discovery, a default judgment against respondent for withholding evidence, and other relief. Respondent filed a lengthy response to this motion consisting of 44 pages of text and hundreds of pages of attachments. At the same time, respondent filed a two-volume pleading entitled Respondent's in camera Submission and Partial Response in Opposition to Complainant's Second Motion for Post-Trial Relief. This pleading consisted of individual affidavits from Ms. Brisbin, Neaclesa Anderson, Christopher Biglin, and Beth Ann Carlson, all of whom were respondent's counsel at the time; Kelly Klimkiewicz, an attorney at the Naval Sea Systems Command ("Navsea" or "NAVSSC"); and Ann Gallagher, an investigative specialist for Navsea who put together the documents submitted to the FBI by Navsea in connection with the FBI's investigation of "the Beliveau matter."

respondent was appropriate, something which is far more difficult and time-consuming than simply drafting a decision on the merits, and/or whether to again reopen the record. On July 1, 1998, I received a letter from complainant's counsel informing me that another of respondent's attorneys, Beth Carlson, had left the Navy's employ, and that Capt. Logue, the Commanding Officer of NUWC and a key witness in this case, was scheduled to retire from the Navy in August. All of these resignations, retirements and reassignments were of great concern to the complainant. For the Department of Labor has no subpoena power in environmental whistleblower cases and thus former employees of the Navy, unless somehow still within the Navy's control, are probably beyond my authority to compel to testify if the record were to be reopened.

   Another twist occurred when, on November 10, 1998, the Special Agent in Charge of the Environmental Protection Agency's Criminal Investigation Division in Boston, Michael Hubbard, wrote to inform me that part of the testimony one of his Special Agents, John Gauthier, provided at the hearing was incorrect because an EPA attorney upon whose information Gauthier relied lied to him. According to Hubbard, Gauthier's testimony was directly influenced by the lies the attorney told him, and if Gauthier knew the truth "his appearance as a witness for the Complainant would not have been sought." Letter from Michael E. Hubbard to Judge Jeffrey Tureck dated November 10, 1998. According to Hubbard's letter, four memoranda of interviews EPA conducted with the complainant (CX 94) were in the possession of respondent's counsel as early as May, 1997 but were neither acknowledged by respondent in its responses to complainant's discovery nor turned over to complainant's counsel until the first day of the hearing despite the fact that they were clearly responsive to complainant's discovery filed months earlier. Moreover, based on Hubbard's letter, respondent's counsel lied to Gauthier about how they obtained CX 94, and permitted Gauthier to testify incorrectly about this matter at the hearing. Needless to say, Hubbard's letter added fuel to complainant's contention that sanctions against NUWC are appropriate.

   Following my receipt of Hubbard's letter and complainant's response to that letter, I held a conference call with the parties on November 23, 1998. At that conference, I encouraged the parties to attempt to settle this case. I added that if a settlement was not reached, then Hubbard's letter would be admitted into evidence. The parties agreed to attempt to settle the case. To that end, NUWC even appointed another attorney, Anne M. Brennan, an associate counsel with Navsea, to handle the negotiations. When counsel were unable to reach a settlement, Ms. Brennan requested the appointment of a mediator. With the parties' consent, on February 1, 1999 a settlement judge was appointed pursuant to 29 C.F.R. §18.9(e). The parties met with the settlement judge in Pittsburgh, Pennsylvania on February 5, 1999, and on February 8 the settlement judge reported that a settlement could not be reached. Since no settlement was reached, and no objections were made to admitting Special Agent Hubbard's letter into evidence, it is admitted as Administrative Law Judge's Exhibit 1.

   Then came a dispute concerning complainant's proffer of a grand jury subpoena served on the Navy in regard to complainant's relationship with respondent and documents related to this case, including documents relating to complainant's former attorney, McAndrew. I have marked this document as Complainant's Exhibit 130. While conceding that "[i]t is well known for more than a year that the Environmental Protection Agency (EPA) and the Federal Bureau of Investigation (FBI) are conducting an investigation ... [of NUWC]" (Letter to Judge Jeffrey Tureck from Anthony Crouse dated April 21, 1999), respondent objected to the admission of the subpoena into evidence on the ground that the subpoena adds nothing to the record before me. I sustained the objection and excluded the subpoena from the record in an Order dated May 11, 1999.

   Finally, on June 2, 2000, respondent filed a motion requesting that I recuse myself from both this case and 1997-SDW-6, contending that I have "issued inconsistent rulings and rulings that conflict with the applicable substantial law." Respondent's Motion to Recuse Presiding Administrative Law Judge at 1. This motion was filed at an unusual stage of this proceeding -- 2 years after the hearing and at a point when my decision was imminent (I had previously informed the parties that I expected I would issue my decision by the end of June). Further, respondent does not allege any prejudice or other appropriate basis for recusal; it merely disagrees with several of the innumerable rulings I have issued in both this case and 1997-SDW-6. The proper remedy for respondent's contentions of error is to appeal those rulings after the issuance of this decision, not through recusal of the presiding judge less than a month prior to the issuance of the decision in this extraordinary complex and protracted case. Accordingly, the motion for recusal is denied.

   Subsequent to the hearing, numerous documents were produced by the respondent which were responsive to complainant's discovery and should have been produced in response to that discovery. Respondent also produced numerous documents relevant to its compliance with complainant's discovery, including affidavits or sworn statements from counsel and others, excerpts from depositions, and correspondence. These documents are contained primarily in Respondent's Answer in Opposition to Complainant's Second Motion for Post- Trial Relief ("Respondent's Answer") and Respondent's in camera Submission and Partial Response in Opposition to Complainant's Second Motion for Post-Trial Relief ("Respondent's in camera Submission"). I have marked these submissions as ALJX 2 and 3, respectively. Other documents falling into these categories are another version of the April 24, 1997 bill from Thomas McAndrew (the so-called "lost bill"), which was filed on May 5, 1998, together with the cover letter by Ms. Brisbin (ALJX 4); the Affidavit of Andrea Heffernan Brisbin dated April 17, 1998 (ALJX 5); a letter from Andrea Heffernan Brisbin to Honorable Jeffrey Tureck dated April 23, 1998 (ALJX 6); Respondent's Report in Response to Complainant's Motion to Reopen the Record dated January 30, 1998 (ALJX 7); letters from Andrea Heffernan to Sarah L. Levitt, Esq. dated September 22 and September 25, 1997 faxed to this Office on September 25, 1997 by

Ms. Brisbin (ALJX 8); Respondent's Reply and Limited Motion Joining in Complainant's Request to Reopen the Record to Take Post-Hearing Testimony at the Navy's Expense dated May 18, 1998 (ALJX 9); and Respondent's Combined Supporting Memorandum and Opposition to Complainant's Motion to Compel, Renewed Motion to Compel, Motion for Discovery Orders and Motion for Sanctions (ALJX 10). These documents are admitted into evidence as Administrative Law Judge Exhibits solely in regard to the issue of respondent's non- compliance with complainant's discovery. I also admit into evidence, for the same limited purpose, CX 131, complainant's claim for workers' compensation and related documents. Finally, since respondent's non-compliance with complainant's discovery is so overriding an issue in this case, it makes sense to include complainant's discovery in the record. Accordingly, I have marked and admit into evidence: Complaint's [sic] First Request for Production of Documents (ALJX 11); Complaint's [sic] First Set of Interrogatories (ALJX 12); Complainant's Second Request for Production of Documents (ALJX 13); Complainant's [Second] Interrogatories and Complainant's [Third] Request for Production of Documents, both dated May 8, 1997 (ALJX 14); Notice of [May 14, 1997] Deposition and Schedule of Documents (ALJX 15); Notice of [June 19, 1997] Deposition and Schedule of Documents (ALJX 16); and Notice of Deposition for the Custodian(s) of Records for the U.S. Navy Concerning Matters Involving the Naval Undersea Warfare Center and Schedule of Documents (ALJX 17).

   b. Complainant's work for NUWC

   The complainant, John J. Beliveau, Jr., is 52 years old. He graduated from the University of Rhode Island with a Bachelor of Science degree in Electrical Engineering in 1970, and received an M.B.A. degree in Management from Bryant College in Rhode Island in about 1975. He started working for the Navy in a civilian capacity in 1977, when he went to work as an electrical engineer for the Naval Education and Training Center ("NETC") in Newport, Rhode Island. Eventually, he became the supervisor of both mechanical and electrical engineering at NETC. He left NETC in March 1994 to become the first environmental manager at NUWC. His title in that position was "Supervisory Environmental Engineer" which was further identified as "Head, Environmental Staff" (RX 1). The position was in the Facilities Department. Complainant's immediate supervisor at NUWC was Lt. Cmdr. Brad Beisswanger, who was the head of the Facilities Department. It was Beisswanger and his deputy who interviewed the highest rated applicants for the position of environmental manager and recommended that the complainant be hired to fill it (TR 816-17).

   NUWC is the organization within the United States Navy which is responsible for the research and development but not manufacture of weapons used by our submarines and against enemy submarines, including torpedoes, sonar equipment and periscopes (TR 422-23). NUWC has facilities in five states -- Rhode Island, Connecticut, New York, Virginia and Florida -- as well as the Bahamas (e.g., TR 575). NUWC is situated on the Newport (Rhode Island) Naval Complex along with NETC. NETC and NUWC are separate entities.

(RX 4, at 1). He went on to complain that his staff is overworked, and admitted that they are not making good progress in remedying the deficiencies raised in the ECE (id.) Complainant then stated:

I'm afraid of two scenarios. The first is that we do not pursue compliance in several program areas and we don't tell anyone. When the ax falls, it will be my fault. The second is that we tell someone about the problems and they cloud the situation by moving things around with musical chair responsibility until the ax falls and then they point the finger back at me.

(Id. at 2) Then in a memo dated May 23, 1994 in which the complainant discusses the

difficulties in achieving even minimal compliance with the environmental laws, he again discusses his fear of criminal prosecution and liability to civil suit if NUWC failed to comply with environmental laws (RX 5, at 1-2).

(RX 7, at 2) After indicating that he is afraid he will be made a scapegoat, he concluded by saying: "The bottom line is that the job is becoming all but impossible." (Id. at 4) In an August 31, 1994 memo to David McQueeney, the Deputy Director of NUWC and Beisswanger's supervisor (TR 403-04), complainant again pointed out how he has not been able to "get the job done" and expressed concerns of "legal jeopardy" (CX 107, at 1).

   These memos are very revealing. Although many of the issues complainant raised were sound, and merited serious attention by his superiors, it is clear that he was overwhelmed and completely demoralized by the situation in which he found himself. These memos show that complainant constantly perceived himself to be under great, perhaps insurmountable, pressure and realized he was not getting the job done. Moreover, from the very beginning he believed he was going to be made to take the blame for any shortcomings in NUWC's environmental management, putting him in jeopardy of criminal prosecution and civil liability.

   Beisswanger testified that he believed complainant was doing a good job in his first few months at NUWC, which is why he gave him a good performance evaluation in June, but soon thereafter things changed (TR 842). Complainant had trouble resolving minor day-to-day problems that a manager should have been able to take care of, and he had trouble getting along with other people (TR 842-43, 849-50). Beisswanger tried to let the complainant know that everyone at NUWC believed that they had more to do than was possible for them to

get done, that no one had enough money or resources, but to do his best under the circumstances (TR 843). Nevertheless, Beisswanger believed things were not going well. He testified that complainant, rather than correcting the deficiencies reported by the ECE, kept finding more problems, so that rather than getting things done the list of things to remedy kept growing (TR 844). A related problem was complainant's inability to prioritize the tasks which had to be addressed (TR 845-46). Beisswanger also testified that he tried to reassure the complainant that there was no reason to be concerned about his personal liability for any environmental deficiencies at NUWC (TR 870).

   On September 30, 1994, a joint memo from the Base Commander (Capt. Logue) and Executive Director (J.E. Sirmalis) announced that Jim Vickers had been appointed the Division Environmental Manager "and point of contact on all matters dealing with our environmental compliance posture." (CX 118) Although Vickers' exact role was not well- defined, it appears he had supervisory authority over both the complainant and Beisswanger (TR 875-78). Beisswanger's initial reaction to Vickers' appointment was that it was a criticism of his performance, but he came to realize that Vickers could provide expertise regarding NUWC's product lines (TR 877-78). Beisswanger stated that complainant's initial reaction to Vickers' appointment likewise was negative, but complainant's impression never changed. Rather, he continued to see Vickers as a detriment (TR 878). The stated purpose of Vickers' appointment to this newly created position was that NUWC was not making sufficient progress in its environmental compliance, and there was a "need to further increase our management attention and resources applied to this vital area." The memo concluded by stating that Vickers would have two immediate priorities. First, to prepare for the EPA inspection (the Environmental Management Review - "EMR") to be conducted on October 24. Second, to "[p]repare an aggressive overall Division Plan of Action and Milestones ["POAM"] to come into full compliance with all environmental laws and regulations as soon as practicable." Preparing the POAM had been one of complainant's primary responsibilities, but according to the Base Commander, Capt. Logue, complainant had not been able to come up with a satisfactory plan (TR 412, 416-17). Significantly, there is no contention that the complainant had engaged in any protected activities outside the scope of his normal job duties prior to Vickers' appointment as the Division Environmental Manager.

   It is apparent that Vickers believed complainant was not doing a good job. In a very revealing e-mail memo to McQueeney dated November 16, 1994 (CX 78), Vickers states that he has had a chance to catch up on all of complainant's previous correspondence and noted his consistent request for additional staffing. He goes on to state:

I recommend that we should give him the opportunity to sink or swim and propose the following:

a. Assign detailed product line personnel to him to build his staff to the level he requested. Let him use the staff to document and implement the plan he has in his head. I think the documentation trail he has established warrants these assignments even though I question his ability to utilize them properly [sic]. If he continues in the current mode with little change in performance, we would than [sic] have info we need to take appropriate administrative action.

Although complainant had gone to EPA by the time this memo was written (see below), there is no indication that Vickers or anyone else at NUWC was aware of that contact at this time.

   On October 26, 1994, Region I of the Environmental Protection Agency conducted an Environmental Management Review of NUWC (TR 94). According to Ann Fenn, the federal facility program manager of EPA for Region I, an EMR is a technical assistance visit to a federal facility to assist it in building and developing its environmental management program (TR 95). It is voluntary on the part of the facility being visited (TR 125-26). Complainant participated in the EMR for NUWC. Following the EMR, during the week of October 31, 1994, complainant telephoned Fenn to express "a great deal of concern over potential environmental violations at the facility [NUWC]." (TR 96) Complainant related his instigation of this meeting in a very different and much less flattering way. He testified that he was concerned regarding his own liability, and wanted to meet with Fenn to find out EPA's reaction to the EMR. If EPA was satisfied, he would have dropped the matter; but if EPA had concerns about the inspection, he would help EPA out (TR 607). In any event, Fenn set up a meeting with complainant, and after realizing she was troubled by the EMR, he elected to cooperate with EPA (TR 606-07). Fenn stated that complainant raised possible clean air and water and hazardous waste violations, and other violations under the National Environmental Policy Act ("NEPA") (TR 96). Based on what complainant told her on November 8, another meeting was held on November 10, 1994. Attendees at that meeting, in addition to Fenn and complainant, were the clean air inspector, the clean water inspector, and criminal investigators (TR 96). Once again, complainant testified that he was very concerned about his liability -- particularly possible criminal liability -- for any violations that NUWC may have committed, and that this concern, rather than any attempt to harm anyone at NUWC, led to his cooperation with EPA (TR 608-09).

   Fenn stated that she met with complainant at least four times between the EMR and December 12, when EPA began a surprise multimedia inspection of NUWC's Newport, Rhode Island and New London, Connecticut facilities (TR 98-99). A multimedia inspection is an inspection "where [EPA] bring[s] a variety of different inspectors, clean water inspectors, clean air inspectors, hazardous waste or RCRA inspectors, Safe Drinking Water Act inspectors ... to a facility to do a comprehensive inspection." (TR 98, 123) The information the EPA received from complainant was a major factor in the decision to conduct the multimedia inspection, and complainant helped plan it (TR 109); but complainant testified that he did not tell anyone at NUWC that he was in any way responsible for the multimedia inspection, and no one had ever asked him if he played a role in it (TR 1380-81). The multimedia inspection was conducted on December 12, 13 and 20, 1994. At that time, Fenn did not disclose to NUWC that she had been meeting with complainant; she was trying to protect his confidentiality (TR 111; 117). During the first two days of the inspection, the inspector from the

State of Connecticut, David Stokes, apparently sought but was denied access to NUWC's records from the ECE. At the conclusion of the inspection on December 13, Stokes asked complainant if he would be denied access to those documents when he returned on the 20th to complete the inspection (TR 610-11; CX 99). Complainant told Stokes he would not deny him access to those documents. Complainant reported this exchange to his supervisors, and Vickers passed the information on to McQueeney, Logue and Sirmalis (CX 99). Although Vickers clearly was troubled by the prospect of turning these records over to the inspectors, it does not appear that complainant was instructed to refuse to do so. On December 20, complainant met with Stokes and provided him with the documentation (TR 612).

   The multimedia inspection turned up a host of violations under several statutes, but at the time of the investigation EPA did not have the authority to issue penalties against federal facilities for violations of the Clean Air Act, Clean Water Act, or the Safe Drinking Water Act (TR 124). Therefore, EPA's formal actions resulting from the investigation were limited to addressing hazardous waste violations under RCRA (TR 124; RX 25, 29). Sometime in 1996, EPA drafted a complaint seeking over $160,000 in penalties from NUWC for RCRA violations (RX 25). That complaint apparently was not issued. However, a complaint described by Fenn as "a pre-negotiated enforcement action," which sought a total of just over $80,000 in penalties, was issued by EPA on September 12, 1996 (RX 28; TR 124). Those penalties were paid by NUWC (TR 125).

environmental department, and the Development Division position was similar to a position complainant previously had held at NETC (TR 886). After taking a few days to think over his options, complainant told Beisswanger on January 6, 1995 that he wanted the position as head of the Development Division (RX 50). But on January 8, after consulting with counsel, complainant informed Beisswanger that he was not agreeing to a reassignment, but if he was going to be reassigned against his will he would leave it to Beisswanger to choose which job to give him (id.). So complainant was made head of the Development Division (id.), which was the position he held on February 15, 1995 when he filed his first DOL complaint. As was noted above, the settlement agreement was executed exactly four months later. Complainant remained in that position on paper even after the settlement agreement was executed (TR 924-25). The settlement agreement is attached to this decision as Appendix 1.

   As quoted above, the settlement agreement also provided that, upon advance mutual agreement, complainant's counsel, McAndrew, could be paid fees for advising complainant in regard to his compliance with the agreement. Without complainant's knowledge, McAndrew submitted bills to NUWC allegedly for such services every three to four weeks for almost a year, billing at a rate of $190 per hour (CX 50-62). He was paid in full by NUWC for each of these bills. The following table summarizes these bills and payments:

   Give or take a day or two owing to my poor mathematical skills, McAndrew's bills list services performed on 262 of the 340 calendar days (including weekends and holidays) between June 19, 1995 and May 24, 1996. During this period, McAndrew allegedly spent an average of 5.65 hours a day between five and six days each and every week, working on complainant's implementation of the settlement agreement, for which he was paid $281,115.50 by NUWC. If these figures are accurate, it would appear that at least two-thirds of McAndrew's law practice during this period consisted of assisting complainant to comply with the terms of the agreement.

in late August, 1995, he was accepted by the University of Rhode Island ("URI") in a Ph.D. program in Business Management, and he began the program at the beginning of September (TR 635-39). Although he was being paid his regular salary by NUWC in accordance with the terms of the settlement agreement, he performed no job duties of any kind (other than attending the course at Brown and then the Ph.D. program at URI) from June 15 until he left NUWC's employ on September 1, 1997 (e.g., TR 635).

   Complainant, through his attorney Thomas McAndrew, submitted bills for reimbursement for his educational expenses at URI on October 4, 1995, January 25, 1996, February 2, 1996, March 25, 1996 and June 5, 1996 (CX 32-36). Ultimately, these bills were paid by NUWC (see, e.g., RX 45-47; cf. TR 1872-73). In the summer of 1996, complainant took a course at the Massachusetts Institute of Technology ("MIT"). Through McAndrew, he sought approval from NUWC to take this course as a covered educational expense pursuant to the settlement agreement (TR 1359). NUWC did not respond to McAndrew's request; nevertheless, complainant took the course anyway, contending that the consent agreement did not require prior approval (TR 1359-60). He has not been reimbursed by NUWC for the MIT course (TR 641). In a letter to complainant dated March 31, 1997, Joseph Murphy stated that he needed more information before he could authorize reimbursement for the MIT course. Particularly, he wanted to know whether the MIT course was required for his Ph.D. program at URI and whether he received credit from URI for that course (CX 37). Complainant never provided that information (TR 318-19).

      4. Teaching Positions

   While attending his doctoral program at URI during the period he was still being paid as a NUWC employee, complainant taught some classes at URI both in Kingston, Rhode Island and at the College of Continuing Education in Providence. He testified that he taught marketing at URI in the Fall semester, 1995; a computer course at URI, and two courses another computer course and a management course at night at the College of Continuing Education, all in the Fall of 1996; and another course at night at the College of Continuing Education in the Spring of 1997 (TR 672-74). These positions were paid positions for which he received payment either in the form of tuition waivers which directly reduced the expenses NUWC was required to pay under the settlement agreement (TR 675) or payments made directly to him, which he kept (TR 1537-38). Complainant also testified that he tutored underprivileged students at URI for a little longer than a year. Although the tutoring was a paid position, complainant stated that he was not interested in getting paid for it, and only rarely submitted bills (TR 672-73). He also accepted a paid graduate assistantship position in January, 1996, but he stated that he gave it up after only a few days (TR 673). Although complainant stated that at a meeting where the issue arose, he "made Mr. McAndrew and Mr. Nelligan and Mr. Dence aware ..." that he was teaching (TR 672), he did not state when this meeting

occurred; and it is clear he did not seek permission from NUWC to teach courses for pay prior to doing so (e.g., TR 234, 341, 524). According to Murphy, any outside employment by a NUWC employee must be approved by the employee's supervisor (TR 233, 341).

      6. Early Retirement/Early Termination

   Complainant testified that in February or March, 1997 he attempted to apply for an early retirement from NUWC under the Voluntary Separation Incentive Program ("VSIP") (TR 654-55). He believed he would become eligible for that program on April 8 of that year, when he turned 50 years old. He stated that he received no response to his inquiries regarding VSIP from either Nelligan or Murphy, so he obtained an application on his own and informed Logue that he wanted to retire under VSIP (TR 655). Complainant further stated that Logue told him that NUWC did not participate in VSIP, although he also stated that Logue initially told him that he would not accept his application for VSIP because complainant was in a temporary position (TR 656-57). He subsequently submitted an application for retirement under VSIP, but it was returned to him by Murphy on March 25, 1997 without being processed because complainant's position in Human Resources was "excess" (TR 658; RX 38). Hussey testified that claimant's application for VSIP was turned down because he did not meet the purposes of the program (TR 1127). Under VSIP, an employee is paid a monetary incentive of up to $25,000 to retire from NUWC. The purpose of the program is to create vacancies which can be filled by other employees who are being displaced by reductions in force or for other reasons (TR 1127-28; CX 92; RX 38). There was no reason to offer complainant a $25,000 incentive to retire (or, similarly, grant him an early retirement) since he already was committed to resign under the settlement agreement. Moreover, the vacancy created by his resignation had already been filled (TR 1127-29). For all of these reasons, respondent contended that complainant was ineligible for the VSIP (see CX 92).

   On August 22, 1997, complainant filed another complaint against NUWC, this time alleging that he was being constructively discharged as a Federal employee by NUWC. This claim was consolidated with the others which are being adjudicated in this case. Essentially, complainant contends that, due to respondent's violations of the June 15, 1995 consent agreement, and the questionable validity of that agreement, respondent should be prohibited from enforcing that provision of this agreement which terminated his position at NUWC on September 1, 1997.

   Respondent contends that it had a valid reason for refusing to permit complainant to withdraw his resignation, i.e., that complainant and respondent had entered into a contract which, among other things, provided for complainant's resignation effective September 1, 1997.

      7. Workers' Compensation Claim

   Complainant testified that sometime in February, 1997, he asked Dr. David Dence, NUWC's Director of Undersea Weapons, to provide him with a form to file a workers' compensation claim, alleging that his employment at NUWC caused him to suffer from work- related stress (TR 668). When he did not receive the form from Dence, he wrote to Murphy,

   - Threatened complainant with criminal prosecution because he performed some part-time teaching at the University of Rhode Island.

   - Refused to permit complainant to withdraw his resignation effective September 1, 1997.

   - Rescinded the restoration of 98 hours of restored annual leave.

   Respondent either denies that the alleged retaliatory action was taken or contends that the action was justified and unrelated to complainant's protected activity. Respondent also contends that many of complainant's allegations are time-barred

II. Discussion

   a. Timeliness of the Complaints

statutes must be approved by the Secretary of Labor (now the Administrative Review Board) regardless of how early in the proceeding the settlement is reached. The case was remanded by the First Circuit to the Administrative Review Board, and by the ARB to me, to determine whether the agreement should be approved.

   Since the agreement has not been approved, failing to comply with its terms cannot be an adverse action related to complainant's employment. As the Secretary stated in a case under a related statute, the Energy Reorganization Act, Gillilan v. TVA, 91- ERA-31 (Aug. 28, 1995):

    Violation of a settlement may under some circumstances constitute a separate, independent violation of the ERA. Blanch v. Northeast Nuclear Energy Co., Case No. 90- ERA-11, Sec. Order, May 11, 1994, slip op. at 4; O'Sullivan v. Northeast Nuclear Energy Co., Case No. 90-ERA-35, Sec. Order, Dec. 10, 1990, slip op. at 3. Here, however, there was no final settlement agreement approved by the Secretary as required by the ERA. Although TVA voluntarily reissued the service review, it was not obligated to do so for purposes of the ERA. See Macktal v. Brown & Root, Inc., Case No. 86-ERA-23, Sec. Dec., Oct. 13, 1993, slip op. at 6 n.3. There is no allegation or indication that reissuing Gillilan's service review falls within the "terms, conditions, or privileges" of Gillilan's employment, independent of the settlement agreement. For these reasons, the delay in reissuing the rating does not constitute an adverse employment action within the purview of the ERA.

Id. at 4-5. This holding is equally applicable to this case. Since respondent's obligations to pay for complainant's further education and write him a letter of recommendation arise solely from the still unapproved settlement agreement and were not terms of his employment, allegations that respondent did not reimburse complainant, or reimbursed him in an untimely manner, for his educational expenses, and improperly withheld letters of recommendation, are not adverse employment actions under the statues at issue here. On the other hand, since respondent's obligations to provide complainant with a yearly performance evaluation and to give him a proper job classification do not arise solely from the settlement agreement, but are obligations respondent has for all employees, the failure to provide him with timely performance evaluations and to place him in a proper job classification may be adverse actions subject to the employee protection provisions of the applicable statutes.

   c. Legal Standards

   Under the SDWA at 42 U.S.C. §300j-9(i):

See, e.g. Dartey v. Zack Co., 82-ERA-2 (April 25, 1983); McCuiston v. TVA, 89-ERA-6 (Nov. 13, 1991); see also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). In a decision issued less than two weeks ago, the Supreme Court held that an employee can satisfy his or her burden of proving that the employer's adverse action was motivated by the employee's protected activity where the employer's proffered reasons for taking the adverse action are not believable. In other words, that the employer's explanation is false permits (but does not compel) the trier of fact to conclude without other evidence that the discrimination was intentional. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. ____, 2000 WL 743663 (US 2000) (June 30, 2000).

   Complainant clearly engaged in protected activity by informing EPA of suspected environmental violations at NUWC in late 1994 and probably early 1995. Respondent also knew not later than February 1995 that complainant had been meeting with EPA officials. The harder questions are whether complainant was subjected to adverse action and, if so, whether this adverse action was motivated by his protected activity. It must be kept in mind that this case is concerned with adverse actions taken subsequent to June 15, 1995, as any earlier acts of discrimination are covered by the settlement agreement entered into on that date.

   Complainant would like to have this case looked at from the perspective that NUWC is a bad guy and he is the white knight in shining armor out to protect the public interest. But although it might not be hard to paint respondent black, the best one could do for the complainant would be to paint him dark gray. For it is clear that he was motivated more to protect his own interests that the public's. As was stated above, complainant agreed to cooperate with EPA because of concern over his liability in the event environmental violations were found at NUWC; and subsequent to the settlement agreement he hypocritically wrote letters (RX 14) and affidavits (RX 26, 27) endorsing NUWC's environmental program (TR 1387-90). He also met with Ann Fenn of EPA in January, 1996 to try to convince her, and EPA, not to levy a fine against NUWC (TR 1392-97). He also shrewdly attempted to obtain every possible benefit from the settlement agreement prior to seeking to have it voided.

   Further, when trying to determine whether adverse actions were taken against the complainant, it must be kept in mind that complainant's distrust of respondent is so complete that he believes anything respondent does that effects him is adverse, and is motivated by the events which occurred during the year or so he worked for NUWC in Newport. Because of this, complainant is contending that actions which clearly are not adverse or which just as clearly were not the result of animus violate the whistleblower protection statutes. For example, complainant alleges that: a simple administrative reassignment from one division to another which had absolutely no effect on him; a refusal to let him take advantage of an early retirement option, or conversely to permit him to remain a NUWC employee, after he had already agreed to leave NUWC's employ on September 1, 1997; the refusal to pay for a course at MIT which was not required for his doctoral program at URI and which had not been approved by NUWC; and a reasonable concern on the part of NUWC that his teaching activities might have violated federal employee ethics laws; are all adverse actions motivated by animus against him. In reality, none of these were adverse actions; and even if any of them could be considered to be adverse actions, there is no indication that they were the result of animus.

   d. Discovery Abuses

   The complainant has moved for sanctions to be levied against the respondent in this case, up to and including a default judgment, due to respondent's repeated discovery abuses. Specifically, complainant contends that respondent failed to produce documents which were sought in discovery, either failing to disclose the documents' existence or alleging inapplicable privileges, and that these abuses were deliberate. Under the unusual circumstances of this case, I find that respondent failed to produce numerous material documents

and failed to provide complete answers to complainant's discovery even after being ordered on several occasions to do so. Accordingly, I hold that the issues regarding which respondent abused the discovery process will be taken as being established adversely to respondent. However, since I find that these abuses did not relate to all the complaint allegations, and further find that some of these allegations are totally lacking in merit, it would be inappropriate to grant a complete default judgment against the respondent.

      1. Thomas McAndrew

   The most serious and troubling allegation raised by the complainant in this case is that respondent interfered with his legal representation through improper contacts with, and payments to, his previous attorney, Thomas McAndrew. McAndrew represented complainant in connection with his February 15, 1995 complaint against respondent which led to the June 15, 1995 settlement agreement. Under Paragraph 12 of that settlement agreement, McAndrew received an attorney's fee of $35,000, a fee which was reasonable in light of the complainant's sizable recovery. The same paragraph of the agreement also provided that:

from time to time upon the advance mutual agreement of the parties, NUWC may pay Mr. McAndrew attorney fees for the purpose of advising Mr. Beliveau in order to ensure Mr. Beliveau's compliance with the terms and conditions of this agreement.

It is complainant's position that, through the undisclosed payment to McAndrew by NUWC of $281,115.50 in the year following the execution of the settlement agreement, McAndrew effectively became NUWC's attorney while ostensibly still representing the complainant, to complainant's detriment.

   This is an extremely serious charge, and deserves the greatest attention both in regard to the possible ethical violations by McAndrew and perhaps even more egregious misconduct on the part of NUWC that these payments to McAndrew suggest. It clearly overshadows the rest of complainant's contentions, most of which are minor squabbles that complainant has blown completely out of proportion. The problem for the complainant is that he has not been able to clearly articulate how he personally has been harmed by respondent's alleged interference with his relationship with McAndrew. It appears that he is arguing that this unacknowledged switching of sides by his attorney was detrimental to him in virtually every aspect of his relationship with NUWC. In particular, he contends that he relied on assurances from McAndrew that disputes with NUWC were being resolved when that was not the case, causing him to delay in taking action against NUWC. It is primarily in regard to the issue of respondent's relationship with McAndrew that respondent withheld evidence sought by complainant in discovery.

   The record demonstrates that respondent was not cooperating with the discovery process since the time the case was assigned to me for hearing. However, throughout the pre-hearing process I was concerned with the complainant's failure to respond to discovery as well. On several occasions (see, e. g., TR 78-79; Order Regarding Protective Order, August 26, 1997), I had to admonish both parties for their unprofessional conduct which was reflected in their lack of cooperation with each other as well as the frequency with which they sought my assistance to resolve petty discovery disputes. Further, I had to issue orders compelling both parties to comply with discovery on at least five occasions prior to the hearing (July 14, 1997 (issued orally at unrecorded pre-hearing conference in chambers); August 29, 1997, September 9, 1997, September 10, 1997, October 1, 1997). Accordingly, while I would not say that complainant's contentions of malfeasance by the respondent fell on deaf ears, I also was not as sympathetic to complainant's arguments as I might otherwise have been since it appeared that the complainant was engaging in similar conduct.

   But I had no idea that respondent's discovery abuses were so systemic and so greatly exceeded complainant's, and went to the heart of the most troubling aspect of this case -- respondent's undisclosed payments of about $281,000 to complainant's former counsel, Thomas McAndrew, in the year following the execution of the settlement agreement. Respondent's deliberate withholding of discoverable evidence did not come to light until the post-hearing briefs were due to be filed, following a visit by the FBI to the complainant in January 1998, at which time complainant stated that he was shown documents concerning McAndrew responsive to his discovery in this case which had not been produced by the respondent. Learning about the existence of these documents led to the post-hearing proceedings detailed at the beginning of this decision.

   As a result of these post-hearing proceedings, it is clear that respondent deliberately failed to produce numerous documents regarding its relationship with McAndrew which were responsive to complainant's discovery. Among these documents are the following:

   Respondent noted the existence of this bill for the first time in its January 30, 1998 response to complainant's motion to reopen the record ("January 30, 1998 response" - ALJX 7). However, while acknowledging that the bill contained a reference to Ms. Brisbin's meeting with McAndrew on April 25, 1997, respondent stated that it was otherwise identical to CX 66. Respondent also stated that the bill was discovered to be lost in January, 1998. But that is not the reason it was not produced or acknowledged in response to complainant's discovery. Rather, Ms. Brisbin stated that the document was not produced because it was not responsive to complainant's discovery. See TR 1999-2002. In a letter dated May 5, 1998, Ms. Brisbin stated that the lost bill was finally located, in a correspondence file in NUWC's Office of Counsel, and it was produced at that time.

   Respondent contended in the January 30, 1998 response that the lost bill was not responsive to complainant's discovery because it was written after the discovery was served. This did not stop respondent from producing, although somewhat belatedly, CX 66, which also is dated April 24, 1997, in response to the same discovery. Further, even if the lost bill was not in respondent's possession when complainant's first discovery (ALJX 11-12) was responded to on April 21, 1997, it would have been in respondent's possession when the May 8, 1997 discovery (ALJX 14) and later notices of deposition of the custodian of the records (ALJX 15-17) were answered. Moreover, complainant's requests for production stated that they were continuing and must be supplemented, and no objections to this aspect of the requests were raised.

   Complainant's Document Request 31 (see ALJX 14), which was identical to the earlier Document Request 13 (see ALJX 11), asked respondent to "[p]rovide a copy of all documents transmitted to the Navy from Mr. Thomas McAndrew, from June 16, 1995 to present." If this is not clear enough, Document Request 25 from the May 8, 1997 discovery (ALJX 14) repeated the earlier Document Request 3 (ALJX 11), which asked respondent to "[p]rovide copies of all invoices from Thomas McAndrew to the Navy, from June 16, 1995 to present." Finally, the notice of the September 4, 1997 deposition of respondent's custodian of records (ALJX 17) contains a schedule of documents to be produced, including, at item 12, "[i]f not already provided, all documents provided to NUWC by Thomas McAndrew." Respondent had no excuse for failing to turn over this document in discovery or, if it truly could not be located, of informing complainant of its existence in response to Interrogatory 25 served on May 8, 1997.

   It should also be noted that, in a July 11, 1997 pleading entitled Respondent's Combined Supporting Memorandum and Opposition to Complainant's Motion to Compel, Renewed Motion to Compel, Motion for Discovery Orders and Motion for Sanctions (ALJX 10), respondent stated that it "has provided Complainant with Mr. McAndrew's submitted bills, which document the instances in which Mr. McAndrew met with NUWC officials." Id. at 14. In that same pleading, respondent assured the court that it "has provided Complainant with all non-privileged responses and documents responsive to his discovery requests that exist and are in its possession." Id. at 5. Neither of these statements was true.

   That McAndrew was still conferring with NUWC counsel and billing NUWC for his services in April, 1997, over two months after complainant and McAndrew severed their attorney-client relationship, would have been of great interest to complainant in attempting to establish that McAndrew and NUWC had an inappropriate relationship during the period McAndrew supposedly was representing the complainant. It is possible that the other differences between CX 66 and the lost bill also have significance.

   (b) Ms. Brisbin's notes of the April 25, 1997 conference with McAndrew. According to Ms. Brisbin, this document was not even acknowledged in response to complainant's discovery because neither she nor anyone else involved with this case believed that her files were subject to discovery ( TR 2008-09). One wonders if it ever crossed Navy counsel's minds that if an attorney's files were not subject to discovery, there would be little need for an attorney work-product privilege. Moreover, accepting respondent's argument would mean that documents which are otherwise discoverable could be withheld from discovery by placing them in an attorney's files. This is specious. And although Ms. Brisbin's notes of her April 25, 1997 meeting with McAndrew might have been subject to the attorney work-product privilege, no such privilege was asserted. Rather, the existence of the document was not acknowledged.

   It is apparent that respondent was intent on hiding the fact of this meeting from complainant. Respondent's excuses for failing, in a timely manner, to produce the lost bill and, at the least, to disclose the existence of Ms. Brisbin's notes of her April 25, 1997 meeting with McAndrew simply are not believable.

   (c) Ms. Brisbin's notes of her telephone conversation with McAndrew on June 23, 1997. This document should have been turned over, or listed as privileged if a work- product privilege was being claimed, in respondent's July 23, 1997 response to Document Request 30 of Complainant's Third Request for Production of Documents (ALJX 14), which seeks production of "any and all Naval Undersea Warfare Center documents that refer or relate to Mr. Thomas McAndrew." Respondent first revealed that this conversation took place in an in camera, March 18, 1998 affidavit filed by Ms. Brisbin. However, in that affidavit Ms. Brisbin stated that she did not take notes of that conversation (see ALJX 3, Declaration of Andrea Heffernan [Brisbin] at 6). That notes of this conversation did exist was disclosed by respondent on April 23, 1998, when Ms. Brisbin stated she found them in her files "stuck to the back of another document ...." (ALJX 6)

   (d) Ms. Brisbin's notes of an October 8, 1997 telephone conversation with McAndrew. Complainant was made aware of this conversation through a letter sent to him by McAndrew on October 10, 1997. However, respondent did not inform complainant that Ms. Brisbin took notes of this conversation, and those notes were not produced as a supplement to respondent's response to complainant's document request 30 (see above).

   (e) Letters from McAndrew to Ms. Brisbin dated May 2, 1997, May 27, 1997, July 15, 1997 and August 21, 1997, all dealing with McAndrew's fees in connection with complainant's actions against the respondent; a letter from Ms. Brisbin to McAndrew dated May 15, 1997 regarding the same subject matter; and an April 7, 1997 letter from McAndrew to Dr. Dence forwarding a letter McAndrew had received from complainant's current counsel. See ALJX 3, at Attachments 2-6. All of these documents were responsive to complainant's discovery and clearly are not privileged. In her March 18, 1998 affidavit, Ms. Brisbin contends that these documents were not produced because she did not consider her litigation files to be subject to discovery (ALJX 3, at 10). As is noted above, this contention is specious.

   (f) Differing versions of McAndrew's bills dated August 1, 1995, October 2, 1995, October 30, 1995, December 4, 1995, January 26, 1996, April 29, 1996, and April 7, 1997. Respondent admits that differing versions of the December 4, 1995, January 26, 1996 and April 29, 1996 bills erroneously were not turned over during discovery, but states that the differences from the bills for these dates which were turned over were minor (see ALJX 7, at 3). However, that the differences between documents may be minor does not change respondent's obligation to produce each version of the document; and even seemingly minor differences may turn out to be significant. For example, it may be significant to know whether McAndrew's bills had to be signed off by Dence and/or Nelligan before they were paid, or whether Dence or Nelligan was responsible for first approving the bills. It may also be significant if the same bill was signed off on two different occasions.

   (g) Photocopies of the cancelled checks issued to McAndrew by the Treasury Department on behalf of NUWC, with accompanying check claims vouchers (ALJX 3, Vol. II at Tab 3). Respondent contends that these documents were not subject to complainant's discovery because they were never in its possession, but rather were in the possession and control of "a non Navy entity under the Department of Defense called `DFAS [Defense Finance and Accounting Agency]." (See ALJX 9, at 5-6). Nevertheless, these documents were obtained by NUWC from DFAS at the request of Navsea's Inspector General's Office in connection with the FBI investigation, and were turned over to the Navsea IG on November 17, 1997, about three weeks after the IG requested them from NUWC (ALJX 3, Vol. II, Declaration of Ann Gallagher). Since these documents were readily available to NUWC, for purposes of discovery I hold that they were in NUWC's control and thus subject to complainant's discovery. Since documents reflecting payments made by the Navy to McAndrew were repeatedly sought in discovery (see, e. g., Complainant's First Request for Production of Documents, at Document Request No. 7), these cancelled checks and vouchers should have been turned over.

witnesses who testified at the hearing, and attempt to call additional witnesses such as Ms. Brisbin. In addition to the substantial delay this would entail, it would be unfair to ask complainant to endure the additional expense retrying the case would engender. Further, witnesses who previously were subject to compulsory process as employees of NUWC or the Navy, including Ms. Brisbin, Ms. Carlson and Capt. Logue, may now be beyond the authority of this tribunal to compel to testify, further prejudicing the complainant. Finally, there is no assurance that respondent has yet produced all the evidence it should have produced in response to complainant's discovery.

   Moreover, in light of the nature of respondent's conduct, reopening the record, even if accompanied by an award of costs to complainant, would be a mere slap on the wrist. I have no doubt that respondent's failure to fully respond to complainant's discovery regarding its relationship with McAndrew was deliberate. A party's deliberate failure to withhold material evidence that was properly requested through discovery is an unconscionable perversion of the judicial process. It is reprehensible when it is engaged in by a private party; but I am not sure there is an adjective pejorative enough to describe this conduct when it is engaged in by attorneys representing the United States Government.

   Under 29 C.F.R. §18.6(d)(2) of this Office's Rules of Practice and Procedure,

If a party ... fails to comply ... with an order, including, but not limited to, an order for ... the production of documents, or the answering of interrogatories, ... the administrative law judge, for the purpose of permitting resolution of the relevant issues and disposition of the proceeding without unnecessary delay despite such failure, may take such action in regard thereto as is just, including but not limited to the following:

(ii) Rule that for the purposes of the proceeding the matter or matters concerning which the order ... was issued be taken as established adversely to the non-complying party;

...

(v) Rule ... that a decision of the proceeding be rendered against the non- complying party ....

I issued an order compelling the respondent to fully reply to complainant's second and third requests for production and sets of interrogatories at an unrecorded prehearing conference on July 14, 1997; granted, on August 29, 1997, complainant's motion to compel, inter alia, "the attendance of the appropriate Custodian(s) of Records and requested documents for deposition at NUWC on September 4, 1997"; issued, on September 9, 1997, an order compelling discovery stating that, inter alia, respondent has agreed to turn over all remaining

documents responsive to Document Request 31, which requests respondent to "[p]rovide a copy of all documents transmitted to the Navy from Mr. Thomas McAndrew, from June 16, 1995 to the present"; and ordered respondent to "produce all remaining documents responsive to complainant's discovery" in an order issued on September 10, 1997. In failing to provide the documents listed above, respondent violated each of these orders.

   Under these circumstances, the appropriate remedy is that set out in §18.6(d)(2)(ii). Therefore, I find that respondent interfered with the attorney-client relationship between complainant and Thomas McAndrew by paying McAndrew $281,115.50 between July, 1995 and June, 1996 without complainant's knowledge or consent, as a result of which McAndrew aided respondent in connection with this case to complainant's detriment. I further find that these payments were not made in accordance with Paragraph 12 of the settlement agreement entered into between the complainant and respondent on June 15, 1995 (Appendix 1 to this decision).

      2. Workers' Compensation Claim

   Complainant's Notice of Deposition for the Custodian(s) of Records ... (ALJX 17) scheduling a September 4, 1997 deposition requested, as item number 2, the production of "[a]11 documents pertaining to the medical condition of Mr. Beliveau, including but not limited to, medical records maintained by the Navy." This request clearly required the production of documents relating to complainant's April 12, 1997 workers' compensation claim, yet no documents regarding that claim were produced. In December, 1997, two months after the conclusion of the hearing, respondent turned over an October 15, 1997 memorandum from Carole James, NUWC's OWCP coordinator, to OWCP in Boston. That document was admitted into evidence as CX 129 during a conference call on January 28, 1998. Respondent claims that this document was not responsive to complainant's discovery because it post-dated the deposition of the custodian of records. However, it should be noted that in Complaint's [sic] First Request for Production of Documents, which I have held required supplementation from respondent, complainant sought discovery of all documents which referred to him (ALJX 11, at Document Request 22). CX 129 clearly is responsive to this request. In any event, respondent does not dispute that it should have produced an August 7, 1997 memorandum from Carole James to OWCP (CX 131), which complainant obtained sometime prior to the April 14, 1998 post-hearing conference in response to a Freedom of Information Act request filed with OWCP (see TR 1958). That document consists of complainant's workers' compensation claim and NUWC's responses to that claim, and includes complainant's medical records at NUWC.

   However, these are not the only documents respondent failed to produce regarding the compensation claim. It should be noted that the October 15, 1997 letter from Carole James to OWCP is a response to an August 13, 1997 letter from an OWCP claims examiner. That letter from OWCP was not produced by respondent. Moreover, it is hard to conceive that no other documents were generated in response to complainant's workers' compensation claim in the four months between the filing of the compensation claim and the

deposition of the custodian of the records. Since this case already was in litigation at the time the workers' compensation claim was filed, and respondent's interference with complainant's filing of that claim had been raised as an issue even before the compensation claim was filed, it is inconceivable that no internal memoranda, e-mails or other written communications were created by NUWC regarding the compensation claim. Yet none were produced, nor were claims of privilege asserted for any otherwise responsive documents. Once more, I find that respondent failed to comply with my orders compelling discovery.

   I again find that the appropriate remedy for respondent's failure to comply with my orders compelling discovery is to rule that the issue for which the discovery was sought is taken as established, as provided by 29 C.F.R. §18.6(d)(2)(ii). Therefore, I find that respondent interfered with complainant's filing of his workers' compensation claim.

   e. Other complaint allegations

   Complainant alleges that respondent refused to permit him to take an early retirement under the VSIP when he applied in February or March, 1997, and that this is an adverse action motivated by animus against him. This contention has no merit, as the evidence clearly establishes that he did not meet the qualifications for the program.

   The purpose of the VSIP

is to create vacancies for employees who are scheduled to be separated by RIF [reduction in force] at other DoD activities. Cash incentives of up to $25,000 will be offered to employees in continuing positions who agree to voluntarily retire or resign so that surplus employees can be placed in their jobs.

CX 92, at 382. Since the complainant had already agreed to resign effective September 1, 1997, there was no reason for respondent to offer him a cash incentive to retire in April of that year, when he would have reached the minimum age of 50 necessary to retire under VSIP. Moreover, since he was no longer performing an actual job for NUWC, his retirement would not have opened up a slot for another worker who otherwise might be laid off. In short, having complainant retire early would have been of no benefit to NUWC, which explains why complainant did not meet the requirements for that program. It should be noted that by the time complainant met the age and time in service requirements for VSIP, he been receiving his full pay under the settlement agreement for almost two years, and received all of the other financial benefits the settlement agreement provided. He would stop receiving his pay under the agreement

in a timely manner. However, there was no question regarding complainant's rating, as this was covered in the settlement agreement. He was to receive a Level IV rating, and that is the rating he received.

   Assuming arguendo that the failure to provide the complainant with a copy of this preordained performance appraisal in a timely manner is an adverse action, there is no evidence that animus against the respondent played any role in his not being given a copy of the performance appraisal until March, 1997. In his brief, complainant states that "Respondent offered no evidence that it had any reason other than retaliation to take the action." (Complainant's Post-Hearing Brief at 66) But even in light of Reeves v. Sanderson Plumbing Products Inc., supra, it is not respondent's burden to prove that its action was not retaliatory; rather, complainant must prove that it was. Clearly, giving complainant a copy of his performance appraisal where his rating was dictated by the settlement agreement, essentially a meaningless action, would not have been a high-priority item. Had respondent believed complainant actually needed a copy of his performance appraisal and deliberately had not given it to him, that could have been indicative of animus. But there is no indication that this is what occurred. In fact, complainant did not even bring this matter up with respondent prior to initiating this proceeding by filing a complaint on October 10, 1996; and at that time the performance evaluation was only days late.

   Complainant's citation to Capt. Logue's testimony at pages 392-93 of the transcript as support for a finding that respondent deliberately withheld his performance appraisal is a distortion of the record. For one thing, Capt. Logue did not state that he told his subordinates to "stop playing the game" (see Complainant's Post Hearing Brief at 66); in fact, no one used that phrase. Complainant's counsel, at pages 392-93 of the transcript, asked Capt. Logue:

Q. ... And you stated that you advised your staff at one point to no longer hold up Mr. Beliveau's payments as part of the game, isn't that correct?

A. I directed that they no longer be held up.

Second, this testimony had nothing to do with complainant's performance appraisal; it concerned reimbursement of educational expenses.

   Next, complainant's allegation that respondent tried to pressure him "until he broke" is based on a statement allegedly made by Dr. Dence. That Dence suggested complainant be pressured until his health was affected was confirmed by Capt. Logue, who stated that he immediately rejected such a strategy (TR 382-83). Complainant has offered no credible evidence that the strategy to pressure him until his health was adversely affected was ever effectuated.

   Complainant has tied this contention into a broader one, i.e., that he faced a hostile working environment. But his allegations are specious. He contends that respondent isolated him after the settlement agreement was entered into. Specifically, in his February 28, 1997 complaint, complainant contended that he was denied entry to the Newport Naval Complex, was forbidden to contact current or former NUWC employees, and could not discuss NUWC's activities with other people. The absurdity of these allegations is that these are all things complainant agreed to in the settlement agreement. See Appendix 1 at Pargraphs 5B, 6, 11D. Although complainant alleges that these provisions are contrary to public policy, and therefore should not be enforced, the fact remains that the agreement is in effect unless and until the Administrative Review Board invalidates all or part of it. Accordingly, it cannot be held to be an act of discrimination for respondent to seek compliance with the settlement agreement. Similarly, that complainant could not access NUWC e-mail and briefings relate to his agreement to absent himself from NUWC's facilities.

    What complainant continuously seeks to ignore, as is obvious from even a cursory review of the settlement agreement, is that respondent's primary purpose in entering into the settlement was to isolate him and have him leave its employ. Complainant had to be aware of respondent's intent, and agreed when he signed the settlement agreement to be bound by the very provisions to which he now objects. Again, complainant is acting in a completely disingenuous manner. He wants all the benefits from the settlement but none of the burdens. He cannot have it both ways.

   In addition, complainant seeks exemplary damages under the SDWA of at least the same amount paid by respondent to McAndrew subsequent to the settlement agreement.

   It is clear that, of the environmental problems at NUWC raised by complainant with the EPA, at least some concerned possible violations of both the CAA and the SDWA. For example, Ann Fenn and John Gauthier of EPA testified that the complainant raised issues falling under both of these statutes (TR 96, 108, 138-39); and according to EPA's memoranda of interviews with the complainant, complainant specifically raised an issue regarding NUWC's failure to test drinking water for contamination by lead and other substances (CX 94, at 5). Accordingly, this case falls within the jurisdiction of both the CAA and the SDWA, and the remedies provided by these statutes can be applied in this case.

   As an agency of the United States Government, respondent is only liable for damages in cases where sovereign immunity has been waived. Respondent apparently concedes that sovereign immunity was waived and it is liable for compensatory damages for violations arising under the CAA at any time relevant to this case (see Respondent's Post- Hearing Brief at 154-55). However, in regard to the SDWA, the only one of the four statutes under which this case was brought which provides for exemplary damages, see 42 U.S.C. §300j-9 (i)(2)(B)(ii), respondent contends that it is liable for damages arising under the SDWA whether compensatory or exemplary only since the effective date of P.L. 104-182, the Safe Drinking Water Act Amendments of 1996. That statute became effective on August 6, 1996, and for the first time subjected Federal agencies to the full range of remedies under SDWA. See 42 U.S.C. §300j-6(a) and (b).

   Respondent's analysis of its liability appears to be correct; and accordingly it is liable for compensatory damages under both the CAA and SDWA, and exemplary damages only under SDWA. Moreover, its liability for any damages under SDWA begins on August 6, 1996. However, since I have found that complainant's complaints to EPA are protected under both the CAA and SDWA, compensatory damages may be awarded if appropriate for any adverse actions alleged in this case without regard to the August 6, 1996 date.

   In regard to exemplary damages under the SDWA, since I have issued a default judgment because respondent's discovery abuses impeded complainant's efforts in developing his case, it would be both unfair and ironic to use the August 6, 1996 effective date of the waiver of sovereign immunity under the SDWA to preclude complainant from obtaining exemplary damages. Moreover, although it appears that most, if not all, of the money respondent paid to McAndrew without complainant's knowledge was paid prior to August 6, 1996, there is no reason to conclude that respondent's relationship with Andrew and its deleterious effects on complainant ended when the payments ended. For example, CX 64-66, which are copies of McAndrew's bills dated January 29, 1997, March 24, 1997 and April 24, 1997, list services

performed by McAndrew from August 1, 1996 through April 7, 1997, for which he apparently expected to be paid by respondent. It is also known that McAndrew continued to provide information to respondent, including confidential information he obtained in the course of his legal practice, through at least October, 1997.

   Although the continuing violation theory usually is invoked in situations where the timeliness of the complaint is at issue, it appears to be just as applicable here, in assessing respondent's liability for exemplary damages. Respondent's interference with complainant's relationship with his attorney was not a single discrete event. Instead, it was a series of events which began after the settlement agreement and continued until at least just before the hearing. And that is based on the evidence which was produced. It is not known what else complainant would have been able to prove had he been provided with all the evidence he attempted to obtain through discovery. Accordingly, I hold that the respondent's interference with complainant's relationship with his attorney was a continuing violation extending over a year after the SDWA was amended, all of which can be considered in assessing exemplary damages. But even if only the post-August 6, 1996 events can be considered, there is an adequate basis to award exemplary damages.

      (i) Compensatory Damages

   Items 1-6 in the above list of damages sought by the complainant relate to complaint allegations which were dismissed. Obviously, complainant cannot recover damages where the allegation which supports the damages award has been dismissed. Moreover, complainant's unsupported self-serving testimony that he would have been hired for other Federal jobs starting in June, 1996 (TR 652-53) is insufficient to established his entitlement to what he calls "front pay" even if he had established the other complaint allegations. Also, it is interesting to note that no damages other than mental anguish and loss of reputation are claimed in regard to either of the two allegations which complainant did establish, i.e., that respondent interfered with his relationship with McAndrew and with his workers' compensation claim; and complainant has produced no evidence relevant to damages for loss of reputation.

   In regard to the sum he seeks to recover due to mental anguish, complainant relies on the testimony of Dr. Mark Zimmerman, the director of outpatient psychiatry at Rhode Island Hospital and an associate professor of psychiatry at Brown University (TR 731-32). Despite an impressive list of publications and appointments, Dr. Zimmerman had only been practicing for three years (TR 771-72), and was not board-certified, at the time of the hearing.

   Although complainant was under treatment at Rhode Island Hospital's outpatient psychiatric program beginning in late December, 1996, Dr. Zimmerman first saw the complainant on March 13, 1997 (TR 736). At that time, he diagnosed panic disorder without agoraphobia and depressive disorder not otherwise specified. Dr. Zimmerman described panic disorder as "unexpected spells of intense anxiety associated with a number of different physical symptoms of anxiety such as heart racing, shortness of breath, sweating, light-

   Finally, Dr. Zimmerman's opinion regarding the cause of complainant's condition is very non-specific, falling under the umbrella of problems with the Navy. He did not attempt to, and probably cannot in any event, differentiate between stress arising from the two discrimininatory acts found in this case - - respondent's interference with complainant's relationship with McAndrew and with his workers' compensation claim - - and the stress arising from other aspects of complainant's employment NUWC which is not compensable through this case. These include anything occurring up to June 15, 1995; complainant's false impressions of discriminatory actions by respondent; and other litigation with respondent in which

complainant is involved. Not only does Dr. Zimmerman fail to address this issue, but it does not appear that he even realizes that it is an issue. I am not blaming Dr. Zimmerman, for this is probably irrelevant to this diagnosis and treatment (see, e.g., TR 785- 88). But it is very relevant here, in attempting to determine whether complainant's mental condition relates to the two acts of discrimination he has proven.

   Nevertheless, as opposed to most other whistleblower cases where damages for emotional distress are being sought, at least there is some expert medical evidence on the issue of damages due to emotional distress. The Secretary/ARB have held that expert medical evidence is not necessary to award compensatory damages for emotional distress, that a complainant's testimony by itself is sufficient for a judge to find that emotional distress is due to discrimination and award damages. See, e.g., Jones v. EG&G Defense Materials, Inc., ARB Case No. 97-129, ALJ Case No., 95-CAA-3 (ARB Sept. 29, 1998). Here, although Dr. Zimmerman's testimony is not without it's faults, at least it is clear that complainant has a diagnosed mental condition and that the supervising psychiatrist attributes this condition to the complainant's employment with the respondent.

   Other cases without expert evidence either of a diagnosed emotional condition or of causation have nonetheless awarded compensatory damages for emotional distress in amounts of $20,000 ( Assistant Secretary of Labor for Occupational Safety & Health v. Guaranted Overnight Delivery, ABA Case No. 96-108, ALJ Case No. 95-STA-37 (Sept. 5, 1996), and even $50,000 (Jones, supra). Here, there is expert evidence of both a diagnosed condition and causation. Although this expert evidence is entitled to only limited weight, it is far more probative than lay evidence which more often than not is nothing more than a complainant's conjecture. With those cases as a guide, I find it reasonable to award complainant compensatory damages of $50,000 for emotional distress related to the two proven acts of discrimination. Had I believed that all of complainant's mental problems diagnosed by Dr. Zimmerman - - panic disorder without agoraphobia and depressive disorder not otherwise specified - - arose exclusively, or even primarily, from the discrimination I found in this case, I would have awarded compensatory damages of $100,000. But Dr. Zimmerman's evidence is at his weakest in this regard. It appears that complainant's condition preexisted his employment at NUWC, and judging from the various memoranda which complainant wrote shortly after he began working for respondent he was already very anxious at that time because of his fear of

civil and criminal liability, fears which certainly were not eased by the EPA inspection late in 1994. Although complainant told Dr. Zimmerman that his condition worsened substantially at the time he started treatment at Rhode Island Hospital, complainant is very manipulative and thus this history may not be credible. However, I do give some weight to Dr. Zimmerman's testimony, and find that at least some degree of the diagnosed conditions relate to respondent's interference with complainant's relationship with McAndrew.

      (ii) Exemplary Damages

   The leading DOL environmental whistleblower case in regard to exemplary damages is Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y, May 29, 1991), in which the issue was exemplary damages under the TSCA. The TSCA and SDWA provide identical remedies for violations of their respective whistleblower protection provisions. In Johnson, the Secretary stated:

Exemplary awards serve in punishment for wanton or reckless conduct to deter such conduct in the future. The Restatement (Second) of Torts §908 (1979) describes a two-step analysis. The threshold inquiry centers on the wrongdoer's state of mind: did the wrongdoer demonstrate reckless or callous indifference to the legally protected rights of others, and did the wrongdoer engage in conscious action in deliberate disregard of those rights. The "state of mind" thus is comprised of both intent and the resolve actually to take action to effect harm. If this state of mind is present, the inquiry proceeds to whether an award is necessary for deterrence.

Id., slip op at 16-17 (footnote omitted). The Secretary held that the facts in Johnson, where there security guards who complained of leaks of hazardous substances were found to have been allegedly discharged under the provisions of the TSCA, were insufficient to merit exemplary damages. The Secretary stated that the respondent manifested "indifference to the public health purposes of the TSCA in its treatment of Complainants .... Its conduct was largely in the nature of omission." (Id. at 17). The Secretary added:

Generally, a bare statutory violation is insufficient to substantiate such an award. While these events may be viewed to exceed somewhat the violation of retaliatory discharge, in my view they fall short of the conduct present in a number of relevant cases. I do not view Respondent's intent and actions as meeting the threshold for an exemplary damages award. Because I do not find the existence of the requisite state [of mind], I need not resolve the question of deterrence.

Id. (citation and footnote omitted). Similarly, in Jones v. EG&G Defense Materials, Inc., supra, where exemplary damages were sought under the TSCA, the Secretary in denying exemplary damages, once again characterized the respondent's actions as

"indifference to the purposes of the environmental acts" Id., slip op at 24. In the Jones case, a safety manager who engaged in a variety of protected activities in response to perceived health and safety problems was illegally fired. Yet exemplary damages were found to be inappropriate. In fact, I have been unable to find a single DOL whistleblower case where exemplary damages ultimately were awarded.

   Since only two of the many complaint allegations have been established, those are the only allegations to look to in determining whether exemplary damages are appropriate. One of the two - - respondent's interference with complainant's filing of a workers' compensation claim - - clearly does not rise to the level of wanton and reckless conduct needed to establish a predicate for exemplary damages. It may have been childish and vindictive, but all it did was delay complainant's workers' compensation case for a short time. It certainly does not rise to the level of a retaliatory termination or demotion, neither of which routinely produces awards of exemplary damages.

   That leaves the claim that respondent subverted the relationship between complainant and his attorney, McAndrew, to the point that McAndrew, while ostensibly working for complainant actually was working for respondent, to complainant's detriment. It has been established that McAndrew abused his position as complainant's attorney by providing respondent with confidential information, including that complainant's son had a problem of some kind at Brown University, and otherwise cooperating with respondent but not complainant during the pendency of this litigation. Due to respondent's failure to provide complainant with documents requested through discovery as well as our lack of subpoena power in whistleblower cases, the full extent of the relationship between respondent and McAndrew is not known. Nevertheless, it is hard to conceive of something as heinous as an agency of the Federal Government surreptitiously paying an opposing party's attorney so much money that the attorney in effect becomes its agent rather than the opposing party's, apparently in an effect to prevent violations of environmental protection statutes from being discovered and/or to mitigate the punishment for those violations. This is conduct that shocks the conscience, and which must be deterred in no uncertain terms.

   This conduct on the part of NUWC meets the two-part test set in Johnson v. Old Dominion Security, supra. First, respondent demonstrated reckless and callous indifference both to complainant's rights, by leaving him without effective counsel, and to the rights of the public, by apparently attempting to cover up its failure to comply with several statutes designed to protect the environment. Thus respondent had both the intent to do harm and

took actions designed to accomplish its intent. Second, respondent's unconscionable conduct must be deterred, and an award of exemplary damages may go a long way to deter such conduct. I find that exemplary damages are appropriate.

   Once it is determined that exemplary damages are appropriate, the next issue is the amount of those damages to award to the complainant. Since the standard is the amount necessary to punish and deter the reprehensible conduct, see, e.g., CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 705-06 (1st Cir. 1995), that Beliveau may not be the most deserving of complainants is essentially irrelevant. Complainant suggests as a minimum an amount equal to that which respondent paid to McAndrew, which I have found to be $281,115.50. I find that to be an appropriate sanction. Considering the size of the respondent - - whether it is considered to be the Navy in general or just NUWC - - anything less would scarcely be noticed, and would have little or no deterrent effect.

   1. IT IS ORDERED that Respondent Naval Undersea Warfare Center pay to the complainant, John J. Beliveau:

   (a) Compensatory damages for emotional distress in the amount of $50,000; and

   (b) Exemplary damages in the amount of $281,115.50

   2. Complainant's counsel shall file their fee petition within 45 days of this decision. Respondent shall have 30 days from receipt of fee petition to file a response.

      JEFFREY TURECK
      Administrative Law Judge