Bob Warren - A lawyer helping Savannah River Site workers
In her job at the Savannah River Site nuclear weapons plant in South Carolina, Sandra Black was responsible for looking into concerns raised by employees about everything from health and safety to fraud, abuse, harassment and retaliation.
But in fall 2014, when federal investigators with the Government Accountability Office asked her whether she had the necessary independence to do her job, Black says she answered truthfully: She told them her supervisors had interfered with her work and had tried to intimidate her into changing her findings if they validated employees’ complaints.
Black disclosed her conversation with the GAO investigators to her bosses. A few weeks later, on Jan. 7, 2015, she was fired.
“It is so humiliating and embarrassing,’’ Black said. “It’s hard to come home and tell your family you’ve been terminated after 35 years. It was for no reason other than retaliation for doing my job correctly with integrity.’ ’’
The investigators who questioned Black had been conducting a probe into whistleblower retaliation by the Department of Energy and its contractors at the nation’s nuclear facilities. The GAO is expected to release a report this spring.
Three U.S. senators — Democrats Claire McCaskill of Missouri, Ron Wyden of Oregon and Edward Markey of Massachusetts — had asked the GAO in March 2014 to get to the bottom of persistent incidents of retaliation against whistleblowers reported at the Hanford nuclear reservation in Washington state.
The probe broadened to review other DOE sites, including SRS near Aiken, S.C.
“It defies belief that an Energy Department contractor would fire an employee who cooperated with a Government Accountability Office investigation into whistleblower retaliation,” said Wyden, a former chairman of the Senate Committee on Energy and Natural Resources.
“I’m awaiting the GAO’s full report,” Wyden said, “but the firing of Sandra Black under these circumstances demonstrates to me that the culture of retaliation against whistleblowers is regrettably alive and well at DOE.”
Markey said Black’s termination is evidence of a “dangerous culture of disregard for the law” among DOE contractors, including Savannah River Nuclear Solutions, the company Black says let her go.
“Rather than rewarding whistleblowers who bravely put their careers on the line to protect public safety, SRNS and other contractors have acted to retaliate against them, sending a chilling message to all employees who bear witness to wasteful, unsafe, or illegal activity,” Markey said. “DOE has historically done nothing to curb this wholly unacceptable behavior.”
In 1992, Congress passed legislation strengthening protections for DOE contractor employees. Since then, the Department of Energy's Office of Hearings and Appeals has decided 116 cases related to whistleblower retaliation at nuclear facilities, according to McClatchy’s review of case files. In 46 of these cases, the whistleblower had raised safety concerns.
This internal mechanism for addressing whistleblower retaliation hears the most cases from Savannah River and Los Alamos National Laboratory in New Mexico, both with 16 cases, followed by Sandia National Laboratories in New Mexico with 15.
According to data from the Project on Government Oversight, instances of whistleblower retaliation have only resulted in fines or settlements seven times. Six of these judgments were against contractors at the Hanford Site.
The DOE and SRNS declined comment on the Black case, but said they encourage employees to speak out.
"The Department of Energy is committed to promoting a strong safety culture and a workplace where federal and contractor employees alike are able to speak out, raise issues, or share concerns about safety without fear of retaliation,’’ the agency said in a statement to McClatchy. “DOE expects both its leaders and its contractors to demonstrate a commitment to safety through decisions reflecting safety as the priority."
Troubles in Washington
Hanford is a 586-square-mile weapons complex near the Columbia River in Washington that, like many DOE sites, is a source of community pride. It was a cornerstone of the government’s Cold War effort to produce nuclear weapons.
But some workers – and worker advocates – say Hanford has a problem. Its management doesn’t like whistleblowers, said Tom Carpenter, director at Hanford Challenge, a regional public interest group in Seattle.
“The pattern of reprisal at Hanford is historical, well-documented and has gotten progressively worse,’’ according to a March 2014 report he made to the U.S. Senate.
Last year, Hanford contractor URS agreed to settle a lawsuit by a former employee for $4.1 million in what Carpenter said is one of the biggest public verdicts at the site. The whistleblower case involved questions about the future safe operation of a waste vitrification plant. It was among a number of retaliation cases involving workers who tried to blow the whistle on problems at Hanford, Carpenter said.
Kirt Clem and Matt Spencer say they are among those who have suffered retaliation.
Clem and Spencer were employees with Computer Sciences Corp. at Hanford in 2012, when they reported a defect in an electronic medical records system that made mistakes tracking employees’ medical restrictions. As a result, employees who shouldn’t work in areas where beryllium and other hazardous materials were present risked being exposed.
People who are sensitive to beryllium risk developing chronic beryllium disease, a serious respiratory condition that can be fatal.
Clem and Spencer were laid off after raising their concerns with the DOE’s Employee Concerns office and their own managers. The director of Computer Sciences Corp. admitted in a recorded interview that their warnings about the faulty medical records system played a part in her decision to suspend them.
In 2014, the U.S. Department of Labor’s Occupational Safety and Health Administration determined the two men had been improperly terminated. CSC was ordered to pay them $186,000 in wages and post a notice for other employees that retaliation for voicing safety concerns is illegal.
Clem said the ruling was a vindication for him, but the process is still cumbersome.
“The whistleblowing statutes are still broken and the way DOE handles things is broken,” he said.
For example, he said, if the Department of Labor rules in a whistleblower’s favor, the company almost always appeals, as did his former employer, CSC.
In the course of an appeal, Clem said, “people like me have to pay at least the expenses for court reporters and various other things and I think, for us, it’s up to $20,000 or $22,000 now.
“And if a person is still out of work, most people are just not going to be able to afford that, so it’s a default win for the company because people just can’t afford to continue to fight it. These multibillion dollar companies shouldn’t win by default because people can’t afford to defend themselves.”
The process can drag on for a long time.
“For us, it was just over two years, but now with the appeal, it’s been almost three years,” he said. And since the DOE reimburses contractors’ legal fees, the companies can wear down whistleblowers over time, he said. While the department is allowed by law to reimburse contractors for legal fees, Carpenter said it’s a bad practice.
“The DOE has reimbursed many, many millions of dollars to contractors to fight whistleblower cases,’’ Carpenter said
Clem was out of work for a year and took a series of temporary jobs until he landed a permanent position back at Hanford with a different contractor.
He said his former colleagues at CSC see his experience as a cautionary tale. Clem worries that others on the Hanford site are afraid to step forward.
“People are definitely hesitant,” he said. “There have been numerous people we worked with who have said to us they hope we win and they hope CSC has to pay a boatload of money ... but at the end of the day they’re not willing to stick their necks out. They’re not willing to testify because they’re afraid.”
Carolina Dust Up
Similar concerns are found nearly 3,000 miles from Hanford at the Savannah River Site, along the South Carolina-Georgia border.
Black, a 59-year-old Martinez, Ga., resident, said she’s worried workers at the 310-square-mile complex won’t come forward with safety complaints now that she has been let go.
Savannah River Nuclear Solutions, where she worked, disputes that. In an emailed response to The State newspaper, the company said signs are posted throughout SRS telling employees how to register complaints. They also are told in yearly training sessions they can do so “free of retaliation,’’ the company said.
“Savannah River Nuclear Solutions does not discourage complaints from our employees,’’spokeswoman Barbara Smoak’s email said.
But a whistleblower complaint Black filed with the U.S. Department of Labor tells a different story.
After SRNS won the site contract in 2008, Black said she began to draw fire for passing along valid worker concerns about nuclear safety and environmental compliance, according to the July 2015 complaint.
Black’s job required her to listen to and evaluate concerns from contract workers about unsafe, illegal or wasteful practices. The program, launched in 1992, was supposed to protect employees who raised questions.
Black’s Labor Department complaint, however, said she was pressured by SRNS superiors to close or alter some of the investigative reports – or to disclose the identities of employees who brought up questions.
“They said she wasn’t toeing the line,’’ said Billie Garde, a Washington lawyer representing Black. “They said she wasn’t fundamentally a team player.’’
In one instance, a top SRNS official met with Black every week in an attempt get her to close an investigation of a potentially explosive propane system that employees had questions about, according to the complaint. Her investigation verified the concerns, finding that hazard reviews had not been required before work was performed on the propane system, records show.
In another case, a senior level SRNS official asked her to reveal the identity of the “rat’’ who prompted an investigation of hazardous gas cylinder releases and improper chemical storage. She refused, saying it was vital to maintain a whistleblower’s confidentiality.
Black said she also was told to have one of her investigators change a report. The report concerned a maintenance mechanic’s allegations that some subcontractor employees were not properly trained and could not work safely. The mechanic claimed he had been retaliated against for raising the questions, which Black’s complaint says was true.
What ended her 35-year-career, however, were conversations she had with the GAO, records show. Even though a supervisor had told her to cooperate with GAO investigators, Black says she revealed accurate information that SRNS officials did not want to disclose.
“Ms. Black provided truthful answers, which included details about extremely troubling actions that were being taken by SRNS management .... and interference with certain cases,’’ her labor department complaint said.
Not long after she advised SRNS managers of her discussions with the GAO, she was summoned to a conference room for a meeting. Waiting for her were two human resources representatives, who told her she was being fired “for unsatisfactory job performance,’’ the labor department complaint says.
It was the first disciplinary action she’d ever had as a worker for various contractors at the Savannah River Site, Black said. She also had drawn good reviews throughout her career, including a 1997 performance evaluation that praised Black for successfully resolving concerns about indoor air quality, explosive gases and radiological control, the labor department complaint said.
Since her firing on Jan. 7, 2015, life has been difficult for Black, she said. She can’t find a new job because companies are hesitant to hire a person nearing 60 years of age who has been terminated, she said.
And although Black said her son and many friends have encouraged her, she sometimes breaks down sobbing, and many nights is unable to sleep.
“I cry a lot because it was such a trauma,’’ she said. “I was a very faithful and loyal employee.’’
Frank Matt contributed to this report from Washington.