Hampton was led in direct to state Andrews told him Jones told her
Silvestri called
her a "lazy bitch." Hampton, like many of his event recitations, did not date when
Andrews,
very distraught, stepped in his office and when he asked her what was wrong, told him that
earlier that day
Jones told her, over a phone answering issue, that Silvestri said that the "lazy bitch"
could
[Page 127]
answer the phones and find time to answer the phones. Since Andrews was a friend and,
according to
Hampton, he knew Silvestri would not say that about Andrews he went not to Silvestri, or to
Jones, his
supervisor or to Hanny, Jones supervisor, but to Sue Ann Powell, Silvestri's secretary and
Hampton's
described friend. He told Powell what happened and that he was not so sure Silvestri wanted
those kind of
things floating around. Andrews' testimony makes no reference to this conversation with
Hampton but she
did testify Powell came to her to complain about answering the phone for Andrews. CX 102.
Hampton testified he knew Sue Ann would pass it on to Silvestri as he
stated
Andrews related it to him. He did not deny his purpose was to get Silvestri involved and angry
about it;
rather he essentially testified he was seeking the truth and "if it was Mr. Jones shouldn't be
saying
something like that". Hampton did not date his Patti Andrews-Sue Ann Powell
conversations but it
is found they occurred no later than Hanny's departure from the site, sometime early in 8/94 after
8/4/94
and before the 8/23/94 counseling.
By both Jones' and Hanny's testimony Hanny was involved in what
transpired leading
up to Silvestri's advice, on Sue Ann Powell's complaints to him about the telephone coverage
arrangements
in Andrews' absence, that Andrews was to continue her phone coverage. Hanny was gone from
TOCDF
as of 8/22/94 and Smith's arrival and substitution for Hanny. By Hampton's testimony his
conversation with
Andrews occurred the day Jones told Andrews she would have to continue phone coverage and
why. It is
reasonable to believe if Andrews was upset about whatever was conveyed to her about Silvestri's
statement
and the necessity to continue her phone coverage, and what she perceived as Jones' or the bosses'
failure
to secure agreement on the changes, or to advise Sue Ann Powell/receptionist, it would have
occurred at the
time she was advised by Jones she would have to continue coverage. Thus Hampton's relay of
the
"lazy bitch" statement to Silvestri through Sue Ann must have occurred no later than
Hanny's
departure and prior to the pre-8/24/94 counseling notwithstanding Silvestri's testimony and the
date
inconsistencies including in Andrews' RX 44. With Hanny's testimony on this incident, such is
established
as fact.
Then Hampton talked to Silvestri, at Silvestri's request and by Hampton's
date, in
either late 8/94 or early 9/94. When asked if the effect of his Sue Ann Powell contact about
Andrews was
to get him a meeting with Silvestri, Hampton responded "(t)hat wasn't my choice
no" and
"we were all very unhappy" TR 1573. In this meeting Hampton testified he kind of
brought
Silvestri up to date on the status of what was going on in Safety, laid it out on the line. He told
Silvestri they
all had had a gut-full, told Silvestri six in Safety were looking for other work, and he felt
Silvestri was going
to lose his entire Safety staff because of Jones. The five others were unnamed; the conveyed
gutfull
undescribed.
As with Hampton's demeanor when he responded to other
cross-examination
questions, his entire testimony on the Patti Andrews matter, and its sequela, the resulting
"all had a
gut-full" conversation with Silvestri had to be seen to fully appreciate the impression that
by the
contents and demeanor of this witness' testimony, this was an emotionally-affected removed
manager with
a manipulative and trouble-making agenda and mission of his own during Jones' employment;
well-prepared
in his litigation attempt to convince of a myriad of points to his benefit, and not genuine in his
representations overall.
[Page 128]
Hampton's testimony as to Jones discussing the appraisal Hampton signed
10/12/94,
one month after Jones' termination RX 51, and that this was Jones' evaluation of him; and his
explanation
for the hiatus, his lack of memory as to who gave it to him for his signature 10/12/94 enhanced
an
impression of lack of credibility.
Hampton's presentation adds to the impression that for all its represented
importance
in the termination action taken there is no indication this "lazy bitch" event/language,
about
which there are tremendous differences, inconsistencies and contradictions in the EG&G
witnesses'
testimony, was of any concern to EG&G managers Silvestri, Hanny or Smith until it was used as
the
ostensible basis for moving up Jones' termination date. It was not related by Silvestri to Smith
until 9/5/94.
Then Hampton's response to questions as asked about the 3/1/94 EG&G
Reardon-prepared contract CX 32:143-44 document which indicates the Safety Manager
exercises control for all
environmental safety concerns as well as chemical and industry safety concerns, Hampton's
"we all
as manager" and his "possibly" responses given the specific CX 32: 143-44
language
impressed as litigation affected. TR 1581-82. His responses reflect the effects of all that had
transpired
among and between EG&G witnesses in connection with the various post-termination
investigations, job-site
discussions and media attention.
By the end of 8/94, according to Hampton, Jones had "pulled back
quite a bit
in terms of acting as aggressive as he once was in the early days." Jones had indicated he
had been
reprimanded by Smith and needed to develop his people skills a little better.
The factfinder's impression from Hampton's testimony as to his 7/5/94
conversation
with Jones, and the impression from Reardon's testimony as to his 7/1/94, 7/5/94, conversations
with Jones,
vis-a-vis Jones' testimony as to what these two longtime Safety department employees said to
Jones in his
initial one-on-one conversations with these Safety staff members, the angry and disgrunted
Safety Manager
forced to step down and his longtime associate, hiree and described friend in what had been an
essentially
a very small and insular business operation, persuades and convinces both Hampton and Reardon
told Jones
on their initial meetings what Jones attested they said. It is so found. Further it is found Reardon
refused
to do the work Jones, on his evaluation of the Safety Department's immediate needs determined
was
necessary. This was not a conversation where an employee advised the Manager of how what
was being
asked of him did not fit in with his career plans. This was a refusal of the Manager's assignment
request.
Mendacity affects numerous aspects of Hampton's and Reardon's testimony as to their dealings
with Jones.
Evaluation - Legitimate Business Reason
On the above analyses and evaluations and for the following additional
reasons it is
found and concluded weighing all the evidence, including the witnesses' credibility, that EG&G's
business
reasons, demeaning subordinates in public, general lack of good judgment and acceptable
interpersonal skills
of RX 43, and the post-termination testimonial additions to what was never stated in the
pre-termination
memorialization, or in the counseling and termination interviews, was a pretext. And it is
further found
and concluded that were the dual motive analysis held applicable here, by the preponderance of
the credible
evidence, Complainant has established that but for his protected activities, including the PMCD
reference
of RX 43, these counseling and termination adverse personnel actions would not have occurred
and been
taken.
[Page 129]
The determination as to pretext, and on a dual motive analysis, is based
on reasoned
judgment on a more likely than not basis, as to what factually occurred and was known to the
deciding
EG&G managers prior to the adverse personnel actions. Post-termination interpolations, of
which there are,
by the above factual recitation and analysis, many in this case, must be screened out from
consideration, to
the extent possible. The witnesses' at times generalized representations on the factual events
compounded
the effect of these post-termination references and interpolations. Further, this is a case where
the sequence
and dates are not always indicated in the individual witnesses' testimony; or clearly inferable
from what they
state; or from the documentation. And on analysis of all the witnesses' statements, at times the
sequence
of the occurrences do not always agree.
It is found and concluded the legitimate business reason EG&G presents
is based on
a lie. This is just one of the factors contributing to the overall pretext finding reached. It was not
Hampton's idea, as represented, to step down as Safety Manager. He was not responsible for a
new Safety
Manager's hire, as he and EG&G represent. He was forced out as Safety Manager after EG&G
and Silvestri
received the surprise the GM told all managers he did not want to receive, an award fee
evaluation of Safety
Department deficiencies, and he resented he was unable to bring in someone, subordinate to him,
satisfactory
to Hanny and Jackson. It is also found and concluded Hanny told Jones he would have a free
hand and full
control of Safety Department personnel decisions on his hire. Reddish's unfounded second in
command
references and Hanny's recollection only from deposition enhance the mendacity flavor of
EG&G's
presentation.
Hampton's testimony, by demeanor, content and manner of response
establish how
strongly he felt about and resented this decision. He believed he could do, and had been doing
the job for
EG&G. He had experience in a chemical plant's operation. And on the purported need for a
Safety
Manager with Army agent experience, he had since systemization began in 1993 been
functioning in the
systemization process as the Safety Manager, a process inextricably involved with agent
operations, and
under Army rules and practices. Guello, an industrial hygienist when made Safety Manager did
not have
Hampton's background and experience.
Hampton's resentment of EG&G management's decision and its effects
affected his
attitude toward the new Safety Manager, from his first 7/5/94 encounter with Jones. His
memorialization
reflects his resentment. It is reflected in Hampton's statements to Jones he believed he should be
supervisor
and who Hampton should supervise; and Hampton's initiation of talk with Reddish and Safety
department
members as to what Jones was doing wrong; his talk to them about how he was being squeezed
out and not
respected.
From the witnesses' impressions on the stand the factfinder believes the
copies of
ostensible contemporaneous recordations of Reardon, Hampton and Helser have to be seriously
weighed
against their self-interest to support their versions of the events and statements between and
among
themselves and Jones. But to the extent the record reflects completely contradictory attestions of
Jones and
Hampton, as to what Hampton said to Jones in their first one-on-one conversation, e.g., did not
need new
Safety Manager, could do as they had in the past, were doing a good job, the fact Hampton
represents he
contemporaneously recorded as he did 7/5/94, and thereafter the week Jones was engaged on the
MSB Lab
problem, adds support to Hampton's impression on the witness stand. The impression he
conveyed was he
resented his removal, he resented Jones' arrival, he resented what Hanny and EG&G management
had done.
He wanted what he wanted, would use his friends, those he had hired in the Department, to
maintain
[Page 130]
whatever position he wanted; and he would disparage the new Safety Manager. He initiated
notes on Jones,
but work activity notes are not reflected. His attempt, through PMCD Dave Jackson, to work
out some
arrangement satisfactory to Hanny which would allow him to continue as Safety Manager with
some other
individual known to Jackson brought in as Hampton's subordinate, had been unsuccessful.
Hanny hired
Jones over Hampton, as Hanny represented to Jones, and Hampton was excluded from this
Hanny action.
It is found and concluded despite what Hampton represents in litigation,
there is
mendacity in his testimony overall. He was not a credible or reliable witness; his representations
were
pretextual. The question then becomes the effect of the replaced and disgruntled Safety
Manager's attitude
and conduct, as found, on his former subordinates and Safety Department events.
Hampton had, until the spring of 1994 and Helser's arrival, been
managing a very
small group and prior to his selection by Silvestri he had no management experience. Reardon
was in this
small group, Hampton's chemical agent and weapons expert. And with Helser's later arrival,
Helser
similarly qualified, they were individuals who knew each other from prior years at TAD and the
Toole Army
facility. Hampton hired them; he regarded them as his friends. Reardon and Helser did not
appreciate the
fact of, or know the basis of, Hampton's removal as Safety Manager and his replacement. This is
the
impression of their testimony and demeanor.
Just what Hampton conveyed to his self-described friends Reardon and
Helser as to
the reasons for his replacement and his expressed attitude toward the new Safety Manager, and
the Safety
department management changes, cannot be known with any reliability given these three
witnesses' lack
of trustworthiness in litigation. But based on Hampton's testimony and recordations, what
Reardon and
Helser did attest, and with the credibility reservations as to these three witnesses, Jones'
testimony as to what
occurred between them one-on-one and what Hampton then said to him is credited.
When Jones stated Hampton was disruptive and non-cooperative on
Jones' Safety
Department arrival, this fits in with Hampton's hearing impression, and with what is inferred
from Helser's
and Guello's description of Hampton's actions during the new manager's initial weeks on the job.
When Reardon, the first Safety Department employee who testified, said
on the stand
he was sure he indicated to Jones a willingness to do the security work, the manner in which this
witness
so testified gave pause as to his credibility on what he actually said to Jones. Hampton's later
impression
was that of unreliability for truthfulness. Then Helser's testimony in total was self-revealing
including how
he conducted himself in his exchanges with the new manager, e.g., too busy with Hampton's
projects, his
concern about Hampton's reactions to Jones' job requests of him, his testimony EG&G
management failed
to provide him with a transition. Reardon indicated that after his initial conversation about the
security job
he went over the security job duties with Hampton and Helser, and the three decided it would be
full time.
Jones was not a part of this three person decision. It was then Reardon had the one-on-one
unwitnessed
meeting with Jones, which was the basis for what followed between them and of Jones'
insubordination
perception, and his request of EG&G management for assistance in dealing with the
Hampton/Reardon/
Helser personnel problems.
On review of the entire record against the factfinder's judgments as to the
credibility
of these three witnesses' representations, it is inferred the disgrunted replaced Safety Manager
who had an
[Page 131]
agenda of his own in handling what the new manager said and did, used his relationship with the
Safety
Department employees he had hired, who were his friends, used the dynamics of the small-group
local site
relationship history into which the new manager was placed, to affect their view and response to
the new
manager.
Hayes described Reardon's and Helser's limitations, even as of 1995, in
the area of
interaction and interpersonal abilities with managers, with senior EG&G management and senior
government
personnel, affecting a manager's trust in their safety judgment. The initial context in which
Hayes evaluated
Reardon and Helser's interpersonal skills has been considered, as well as Hayes' subsequent
response to the
question asked, but any distinguishment as to Safety Manager consideration, does not alter the
impression
from his evaluation remarks that both Reardon and Helser, in terms of dealing with managers
above them
had limitations in and were weak on such interaction and interpersonal skills. This was the
factfinder's
impression from their description of events on the witness stand, and from their demeanor.
Neither Reardon
nor Helser, by education or job experiences, are young or inexperienced. Their friendship
relationship with
Hampton is echoed in how Reardon and Helser responded to Jones, and Jones' Safety
Department arrival
and changes, where they speculated without knowledge of the actual facts, as to why their friend,
and former
manager, had been replaced. Hampton advised them as he wished on this replacement, and
Helser blamed
EG&G management for his responses to Jones.
The picture these witnesses, Hampton, Reardon and Helser presented to
the factfinder
when weighed with Jones' contradictory version of his conversations with Hampton, Reardon
and Helser
is that there was basis in Safety Department events, their refusals and actions, and these three
employees'
interactions with him, one-on-one, for Jones' judgments. It is found and concluded Reardon, in
his words,
statements and actions in his unwitnessed conversation with Jones was insubordinate. Reardon
told Jones
what he would not do, and what he would do in the Safety department; and he resisted Jones' job
requests.
Helser did what he wanted to do, and not what Jones requested.
Jones advised the GM Silvestri 7/18/94, in the presence of Hanny,
Reddish and
Reihman, of what he had encountered in Reardon's and Helser's response and conduct to the new
manager's
request for their assistance in setting-up the Safety Department functions as he believed
appropriate.
When the GM testified he believed it was appropriate for an employee to
advise the
new manager he did not want to do what was requested of him because it did not fit in with his
career goals,
as heard, this appeared unusual. Then the involved witnesses' later testimony on these initial
encounters
with Jones was heard, and their credibility by demeanor and content on the stand, was found
wanting.
Hayes' evaluation followed, reinforcing the trial judgments on Reardon and Helser. The
background
circumstances against which the 7/18/94 meeting was held - Hampton's non-voluntary
replacement, his
strongly portrayed resentments, his past friendship relationships in the environment of a very
small Safety
department group history - when the new Safety Manager advised top EG&G management
Reardon and
Helser were non-cooperative and insubordinate, presented a fuller picture on the pretext and dual
motivation
issues. It is found Silvestri as well as Hanny knew all these background circumstances at that
time. The
fact this Jones/Silvestri/Hanny meeting took place just after the Jones' MSB Lab shut-down
memo then took
on some significance in how Silvestri stated he viewed what Jones told him, and how EG&G
management
handled Jones' request for assistance in this personnel matter.
[Page 132]
Add to this the following unusual circumstances, created by EG&G
management,
existing on Jones' take-over of the Safety Department and on 7/18/94. Hanny, Silvestri's
immediate
subordinate, Silvestri the deciding official in Jones' counseling/termination, told Jones he had a
free hand
to make Safety personnel changes. This is an ability even Reddish agreed made sense with a
new manager.
But Hanny told Hampton otherwise. This was a secret kept from Jones until late 7/94. Jones'
testimony
on this fact is credited as is Jones' testimony he did not formalize his organizational changes and
team leader
arrangements until his 7/20/94 memos. This fits in with the time a new manager needed to
assess his
personnel/responsibilities, the first weeks on the job; and part of the process with a new manager
can be
revisions in organizational set-ups. Jones thereafter also made revisions in his initial
organizational set-up
to please Hanny and honor Hanny's secret arrangement with Hampton, against Jones' better
judgment given
Hampton's attitude and conduct since his arrival.
Pretext in Both Adverse Actions' Process and Bases
Pretext is also reflected in the manner in which the 8/23/94 or 8/24/94
counseling
interview was conducted, as well as in what was, and was not, said and told to Jones in that
interview. The
process itself reflects pretext, as does its stated substance.
It is found on 8/24/94 Smith advised Jones of no specifics for his
conclusory
statements and his recordation of a general lack of good judgment and unacceptable interpersonal
skills. It
is found he advised Jones of no specific complaints by EG&G managers as to such, or of any
specific
instances of job performance or conduct on which these conclusions were based. It is further
found Smith
advised Jones of no instances where EG&G managers, or Jones' subordinates, had complained he
demeaned
his subordinates in public.
This counseling session would be most memorable to a person in Smith's
position,
at the time and doing what he did, under the circumstances he undertook it, and for the first time.
Memorable as reinforced by the almost immediate aftermath, widespread media notoriety and
effect on
EG&G, including several outside investigations and the internal solicitation of employee
statements on Jones
and pre-termination events. His lack of recall reflects, and Jones' testimony is credited, that no
specifics
were given as to demeaning, lack of good judgment or interpersonal skills events. This lack is
confirmed
by RX 43. And by the manner in which personnel expert Reddish, whose credibility has been
found
wanting, testified, unspecifically, as to what he witnessed while in attendance.
Except for the PMCD event, Smith was completely obscure and totally
unenlightening to Jones as to the basis, why, he and Silvestri reached the generalizations
expressed. From
what Smith stated he said in these generalizations, why Jones was as close to termination as
Smith had ever
seen was not stated or explained to the counseled employee. Further, from Smith's testimony as
to the
8/24/94 specific basis for these generalizations, what he could and could not recall, it is found
Smith had
none; and further, from his and Silvestri's testimony, that he was given none by Silvestri, only
generalized
conclusory opinions.
But Smith did recall Silvestri's close to termination advise was based on
Jones' Safety
Department work. His work in the BRA and hydrogen cylinder incidents and in closing the
MSB Lab.
Smith not only did not tell Jones of these Silvestri-related defects in Jones' Safety job
performance, which
were among the reasons Silvestri told Smith Jones was close to termination, and why the 8/23/94
counseling
[Page 133]
was taking place, Smith rated the quality of Jones' work as adequate. And he specifically told
him his Safety
Department work was not the reason he was close to termination. This was a false statement.
When Smith
cut off Jones' attempt to respond and told him the adverse personnel action taking place was not
about Safety
and his Safety Department job performance and efforts, by Smith's testimony this was a
misrepresentation,
mendacious and misleading. It is a pretext factor in the process. In essence Smith told Jones he
did not
want to hear from Jones what had occurred in the Safety Department on his arrival after
Hampton's
replacement.
How Smith conducted this session, what he said to Jones, how he cut
Jones' response
and questions off, indicate this session's purpose was not to improve Jones' performance or
conduct. No
meaningful information was given Jones by Smith on which he could base any improvement or
corrective
actions. Any employee so counseled as Smith states he conducted this session could not possibly
glean the
basis for EG&G management's stated conclusions of lack of good judgment and interpersonal
skills, or
subordinates' demeaning. These terms, like management style, are terms empty of meaning
absent the
specifics on which based. On these components of the legitimate business reason offered, this
was a
counseling session shrouded in mystery. In effect, it was a charade as to these counseled
components. And
to the extent it was, it connotes pretext in its process as well as substance.
As Smith described his volunteered involvement, immediately on his
TOCDF arrival,
he was to be merely Silvestri's spokesman and he asked Silvestri to defer his termination decision
until, to
improve the situation, Smith communicated Silvestri's concerns. However, the factfinder's
impression from
the cryptic, mysterious and pretextual counseling process conducted, as described by Smith and
Jones, and
from Smith's lack of recall not enhanced by Reddish's generalizations, is that this 8/24/94
counseling
session/memo had little to do with improving this employee's performance and more to do with
paper
documentation for a termination decision already made. A decision made by Silvestri alone.
It was a flawed process without substance carried out by a temporary
EG&G manager
who had no experience with or knowledge of the TOCDF Safety Department or of the events in
it, prior
to and after Jones' arrival and with Jones' replacement of Hampton as Safety Manager. Smith
represented
all he knew when he volunteered, and delayed Silvestri's termination decision, was what Silvestri
told him
about Jones' conduct and job performance. He indicated it was his deliberate decision not to talk
to any
Safety Department employee and it is found this included Hanney. Thus, he cut-off Helser's
approach.
However Hanny, the responsible Safety Department manager whom
Smith replaced,
on leaving TOCDF just shortly before Smith's arrival and Silvestri's 8/23/94 advice to Smith
which
precipitated the counseling. and who had intimate knowledge of Safety Department activities
before and since
Jones' arrival, testified he would not have taken this action at that time.
For Reddish, with his years of Human Relations' experience, to testify he
believed
that Smith in this session well-explained to Jones the basis for what was said and written, given
what Smith
testified he said, and did, was incredible. Particularly since Reddish's own testimony as to the
specifics
Smith disclosed to Jones in this session was so unenlightening. Reddish's lack of specifics here
was an echo
of his unspecific unclear and murky testimony as to just what he conveyed to Silvestri about
Jones' personnel
actions, aside from their conversation on the 7/20/94 HR memo.
[Page 134]
Then there is the odd controversy about Smith's failure to secure Jones'
signature
on the Review form RX 43, and just when and how Reddish secured Jones' signature. The
record would
indicate that in EG&G Human Relations there is a difference in personnel counseling actions
between
discussion, and discussion with written advice. Reddish did not get Jones' signature the day of
counseling.
It is dated over a week later, just two weeks before termination. EG&G was documenting, but
apparently
not in accord with its own Human Relations' rules.
There are other factors of pretext in the 8/24/94 adverse action taken,
discounting
the legitimate business reasons EG&G represents. The impression is Silvestri waited until
Hanny was out
of TOCDF to effectuate what Hanny would not have done himself. Silvestri's own testimony as
to the basis
on which he adjudged Jones a poor manager pre 8/23/94 and pre 9/14/94 was itself, in large
measure, as
reflected within, cryptic and poorly founded in his personal pre 8/23/94 and 9/14/94 knowledge.
If Reddish
and Reihman are the unnamed EG&G managers of RX 43, and Silvestri, by EG&G's hearing
presentation,
ostensibly relied on what they allegedly told him pre-termination, although this was not so
indicated until
litigation, the testimony out of the mouths of Reddish and Reihman as to what they told Silvestri
is
generalized.
Reddish indicated three Safety employees, Reardon, Helser and Hampton,
were in
contact with Reddish complaining about Jones' actions, and Reddish was, assumably
unbeknownst to Jones
and to Hanny, being supplied with the written notes on Jones by Reardon. Yet there is a total
absence of
any reference in the testimony of any of the EG&G witnesses to the representation Hanny called
an all staff
meeting to express support for Jones and for his Safety department management changes. To the
extent
these voids raise any question as to the factual need, occurrence, and purpose of such a meeting,
by Jones'
credible testimony, it is established this meeting had to be called because of Hanny's secret
agreement, the
problems it created in the Safety department on Jones' arrival, and the resistance to Jones as
Safety Manager,
and Jones' changes as such, by Hampton, Reardon and Helser. It is found as a fact within that
Hanny, who
EG&G agree by its proposed finding #92 had the agreement with Hampton which Jones' credible
testimony
establishes on this point, kept this agreement secret from Jones until Hanny's late 7/94 advice.
Given the manner in which the counseling session was conducted, and the
absence
of pre-termination documentation of anything RX 43 reflects, pretext in form and substance,
from the record
what did Silvestri know prior to counseling/termination? Much of what was testified to by the
various
EG&G witnesses was unknown pre-termination to Silvestri/Smith, the decider and effectuator of
the adverse
actions. Much of what was represented was affected and colored by the post-termination
solicitation by
EG&G management; talk, among and between witnesses; retelling as a result of media attention,
OSHA,
DOL and military investigations, deposition and litigation preparation.
Reddish, conveyed to Silvestri in generalized fashion second and third
hand incorrect
versions of events related by Reardon, Helser and Hampton, and perhaps pre-termination the
"skinhead," "haircut" remarks. Whatever Reihman conveyed, also
second and third
hand, had in retelling evolved into "sleeping on the job" . Analysis of the witnesses'
varying
testimony and Hampton's notes indicate these words as ostensibly definitely stated by Jones were
a retelling
interpolation. Reihman's own testimony as to what he said to Jones, from which the
interpolation evolved,
is distrusted. Thus Silvestri's testimony as to the basis for his knowledge of the "sleeping
on the
job" statement, given the questions Reihman's testimony raised and the witnesses'
variations, words
represented as so important to his termination decision following counseling, did not serve to
enhance his
[Page 135]
credibility or dispel pretext. The entire EG&G presentation on this event, and its significance in
the
termination decision, has a pretext aura. By preponderant weight it does not persuade of what
EG&G
represents as a legitimate business reason.
Aside from whatever Reddish and Reihman conveyed, the specifics of
which are
unknown, what else did Silvestri know prior to these events?
He knew what Hampton, whose performance had fallen, elected to tell
him, once he
gained entry to Silvestri through Sue Ann Powell, his secretary. Powell was also a conveyor of
much
source unknown second and third hand information to Silvestri about the Safety Department.
Reliance on
a secretary's gossip connotes indifference to result. She was the secretary whose opposition to
covering Patti
Andrews' telephone precipitated the events leading to the alleged "lazy bitch" basis
for
termination.
There is such conflicts between Hanny's and the witnesses' testimony on
this
"lazy bitch" event it erodes the credibility of EG&G's representation as to its
significance as
a legitimate business reason for Jones' termination. The conflicting testimony also serves to
erode Silvestri's
credibility, as does Andrews' testimony Silvestri did not talk to her about this statement until
after Jones'
termination. He testified he talked to her before termination, to assure her he would never say
such a thing
about her. But Hanny testified Silvestri, before his departure, and before counseling where this
remark was
never mentioned, knew of a "lazy bitch" remark involving Jones. Yet Silvestri never
mentioned
it to Smith until after the counseling event, albeit then attributable to Silvestri. Hanny who was
involved
in the circumstances surrounding the "lazy bitch" remark, took no further action. It
is inferred
because he knew what actually transpired. The fact Hampton, after Hanny's TOCDF departure,
and well
after the time when Andrews heard whatever remark was made, would so use it several weeks
later, reflects
a calculating disruptive intent.
Silvestri and Hanny knew their new Safety Manager had stated problems
with
Hampton whom they and EG&G had involuntarily replaced, as well with Reardon and Helser.
To believe
Silvestri, in hearing what Hampton told him when Powell secured his ear, did not know Hanny,
his
immediate subordinate, had made conflicting promises to Jones and Hampton which would
affect Safety
department management and what Hampton represented to Silvestri was occurring in the
department, one
would have to believe that the GM of a chemical weapons destruction facility did not know what
his
Administrative Services Manager was doing, affecting Safety Department operations. This is
incredible
and pretext.
Silvestri knew from the 7/18/94 meeting of the personnel problems Jones'
stated he
encountered on his arrival. He knew of the Army's lowered fee evaluation rating and that
Hampton and
Reardon were in large measure the Safety Department so rated before Jones' arrival. He must
have known
it was reasonable, as Reddish reflected, that Jones as a new manager would have new and
different ideas.
On the credibility of Silvestri's post-termination advice Jones' organizational changes were a
basis for his
poor manager evaluation, organizational changes are not unusual as a new manager reviews his
staff and
Departmental responsibilities. Also since the Safety Department had expanded from a very small
group just
prior to Jones' arrival; he had temporary contract and permanent employees; shift work was
starting and he
acceded to Hanny's request on Hampton's position, it is reasonable to believe there would be
organizational
[Page 136]
changes and revisions as a new manager, in his initial months, becomes more familiar with staff
members
and responsibilities. The testimony conflicts as to just how many organizational changes Jones
made; by
Jones' credible testimony, some of the names reflected were unknown to him. Access to the
computer
containing the chart materials he "played around" with in trying out his
organizational ideas was
available to Safety Department employees while and after he was employed at EG&G. Although
the
witnesses testified to various numbers of organization changes, from several to more than many,
nowhere
in the pre- or at termination advice given Jones as a basis for his counseling/termination, were
Jones'
organizational changes, or assignments away from an employee's area of expertise referred to or
cited by
Smith. Thus it is a pretext, it is a post-termination solicitation and rationalization, the credibility
of which
as to numbers is questionable. It does not persuade of a legitimate business reason but rather
reflects a
reason changes affecting the old ways of the pre Jones Safety Department group would cause
discontent
among those so minded. Jones was a different type manager than Hampton, under a different
impetus,
including the incineration schedule as he understood it.
Some of Silvestri's representations give pause as to credibility and much
of what
Silvestri represents reflects as Jones urges, "largely post hoc rationalization" to
support a
decision taken without a basis specified at counseling or in RX 43. This included when he
represented he
viewed what Jones told him 7/18/94 about Reardon's one-on-one statements as an acceptable
employee
statement of career goals. When he represented he had no problem with Reardon's tour
non-appearance
after he himself had given Reardon the approval sign. In his indication he and in effect his
subordinate
Hanny, would do nothing to assist his new Safety Manager, in the circumstances of Hampton's
replacement,
on advice of perceived insubordination, because Reardon and Helser lacked an insubordination
history when
they had been supervised by only replaced Hampton, who hired them. When, after the 7/18/94
meeting,
he stated he viewed Jones' 7/20/94 memos and reorganizations, which he did not read or review,
as
improper or inappropriate. When he testified as to knowledge of the HR 7/20/94 memo,
apparently, through
Sue Ann his conduit, but he never personally reviewed it as to content nor inquired into the
circumstances
of its issuance, Reardon's uncovered job absence by Jones' credited testimony, nor did he explain
why its
statements as written were inappropriate. This GM expressed in litigation micromanagement
concerns not
reflected in the pre-termination documentation, Smith's testimony, or a concern of the immediate
supervisor
Hanny. In fact, as to most of these post-hearing interpretations of pre-termination Jones' Safety
Department
actions, there is no indication Silvestri, or Hanny, ever talked to Jones about any of them or any
impropriety
in these actions.
While Silvestri testified it was perfectly reasonable that PMCD and its
chief would
want to be the focal point of any contact between TAD and Silvestri and EG&G, to know what
their
communication was about, and not have Silvestri/EG&G communicate directly with the TAD
commander,
he faulted as evidence of poor management Jones' attempts by his 7/20/94 memos to his staff to
similarly
keep the new Safety Manager knowledgeable, abreast of and in the loop on his staff's
communications,
outside the Department and affecting Safety department work. In addition to not being a
deficiency cited
to Jones in the 8/24/94 counseling session or memorialization of such, this testimonial
explanation impresses
as another aspect of post-termination solicitation and rationalization and it bears on the lack of
persuasiveness
of EG&G's legitimate business reason.
It is found and concluded any low Safety Department morale was
attributable to what
was occurring in the Department with Hampton, Reardon and Helser and the manner in which
EG&G
[Page 137]
managers above Jones elected to handle the Safety department circumstances resulting from their
decision
to remove Hampton involuntarily. Essentially, it was up to Jones to handle the situation alone,
and Silvestri
had told Jones to document. EG&G's proposed finding urges Jones' 7/20/94 memos do not make
sense.
But given Jones' credible testimony, and the less than credible EG&G representations,
Respondent's
argument does not persuade.
The generalized presentation of Silvestri, Reddish and Reihman serves to
enhance
the unbelievable impression of EG&G's articulated legitimate business reason. In the face of
how little
Smith was told as to specific facts on the personnel events and occurrences; Hanny's testimony
he would
not, as of his leaving, have taken the personal action Silvestri decided on after Hanny and the IG
left, and
on Smith's arrival; Hanny's testimony Jones was advised he would have a free hand in Safety
Department
management, EG&G's agreement Hanny advised Hampton otherwise (Proposed finding #92),
Hayes'
evaluation of Reardon and Helser, and the factfinder's evaluation of the witnesses relative
credibility, pretext
and a lack of credibility are indicated.
There is the conflict between Silvestri's testimony there was no
post-counseling
improvement, one basis for his termination decision, and testimony to the contrary by Hampton
and Helser.
Given these witnesses' adverse attitude toward Jones, this conflict between them and Silvestri is
another
pretext factor. Then there are the questions this record raises as to the reliability of just what
occurred in
the "sleeping on the job" and "lazy bitch" events, and the part they
played in the
termination decision. There is the lack of specifics as to Jones' non-participation in meetings.
There is the
faulting of Jones for his search to secure from fellow employees information Smith's counseling
failed to
provide. This is a record which in preponderant weight indicates the termination decision was
made at the
time of counseling, and it is so found with the aura of pretext strengthened.
According to Jones, after the counseling session, he went to PMCD and
to Dave
Jackson because of Smith's counseling advice he had to do much better. PMCD was the one
specific citation
of Smith in the counseling session. But Smith never told Jones the basis of his
"confrontational"
statement. Silvestri stated this Jones' action was inappropriate behavior and also a basis for his
termination
decision. Yet he agreed he had told Jones, on EG&G arrival, that if pleasing PMCD meant
"kissing
Jackson's ass at high noon", he was to do it and Silvestri would hold Jones hat doing it. So
the
significance Silvestri placed on this Jones' post-counseling action is like much of Silvestri's
testimony, highly
questionable. It is found and concluded the termination decision was in fact made as of
counseling. What
occurred thereafter was continued pretext.
For all these reasons, it is found and concluded EG&G's stated legitimate
business
reasons are pretextual; and that on a weighing under the dual motive analysis criteria EG&G has
not
persuaded by a preponderance of the credible evidence that absent Jones' protected activities the
adverse
actions taken would have occurred. The presentation persuades by the more credible evidence
that but for
Jones' protective activities, the specific events delineated within as well as the manner in which
this new
Safety Manager carried out his Safety department responsibilities, all protected activities as
related, the
adverse personnel actions would not have been taken by the deciding and effectuating EG&G
managers at
the time.
[Page 138]Relief Sought
Post Termination Actions/Effects
Jones testified that within three weeks of his termination he started
sending resumes,
70-80, to various U.S. corporations and engaged in this job search activity all of November and
December
1994. See also TR 763-765. He had an interview for the University of Utah job, CX 78 which
he sought
through a newspaper ad. A genuine interest in hiring him was not shown; his impression was
their interest
was in the news media attention he had been getting. Jones explained how his effort to
contact the
Citizens Advisory Council on his TOCDF deficiencies' concern, which he believed, given the
manner of
his counseling and termination was the basis for his firing, the newspapers became involved. His
home and
neighborhood was swarmed with media coverage as a result. TR 443-47.
Jones testified he sought safety jobs through newspaper ads, library
research, the
Unemployment office, through working with the people he knew from the past, through the trade
journals,
through the Los Angeles Times and Wall Street Journal . He sought any kind
of work in his career field, unsuccessfully. He was willing to go, and sought jobs, anywhere
geographically.
When it became clear through his unsuccessful job hunt he was not going to obtain a job in
safety, or any
safety-related field, in the U.S. or internationally, Jones testified he looked for whatever other job
he could
get. His wife looked for a job, and finally effective 1/1/95 after someone offered to sell them a
used washer
and dryer repair business, with the seller carrying the note, they took over that business. He then
had no
income, his unemployment was stopped, he had to deplete his civil service retirement
accumulations. Jones
testified he was devastated financially. They lost five rental properties in Maryland as well as a
sixth
Maryland house they had lived in prior to their Utah relocation for his EG&G job. Both their
vehicles were
repossessed under "terribly embarrassing" public circumstances. Their credit reports
which is
in evidence is "just terrible" as a result, whereas prior to his EG&G termination they
had always
enjoyed excellent credit ratings. He and his wife have been effectively stopped in their ability to
borrow.
This has impacted adversely on their ability to sell new appliances. He and his wife lost the full
medical
coverage he had at EG&G. Mrs. Jones, who is deaf in both ears, has as a result been unable to
have a
planned ear operation. Her better ear, previously operated on in Maryland, has deteriorated and
she has
been unable to have needed medical attention, affecting her life. Their children, whom they were
helping
through college, have had to curtail college hours and obtain jobs.
Damages Claimed and Awarded
Jones seeks reinstatement to his EG&G TOCDF Safety Manager position
with
identical wages, benefits and conditions of employment. As a result of the above findings and
conclusions,
he is found entitled to reinstatement by EG&G to this Safety Manager position. It is so found
and
concluded.
He is further entitled to the back pay award he seeks based on his $72,800
salary at
termination with pre-judgment interest. However as to the $395.76 a month in medical benefits
EG&G
would have paid on his behalf, it has been held this cannot be included in this award, although
any medical
expenses incurred can. None are evidenced.
It is found and concluded Jones made reasonable efforts to obtain
alternative
comparable, or any employment, and that he did not voluntarily withdraw from the job market.
Captain
[Page 139]
Pickering's testimony indicates why, with the adverse personnel actions EG&G took in
retaliation for his
protected activities, Jones' professional career has been destroyed. No one will hire him in the
field in
which he is educated, experienced and has spent his working life. EG&G's termination of this
TOCDF
Safety Manager in the manner within reflected, and with the public and media attention this
chemical
weapons incinerator commands, resulted in the foreseeable event of Jones' nationwide notoriety.
Even aside
from any consideration of the protected activities basis and repercussions, termination of an
employee for
the convenience of the company less than three months after hire, raises questions with a
prospective
employer.
EG&G TOCDF relocated Jones and his family to the area of Toole Utah
three
months before termination. After unsuccess in his 1994 nationwide and local job seeking efforts,
and to
support himself and his family in this area of Utah, Jones and his wife, in late 1994, then
purchased a used
appliance business. His 1994, 1995 tax returns reflect no profit from this business. In these
circumstances,
EG&G's argument that Complainant's job seeking effort and employment activities amount to
self chosen
unemployment is unpersuasive. Jones' decision, in the circumstances EG&G's termination
placed him, to
become self-employed do not indicate a lack of reasonable diligence. Hansard v. Pepsi Cola
Metropolitan Bottling Co., 865 F.2d 1461 (5th Cir. 1989).
EG&G urges Jones' tax returns, and his Schedule C business profit and
loss
statement, lack credibility because personally prepared. However there is no reason to doubt
these returns
are those submitted to IRS. Jones' presentation on the facts these returns reflect was subject to
the litigation
process here, and EG&G posits no persuasive reason to question his representations to the IRS.
On 1995
gross receipts, Jones' total itemized expenses resulted in the reported loss. These expenses did
include the
$57,541.98 wage expense deducted, by Jones' testimony, for two employees engaged during the
year. The
fact that neither Jones nor his wife took monies from the business in 1995, in the face of the
listed 1995
expenses, does not reflect a lack of credibility and failure to mitigate in the presented
circumstances. Nor
does the $87,000 accrual expenses for supplies in 1994 disqualify Jones from recovery for his
1994 loss of
EG&G or comparable wages. Complainant has submitted sufficient information presented to
IRS to support
his position.
There is no indication in what is presented that Jones' efforts in this
business activity
are not directed to ultimately realizing a profit to replace income destroyed by his EG&G firing,
and the
firing's effects on any currency he had in his lifetime Safety career. Entrepreneurial activities by
their
nature generally can take time to profitably develop and establishing a business can be a slow
and difficult
process. Further it is reasonable to believe on what is presented that Jones' poor credit rating and
his ability
to raise money to develop this business, directly attributable to his discriminatory EG&G firing,
adversely
impact its growth, profits; its chance to succeed, and affect the time needed to develop and
succeed, beyond
the usual time required and difficulties encountered in a new business. EG&G has not persuaded
why, based
on what has been presented in the litigation process, these documents do not support the loss of
wages Jones
claims. Jones is found entitled to back pay plus interest.
If EG&G should refuse to reinstate him Complainant has cited authority
for his front
pay claim for the loss of expected earnings and benefits. Doyle v. Nuclear Service , Case
No.
89-ERA-22 Final Decision and Order 9/6/96. On the basis he urges, a finding and conclusion in
accord with
[Page 140]
his request is reached if reinstatement is not made. 54 To make Jones whole, to the extent possible, front pay is appropriate and
reasonable in
these termination circumstances. Jones requests ten years front pay. While this request is
significant in
length, it is also the fact as urged Jones is unlikely to find comparable employment ever again;
his reputation
has been shattered and his career is over. Captain Pickering by his indication of how he would
view a
whistleblower applicant, reflected what Jones will and has encountered. Captain Pickering who
testified out
of no post-employment personal relationship or contact with Jones, but solely as a prior
supervisor who
spoke because of Jones' excellent technical and management of personnel abilities, was a genuine
straightforward witness. On the stand his opinions and judgments in this area were thoughtfully
considered.
His presentation reinforced Jones' front pay arguments. A five year front pay award has been
held
appropriate. Deloach v. Delchamps, Inc., 897 F.2d 815 (5th Cir. 1990). When Jones'
Safety
career and earnings power in it were destroyed by his EG&G firing he was in his mid-40s,
approaching his
best earnings years in his field and on the way up, as his evaluations reflect. What he requests
does not
appear unreasonable, given all these factors including Jones' unsuccessful Safety field job search.
However
the front pay calculation, on the evidence, is not clear.
Doyle held front pay is calculated by determining the present
value of
the future earnings that Jones would have had as a chemical incinerator Safety Manager. From
that amount,
the present value of Jones' anticipated future earnings must be subtracted. See Price v.
Marshall
Erdman & Assoc., 966 F.2d 320, 322 (7th Cir. 1992). Present value of both streams of
income is
determined by using an appropriate discount rate. At this point, and as of trial, the future income
Jones will
realize from his repair business is unknown and must be assumed to be nil, not unusual for a
start-up
enterprise. The future is unknown, dependent in some measure on his ability to raise money and
improve
his credit rating. It does not appear unreasonable to assume, in the front pay calculation, a five
year start-up
period to determine the profitability and viability of the business, with the infusion of award
monies; and
with the lack of a profit at the end of this period indicative of failure, necessitating the devotion
of Jones'
full-time remunerative activities quest elsewhere. It is assumed Jones would have the ability to
secure
minimum wage employment thereafter, and interpolating in an approximate minimum wage for
the business'
start-up period does not appear unreasonable. Thus on what is presented, the front pay
calculation being
Complainant's burden to evidence, it does not appear unreasonable to factor a yearly income at
minimum
wage ($5.25 x 40 hours x 52 weeks = $10,920.) as the anticipated earnings over ten years,
discount rate
4%, total $88,571. The present value (based on 4% discount rate) of his ten year future Safety
Manager
earnings is calculated to $588,040. The difference is $499,469. This is found to be the
appropriate front
pay away.
While any appeal of this decision is pending should Jones in the future
period on
which this front pay is based, realize profits from his business above the amounts on which this
calculation
is based, the present value of his anticipated future earnings can be recalculated.
Complainant's 1994 - 1995 tax returns reflect that Jones lost each of the
five Severn
Maryland rental properties he owned at his EG&G employment and transfer to Utah. He
testified he lost
these properties because of his loss of income on his EG&G termination. He seeks the $129,600
equity loss
reflected in CX 79/696-97, plus a pre-judgment award of interest to cover the loss of profit on his
investment. This request but for the pre-judgment interest request, appears to fall within the
compensatory
damages provisions of these Acts and is awarded. See Blackburn v. Metric Construction
Inc.,
[Page 141]
Case No. 86-ERA-4 Decision and Order on Damages 10/30/91. It is so found and concluded to
the extent
of $129,600.
Complainant requests $40,000.00 to compensate for the loss of credit he
and his wife
suffered as a result of his EG&G termination and its effect on their credit histories. CX 81. He
contends
their inability to receive credit continues as a tangible economic loss resulting in higher interest
rates and
loss of investment opportunities. Jones testified that prior to his EG&G termination he had an
excellent
credit history. It is found and concluded this requested amount is awardable as compensatory
damages.
Jones also requests $50,000.00 in compensatory damages for pain and
suffering based
on several factors: (1) the loss of his professional reputation and inability to pursue his vocation;
(2) for the
embarrassment suffered in the repossession of vehicles, foreclosure of properties and ruined
credit; (3) his
inability to assist his college age children and (4) inability to pay for his wife's needed medical
care. Jones'
testimony as to his lost reputation and his ability to secure work in his field is supported by this
record, as
are his financial losses. His testimony as to the emotional distress and the effects of the public
circumstances surrounding these events, and his inability to support his family's needs is
sufficient to
establish the magnitude of the injuries, clearly resulting from the discriminatory discharge,
supportive of the
amount he seeks for this category of compensatory damages. Wulf v. City of Wichita,
883 F.2d
842 (10th Cir. 1989); Nochumson v. Los Alamos National Laboratory, 92-CAA-1,
Decision and
Order 9/ /94.
Jones requests exemplary damages of not less than $150,000.00 under 15
U.S.C.
§2621(b)(2)(B)(iv), 15 U.S.C. §2622(b), to send a clear message to EG&G that
retaliation
against whistleblowers, particularly in the context of dangerous chemical weapons incineration is
intolerable.
Where "the defendant's conduct is shown to be motivated by evil motive or intent, or when
it involves
reckless or callous indifference to the federally protected rights of others" an award of
punitive
damages is necessary. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983);
Wren v. Spurlock, 798 F.2d 1313, 1322 (10th Cir. 1986). The actions here do reflect
indifference and insensitivity to Jones' job efforts as the new Safety Manager to ensure
compliance with the
environmental statutes at issue. An award of punitive damages requires an assessment of the
subjective state
of mind of those responsible for the discriminatory retaliation and to protected activities. Under
the
circumstances, with EG&G's liability for Jones' damages, and his compensatory damages, and
with the
holdings within which reflect the gross errors of EG&G TOCDF managers, a $1 pecuniary award
on the
statutory basis Complainant requests, and for the purposes requested, is an adequate deterrent
and message
as to future misconduct at a chemical weapons incinerator. So found.
Attorney Fees
Since RCRA, TSCA and CAA all provide a Complainant receive all of
his reasonable
attorney fees, and costs, 15 U.S.C. §2621(b)(2)(B)(iv), the Complainant is entitled to such.
However
since such expenses are not recoverable unless and until a final order is issued in Complainant's
favor this
issue and the resolution of any dispute over attorney fees and costs will be deferred until after the
Secretary
of Labor's final order. 29 C.F.R. §24.6.
[Page 142]
Based on the above specific findings of fact and recommended
conclusions of law
the following RECOMMENDED ORDER is issued:
RECOMMENDED ORDER
1) EG&G shall reinstate Steven Jones to his TOCDF Safety Manager position with
identical wages, benefits and conditions of employment.
2) EG&G shall pay Steven Jones back pay from the 9/14/94 date of termination to the
date of this Order based on his $72,800 salary, with pre-judgment interest based on
the interest rate set forth in 26 U.S.C. §6621 to date of payment on this
entire back pay award to Complainant.
3) In the event EG&G fails to reinstate Complainant in accord with this Order, EG&G
is Ordered to pay Complainant front pay of $499,469.
4) EG&G shall pay Steven Jones reasonable compensatory damages as follows:
A. $129,600 for his equity losses, plus award of interest based on the rates set
forth in 26 U.S.C. §6621 on this amount.
B. $40,000.00 for the loss of credit and $50,000.00 for pain and suffering
incurred in the loss of his professional reputation and vocational abilities;
embarrassment in repossessions, foreclosures and ruined credit, and for
inability to supply his family's financial needs.
5) EG&G shall pay Steven Jones $1.00 in exemplary damages.
ELLIN M. O'SHEA
Administrative Law
Judge
EOS:brt
NOTICE: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for final decision to the Administrative Review Board, U.S.
Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210. See 61 Fed. Reg. 19978 and 19982 (1996).
[ENDNOTES]
1 ALJ's 7/12/96, 7/26/96 Notices
to Parties; Ms. Baar's 7/31/96 letter advice, all incorporated into the record, reflect agreed
submission date. Issuance
of this decision has been delayed for the reason ALJ #10 and 7/26/96 Notices indicate.
2 Jones' 3/8/96 Pre-Hearing
Statement seeks redress only under TSCA, RCRA and CAA.
3 Colloquially known as
poison gases, and referred to by the witnesses as "agent."
4 It would appear the TOCDF
facility's initial construction was begun by Morrison-Knudson and at some point thereafter
EG&G took over.
5 Utah DSHW = Division
of Solid and Hazardous Waste.
6 40 C.F.R. Environmental
Protection Agency regulations, contain regulations in effectuation of the various environmental
Acts, including TSCA
and CAA.
7 RX 9 page citations from
Hampton's presentation can also be by the last three digits of Bates number.
8 Surety is the security of
chemical weapons. Safety is safety in their handling and use.
9 ACAMS = Automatic
Continuous Agent Monitoring System or automatic gas chromatographs.
10 Witnesses used
"agent" to refer to the chemical agents involved in the TOCDF destruction process,
the lethal nerve gases
of the TOCDF contract. "Neat agent" was the reference to undiluted agent. Any
level of agent below
"neat" is referred to as "dilute."
11 If not specifically
listed, the nerve gases named here could not in their hazardous effects be excluded from TSCA's
coverage.
12 Jones described a later
8/94 incident where a vial placed on an air conditioning duct fell off and broke.
13 Ira Hall Manager of
Technical Support Division, same level as Hanny. CX 110.
14 Burton did not here
indicate which of Battelle's labs, CAL or MSB, was involved in his secretary's advice but it is
elsewhere indicated
as CAL.
15 29 C.F.R.
1910.120(a)(3).
16 CX 73/VK 16a and
CX 73/617 VK 15 respectively. TR 307-08.
17 MSDS = Material
Safety Data Sheet, at CX 43,108. This is a detailed document on hazardous chemicals, including
dangers, effects,
symptoms, treatment, required at the work site by EPA.
18 PPE = personal
protective equipment.
19 Plant Shift Manager.
CX 110. Nenimen's involvement in or personal knowledge of this event, or of Jones' statements
and actions, not
indicated in record.
20 See Silvestri's
testimony at TR 1099-1101 on all the open doors in the TOCDF facility, in connection with
inspection corrections
needed before going operational.
21 Dr. Hutchins also
testified that being in an area where there is chemical agent does not mean the worker is exposed.
Exposure refers
to direct contact where it has some effect or possibly an effect on the worker. TR 1951-52;
2006-07. TR 1948-49;
1971-74; 1976-78.
22 Same as RX 36/297-98.
23 Same as RX 53.
24 At TR 1102 this is
EG&G counsel's phrasing. Jones' testimony as to the circumstances of this exchange, but not as
to Silvestri's words,
differs somewhat.
25 CAIRA = Chemical
Accident or Incident Response or Assistance.
26 Assumably this was
the EG&G Safety Department written emergency response plan which Hampton later testified
the Army lost.
27 See 5/20/94 memo on
drill by Winters. RX 9/962; TR 1377-78; RX 9/990 another drill performance report by Winters
on the CAL, the
chemical agent assessment laboratory. Also RX 9/167 a 6/16/94 drill performance deficiencies
report. RX 9/175 gas
mask rules not being followed by employees. TR 1386-87.
28 By CX 113, CX 114
PMCD as of 4/27/94, 7/12/94, was stressing to EG&G the hot toxic start dates must be met.
29 This memorandum
apparently was first served on Jones' counsel 5/20/96 and was the subject of counsel's
contentions as to failure to
comply with Judge DeGregorio's discovery Orders. As were Winters' journal notes or daily log
which reflect day
to day activities and tasks of this hourly paid contract employee, with possible references to the
meetings about which
he attested. Jones' counsel's motion on these contentions was denied. See 2161-2169.
30 Otherwise denominated
the Safety Assessment Report for the Toole Chemical Agent Disposal Facility dated 5/27/94.
CX 56.
31 Actually states
"(y)ou are directed to use it [Report and its Hazard Tracking Log] in implementing your
System Safety
Program."
32 See phrasing on direct
at TR 1647:4-8 and his TR 1686:6-17 response "same day as the safety working
group," not explained.
33 Safety system working
group not otherwise explained by Reihman. Nor why he would so assume.
34 And on review of 40
CFR and 29 CFR, they track them in various areas, e.g., laboratories practices.
35 Jones by what this
record establishes occurred, was not raising the concerns that resulted in the decision in
Crosby v. Hughes
Aircraft Co., 85-TSC-2, Sec. Dec. 8/17/93, aff'd Crosby v. United States Department of
Labor,
55 F.2d 338 (9th Cir. 1995). The facts on Jones, and his expressed concerns, are far different
than
Crosby , and Crosby's concerns.
36 Moreover Dr. Burton's
testimony did not reflect any discussion with Silvestri at any time about the laboratory's closure
pre
counseling/termination.
37 Whether this meeting
preceded or followed Silvestri's "dressing down" session with Jones is unclear.
38 But see EG&G's read
and sign forms required of supervisors and operators at CX 51/294-297; and signature
requirements at CX 73/619,
item BH-4 of TSCA ORE Worksheet Log.
39 SAIC is another Army
contractor.
40 By best estimates on
the varying dates in the record and piecing together the sequence of the various events here from
a consolidation of
all the witnesses' testimony. Silvestri's testimonial recollections of the 7/18/94 meeting, in his
"reprehensible" memo description interpolates knowledge from Jones' later 7/27/94
memo to Hanny which
it is found clearly post-dated the 7/94 meeting on the proposed termination.
41 Andrews' deposition
testimony is inconsistent at points with her 9/24/94 written statement.
42 HR Director Reddish
testified RX 3 is the EG&G termination policy from its Operations Manual in effect at the time
of Jones'
termination. CX 109, admitted over objection is not part of RX 3 Reddish testified, and he was
not familiar with
this 9/89, revised 8/90, personnel instruction on "new employee probation." He did
not know if
Hanny, on Smith's reassignment as Jones' supervisor forwarded, as RX 3 requires, an appraisal
memorandum on Jones to Smith. TR 2219-22.
43 The Probationary
Review Form is a box check form. RX 51 appears individually tailored to an exempt employee's
specific functions.
This is the only such form in the documentary/ testimonial record.
44 This deposition reflects
no agreements by counsel as to the deponent's review. The citations to Andrews' testimony
herein are by the
deposition page.
45 It is assumed they were
both civilian employees in their Army employment.
46 Hampton was not by
his testimony introduced to Jones but asked Jones to identify himself the first day on duty
orientation class Hampton
held.
47 Surety at TAD-TOCDF
EG&G means the security, safety, and reliability of the chemical agent stored at the facility and
according to Reardon
safety and security are both very equal pieces. Safety makes sure the operations performed with
agent are performed
in a safe manner and security is to make sure none of the agents leave the facility in unauthorized
fashion. TR 914.
EG&G Safety through their safety specialists are responsible for both functions.
48 According to Hampton
he told Reddish Jones called him in to tell him if Silvestri supported it, he was going to fire
Reardon and Helser that
day. This is a represented conversation which does not fit in with the kind of relationship
Hampton's RX 5 notes were
portraying. He did not remember the date or date this event in time. Hampton offered no further
information as to
the basis for this ostensible Jones advice to him, which Hampton then conveyed to Reddish.
According to Hampton,
Reddish's response was no more than just chit-chat, he was very noncommittal because he was
not in a position to say
anything.
49 This note also adds
"paperwork" to the Reihman-Jones conversation, not specifically reflected in
Reihman's testimony.
50 QASAS = Quality
Assurance Specialist Ammunition Surveillance.
51 It is not reflected
whether there was ever any break in Dave Jackson's Army service and employment due to this
pre EG&G conflict
between Jones and Jackson, referred to by Jones, and in the testimony of Guello, Winters, and
this witness' testimony.
52 Aside from small
skirmishes over philosophy, the way things were written, alluded to at TR 1417.
53 However CX 51/294-295
reflects EG&G read and sign as read forms.
54 Notwithstanding all
the TOCDF management Safety circumstances and occurrences reflected within, and any
question as to hostility and
irreparable damage to the employment relationship, Jones requests reinstatement. When
reinstatement is not feasible
front pay can be awarded.
ATTACHMENT "A"
06/11/96 - Complainant's Motion to Reconsider the Admission of
Complainant's Exhibit 118 into Evidence. This is
the Philip E. Kripper affidavit the ALJ ruled
5/24/96 not to admit.
07//02/96 - EG&G's Memorandum in Opposition to Complainant's
Motion to Reconsider Admission of Complainant's
Exhibit 118, and ALJ's 5/24/96 ruling to exclude
this offered exhibit.
07/03/96 - Complainant's Reply Memo in Support of Motion to
Reconsider Admission of Complainant's Exhibit 118.
09/27/96 - EG&G's Motion to Supplement Record with New
Evidence
10/10/96 - Complainant's Response to EG&G's Motion to
Supplement the Record with New Evidence.
11/27/96 - Complainant's Motion to Supplement Record with New
Evidence.
12/02/96 - Complainant's Notice of Filing.
12/12/96 - EG&G's Memorandum in Opposition to Motion to
Supplement Record with New Evidence and in
Opposition to Notice of Filing.
12/17/96 - Complainant's Motion for Leave to File Memorandum
in Support of Motion to Supplement Record with New
Evidence and Notice of Filing.
01/08/97 - EG&G's Memorandum in Opposition to Motion for Leave
to File Memorandum in Support of Motion to
Supplement Record with New Evidence and Notice of
Filing.