions that have demonstrable adverse impact on future employment opportunities or performances, demotions, [] unjustified evaluations or reports, transfer or reassignment of duties, [and] failure to promote." Fortner v. Kansas, 934 F. Supp. 1252, 1266-67 (internal citations omitted), aff'd sub nom. Fortner v. Rueger, 122 F.3d 40 (10th Cir. 1997). Nevertheless, it is not sufficient for a complainant to simply testify that he did not like the action or wished that the action had not occurred. Trimmer, 174 F.3d at 1103 (citing Greaser v. Missouri Dep't of Corrections, 145 F.3d 979, 984 (8th Cir. 1998). See also Fortner, 934 F. Supp. at 1266-67("[N]ot everything that makes an employee unhappy is an actionable adverse action." Speculative harm will not constitute adverse employment action. Id.

1. Denial of Request for "Comp Time"

   Complainant's assertion that Respondent disallowed his "comp time" request "despite [its] allowance of others to do so," is not supported by the record evidence. (CDO at 55.) Rather, the record reveals that

Respondent had implemented a policy change approximately six months earlier that discontinued "comp time" allowances for salaried sergeants, lieutenants, and captains. (Tr. at 925-26.)

   In March 1995, Respondent received DOE approval to change its compensation system for "top level operations exempt personnel from a base plus overtime to an annual salary." (CX-15 at W0132. See also Tr. at 801-02, 925-27.) As a result, salaried protective force supervisors were no longer qualified for overtime compensation or "comp time" based on the number of hours that they worked. (Tr. at 926-27.) Rather, overtime compensation was factored into their annual salaries. (Tr. at 801-02, 1178.) The new compensation policy was implemented on March 20, 1995. (CX-15 at W0130.) At that time, Complainant's annual salary was adjusted from $44,279 to $68,692, resulting in a 55% annual increase. (CX-15 at W0130.)

   In December 1995, Complainant decided that he wanted to take at least one week of consecutive "comp time" during January 1996. (Tr. at 800, 830, 1177-78.) However, he was later informed by Mr. Sayers of the Payroll Department that it was not possible to take the requested "comp time." (Tr. at 801, 830.) Consequently, Complainant took one week of vacation time instead. (Tr. at 582; RX-M.)

   Complainant has presented no credible evidence to show that management allowed similarly situated employees to take "comp time" after the compensation policy was changed. Moreover, Complainant's self-serving testimony that his supervisor could have approved his "comp time" request is insufficient to meet his burden. (Tr. at 830.) I find that Complainant's testimony is not credible without corroborating evidence, and that the above- mentioned evidence establishes that "comp time" was no longer available.

   Complainant appears to rely on Mr. Angelo's testimony that he has taken up to three consecutive days of "comp time" in the past. (Tr. at 1199.) However, the record is unclear as to whether Mr. Angelo was permitted to take "comp time" after the compensation system was changed. (Tr. at 1199.) Moreover, Mr. Angelo testified that "comp time" had generally been taken in one-or-two-day increments. (Tr. at 1177-78.) He explained that one-or-two-week periods of "comp time" were disallowed because they would have adversely impacted the shift operations. (Tr. at 1178.) Therefore, I find that Mr. Angelo's testimony supports Respondent's position that the denial of the "comp time" request was proper under company policy. I further find and conclude that Complainant was treated like other employees with equal status, and that the denial of Complainant's "comp time" request was not an adverse employment action. See Mosbaugh v. Georgia Power Co., 91-ERA-1 at 9 (Sec'y Nov. 20, 1995)(not an adverse action when complainant was treated like other similarly situated employees under company policy); Moody v. Tennessee Valley Auth., 91-ERA-40 at 2 (Sec'y Apr. 26, 1995).

2. Actions Occurring After Communication with CBS News

   Nevertheless, Complainant correctly asserts that the disciplinary action and threatened disciplinary action occurring after his communications with CBS News in September or October 1997, constitutes adverse employment action. The uncontroverted evidence establishes that Mr. Cosgrove threatened Complainant with disciplinary action, up to, and including, termination if he failed to cooperate fully with Respondent's internal investigation on January 28, 1998. (Tr. at 1247-49; CX-120. See also CX-121.) At that time, Complainant complied with Mr. Cosgrove's request to cooperate with the internal investigation, so the disciplinary action was never realized. (See CX-121; CX-120 at W0233.)

   Approximately two months later, on March 24, 1998, Mr. Cosgrove composed a disciplinary letter issuing a one-day suspension without pay. (Tr. at 897-904; 1252, 1265-67; CX- 13 at MG0103; CX-124.) The suspension was not implemented, however, the suspension may be implemented if Respondent prevails in this matter. (Tr. at 897, 1386-87.)

   Indeed, Complainant refused to comply with the terms of the Corrective Action Plan dated March 24, 1998, absent Respondent's acceptance of the following addendum:

I reserve my right to make disclosures of violations or perceived violations of the Energy Reorganization Act and/or the Atomic Energy Act. I do not admit that I have acted improperly in the past and protest this discipline.

3. Posting of Cartoons

   Next, Complainant argues that the temporal proximity of his protected activities and the adverse employment actions are sufficient to establish an inference of causation. (CDO at 57-59.) A retaliatory motive may be inferred when an adverse employment action closely follows a protected activity. See Chavez v. City of Arvada, 88 F.3d 861, 866 (10th Cir. 1996). See also Seater, 95-ERA-13 at 15. Hence, the dates of Respondent's adverse actions are key to this inquiry, because the closer that they occurred to Complainant's protected activity, the more likely they will support a showing of causation. See id.

   As detailed above in the "preliminary findings of fact and conclusions of law" section, Respondent concedes that temporal proximity exists between Complainant's protected activities and seven adverse employment actions. In addition, Complainant correctly asserts that the proximity of time between the filing of this whistleblower complaint and the request that Complainant acquiesce to the terms of the revised Corrective Action Plan is sufficient to create an inference of retaliatory intent.

   The record reveals that Complainant engaged in the protected activity of filing a formal whistleblower complaint on March 26, 1998. (Tr. at 1261. See also CX-128.) The record further reveals that Mr. Cosgrove sought Complainant's compliance with the terms of a revised Corrective Action Plan on April 7, 1998. (CX-129 at MG0332-0333; CX-130 at MG0332- 0333.) Complainant refused to sign the revised Corrective Action Plan and remained on paid administrative leave until the parties signed a Temporary Return to Work Agreement on or about September 25, 1998. (CX-147; Tr. at 632.) The lapse of time between Complainant's protected activity and the adverse action is approximately two weeks. It is well established that a lapse of two weeks is sufficient, standing alone, to establish an inference of causation. See Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994)(one and one-half month period may, by itself, establish causation).

   Moreover, Complainant claims that his protected activity in October 1997, led to the adverse action in March 1998. Here, the lapse of time between Complainant's protected activity and the adverse action is approximately five months. A lapse of five months is too distant, by itself, to establish an inference of causation. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997)(three month period, standing alone, is insufficient to establish causation). Nevertheless, Complainant may rely on additional evidence beyond temporal proximity to establish an inference of causation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997).

   Complainant has introduced sufficient evidence to establish a nexus between his protected disclosures to CBS News in September or October 1997, and Mr. Cosgrove's threatened disciplinary actions in March 24, 1998. Here, Mr. Cosgrove became aware of Complainant's participation in the CBS News team investigation on or about October 28, 1997. (Tr. at 1242; CX-109.) On November 6, 1997, Mr. Cosgrove asked Complainant to respond to a series of questions concerning his compliance with the classification review procedures and the potential release of classified information to CBS News. (CX-111; Tr. at 626, 1243-44.) In a written response, Complainant conceded that the Contractor Classification Office had not reviewed said information. (CX-110 at W0128.) The CBS News story was aired on November 24 and 25, 1997. (Tr. at 1247.)

   In late November or early December 1997, Mr. Cosgrove initiated an administrative investigation into whether Complainant had released "classified, sensitive, or proprietary information" to the news media. (CX-119 at 1, 10. See also Tr. at 1243, 1247-48, 1326-27.) In late January 1998, Respondent's internal investigators informed Mr. Cosgrove that Complainant had refused to answer a few questions soliciting specific information about the content of Complainant's disclosures to CBS News. (Tr. at 1248; CX-119.)

   Hence, Mr. Cosgrove held a second meeting with Complainant on January 28, 1998. (Tr. at 951-53, 965-66, 1247; CX-120, 121.) At this time, Mr. Cosgrove personally requested that Complainant answer the questions and explained that the answers would not be used against him in any type of criminal proceeding. (Tr. at 1248-49.) He further explained that Complainant's failure to answer the questions could lead to disciplinary action, including termination. (Tr. at 1249.) Complainant responded by providing detailed information in writing. (Tr. at 1249; CX-121, CX-120 at W0233.) In addition, Complainant acquiesced to Mr. Cosgrove's suggestion that he voluntarily participate in the Employee Assistance Program ("EAP"). (Tr. at 1254-56, 1263-64; CX-120 at W0234; CX-121.)

   On January 31, 1998, Complainant was placed on paid administrative leave pending the results of the psychological evaluation. (CX-122.) On February 27, 1998, Dr. Furman notified Respondent that Complainant was fit for duty and suitable for return to work. (CX-123 at MG0109.)

   On March 24, 1998, Mr. Cosgrove met with Complainant to discuss his return to work. (CX-126.) At that time, Complainant was presented with a Corrective Action Plan and a disciplinary letter. (Tr. at 897-904, 1252, 1265-67; CX-13 at MG0103-MG0104; CX-124, 125.) Said documents contained unrealized threats of disciplinary action. (Tr. at 897-904, 1252, 1265-67; CX-13 at MG0103-MG0104; CX-124, 125.) Complainant refused to comply with the terms of the Corrective Action Plan unless Respondent accepted the terms of a handwritten addendum. (CX-125 at MG0390. See also CX-126 at W0196.) Mr. Cosgrove found the addendum to be unacceptable, and, as such, ordered Complainant to remain on paid administrative leave until further notice. (CX-127, 128.)

   Based on the foregoing, I find and conclude that the series of events stemming from Complainant's protected disclosures to CBS News in September or October 1997, to Mr. Cosgrove's threatened disciplinary actions in March 24, 1998, are sufficiently interrelated to establish an inference of retaliatory motive. Nevertheless, Complainant still has the burden of proving by a preponderance of the evidence that Respondent's proffered reasons for the adverse employment actions are pretexual. See Jackson v. Ketchikan Pulp Co., 93-WPC- 7 at 5 (Sec'y Mar. 4, 1996).

   Under the McDonnell Douglas pretext analysis, Complainant must either show that an unlawful reason more likely motivated Respondent, or show that the proffered explanation is not worthy of credence. See Nichols v. Bechtel Constr., Inc., 87-ERA-44 at 13 (Sec'y Oct. 26, 1992)(as corrected by Errata Order on Oct. 30, 1992). Indeed, a complainant may establish pretext by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder [sic] could rationally find them unworthy of credence and hence infer that the [respondent] did not act for the asserted nondiscriminatory reasons." Anderson, 181 F.3d at 1179 (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).

1. Overtime Assignments in December 1995; Reassignment in April 1996; and Reduction in Meeting Attendance

   First, Complainant alleges that his protected activity led Respondent to retaliate against him by: (a) assigning him excessive overtime hours in December 1995; (b) reassigning him from a program management position to a shift supervisor position in April 1996; and (c) reducing his participation in meetings and interface with the planning and maintenance departments. The evidence does not support these allegations. Rather, the evidence supports a finding that these changes were the result of corporate downsizing or a reduction-in-force.

    a. Overtime Assignments in December 1995

   In early 1995, Complainant was one of two Central Alarm Station ("CAS") lieutenants that was assigned administrative and operational duties. (Tr. at 562- 64, 798, 1173-74.) The other lieutenant was Mr. Angelo. (Tr. at 564, 1173.) In this capacity, their primary responsibilities were carried out during a forty-hour, five-day work week. (Tr. at 562-64, 798, 1173-74.) In addition, they received overtime assignments on the twelve-hour shift. (Tr. at 564, 798-99, 814-15, 1174.) They would generally receive overtime assignments when there was an insufficient number of shift supervisors due to vacations, sick leave, personal emergencies, and reductions-in-force. (Tr. at 799.) It appears that Complainant was regularly assigned a substantial amount of overtime, because when the compensation system was changed on March 20, 1995, and overtime compensation was factored into his salary, his annual salary was increased by 55%. (See CX-15 at W0130, W0132.) Indeed, Complainant testified that there were periods when the CAS operation employees were required to work eighty-hour weeks. (Tr. at 581.)

   In approximately September 1995, Mr. Angelo was assigned to "backfill" a shift supervisor position. (Tr. at 1173, 1199.) Due to a reduction-in-force, Mr. Angelo remained in this position until March 1999. (Tr. at 1173, 1180, 1194.) Consequently, Complainant assumed Mr. Angelo's shift relief responsibilities, and his shift assignments increased. (Tr. at 579, 1173.) In December 1995, Complainant was the only shift relief lieutenant. (Tr. at 579.)

       (1) Hours Worked by Similarly Situated Employees

   Rather, I find that Respondent's crew sheets and time cards are the best evidence of the hours worked by similarly situated employees. (See RX-M.) Respondent's records indicate that Mr. Angelo worked a comparable number of hours in December 1995. (See RX-M.) Specifically, the combined payroll records show that Mr. Angelo worked a total of 232.5 hours and that Complainant worked a total of 227.5 hours in December 1995. (RX-M.) Furthermore, the combined payroll records for the three month period beginning November 1995, and ending January 1996, indicate that four-of-the-five shift lieutenants worked more hours than Complainant. (RX-M.) This evidence clearly establishes that Complainant was not being treated differently than the other CAS lieutenants in December 1995.

       (2) Availability of Qualified Persons

   Finally, I must determine whether there were other certified and qualified employees available to perform the overtime assignments that Complainant received in December 1995. The uncontroverted evidence reveals that the following shift supervisors were certified and qualified to perform relief work: Messrs. Angelo, Couper, Cseh, and Pomeroy. (Tr. at 579-80.) In addition, Complainant asserts that his manager, Mr. Walsh, and his captain, Mr. Leach, were also certified and qualified to perform shift relief work. (Tr. at 579-80.)

    b. Reassignment in April 1996, and Reduction in Meeting Attendance

   Similarly, Complainant asserts that he was reassigned from a program management position to a shift supervisor position in April 1996, in retaliation for his protected activity. Complainant also argues that the reassignment had a chilling effect on his whistleblower activities because his access to information, participation in meetings, and interface with the planning and maintenance departments decreased. (CDO at 68-69.)

   The uncontroverted evidence establishes that Mr. Angelo, like Complainant, was reassigned from a program management position with a five-day work week, to a supervisor position with a twelve-hour shift rotation schedule. (Tr. at 1173.) The record establishes that Respondent was implementing cutbacks at the time of Mr. Angelo's reassignment, and that Complainant's reassignment followed approximately six months later. (See Tr. at 583, 709-10, 1173, 1994. See also Tr. at 795, 804.) Hence, the evidence indicates that Complainant was not treated differently than similarly situated employees.

   The record also supports a finding that Complainant was assigned to fill a shift supervisor position vacated by Mr. Couper, because Respondent was continuing to experience financial cutbacks. (See, e.g., CX-144.) In making this finding, I credit the testimony of Mr. Leach that Complainant was transferred to the twelve-hour shift to "backfill" a shift supervisor position. (Tr. at 804. See also CX-2 at MG009; CX-144; Tr. at 813.) I also credit the testimony of Mr. Gillison that Respondent was experiencing "significant costs cuts" and was lacking competent shift supervisors. (Tr. at 1101, 1111.) Moreover, Complainant conceded that his administrative duties were reassigned to Mr. Leach, with assistance from the shift lieutenants, and that this would have been the normal practice in a reduction-in-force situation. (Tr. at 710-11.)

   Complainant seeks to rebut these showings by arguing that the instant case is analogous to Scerbo v. Consolidated Edison Co. of New York, 89-CAA-2 (Sec'y Nov. 13, 1992). In Scerbo, however, the complainant relied on more than temporal proximity to establish pretext. 89-CAA-2. Indeed, the trier of fact determined that the employer's evidence was inconsistent and not worthy of credit. See id. Here, I find that Respondent has offered credible evidence that Complainant's reassignment was the result of corporate downsizing. Moreover, Respondent has introduced credible evidence showing that Complainant was treated the same as Mr. Angelo, the only similarly situated employee.

   Complainant also relies on the Final Inquiry Report relative to Mr. Peters' whistleblower complaint, which provides in part:

It appears a chilling effect may be created by WSI in that those who are supporting or interacting with Peters are now under investigation. . . . [Graf] was reassigned in early 4/96 to a line supervisory position and removed from his former duties which allowed access to the classified security information regarding SNM protection and movement.

(CX-86 at MG0518.) However, I do not find this evidence persuasive. First, the Final Inquiry Report does not appear to be based on complete evidence. For instance, the Report makes no mention of Mr. Angelo's reassignment. (See CX-86.) Second, I find that the shift supervisor position, by its very nature, impaired Complainant's ability to interface with the planning and maintenance operations. (See Tr. at 585-87.) Finally, the fact that Complainant and Mr. Angelo were both "demoted" to shift supervisor positions diminishes any potential "fear" by fellow employees that they may be retaliated against for engaging in protected activities. (See CDO at 70.)

   Accordingly, and based on the foregoing, I find and conclude that Complainant has not established by a preponderance of the evidence that Respondent acted with retaliatory animus when it reassigned him to the shift supervisor position in April 1996. I further find and conclude that the shift supervisor position, by its very nature, limited Complainant's ability to attend meetings and interface with the planning and maintenance departments. (See Tr. at 585-87.)

3. Adverse Actions After Complainant's Disclosure to CBS News

   Complainant also argues that Respondent was motivated by unlawful reasons when it took adverse employment actions against him after he disclosed site safety and security information to CBS News. The following adverse actions are at issue here: (a) threatening to take disciplinary action against Complainant on January 28, 1998; (b) asking Complainant to voluntarily report to the Employee Assistance Program ("EAP") for evaluation on January 28, 1998; (c) placing Complainant on paid administrative leave on January 31, 1998; (d) removing Complainant from his Personal Security Assurance Program ("PSAP") position in February or March 1998; (e) threatening to issue a one-day suspension without pay on March 24, 1998; (f) attempting to solicit Complainant's compliance with the terms of the Corrective Action Plan dated March 24, 1998; (g) refusing to accept the terms of Complainant's addendum to the Corrective Action Plan dated March 24, 1998; (h) ordering Complainant to remain on paid administrative leave; and (i) attempting to solicit Complainant's compliance with the terms of the revised Corrective Action Plan dated April 7, 1998.

   Respondent argues that these actions were the result of Complainant's knowing violation of a DOE classification order and his refusal to follow site disclosure rules in the future. (RDO at 22.) Although Complainant concedes that he had knowledge of the classification review policy before he communicated with CBS News, he asserts that Respondent's reasons are pretextual because (a) Respondent had not enforced the classification review policy in the past; (b) Respondent was concerned about the negative publicity generated by his disclosures; (c) Complainant failed to follow Respondent's internal chain of command before making said disclosures; and (d) Complainant was not a "team player." (CDO at 64-83.)

    a. Classification Policies and Procedures

   One of the central issues in this case is whether Complainant violated a classification policy or procedure when he failed to request that either the Contractor Classification Office or the DOE Classification Office review potentially classified information before disclosing said information to Mr. Peters and representatives of CBS News. The record contains numerous documents pertaining to site classification policies and procedures. (See, e.g., CX-8, 12, 20, 40, 80, 88, 92, 117, 132; RX-A, B.)

       (1) DOE Order No. 5650.2B

   Chapter V, Part G, of DOE Order No. 5650.2B sets forth the classification review procedures for "all documents originated by DOE or DOE contractor personnel who possess valid security clearances." (CX-20.) Subsection 2(d) expressly provides:

(CX-20 (emphasis added).)

   The evidence establishes that Complainant (1) was employed by a DOE subcontractor; (2) had a "Q" level security clearance; (3) was interviewed by CBS News personnel; (4) disclosed Category II or Category III information to Mr. Peters and CBS News personnel; (5) did not use a prepared text; and (6) made extemporaneous remarks concerning site security and safety issues. (Tr. at 47, 54, 166-67, 562, 568, 620-21, 624, 651-52, 683, 854; CX-118, 119.) Thus, under the plain language of DOE Order No. 5650.2B, Complainant was required to participate in a briefing with a DOE or Contractor Classification Office representative prior to releasing the potentially classified information to CBS News personnel and Mr. Peters.

   Finally, I find Complainant's argument that no classified information was actually released to be unpersuasive. DOE Order No. 5650.2B requires employees to have potentially classified information reviewed prior to making public disclosure of said information. (See CX-20; JX-1.) Since the underlying policy is to protect national security by avoiding the inadvertent release of classified information, the advance review requirement is reasonable. (See Tr. at 38, 54, 166-67.) Moreover, Complainant concedes that punishing a person after classified information has been inadvertently released is a rather ineffective means of preventing the dissemination of said information. (Tr. at 683.) Accordingly, and based on the foregoing, I find and conclude that Complainant violated the classification review procedures set forth in Chapter V, Part G of DOE Order No. 5650.2B.

   Even assuming, arguendo, that Respondent wrongly believed that Complainant violated the classification review policy, I find that Respondent's general manager and its internal investigators sincerely believed that Complainant had violated said policy. (See Tr. at 853, 856, 862-66, 1242-43, 1309-11; CX-111, 119. See also Tr. at 947-50, 1212- 1213, 1215, 1231-32; CX-13, 125, 129, 130.) Respondent's sincere belief is sufficient under the Act. See Dartey, 82-ERA-2 at 7.

          (b) Knowing Violation of Order

   I further find that Complainant knowingly violated the classification review procedure. The record reveals that Complainant was aware of the policy requiring employees to go through the Classification Office before releasing information to the media. (Tr. at 620, 646; CX- 118, 119.) Complainant had been instructed that ADC's were not authorized to approve information for public release. (Tr. at 668-69. See also CX-118 at MG0375; CX-119.) Nevertheless, Complainant chose not to contact the DOE Classification Office or the Contractor Classification Office prior to releasing the potentially classified information to CBS News personnel and Mr. Peters. (Tr. at 674.)

   I am not persuaded by Complainant's argument that he was not required to follow site classification review procedures because Mr. Cunningham did not want to review information that was in Mr. Peters' personal possession. It is unreasonable for Complainant to conclude, based upon the wording of the Long & Jaudon letter, that he was exempt from the site classification review policy. (See CX-92; Tr. at 157-58.) Indeed, there was nothing that precluded Complainant from having his own information properly reviewed. (See CX-92.) In making this finding, I do not credit Complainant's argument that such a review would be worthless without Mr. Peters' information. (Tr. at 743-45.) Complainant contends that a review of his material would have been "incomplete" because it would not have contained information in Mr. Peters' possession. (Tr. at 743-44.) Even assuming this to be true, I find no merit to the argument that no review is better than an incomplete review. Hence, I find and conclude that Mr. Cosgrove reasonably believed that Complainant had made a conscious decision not to follow the classification review policy prior to disclosing the potentially classified information to CBS News. (See Tr. at 1251.)

          (c) Past Enforcement of Order

   Nevertheless, Complainant makes a compelling argument that Respondent had not enforced the classification review policy in the past. (CDO at 70-73.) The evidence shows that Complainant was not disciplined for making past disclosures of potentially classified information to the public. (See, e.g., Tr. at 619.) Likewise, other employees had not been disciplined for failing to go through the Classification Office prior to disclosing site safety information to the public. (See, e.g., Tr. at 1005-12.) It is important, however, that these activities took place while Mr. Gillison was serving as Respondent's general manager. (Tr. at 993, 1113.)

   The fact that Mr. Cosgrove assumed the general manager position several months before the CBS News incident is critical to this analysis. (Tr. at 616, 657, 1208, 1213-14, 1279.) Mr. Cosgrove brought with him a strong belief that the site policies and procedures should be enforced. (Tr. at 947-49, 1212-1213, 1215, 1231-32.) Approximately one month after joining RFETS, Mr. Cosgrove held a series of "all-hands meetings" with Respondent's salaried and hourly employees. (Tr. at 949-50, 1231-32.) During these meetings, Mr. Cosgrove emphasized the importance of following the site rules, regulations, and policies. (Tr. at 950-51.) He warned employees that the site policies and procedures would be enforced and that violators would be held accountable for their actions. (Tr. at 950-51, 1231-32.) Complainant attended one of these meetings prior to making his disclosures to CBS News. (Tr. at 1232.)

   Accordingly, I find and conclude that Mr. Cosgrove's actions were motivated, at least in part, by Complainant's knowing violation of the site disclosure and classification rules.

          (d) Refusal to Follow Policy in Future

   The record also reveals that Mr. Cosgrove's actions were at least partially motivated by Complainant's refusal to follow the site classification review policy in the future. Indeed, Complainant concedes that he has refused to abide by Mr. Cosgrove's request that he follow the classification review policy in the future. (Tr. at 649; See also Tr. at 1253-54.) I also credit Mr. Cosgrove's testimony that Complainant was not immediately reinstated to his CAS shift lieutenant position because he had refused to abide by classification rules in the future. (Tr. at 1253- 54, 1264-65.) Therefore, I find and conclude that Mr. Cosgrove's action of ordering Complainant to remain on paid administrative leave was motivated, at least in part, by Complainant's refusal to follow site classification review policy in the future.

    b. Chain of Command; Team Player

   The record also supports a finding that Respondent's actions were partially motivated by Complainant's failure to follow the chain of command. (See, e.g., Tr. at 1340, 1365-67; CX-13 at MG0104-0105; CX-125; CX-129 at MG0332-0333; CX-130 at MG0332- 0333. Accord CX-120, 126.) It is well settled that an employee's failure to observe the chain of command in making protected disclosures cannot serve as a legitimate ground for an employer's adverse action. See Fabricius v. Town of Braintree/Park Dep't, 97- CAA-14 at 4 (ARB Feb. 9, 1999); Talbert v. Washington Pub. Power Supply Sys., 93- ERA-35 at 7 (ARB Sept. 27, 1996); Leveille, 94-TSC-3/4 at 9; Carson v. Tyler Pipe Co., 93-WPC-11 at 8 (Sec'y Mar. 24, 1995); West v. Systems Applications Int'l, 94- CAA-15 (Sec'y Apr. 19, 1995). Disciplining an employee for failing to follow the chain of command when making safety complaints seriously undermines the purpose of the ERA. See id.

   Based on the foregoing, I find and conclude that Respondent's actions were motivated by both legitimate and illegitimate motives. Accordingly, these adverse actions must be evaluated under a "dual motive" analysis where Respondent "'bears the risk that the influence of legal and illegal motives cannot be separated.'" Zinn v. University of Missouri, 93-ERA-34 (Sec'y Jan. 18, 1996)(quoting Mackowiak, 735 F.2d at 1164. See also Yule, 93-ERA-12 at 4.

4. Mr. Angelo's Reassignment in March 1999

   Finally, Complainant argues that his protected activity led Respondent to reassign Mr. Angelo, rather than Complainant, to a more favorable supervisory position. Respondent contends that the decision to reassign Mr. Angelo to a more favorable position was based on valid business reasons. (RDO at 26.) First, Respondent argues that Complainant and Mr. Angelo were equally well qualified for the administrative position. (RDO at 26.) Second, Respondent contends that Mr. Angelo is more of a "people person." (RDO at 26.)

   In March 1999, Mr. Angelo was removed from his shift supervisor position and assigned to a Central Alarm Station supervisor position. (Tr. at 1168.) As a result, Mr. Angelo was relieved of his shift responsibilities and was assigned to a five-day work week. (Tr. at 1180.) The evidence reveals that Mr. Angelo's new position is substantially similar to the program management positions previously occupied by Complainant and Mr. Angelo. (Compare Tr. at 1169, 1180, 1201, with Tr. at 562-64.) Accordingly, I find the Central Alarm Station supervisor position to be a more favorable position than the shift supervisor position.

   I further find that both Complainant and Mr. Angelo are equally well qualified for the Central Alarm Station supervisor position. (See, e.g., Tr. at 813, 818, 1170-71, 1180.) The record reveals that both gentlemen had received similar efficiency ratings. (Tr. at 813, 818.) In addition, I credit Mr. Angelo's testimony that he possesses stronger interpersonal skills and Complainant possesses stronger technical skills. (Tr. at 1170-71, 1201-02.) Mr. Angelo has also taken college level courses toward a degree in business administration, which may make him better suited for a management position. (Compare Tr. at 1181-82 with Tr. at 650-51.)

   Following this reasoning, Complainant should have been the first lieutenant to be reassigned to the more favorable Central Alarm Station supervisor position in 1999. However, Mr. Angelo was reassigned instead. (Tr. at 1168-69.) Therefore, it appears that Complainant's protected activity either directly or indirectly affected his ability to receive this reassignment. It is likely that Complainant's eight month absence from the site, while he was on paid administrative leave, jeopardized his chances of securing the more favorable position. I further find, hereinafter, that Complainant was placed on paid administrative leave in violation of the ERA. Hence, I find and conclude that Complainant has established that Respondent's reasons for reassigning Mr. Angelo, rather than Complainant, to the Central Alarm Station supervisor position are pretextual.

   Under the dual motive analysis, Complainant must demonstrate by a preponderance of the evidence that Respondent took the adverse employment actions, at least in part, because Complainant had engaged in protected activity. See Talbert, 93-ERA-35 at 3; Zinn, 93-ERA-34; Yule, 93-ERA-12 at 4. If Complainant establishes that Respondent's actions were partially based on an illegal motive, the burden shifts to Respondent to demonstrate by clear and convincing evidence that it would have taken the same action in the absence of the protected activity. See id. See also 42 U.S.C. § 5851(b)(3)(D); Adjiri, 97-ERA-36 at 8 n.7.

   As previously discussed in the pretext analysis, Complainant has successfully established that his protected activity was a contributing factor in Respondent's actions of: (a) threatening to take disciplinary action against Complainant on January 28, 1998; (b) asking Complainant to voluntarily report to the Employee Assistance Program ("EAP") for evaluation on January 28, 1998; (c) placing Complainant on paid administrative leave on January 31, 1998; (d) removing Complainant from his Personal Security Assurance Program ("PSAP") position in February or March 1998; (e) threatening to issue a one-day suspension without pay on March 24, 1998; (f) attempting to solicit Complainant's compliance with the terms of the Corrective Action Plan dated March 24, 1998; (g) refusing to accept the terms of Complainant's addendum to the Corrective Action Plan dated March 24, 1998; (h) ordering Complainant to remain on paid administrative leave; and (i) attempting to solicit Complainant's compliance with the terms of the revised Corrective Action Plan dated April 7, 1998.

   I further find that Respondent has not presented clear and convincing evidence that it would have taken the same employment actions if Complainant had not engaged in the protected activity. Even though I find that Respondent had decided to enforce the classification policy prior to Complainant's communication with CBS News, Complainant's protected activity and the policy violation cannot be separated. Here, if Complainant had not disclosed site safety and security information to CBS News, Respondent would not have disciplined Complainant for failing to abide by the site classification review policy prior to making said disclosures. Accordingly, I must conclude that Respondent violated the ERA when it took the above-mentioned employment actions against Complainant.

   Having found Respondent in violation of the ERA, the undersigned administrative law judge is required to issue a preliminary order, effective immediately, awarding affirmative action to abate the violation. See 42 U.S.C. § 5851(b)(2)(B)(ii); 29 C.F.R. § 24.7(c)(2). See also Overall v. Tennessee Valley Auth., 97-ERA- 53 at 2 (ARB Apr. 27, 1998). In addition, the undersigned may issue a recommended order on the appropriateness of compensatory damages, which is not effective until the Administrative Review Board issues a final decision in this matter. See 29 C.F.R. § 24.7(c)(2). See also 42 U.S.C. § 5851(b)(2)(A). Complainant may also recover costs and expenses, such as attorneys' fees and costs, that were reasonably incurred in litigating this matter. See 42 U.S.C. § 5851(b)(2)(B)(ii).

   To abate the violation, Respondent shall assign Complainant to a Central Alarm Station supervisor position with a five-day work week, retroactive to the date of Mr. Angelo's reassignment in March 1999. See, e.g., Thomas v. Arizona Pub. Serv. Co., 89- ERA-19 at 13 (Sec'y Sept. 17, 1993)(ordering the respondent to retroactively promote the complainant). See also 42 U.S.C. § 5851(b)(2)(B)(ii). Respondent shall correct Complainant's personnel records to indicate said reassignment. See id. Since there is no evidence establishing that the Central Alarm Station supervisor position pays more than the shift supervisor position, no back pay shall be issued. (See, e.g., Tr. at 699.)

   In addition, Respondent shall expunge Complainant's personnel file of all memoranda, reports, and references to the adverse employment actions occurring after Complainant's communication with CBS News in September or October 1997. See, e.g., McMahan v. California Water Quality Control Bd., 90-WPC-1 at 4 (Sec'y July 16, 1993). Finally, Respondent shall post on all bulletin boards of the Central Alarm Station, where Respondent's official documents are posted, a copy of the Secretary of Labor's Decision and Order for a period of sixty (60) days, ensuring that it is not altered, defaced, or covered by any other material. See, e.g., Thomas, 89-ERA-19 at 13; Smith, 93-ERA-16 at 6-7.

   Compensatory damages may be awarded for emotional pain and suffering, mental anguish, embarrassment, and humiliation. See Thomas, 89-ERA-19 at 14; Lederhaus v. Paschen, 91-ERA-13 at 6-7 (Sec'y Oct. 26, 1992). Where appropriate, a complainant may recover an award for emotional distress when his or her mental anguish is the "proximate result" of a respondent's unlawful discriminatory conduct. Blackburn v. Metric Constr., Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). Complainant bears the burden of proving the existence and magnitude of any such injuries. See Lederhaus, 91- ERA-13 at 7. Although a complainant may strengthen his case for entitlement to compensatory damages with medical and psychiatric expert testimony, it is not required. See Thomas, 89-ERA-19 at 14; Lederhaus, 91-ERA-13 at 7. It is proper for an administrative law judge to consider the compensatory damage awards in similar cases, in arriving at his recommendation for an appropriate measure of damages. See Smith, 1993- ERA-16 at 2.

   In this case, Complainant has provided corroborating testimony to establish that his temperament and family life have been effected by Respondent's retaliatory activities. (Tr. at 635-36, 935.) In making this finding, I credit the testimony of Mrs. Graf that Complainant became "a lot grumpier" after he was placed on administrative leave. (Tr. at 935.) She explained that his mood continues to vary and that his stomach has been bothering him for the last several months. (Tr. at 936-37, 91.) Moreover, Complainant no longer discusses his problems with his wife, and his three children are less inclined to discuss their problems with him. (Tr. at 938, 940- 41.)

   Nevertheless, Complainant has maintained good relationships with his children. (Tr. at 935.) Indeed, Complainant concedes that his family relationships have been strengthened through this process. (Tr. at 635. But see Tr. at 938.) For instance, Complainant was able to spend more time with his wife and children while he was on paid administrative leave. (Tr. at 936.) In addition, he continued to fly his airplane and took several trips outside of the state. (Tr. at 719, 942-43.)

   I further find that Complainant's financial concerns are primarily due to the anticipated closure of RFETS, rather than Respondent's unlawful activities. As a result of a joint decision by Congress and the DOE, RFETS is scheduled to close in approximately 2006. (Tr. at 943, 1218, 1220-21.) Respondent's employees, including Complainant, have been notified that they will lose their jobs when the site closes. (Tr. at 944.) Complainant also introduced evidence to show that the opportunities for obtaining similar positions with similar salaries are extremely limited. (Tr. at 550, 640. See also Tr. at 640-41.) As such, Complainant has begun to make plans in anticipation of the site closure. (Tr. at 944. See also Tr. at 939, 1221-23, 1396-97.)

   Moreover, I find little merit to the argument that Respondent's unlawful activities are responsible for Complainant's sleeping difficulties. The record indicates that Complainant's sleeping problems began in 1995, when he was assigned additional shift relief work. (Tr. at 637-38, 936.) Indeed, Complainant's sleeping difficulties began approximately two years before his protected disclosures to CBS News and the retaliatory actions that followed. (Tr. at 637- 38, 936.)

   Based on the foregoing, I find that the magnitude of Complainant's mental anguish is similar to the complainant's in Blackburn, 86-ERA-4. In Blackburn, the Secretary of Labor awarded the complainant $5,000 for mental pain and suffering caused by a discriminatory discharge. 86-ERA-4 at 1-3. Therein, it was determined that the complainant became moody, depressed, and short-tempered with his wife and children. See id. In addition, he had difficulty sleeping and experienced low self esteem. See id. It was also determined that the complainant suffered little, if any, economic harm. See id.

   Likewise, I find that Complainant's emotional distress is greater than the complainant's in Thomas, 89-ERA-19. In Thomas, the Secretary of Labor awarded the complainant $1,000 for the humiliation she experienced in having to undergo a demeaning recertification process. 89-ERA-19 at 13-15 (reducing the $5,000 award recommended by the administrative law judge to $1,000).

   Furthermore, I find that the severity of Complainant's emotional distress does not rise to the level of the complainants' in discriminatory discharge cases such as Lederhaus, 91-ERA-13, and McCuistion, 89-ERA-6. In Lederhaus, the Secretary of Labor awarded the complainant $10,000 for emotional distress caused by a discriminatory discharge. 89-ERA-6 at 6. Therein, the complainant experienced such mental anguish that he contemplated suicide on at least one occasion. See id. at 8. Foreclosure proceedings were initiated on his home, bill collectors harassed him and called his wife at her job, his wife's employer threatened to lay her off, and his family life was disrupted. See id. at 6-9.

   In McCuistion, the Secretary of Labor awarded $10,000 in compensatory damages. 89-ERA-6 at 11. Therein, the complainant had been harassed, terminated, and blacklisted. The complainant forfeited his life, health, and dental insurance, and was unable to find other employment. See id. at 12-13. He also experienced physical manifestations of emotional distress. See id. at 11-13. For example, the complainant's preexisting hypertension was exacerbated to the point that he required medical treatment, medication, and emergency room admission on at least one occasion. See id. He also experienced sleeping problems, exhaustion, anxiety, and depression. See id.

   In the instant case, Complainant did not experience anxiety related to economic hardship or unemployment. See, e.g., Lederhaus, 91-ERA-13; McCuistion, 89-ERA-6; Creekmore v. ABB Power Sys. Energy Serv., Inc., 93- ERA-24 (Dep. Sec'y Feb. 14, 1996)(awarding $40,000 for emotional distress caused by discriminatory layoff); Bigham v. Guaranteed Overnight Delivery, 95-STA-37 (ARB Sept. 5, 1996)(awarding $20,000 for emotional distress caused by discriminatory discharge.). Nor did he experience major depression or physical manifestations like the complainants' in Michaud v. BSP Transp., Inc., 95-STA-29 (ARB Oct. 9, 1997); Smith v. Littenberg, 92-ERA-52 at 4-5 (Sec'y Sept. 6, 1995); Lederhaus, 91-ERA-13; and McCuistion, 89-ERA- 6. Complainant did not have suicidal thoughts or experience daily harassment like the complainant in Smith, 93-ERA-16, and was not publicly humiliated like the complainant in Van der Meer v. Western Kentucky Univ., 95-ERA-38 (ARB Apr. 20, 1998).

   Accordingly, and based on the foregoing, I conclude that a compensatory damage award of $5,000 is consistent with previous whistleblower decisions.

   Complainant is also entitled to recover attorneys' fees and costs reasonably incurred in litigating this matter. See 42 U.S.C. § 5851(b)(2)(B)(ii). Hence, Complainant's counsel shall have a period of thirty days from the date of this recommended decision and order within which to file an application for attorneys' fees and costs with this office. Respondent shall have twenty days thereafter within which to file any objections.

   IT IS HEREBY RECOMMENDED that the following PRELIMINARY ORDER be issued:

1.   Respondent, Wackenhut Services, L.L.C., shall assign Complainant to a Central Alarm Station supervisor position with a five-day work week, retroactive to the date of Mr. Angelo's reassignment in March 1999, and shall correct Complainant's personnel records to so reflect.

2.   Respondent shall expunge Complainant's personnel file of all memoranda, reports, and references to the adverse employment actions occurring after Complainant's communication with CBS News in September or October 1997.

3.   Respondent shall post on all bulletin boards of the Central Alarm Station, where Respondent's official documents are posted, a copy of the Secretary of Labor's Decision and Order for a period of sixty (60) days, ensuring that it is not altered, defaced, or covered by any other material.

4.   Counsel for Complainant shall have a period of thirty (30) days from the date of this Recommended Decision and Order within which to file an application for attorneys' fees and costs with this office, and Respondent shall have twenty (20) days thereafter within which to file any objections.

IT IS FURTHER RECOMMENDED that the following ORDER be issued:

5.   Respondent shall pay Complainant $5,000.00 in compensatory damages.

   Entered this 16th day of December 1999, at Long Beach, California.

      DANIEL L. STEWART
      Administrative Law Judge

DLS:cdk

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8, 24.9, amended by 63 Fed. Reg. 6614 (1998).