Jones v. EG & G Defense Materials, Inc., 1995-CAA-3 (ALJ Aug. 1,   <link href="/favicon.ico" rel="shortcut icon" type="image/x-icon"> <link href="/css/foundation.css" rel="stylesheet"> <link href="/css/flexslider.css" rel="stylesheet"> <link href="/css/megamenu.css" rel="stylesheet"> <link href="/css/dol-style.css" rel="stylesheet"> <link href="/css/agency.css" rel="stylesheet">   <script src="/js/modernizr.js.download"></script> <script src="/js/scripts.js.download" type="text/javascript"></script>  <script src="/js/jquery.flexslider.js.download"></script>  <script>  $(document).ready(function($){ $('.megamenu').megaMenuCompleteSet({ menu_speed_show : 300, // Time (in milliseconds) to show a drop down menu_speed_hide : 200, // Time (in milliseconds) to hide a drop down menu_speed_delay : 200, // Time (in milliseconds) before showing a drop down menu_effect : 'open_close_fade', // Drop down effect, choose between 'hover_fade', 'hover_slide', 'open_close_fade' etc. menu_click_outside : 1, // Clicks outside the drop down close it (1 = true, 0 = false) menu_show_onload : 0, // Drop down to show on page load (type the number of the drop down, 0 for none) menu_responsive:1 // 1 = Responsive, 0 = Not responsive }); }); </script> <script charset="utf-8" type="text/javascript"> // Can also be used with $(document).ready() $(window).load(function() { $('.flexslider').flexslider({ animation: "fade", mousewheel: false }); }); </script>    <script async id="_fed_an_ua_tag" src="https://dap.digitalgov.gov/Universal-Federated-Analytics-Min.js?agency=OALJ" type="text/javascript"> </script>  </head> <body class="hp">  <div class="wrapper">  <a id="top" name="top"></a> <div class="row top-header" role="banner"> <div class="large-6 columns"> <a class="left" href="https://www.dol.gov/"><span class="brand"><img alt="" src="/img/logo.png"></span> <h1 class="header-logo-type">UNITED STATES<br> DEPARTMENT OF LABOR</h1></a> </div> <div class="large-4 columns"> </div> </div>     <div class="row"> <div class="large-12 columns agency-name"> <a href="/"> <h2>Office of Administrative Law Judges</h2></a> </div> </div>  <div id="content" role="main"> <a id="maincontent" name="maincontent"></a> </div>  <div class="row"> <div class="megamenu_container megamenu_dark_bar megamenu_light">  <ul class="megamenu" role="navigation">  <li class="megamenu_button"><a href="#">Menu</a></li> <li class="dropdown"> <a href="#" class="megamenu_drop">About OALJ</a>  <div class="dropdown_6columns dropdown_container">  <div class="col_12"> </div> <div class="col_6"> <ul> <li><a href="/ALJMISSN.HTM">Overview</a></li> <li><a href="/CHIEF_JUDGE.HTM">About the Chief Judge</a></li> <li><a href="/OALJFAQ.HTM">FAQs</a></li> <li><a href="/OALJ_OrgChart_March_2020.pdf">Organizational Chart</a></li> </ul> </div> </div>  </li>   <li class="dropdown"> <a href="#" class="megamenu_drop">Contacts</a> <div class="dropdown_8columns dropdown_container">  <div class="col_8"> <ul> <li><a href="/ADDRESS.HTM">Contacting OALJ</a></li> <li><a href="/NATIONAL.HTM">National Office</a></li> <li><a href="/BALCA.HTM">BALCA</a></li> <li>District Offices:</li> <ul> <li><a href="/BOSTON.HTM">Boston, MA</a></li> <li><a href="/CHERRY_HILL.HTM">Cherry Hill, NJ</a></li> <li><a href="/CINCINNATI.HTM">Cincinnati, OH</a></li> <li><a href="/COVINGTON.HTM">Covington, LA</a></li> <li><a href="/NEWPORT_NEWS.HTM">Newport News, VA</a></li> <li><a href="/PITTSBURGH.HTM">Pittsburgh, PA</a></li> <li><a href="/SAN_FRANCISCO.HTM">San Francisco, CA</a></li> <li><a href="/WASHINGTON_DC.HTM">Washington, DC</a></li> </ul> </ul> </div>  <li class="dropdown"> <a href="https://search.oalj.dol.gov/" class="megamenu_drop">Keyword / Case Number Searches</a>   <li class="dropdown"> <a href="/OALJ_DMS_Search.html" class="megamenu_drop">DMS Search</a>   <li class="dropdown"> <a href="/OALJ_Case_Status.html" class="megamenu_drop">Case Status</a>  </li></ul></div>     </div>    <div class="row"> <div class="large-12 columns"> </div> <div class=crumb-links> <table cellspacing=0 cellPadding=0 border=0 hspace="0" vspace="0"> <tbody> <tr> <td style="padding-left: 2px" valign=center align=left height=7> <span class="crumb-links"> <a href="https://www.dol.gov">DOL Home</a> > <a href="/">OALJ</a> > <a href="/LIBWHIST.HTM">Whistleblower</a> > Jones v. EG & G Defense Materials, Inc., 1995-CAA-3 (ALJ Aug. 1, </span> </td></tr></tbody></table> </div> <div id=content> <div style="font-size: 0; width: 950px; line-height: 0"></div> <a name=pagecontent></a>  <font class="headermed">USDOL/OALJ Reporter</font><p><font class="headersm"><a href="/PUBLIC/WHISTLEBLOWER/REFERENCES/CASELISTS/CAALIST.HTM#9503"><em>Jones v. EG & G Defense Materials, Inc.</em></a>, 1995-CAA-3 (ALJ Aug. 1, 1997)</font><p> <hr title="Horizontal Rule"><p> <center><strong>U.S. Department of Labor</strong><br> Office of Administrative Law Judges<br> 50 Fremont Street, Suite 2100<br> San Francisco, CA 94105<br> Telephone (415) 744-6577<br> FAX (415) 744-6569</center> <p> DATE: <strong>August 1, 1997</strong> <p> CASE NO.: 95-CAA-3 <p> <em>In the Matter of:</em> <p> STEVEN M. JONES, <br> Complainant, <p> v. <p> EG&G DEFENSE MATERIALS, INC., <br> Respondent. <p> <p> <p> Richard Condit, Esq. <br>Joanne Royce, Esq. <br>Government Accountability Project <br>1612 "K" Street, N.W. <br>Washington, D.C. 20006 <p> John Preston Creer, Esq. <br>1200 Beneficial Life Tower <br>36 South State Street <br>Salt Lake City, Utah 84111 <br> For the Complainant <p> Lois Baar, Esq. <br>Michael Zody, Esq. <br>PARSONS, BEHLE & LATIMER <br>One Utah Center <br>201 South Main Street, Suite 1800 <br>P.O. Box 45898 <br>Salt Lake City, Utah 84145-0898 <br> For the Respondent <p> <p>Before: ELLIN M. O'SHEA <br> Administrative Law Judge <p> <p><p><hr title="Horizontal Rule">[Page 2]<p> <center><strong>RECOMMENDED DECISION AND ORDER</strong> </center><p> This proceeding involves a claim against EG&G Defense Materials, Inc. (herein referred to as EG&G) under the employee protection provisions of the Toxic Substance Control Act, 15 U.S.C. §2622 (TSCA), the Resource, Conservation and Recovery Act, 42 U.S.C. §6971 (RCRA), and Clean Air Act, 42 U.S.C. §7622 (CAA), and the regulations at 29 C.F.R. Part 24. These provisions prohibit employers from firing or otherwise retaliating against employees who have engaged in certain activities or actions in furtherance of the Acts' enforcement. <p> The Complainant, Steven W. Jones, is a former employee of EG&G who alleges that during his 6/27/94 to 9/14/94 employment, EG&G took several adverse actions against him, including his 9/14/94 termination, in retaliation for his having engaged in activities that are within these Acts' protection. <p> <p><u><strong>Pre Hearing Activities</u></strong> <p> Following the filing of Jones' 10/13/94 complaint and the referral of this matter to this Office for formal hearing, Judge Nicodemo DeGregorio of our Washington, D.C. Office, issued the initial Notice of 12/14/94 hearing. Subsequently he issued several Orders on Complainant's discovery motions and subpoena requests. The procedural history of this matter, to date of the 3/25/96 Salt Lake City, Utah hearing, including this ALJ's 10/5/95 denial of Complainant's Motion to Join the U.S. Army is reflected in those documents marked, identified and incorporated into the record 3/25/96 as ALJ Exhibits #1, #1A, through ALJ Exhibit #15, with their underlying pleadings. TR 15-22. This includes, at ALJ Exhibit #10, the 1/9/96 Protective Order on the parties' 12/28/95 Motion. <p> <p><u><strong>Hearing</u></strong> <p> The hearing was conducted in Salt Lake City, Utah 3/25/96 through 3/29/96 when due to lack of time it had to be adjourned. It was reconvened 5/20/96 through 5/24/96. Adjournment resulted in the procedural notices and ALJ ruling on Complainant's motion in <em>limine</em> of ALJ Exhibits #16-19. TR 1321-23. <p> At hearing testimony was presented and documentary evidence admitted, as reflected in the transcript. Complainant's Exhibits CX 1-90, CX 92-115 were admitted. The following EG&G Exhibits were admitted: RX 1-3; RX 5-8; RX 9 so identified as admitted in the transcript, TR 1392-93; RX 16-17; RX 19-41; RX 43; RX 45-48; RX 49 exclusive of pages 333-39, TR 2244-45; RX 50-51; RX 53; RX 55; RX 58-59; RX 60, only page 572; RX 61; RX 62, only page 578; RX 64-68; RX 70-73. These admitted exhibits are referred to as Complainant's Exhibits (CX) or Respondent's Exhibits (RX) respectively. Post hearing submissions, briefs, proposed findings/ conclusions, were filed by the parties.<a href="#F1"><sup>1</sup></a> <a name="RF1"></a> <p> <p><strong><u>Post Hearing Motions</u></strong> <p> Subsequent to 5/24/96, the motions reflected on <a href="#attachment"><strong>ATTACHMENT "A"</strong></a> to this Decision were submitted. <p> The parties in ALJ's 7/12/96 Notice were advised the ruling on the Complainant's 6/11/96 reconsideration motion was taken under advisement and would be made in connection with the decision. On reconsideration Complainant's 6/11/96 Motion is denied for the reasons indicated 5/24/96. <p><hr title="Horizontal Rule">[Page 3]<p> Through 5/24/96 full opportunity was provided to evidence all facets of this matter, including credibility, which contribute to decision on the contested issues. Further, the determining facts on these issues are those known to the parties as of and prior to Jones' 9/13/94 termination. EG&G's 9/27/96 Motion and Complainant's 11/27/96 Motion are each denied. <p> <p><u><strong>Basis of Action</u></strong> <p> The Complainant Steve Jones was employed by EG&G as their TOCDF Safety Security Manager from 6/27/94 until terminated 9/14/94, statedly for the convenience of the company. He was hired by Joseph Hanny, Administrative Services Manager (ADM). It is this 9/14/94 termination action, and the 8/24/94 counseling action by James Smith, Hanny's temporary replacement as Administrative Services Director, which are the basis for the adverse actions of Jones' whistleblower complaint, along with Jones' allegations as to how his Safety Manager actions were reacted to and commented on by Henry Silvestri, EG&G's General Manager (GM) at TOCDF. Silvestri was Hanny's and Smith's superior and Silvestri was the deciding EG&G official as to both counseling and termination. <p> <p><u><strong>Issues Under Applicable Law</u></strong> <p> Under the whistleblower protection provisions of the cited statutes applicable to Jones' amended complaint <a href="#F2"><sup>2</sup></a> <a name="RF2"></a> and 29 C.F.R. 24.2, in order to establish a <em>prima facie</em> case a complainant must show: (1) that he engaged in activity protected by these TSCA, RCRA and CAA Acts; (2) that EG&G knew of the protected activity; (3) that EG&G took adverse action against him, and (4) that the protected activity was the likely reason for the adverse action. <p> If Jones establishes his <em>prima facie</em> case, to rebut EG&G must articulate a legitimate non-discriminatory business reason for the adverse actions. Jones can then prevail if the preponderance of the evidence shows the articulated legitimate business reasons for the adverse actions were a pretext. If EG&G's adverse actions were motivated by both prohibited and legitimate business reasons, then the dual motive doctrine applies, and EG&G must show by a preponderance of the evidence that it would have taken the same actions against Jones even in the absence of protected conduct. The employer bears the risk that the influence of legal and illegal motives cannot be separated. <em>Kansas Gas & Electric Co. v. Brock, </em>780 F.2d 1505 (10th Cir. 1985); <em>Mackowiak v. University of Nuclear Systems, Inc.,</em> 735 F.2d 1159, 1163 (9th Cir. 1984); <em>Dodd v. Polysar Latex,</em> Case No. 88-SWD-04 Secretary's Decision 9/22/94; <em>Mt. Healthy City School District Board of Education v. Doyle,</em> 429 U.S. 274. <p> <p><strong><u>Background</u> <p> A. <u>Jones' Prior Employment and Management Experience</u></strong> <p> At hire Jones was a civilian inspector in the U.S. Army's Office of the Inspector General (IG) at the Pentagon. He had been with the Inspector General's office since 1991, as a Safety and Occupational Health Manager. His duties were to inspect chemical and nuclear weapons depots, chemical demilitarization facilities and chemical weapon laboratories. He inspected the initial small scale model <p><hr title="Horizontal Rule">[Page 4]<p> incineration plant for the disposal of chemical weapons located at the Toole Army Depot (TAD), known as CAMDS. This was the prototype for chemical weapons incinerators. And at the IG he inspected the Johnston Island (JI or JACADS) chemical weapons incinerator, the first such facility. <p> Jones has a Bachelor of Science degree and a Master's degree in Safety which he obtained while an Air Force officer. He holds various certifications including certified safety professional, and certified hazardous material safety manager. Jones received excellent ratings in his Inspector General jobs and when initially appraised in 1992 it was noted he showed every indication of becoming an outstanding Inspector General. CX 6, 7. These IG ratings echoed the comments of his earlier appraisals while with the U.S. Navy, where Jones' professionalism and his meticulous research and knowledge on the safety issues he was charged with were noted. <p> Prior to his Inspector General inspector jobs Jones had been, since 1984, in various civilian Safety & Occupational Health Manager positions with the U.S. Navy for which he had over the years received superior and outstanding performance ratings. This included at the Long Beach Naval Hospital facility where George Cook Jr., who testified at TR 251-267, worked under his supervision in 1985 as a safety technician. Cook testified as to Jones' implementation there of, what for Cook, were radical changes in the safety program. <p> It also included Jones' position as Safety & Occupational Health Manager for the U.S. Naval Ship Repair's Yokosuka Japan facility. There he supervised a minimum of 17 Japanese professional employees, and he instituted and implemented significant changes in the safety program involving the handling of hazardous waste. For three years Captain John Pickering, at hearing commander of the Long Beach Naval Shipyard, was Jones' supervisor in this position. Captain Pickering described the changes Jones' effected, how he interacted with his managers and personnel to accomplish the tremendous changes needed to fulfill his responsibilities in this position. Captain Pickering testified that during Jones' tenure and as a result of his job performance the facility received two competitive safety achievement awards from the Secretary of the Navy, the only activity he ever heard of that received two such awards. <p> The appraisals Jones received when supervising the professionals at Yokosuka, through the difficult changes Captain Pickering described, reflect that in employee management activities Jones effectively managed all employees; the employees received management attention and responded professionally to him; the employees performed at peak levels because of his management acumen; morale was extremely high, everyone contributed to the facility's mission under his direction and no other had managed activities involving employees better or in a more timely and reliable manner. <p> Clarence Settle whose deposition testimony is at CX 103 worked as a safety specialist under Jones' immediate supervision for two years beginning 1990 when Jones came on board as the Safety and Health Manager for the Naval District Headquarters Washington, D.C. Jones supervised a secretary and six professionals whose jobs were to ensure compliance with OSHA - Navy regulations on occupational safety and health. Settle testified as to how Jones fulfilled his responsibilities as manager and supervisor, and how he effectively interrelated with his staff to accomplish his mission. <p> <hr title="Horizontal Rule">[Page 5]<p> Jones began his civilian career with the military in 1984 as the safety and occupational health manager at the Lemoore Naval Air Station where he supervised five professional safety employees, fluctuating up to 21 with work needs. <p> Over the course of his various jobs, and prior to his EG&G hire, Jones received numerous awards, commendations and letters of appreciation reflective of and laudatory on his achievements and professional abilities and accomplishments in the safety field. CX 1-26. <p> <strong>B. <u>EG&G and TOCDF</u></strong> <p> EG&G Defense Materials Inc. is a subsidiary of EG&G Technical Services Group which is a subsidiary of EG&G Inc., headquartered in Massachusetts. EG&G Defense Materials Inc. is the operator of the Toole Chemical Agent Disposal Facility (TOCDF) under a 1989 contract with the U.S. Army to construct, to systemize (which means test out and make ready for operations); to operate and decommission TOCDF. This is Army Award/Contract No. DACA-87-89-C-0076 evidenced at CX 30, referred to within as "the contract." <p> The operations of TOCDF involve the destruction by incineration of stockpiled lethal chemical weapons, under Public Law 99-145, including the nerve agents VX, GB (sarin), blister mustard <a href="#F3"><sup>3</sup></a> <a name="RF3"></a>, in accord with U.S. Treaties, Department of Defense directives, Army regulations and federal, state and local laws and regulations. TOCDF is the first chemical agent disposal facility located in the continental United States. It is located on the Toole Army Depot (TAD), which has 42% of the total chemical weapons stockpile. Under the contract, CX 30, it is stated any major modifications discovered during the construction and systemization phrases at the Johnston Atoll Chemical Agent Disposal System (JI or JACADS), the first such incinerator, modifications referred to in the record as the "lessions learned," will be incorporated into the TOCDF operation. <p> Jones testified everyone who comes onto the TOCDF site has to carry a mask in case there is an accident in the Army igloos. The igloos are the storage area, adjacent to the TOCDF plant, where the chemical weapons are stored pending TOCDF operations. The weapons will then be brought to TOCDF for destruction processing. However there can be a weapons leak in the igloo, thus the required masks. TOCDF visitors in connection with the masking procedures were also educated in the self use of atropine, a medicine to protect themselves against the effects of nerve gas. <p> The U.S. Army's Office of Program Manager for Chemical Demilitarization (PMCD) is responsible for the management and direction for disposal of the chemical weapons stockpile, the facilities, equipment, transportation, destruction and clean-up involved. The local PMCD branch responsible for TOCDF oversight was headed, at the time at issue, by Tim Thomas, Program anager. Dave Jackson was Thomas' Assistant and the PMCD safety specialist. <p> The U.S. Army'sToole Army Depot (TAD) commander, under a different chain of command than PMCD, has oversight responsibility for all activities on TAD, including TOCDF. He has the responsibility under the contract at CX 30 to determine that all applicable safety, surety, security, emergency response and environmental laws and regulations are followed and he has the authority to take immediate steps to correct any breach of law, regulation or safety violation. <p> <p><hr title="Horizontal Rule">[Page 6]<p> The U.S. Corp of Engineers Sacramento District has delegated contract authority and is the primary point of contact for contractual matters during TOCDF construction, equipment installation and systemization. It was this Army entity which on 8/3/94, transmitted, by Robert Smith, Administrative Contracting Officer, the Safety Assessment Report for Toole, otherwise referred to within as the itre Report. CX 55-56. <p> The contract between EG&G and the Army was a cost plus award fee contract. The costs incurred by EG&G in the conduct of their contractual duties were reimbursable by the Army to EG&G. In addition, EG&G was awarded additional bonus fees based upon a rating of its performance under a number of evaluation criteria including the quality of the environmental program, the quality of the safety program, cost control, accuracy of cost projections, the ability to stay on schedule, schedule preparation and the quality of plans and procedures. TR 1027-30; CX 30/72-73. <p> The award fee evaluation was performed in 1994 on a trimester basis by PMCD Tim Thomas, Dave Jackson; Robert Smith, Administrative Contracting Officer and a Mr. Cuff, with monthly written reports. GM Silvestri met with Thomas and Jackson almost daily. <p> There was testimony about the several phases of the EG&G Toole operation (TOCDF) under its Army contract: the construction phase of about three years<a href="#F4"><sup>4</sup></a> <a name="RF4"></a> ; the start-up or systemization phase where there is a systematic exercise of each of the pieces and components of the equipment used in the destruction process; the operations phase, and the decommissioning phase where after the munitions are destroyed, the plant is taken out of service. Elsewhere in the record it is indicated systemization began in 1993. <p> Allen Reihman, Silvestri's Executive Assistant and second in command at TOCDF, who is a chemical engineer, described what occurs during systemization at TR 1645-1646:3 including personnel training, equipment and control system debugging, identification of problems in plans and coming up with corrective plans to resolve problems preparatory to hitting the switch to start actual agent operations. <p> The estimated costs to complete the contract had grown significantly, by billions of dollars, since 1989. Reports of the General Accounting Office (1990-1992) and the DOD Inspector General (11/94), expressed concerns about its escalating costs, delays in completion against prior estimates, and management deficiencies in the chemical stockpile disposal program. <p> TOCDF is a hazardous waste facility permitted pursuant to RCRA since 1988. EG&G's TOCDF facility under its 9/89 Army contract is subject to a RCRA construction permit, with a RCRA permit required from vertical construction of this chemical weapons incinerator. In the summer of 1994, Skip Hayes was TOCDF's Environmental Manager, whose responsibility was the maintenance of all the TOCDF environmental permits, and all compliance issues associated with the site. <p> In the summer of 1994 TOCDF was in the process of working on its TSCA authorization, which was received after Jones' termination, in 1995 Hayes believed; and on several compliance issue plans relevant to RCRA. TOCDF became a permitted operator under RCRA in the summer of 1995. TSCA authorization is needed because the shipping containers of the M-5 rockets which will be processed (incinerated) at TOCDF contain PCBs (polychlorinated biphenyls). These are the containers (ONCs) handled in the unpack area (UPA). TOCDF has to receive an air approval order under <p><hr title="Horizontal Rule">[Page 7]<p> the Clean Air Act (CAA), which by Hayes' testimony is currently in place, and as of hearing TOCDF was in the process of getting or going to a Title V approval under the CAA. Title V is concerned with major source facilities under the CAA, with emission sources and allowable emission rates in geographical areas. Hayes testified that in the summer of 1994 the idea, in systemization, was for the Safety, Environmental and other departments to get their programs ready to go into operations. As it was in 12/95, with more elaboration. TR 2284-85. <p> As of the summer of 1994 additional continental United States chemical demilitarization facilities were planned, on which EG&G was interested in bidding. At Anniston, Alabama and Umatella, Oregon. TR 859. <p> There was a significant amount of national and international interest in and publicity on the TOCDF facility including prior to the events at issue. It is a high visibility project. As reflected in the pleadings on the denied Motion to Join the U.S. Army, significant publicity has resulted as a result of Complainant's termination. <p> Jones testified on 6/94 arrival he expected TOCDF, which he had seen only in its early stages of construction, to be a model plant as he had read in reports coming into the Pentagon that TOCDF was encountering little problems and the JACADS "lessons learned" were going into TOCDF. From the information Jones had on his EG&G arrival, surrogate trial burns were scheduled for the fall of 1994, with hot operations to start early in 1995. <p> The record establishes these dates as initially anticipated by Jones were the actual then scheduled dates for these two operations. Hayes agreed. TR 2274-75. Shortly after his 6/27/96 hire there was a slippage in these dates, by several months. Jones understood this was due to delay in the permitting process. <p> While Hayes reflected a "little bit more realistic schedule" relevant to toxic operations, incorporating potential "showstoppers," would have reflected a much later date, and Hayes did not think EG&G was then anywhere near readiness to conduct surrogate trial burns, TR 2275, at the 4/6/94 monthly management review meeting of EG&G and PMCD managers, Thomas of PMCD had "stressed that the --- toxic start date must be met," as 4/27/94 CX 113, paragraph 2., memorialized. Hayes, who attended this meeting and normally attended such meetings, stated this topic was discussed at every such meeting. The paragraph in which this memorialization appears also indicates Thomas then advised the next major milestone would be the surrogate trial burns and Thomas there stressed the environmental area was the key to successful completion of these burns. TR 2307-08, CX 113. <p> Then at the 6/8/94 meeting Thomas stated he wanted to hold a systemization review meeting 7/7/94 "to ensure that the toxic operations start date can be met... he stressed the importance of meeting or beating the systemization schedule to ensure the start of toxic operations 3/1/95." Thomas then also advised the state EPA agency (DSHW) <a href="#F5"><sup>5</sup></a> <a name="RF5"></a> had agreed to some deliverables dates, they were working toward an 8/29/94 start of hazardous dry run for the surrogate trial burns. TR 2310-13, CX 114. <p> <p><hr title="Horizontal Rule">[Page 8]<p> <strong>C. <u>RCRA/Environmental Law Regulations - OSHA Regulations</strong></u> <p> It was Hayes' personal opinion as the TOCDF environmental compliance officer that in the summer of 1994 there were some overlaps between the 29 CFR OSHA requirements and those under the RCRA regulations at 40 CFR. <a href="#F6"><sup>6</sup></a> <a name="RF6"></a> <p> The contract, in setting forth the Department of Defense, federal and state regulations EG&G's TOCDF operation must, in its safety program plan, comply with, in addition to Army regulations first refers to the OSHA requirements of 29 C.F.R. 1926, and the hazardous waste requirements of 40 C.F.R. 260-267, which TOCDF must meet in this program. The contract also requires EG&G to develop and implement a safety training program concerning TOCDF's special hazards, with emergency procedures, and with the training records required by 40 C.F.R. 265.16 kept. CX 30/83. Jones testified as to the TOCDF Safety manager's direct reporting responsibility to EG&G's GM, under the 3/94 contract-required Accident Prevention Plan, for "all chemical, environment and industrial" safety concerns. This Safety Manager responsibility includes, by contract, responsibilities under 40 CFR 260-267, EPA hazardous waste requirements. TR 789-90; CX 30/84, CX 32/143-44 <p> The contract also required EG&G to employ a qualified Safety Engineer to manage its TOCDF safety program, and stated he shall report to and work directly for EG&G's corporate office. CX 30/84. <p> Then specifically, Hayes reviewed the 1989 contract's 12/95 approved Personnel Training Plan for the Contract Deliverable Requirement List, (CDRL), CX 111, at pgs 2-24 through 2-27, Appendix B, B-3, its "Site OSHA/RCRA Training" heading, its citations to the 29 CFR § 1910.120 emergency response regulations. He stated, on the question of the merger and overlap between OSHA and RCRA requirements, that 40 CFR, the RCRA regulations, here acknowledged that the 29 CFR level of training meets the RCRA requirements. TR 2280-81 <p> Within this exhibit Hayes also reviewed its specific statements as to the TOCDF jobs which had hazardous waste management responsibilities. Under it, by Hayes' testimony there is hazardous waste manager responsibility for the unpack area (UPA), but Jones raised no issue with him regarding the unpack area. The single 1994 BRA operation involving hazardous waste that Hayes was aware of was the BRA sodium fluoride operation discussed at trial. Working from the CX 111 CDRL document, signed off on by the Army more than a year after Jones' termination and the events at issue, Hayes agreed that at that time listed job positions with hazardous waste management responsibilities were: the unpack area, the BRA, the laboratory positions and agent chemist position. Hayes testified that in the summer of 1994 many EG&G managers had the obligation to review and comment on surety and security and environmental compliance, and Jones was more than likely one of these managers. TR 2288-89. <p> According to Mike Hampton, the former EG&G Safety Manager who reviewed various Safety Department reports written during his tenure as Manager and issued over his name, RX 9 <a href="#F7"><sup>7</sup></a> <a name="RF7"></a>, the Safety Department's incident reports on unplanned events could be an environmental, a safety or a health incident. And at TR 1375 he indicated the environmental regulatory division could include him and Mr. Hayes. <p> <p><hr title="Horizontal Rule">[Page 9]<p> As of the summer of 1994 Hayes had the responsibility at least in part to ensure there was an adequate emergency response plan on the site. He explained in the case of the RCRA permit they had a contingency plan required under it in place and approved since 1988. But, Hayes could not recall if in the summer of 1994 the RCRA contingency plan then in place covered the various phases, construction, systemization, operations. In terms of the emergency response plan, this fell under the Safety department and it was his understanding Safety was in the process of developing the emergency response plan. Hayes testified that in the summer of 1994 there was no great effort to integrate the two. TR 2275:24 through TR 2276. But, he testified, since the summer of 1994 these two plans have been integrated, and now the information in the contingency plan is very much reflective of that in the emergency response plan. He stated in the summer of 1994 Jones did not raise any issue with him regarding the length of the contingency plan. TR 2319. <p> It is found and concluded the thrust of this presentation reflects that at least some of the Safety manager's job functions, as attested and described by Jones, in juxtaposition to the description, of CX 111, were involved with and required under RCRA. <p> <p><strong><u>Jones' Version of EG&G Events</u></strong> <p> Jones testified that prior to his 6/2/94 acceptance of the EG&G Safety anager job at TOCDF, he had met Hanny with Reddish, EG&G's Human Relations Director, once, on the weekend of his late 5/94 job visit to TAD. Reddish and Jones both reported to Hanny as TOCDF's ASM. Cxs 28, 110. Jones testified he thought his first 6/27/97 meeting with the GM Silvestri would be a "welcome aboard and told to go to work meeting." Not that Silvestri would call him a "motherfucker". Silvestri started using what Jones considered "abusive language (motherfucker) toward me partially, just using them in general. ... He told me specifically to kiss their [PMCD Dave Jackson's] ass at the flag pole and I'll hold your hat." TR 100-04. Jones testified Silvestri directed him at that initial meeting to appease the local PMCD, referred to at TOCDF as "the customer." <p> Jones testified at this meeting he and Silvestri discussed Jones' job of getting EG&G's team ready for the upcoming IG inspection, by the IG team he had just left to undertake his EG&G TOCDF Safety Manager job. To give Silvestri a "heads up," a preparation on this inspection, Jones advised Silvestri the IG inspection would be focused on two issues. The IG's first issue would be the "lessons learned" questions from the Johnston Island (JI) prototype for TOCDF. According to Jones, because TOCDF construction started before learning of many of the mistakes at JI, the JI mistakes' data had thereafter been submitted to TOCDF for fixing. But the IG had been told through informants this fixing was not happening. The IG would now be inspecting and questioning on these "lessons learned" points. Jones also advised Silvestri another IG inspection issue and focus would be the "rift," for want of a better word, between PMCD, the Army entity overseeing TOCDF, and the Toole Army Depot (TAD). Jones told Silvestri the Pentagon knew these two Army organizations, at some point, would have to come together, especially on the emergency preparedness issues and the IG was coming out to get these organizations together to start working on memoranda of understanding and other Army protocol, so they could work together as a functional unit. Jones testified he mentioned to Silvestri he wanted to try, as emergency preparedness director, to get these to work. TR 102-05, 119-20. <p> Silvestri got very angry at this rift remark, Jones testified, stirred several things on his desk, stood up angry and called the name "motherfucker," used the <p><hr TITLE="Horizontal Rule">[Page 10]<p> "motherfucker" language. At that point in their conversation, according to Jones, Silvestri told him PMCD did not want TAD personnel on the TOCDF site and he ordered Jones to bar the TAD safety personnel from coming onto the TOCDF site. Silvestri later categorically denied he so stated. Jones told Silvestri this could not be done, that by Army regulation the TAD commanding officer in charge had safety oversight authority over TOCDF and authority to shut it down if unsafe. This was his charter over a tenant activity. See CX 32.4.3.2. Since the TAD commanding officer had authority to shut TOCDF down if he believed it was not being operated safely, at hearing Jones speculated Silvestri's motivation in telling Jones to bar TAD was he did not want TAD personnel nosing around into the EG&G TOCDF plant. <p> According to Jones Silvestri was still angry after this explanation; he "very graphically" told him to bar TAD Safety personnel, that was final. Jones said he was taken aback at Silvestri's statements. He asked Silvestri if he was fired, as Silvestri was placing him in an undoable position with his reaction, anger and demeanor. This meeting with Silvestri was so different from what he expected on his first day, his first visit with the GM, just an introductory visit meeting people, shaking hands, etc. Jones "knew something wasn't right." Jones testified these issues were not resolved with Silvestri and he just left Silvestri standing, "red in the face." TR 120-22. <p> Testimony elsewhere indicated Jones thereafter showed up alone at the Safety Department and aside from being taken around and introduced by Patti Andrews, the department's clerk, there is no indication in any of the testimony as to any upper level EG&G introduction of Jones to the Safety Department staff, or explanation of his arrival as Mike Hampton's replacement. There was no transition by EG&G management, according to Helser, one of the Safety Department employees. <p> The Safety Department employees on his arrival were: Mike Hampton, who had been the Safety Department Manager since 1991; Pat Reardon; Steve Dimond; Sam Guello; Chris Helser; Gary Winters; Patti Andrews, all of whom testified in this proceeding. There were several other Safety employees at Jones' arrival, Jeff Vahl, Jim Dochnahl, and Kurt Allen, the latter described by Jones as an engineer. Hampton and Reardon had been together in the Safety Department since 1/1993. Other than Andrews, who came into Safety in 2/1994, and Dochnahl and Allen whose length of tenure in Safety is unknown, all five other Safety employees, hired by Hampton, were very recent arrivals. <p> <p><u><strong>Silvestri on First Meeting</u></strong> <p> Silvestri who retired from EG&G in the summer of 1995 became General anager and President of EG&G Defense Materials in late 1991. Since 1964 and with the exception of a few years between 1971 and 1975 Silvestri had been employed by EG&G, in largely administrative positions, financial and contractual positions, and has never been a safety manager, environmental manager or surety officer.<a href="#F8"><sup>8</sup></a> <a name="RF8"></a> <p> Silvestri attested he used a lot of "colorful" language on the job site to get his point across, including the words "motherfucker," "asshole" "son of bitch" and this language was used in Jones' presence but not directed at him. He also used "bitch" on the job. He added, "as in that meeting was a real bitch'". He attested that while it's possible in the context of a conversation the hearer could perceive these terms were directed at them, Silvestri really didn't know how they could. <p> <hr title="Horizontal Rule">[Page 11]<p> According to Silvestri when Jones came aboard in 6/1994 EG&G had a very effective safety program at TOCDF, two million hours without a lost time accident and what they needed was for the program to change its construction-driven, industrial type safety emphasis to one driven by a chemical operation plan. <p> According to Silvestri Mike Hampton the Safety Manager had done an excellent job, had great rapport with his staff, his peers and the customer. He was a fine manager and leader. However he was not to be Safety Manager after Jones' arrival. Why was never specifically explained by Silvestri When asked whether Hampton could have taken the Safety department into the systemization phase, Silvestri's response was Hampton supported the change in managers, was in complete agreement a change in program focus was needed and Hampton's background was largely driven by an industrial setting not an operating facility. Hampton's salary was not decreased with this move. TR 1080-81. <p> Other than this generalized explanation for the reasons Hampton was replaced, and his deflected response, Silvestri's testimony nowhere indicates what if any part he played in the decision to recruit and hire a replacement Safety Manager, or to hire Jones. Silvestri never talked to Jones prior to their initial meeting which was on either Jones' first or second day at the EG&G Safety Manager job. <p> Mr. Silvestri stated he regarded PMCD as EG&G's customer at TOCDF; the Toole Army Depot as EG&G's landlord. He testified that in his initial meeting with Jones relative to his EG&G Safety Manager job, in explaining the degree of importance Silvestri placed on good customer relations and his belief EG&G's Toole success was attributable to the good working relationship EG&G had developed with PMCD, he told Jones that in Jones' relationship with PMCD and Jones' PMCD counterpart Dave Jackson, "if it means kissing his ass on the front steps at noon let me know and I'll come hold your hat." As he had so told a lot of EG&G managers he said. He also attested that in their initial meeting he may have used the expression an "in your face" safety program. He told Jones he wanted an aggressive proactive safety program where the safety program interacted with the people in the facility, and were a presence in the field with the work force. <p> Silvestri also attested, in explaining his statements to EG&G personnel that he wanted his managers to be very closely associated with their government counterparts and he didn't like surprises, that he wanted his managers to know their government counterpart's concerns in advance. So their government counterparts' concerns were not reflected in the award fee evaluation. However Silvestri in effect attested he never instructed Jones that whatever the customer (PMCD) said was right, even if it created safety problems. TR 1083-84. <p> Silvestri did not remember if Jones told him during this initial conversation that the Army Safety Center in Washington had asked him to resolve a rift between the Toole Army Depot and PMCD. This was not Jones' assignment as EG&G's safety manager. Silvestri also testified he never told Jones in this conversation that he was to bar Toole Army Depot safety people from the site. Rather, Silvestri testified, at the request of Mr. Thomas of PMCD, the procedure was that the Toole Army Depot safety and environmental inspectors were to check in with, perhaps be escorted by, someone before they went into EG&G's plant. It was PMCD's request that the TAD safety and environmental people visiting EG&G's TOCDF site were to be handled and conducted through PMCD, so as to ensure the TAD safety inspectors did not injure themselves at EG&G. TR 1085-87. Thomas told Silvestri a visiting Toole Army Depot safety inspector had tripped. <p> <p><hr title="Horizontal Rule">[Page 12]<p> <strong><u>Jones on EG&G TOCDF Operations</strong></u> <p> Jones testified as to the physical set-up, locations, and the chemical weapons destruction process at TOCDF. This included the MSB Lab, the BRA, or Brine Reduction Area, the CHB or Control Handling Building, the MDB, or the Munitions Destruction Building. His testimony here indicated in his description how the chemical weapons containing the substances which fall under TSCA, RCRA and which could impact on the CAA, are handled through the TOCDF site to incineration and destruction. This included how the chemical weapons, in huge drums or shipping crates (ONCs), will be brought from storage igloos and processed through the CHB and MDB including how they are pulled or sled out of these containers, in the unpack area, UPA, for placement on the various conveyor belts; how the separation of explosives, propellant, agent then takes place. See also CX 33 description of process. Jones testified the weapons' shipping containers burned at the DFS in the incineration process are known to have PCBs, and one of the things he always looked for as he went through TOCDF was to see if they had a hazard analysis to identify PCBs and where they were going. Were the PCBs going to be appropriately destroyed? TR 305-306. <p> The importance and impact of the various machines used in this process, e.g., cable assemblies, winches, cranes, conveyor belts, gates, chopping machines was described. He explained the huge pollution abatement system where air is drawn from the plant into a huge series of carbon filters; how the liquid waste of the chemical weapons' destruction process goes into the BRA, the Brine Reduction Area, where huge three-story dryers dry the brine into a salt which is then packaged up and shipped to a hazardous waste facility. At the MSB Lab workers staged vials of agent inside a hood he said, their primary objective to syringe diluted agent out of the vials to challenge the monitoring instruments (ACAMS) <a href="#F9"><sup>9</sup></a> <a name="RF9"></a> which are suppose to monitor the air in the work area. TR 129-135. <p> Jones testified they were not burning agent while he was at TOCDF; they were burning other chemicals, stimulants, getting ready for the actual burning of agent. TR 135. See also Jones' direct examination on the TOCDF incineration plant and process at TR 786:25-789. <p> Jones testified that in his evaluation and implementation of the EG&G safety program at TOCDF he operated under a number of regulatory standards. This included the Army regulations applicable to PMCD, through the Army Chief of Staff to the Assistant Secretary of the Army; the army regulations applicable to TAD through its separate chains of command to the Pentagon; the contract language and its binding regulations; and also the federal regulatory standards of OSHA, EPA, CERCLA. TR 136-37. <p> Based on the Army's EG&G contract, EG&G was to develop a safety program. This was a contract deliverable or DID. Jones testified he was concerned with the safety and environmental aspects of the contract deliverables and of the CDRLs, or the Contract Data Requirement List, developed under the deliverables' instructions to do so. Such as a CDRL which reflected a written environmental plan, a written accident prevention plan, a written safety system plan or a written emergency preparedness plan. CX 31, 32. EG&G's Accident Prevention Plan, in CX 32 dated 3/1/94, was at EG&G TOCDF on Jones' arrival but he testified it was not implemented very well. TR 136-146. Jones used it on his arrival to conduct his internal audit which resulted in his 8/2/94 Internal Audit deficiency report and his action plan to correct these deficiencies. Jones explained part of safety oversight is clearly environmental and involves <p><hr title="Horizontal Rule">[Page 13]<p> the monitoring of agent. The Laboratory Operating Plan under which the Safety Manager operates states it is to protect plant workers and the environment. CX 33/106. <p> Jones testified his first week at EG&G Hanny was upset because Silvestri told him PMAC, the customer, was angry due to a production hold-up involving Jones. Jones had found the level of dress document Dochnahl gave him to sign for equipment storage work in a borrowed TAD warehouse containing friable asbestos, defective. It was not based on the required sampling data for chemical airborne concentrations. Pending the data, with the equipment modifications required for the higher dress, the storage process slowed down. But Hanny also told Jones he was right on this issue. And according to Jones, Silvestri personally expressed displeasure to Jones when he stopped another operation without getting the customer's approval, workers horsing around without full protection on the pollution abatement system. TR 167-68 . <p> <p><strong><u>MSB Lab Incident</u></strong> <p> Then during his initial weeks at EG&G when he was trying to get around to view all the various parts of the plant Jones described a big issue which arose about the MSB Lab. Silvestri testified one of the basis on which he advised James Smith 8/22/94 he was close to terminating Jones was the MSB Lab shutdown, abruptly, over a "piece of paper," a waiver, that Silvestri knew EG&G must have, although on cross-examination, Silvestri indicated the piece of paper or waiver was not in the EG&G Safety Department but in the possession of PMCD Dave Jackson. <p> Battelle is an EG&G subcontractor in charge of the MSB (Monitor Support Building) Lab, and the CAL (Chemical Assessment Lab). Dr. Burton, the Laboratories' Director is a Battelle employee. The MSB Lab is on the TOCDF site. The CAL and Dr. Burton's office, is off the TOCDF fenced site and several miles away on TAD. <p> Dr. Burton, who holds Ph.D. in biophysics, has been employed by Battelle for 23 years and has been Battelle's Laboratory manager at TOCDF for six years. TR 1720. He has been involved with chemical agents for 13-14 years. Martin Morse is one of Dr. Burton's branch chiefs, the monitoring branch chief, and his manager of the MSB Lab. <p> According to Dr. Burton in the summer of 1994 and currently highly pure chemical agent is transferred to the Toole Army Deport area from Maryland. It is then diluted by an Army organization, CAMDIS, to what the Army calls research, development, test and evaluation levels (RDTE).<a href="#F10"><sup>10</sup></a> <a name="RF10"></a> These levels are equivalent to strong acids or organic solvents (one part per thousand). At CAL the agent is diluted further into the concentrations used to challenge the equipment throughout the plant (two parts per million). Dr. Burton further described the function, in both systemization and operations, of the ACAMS chemical agent monitoring equipment being challenged in the MSB Laboratory at the time of Jones' employment including the purpose of these chemical agent monitoring, collection, and sampling operations, and the Army operational and procedures' authorization for such laboratories. TR 1734-41; 1755-56. <p> In the systemization phase the MSB Laboratory was to assure the equipment functioned properly and consistently. ACAMS are instruments which show whether chemical agent of a <p><hr title="Horizontal Rule">[Page 14]<p> level which might be hazardous is in the area being monitored or under surveillance. Precision and accuracy studies so the instruments would give the same results over time ("control") were achieved through the technicians' challenging the instruments in the MSB Lab. From agent solution in a vial, diluted to parts per million in a chemical organic solvent, the technicians with a syringe and needle, withdrew through the vial's septum a determined amount from the vial. At a known point in the ACAMS cycle it was injected into "the intake to the ACAMS." The ACAMS instrument would then indicate the amount of chemical injected, with the object to test the instrument which, when the chemical weapons incinerator is operational, would detect and alert people as to chemical agents' presence and the need for masks. Several hundred vials were made up each week for the MSB Lab's use, at the CAL Laboratory, individually identified as to concentrations and other information. TR 1699-1702. <p> The major contact person in the EG&G Safety Department with whom Burton worked on Safety Department inspections of the Laboratories, their procedures, and any laboratory deficiencies, was Patrick Reardon, and Reardon gave Burton input to resolve laboratory Safety problems. <p> Jones testified when he entered the MSB Lab with Guello what he saw was very contrary to what he had seen at any other Army chemical surety lab, which is a lab working with agent. As this TOCDF MSB Lab was operated, its operations involved chemicals covered under TSCA <a href="#F11"><sup>11</sup></a> <a name="RF11"></a>, RCRA and which impact under CAA although in dilute RDT&E levels. Very dilute levels by Dr. Burton's testimony. The MSB Lab was, during Jones' employment, the only TOCDF plant facility where they were working with live Army chemical agent. <p> Jones testified he saw several people working in the MSB Lab in a regular hood, with hands in the hood, some with gloves on, some with no gloves. The hood supposedly ensures the chemical agent is sucked out of the hood, ultimately into the air, and does not go into the workers' breathing area. Jones saw dishes and furniture in this lab, which is not good laboratory practice. Jones had never before seen this on his IG inspections and he testified nowhere in the Army do they, in a laboratory where agent is being worked on, allow offices. In an agent lab set-up he testified administrative offices were to be placed elsewhere, and this was odd. <p> Jones testified he noted some vials were open. Some were on a shelf; the workers had some vials sitting out and were working on them out of the hood and on the counter. Some workers were masked, some were not. He noted some workers were carrying the vials out of the hood, over to another area, bumping into each other, all things Jones said you never see in a laboratory where people are working with agent.<a href="#F12"><sup>12</sup></a> <a name="RF12"></a> Some workers were spiking to challenge the monitors, the ACAMS, but some workers were diluting from one concentration to another and Jones did not know what the agent concentration was. He noted there was no Industrial Hygiene certification on the hood, certifying the amount of air, a very specific Army requirement, and when he went outside to look there was no charcoal filter on the hood; it was venting into the atmosphere. TR 808. These filters were what Jones was accustomed to seeing and he knew this requirement was in the Army regulations for the kind of facility the MSB Lab was. Later, in referring to what he saw, which raised his questions as to the MSB's operations, he also said he noted "dumping it down the drain." TR 157. <p> <p><hr title="Horizontal Rule">[Page 15]<p> When Jones after talking to Martin Morse, the Battelle MSB Lab supervisor, told orse he was inconsistent in the way they were handling the operations they were performing, and asked to see the MSB Lab's Standard Operating Procedure (SOP under the applicable regulations and the CX 30/33 contract) Morse told Jones they were training and did not have a SOP for what they were doing. Jones asked why they were doing what they were doing at the MSB Lab, handling agent in an unfiltered hood, when they had other certified approved lab sites with lots of space. Morse told him it was convenient and they were allowed to do it at the MSB Lab. Jones then asked Morse to voluntarily move their training operations to one of the certified labs, to secure the MSB Lab. Morse said they would think about it. Jones told Morse he had to research it, he wanted to get more information on how they managed to be allowed to do all he saw being done at the MSB Lab, in the circumstances he described that day, as he had never before seen such in a chemical agent laboratory. TR 151-56; TR 159-62, including at 160. TR 164:9-14. See also redirect at TR 796-800, 803-06; recross at 843-45. <p> Jones testified he went to the EG&G Safety office and asked Dochnahl if the Safety office had any data on the MSB Lab and what gave them the right to do what he saw them doing on his visit. A written waiver was required to operate outside the procedures for a toxic chemical agent laboratory [the procedures of Chapter 8 of DA-PAM-385-61], as Jones understood the Army rules from his pre-EG&G IG inspection activities. Dochnahl "didn't come up with much" so Jones thought a "time out" should be called on this facility, for some research time. <p> Jones went to the local PMCD (Lt. Askew) and told him what he had seen at the SB Lab. He asked if Askew had any knowledge of who had approved it and how had the MSB Lab operations he had seen been approved. Jones testified he indicated to PMCD - Askew he was thinking about closing the MSB Lab until more research could be done, at least to stop the venting into the atmosphere, the dumping into the sink. Jones testified PMCD - Askew gave him a "thumbs up" on this. Jones testified he spoke to Skip Hayes, to Martin Morse, to Ira Hall EG&G's Technical Support anager, filling in for Silvestri, to Jim Scott filling in for Hanny, to various EG&G managers, about his MSB Lab operations' approval questions. This was at a meeting he was pulled into where these managers asked Jones what was going on with the MSB Lab, and he explained his questions. He testified Hayes got the Army regulations on chemical agent laboratories; it was reviewed at this meeting. According to Jones there was consensus that the MSB Lab operation "was in violation of the regulation", the instructions should be interpreted strictly until further guidance was secured as it is always safe to err on safety's side. The MSB Lab would be shut down, its operation moved to a certified facility until the questions he raised could be resolved. Jones testified at no time was the Army's 6/22/94 memo exempting RDT&E labs brought up by any of the upper management level EG&G participants at this meeting. <p> Jones testified after he met with the EG&G managers on the MSB Lab he also talked to Dave Jackson of PMCD, that entity's safety and environmental coordinator, about his MSB Lab approval question. Jackson then told him he was going to try to find out from the Army exactly what the status on that regulation was. Inferentially whether the DA-PAM- 385-61, Chapter 8, Army regulations need not apply to the MSB Lab RDTE operations because a written waiver existed. Jackson told Jones he would research it out. According to Jones, Jackson, without a doubt was mad the MSB Lab was shut down. <p> Jones testified he knew what he had seen was in violation of Army regulations, Chapter 8 of DA-PAM-385-61. But he also knew a problem had surfaced while at the IG as to whether labs like the MSB Lab should be treated as neat lab operations. That is, whether the neat lab requirements should <p><hr title="Horizontal Rule">[Page 16]<p> apply to RDT&E chemical agent operations. Jones testified that while a written exemption or waiver of the neat agent lab requirements could be secured by an RDT&E agent lab, good laboratory practices were still required in the presence of a written waiver. What Jones did not then know was that on 6/22/94, while he was in the process of his D.C. - Utah relocation, the Army had issued a memo that RDT&E labs working with agent were exempt from these Army regulations but the Army still required good laboratory practices in RDT&E labs. What Jones testified he saw in the MSB Lab operations would not constitute good laboratory practices, both by Jones' and Dr. Burton's testimony, e.g. gloves absent when open vials handled. <p> The MSB Lab was closed by Dochnahl's CX 36, 7/15/94 memo. This was Friday of Jones' third week at EG&G and several days after Jones' MSB Lab visit where he raised his questions with Morse. <p> Jones testified that after this MSB Lab shutdown event, at meetings he was publicly ridiculed and subject to embarrassment for this decision by Dave Jackson and Hanny: later Jim Smith, who replaced Hanny told him he had angered the customer in this action, it should not have happened. TR 165-166. <p> <p><strong><u>Silvestri on the MSB</strong></u> <p> Silvestri testified that when he returned to the EG&G site the Monday after Jones closed the MSB Lab, he talked to Jones about the shut-down. Silvestri understood from Jones it was an issue of the Lab not being able to produce a waiver of a particular regulation governing the use of diluted chemical agent as opposed to undiluted or neat chemical agent and Silvestri thought it strange they were talking about the existence or non-existence of a piece of paper, a waiver, because "I knew for a fact that we must have had a waiver" because the laboratory had successfully passed a follow-up pre-operational survey after the cited findings of an earlier 1993 pre-operational survey were corrected. <p> Dr. Burton's and Jones' Testimony establish that until the Army's 6/22/94 "Clarification" issuance of CX 39, pages 242-43, there was significant question, due to differing views by several Army components as to whether a chemical agent laboratory such as the TOCDF MSB Lab could conduct operations as Jones saw them performed when he raised his questions as to the SB Lab's operation and the existence of the "waiver", of Silvestri's reference. Dr. Burton's testimony as to his knowledge of the Army's 6/22/94 memo, from his Columbus, Ohio Battelle contacts, is at TR 1751-54. Dr. Burton explained however that he did not send his copy of the 6/22/94 Army memo to TOCDF Safety at the time of these events because it was basically useless to him and to his TOCDF operations. He has to follow what the Army's contracting officer says, not what he hears or obtains unofficially through Battelle. <p> Patrick Reardon's testimony as to his involvement in the CAL and MSB Laboratories' preoperational inspection, and the neat/dilute authorization and the operation of this SB Lab facility under the Toxic Chemical Agent Laboratory Safety Standards of the Army, at Chapter 8 DA-PAM-385-61, is reflected at TR 944-47. <p> <hr title="Horizontal Rule">[Page 17]<p> After Silvestri talked to "some other people," and he was sure he talked to Dr. Burton who told him the preoperational findings had been corrected by EG&G, they did have dilute agent there properly in the MSB Lab, Silvestri then told Jones his actions were incomplete and "a little bit abrupt". Silvestri explained at trial he was not satisfied because Jones had not gone through the same kind of process Silvestri said he did, which took Silvestri just a little bit of time. <p> Silvestri testified he believed Jones' mistake was in acting very abruptly and quickly, without getting all the information he should have known was available. "There must have been some basis for the lab management and workers to be operating under, some go-ahead, some letter, some authorization." TR 1090-91. <p> On cross-examination of his testimony Jones should have known EG&G had the waiver on the handling of dilute agent, Silvestri testified he so believed, from what he had been told, and "(b)ased on some pretty good background in that situation." However he agreed that while he wanted Jones to conduct a more thorough investigation regarding the waiver he himself did not conduct a more thorough investigation to determine if the waiver was ever present. <p> Silvestri testified he was given to understand the MSB Lab had, on a mid ay or June 1994 exit interview, satisfied the Army's requirements, following the Lab's second follow-up preoperational survey or examination. However Silvestri conceded that when Jones raised the question as to the MSB Lab's handling of the dilute agent [when Jones first saw the operation] and sought the waiver authorization required to so handle the dilute operations, (under the Army's pre 6/22/94 Toxic Chemical Agent Laboratory Standards) no one at EG&G could lay their hands on the document, the paper trial that demonstrated the operation as it was being conducted was correct. Perhaps not immediately, according to Silvestri. TR 1143-47. <p> When asked if Jones was informed, on taking his EG&G position, of the waivers and other special paperwork applicable to EG&G's Safety program, Silvestri did not directly respond to this question. He did say he did not provide Jones with a copy when Jones advised him why he recommended the MSB Lab be shut down. And when asked whether he knew of anyone who, at that immediate time, had a copy of the waiver, Silvestri said he did not know who would have had the waiver documentation. He guessed he would have asked Dr. Burton, but Silvestri did not know if Burton was available the day Jones raised the question. But Silvestri testified he thought Jones could have taken it a couple of steps further, and had he done that he would have found out the waiver existed, that it was in PMCD Dave Jackson's possession. <p> When asked whether an EG&G Safety Manager should, at the beginning of his employment, be given all waivers or other relevant information for the various facilities in operation, Silvestri responded it is the EG&G Safety Manager's responsibility to seek these documents out and the problem would have been resolved "in very real time before the MSB Lab was closed" if Jones had "a little bit more proactive attitude." Jones' testimony indicated it was when artin Morse of the MSB Lab, a Battelle employee who was supervising the dilute agent operations he saw that day, could not produce the Army waiver, and Jones' efforts to obtain the Army written waiver proved unsuccessful through EG&G Safety personnel and EG&G managers, and PMCD over the several days prior to the close down memo issuance, that the MSB Lab was then shut down. <p> <hr title="Horizontal Rule">[Page 18]<p> Silvestri attested he told Jones he would not overrule Jones' strong action to close the MSB Lab even though Silvestri believed he had made a mistake because Jones had been on the job only two weeks. But he told Jones he should expedite the Lab's reopening once the paperwork was produced. Jones attested that while the MSB Lab was shut-down, until the question was cleared up, its operations were moved to one of the other certified laboratory facilities. <p> Mr. Silvestri testified he was upset with Jones' decision to close down the SB Lab early in his EG&G tenure and PMCD was very concerned about why the MSB Lab was closed. He attested he may have used foul language in his discussion of this action with Jones and Jones could have considered it a dressing down for his MSB close-down decision. Silvestri denied ever making fun of Jones for his Lab closure decision or criticizing him in front of anyone. However he did testify that Jones' Safety manager actions in this MSB Lab closure, Jones' actions in the BRA and hydrogen cylinder events contributed to his decision to take the adverse personnel actions at issue. <p> <p><strong><u>Dr. Burton on the Close-Down of the MSB Lab</strong></u> <p> Dr. Burton testified he heard from his people Jones had visited the MSB Lab, the first part of 7/94. Then, while Dr. Burton was in the PSB building (EG&G's offices), Jones called him over and indicated he had problems with the way Dr. Burton was operating the MSB Lab and he wanted to shut the MSB Lab down. Dr. Burton testified he was not aware of what the problem was, he asked Jones what it was, and Jones' basic statement to him was he was violating Chapter 8 of DA-PAM-385-61, the Safety Standards for a Toxic Chemical Agent Laboratory, an Army regulation. This wasn't much help Dr. Burton testified as this is a massive chapter on how to operate a lab using chemical agent. However, Chapter 8 reflects it runs from pgs. 81-92, at RX 49. <p> Dr. Burton testified he asked for more detail, Jones never gave him details, and Jones insisted more than once Dr. Burton close the lab down. Dr. Burton testified he basically said he couldn't see closing it down if he didn't know what was wrong; if Jones would give him the information we'll correct it, and Jones continued to insist he close the MSB Lab down. Dr. Burton said he would not, and if Jones wanted him to shut it down he had to give him that direction in writing. Dr. Burton did not remember Jones returning to him with any further specifics as to the basis of the Chapter 8 DA-PAM-385-61 shut-down after their PSB initial conversation and prior to the 7/15/94 shut-down memo. But Dr. Burton also testified at some point he did go back and talk with Jones. However Dr. Burton testified he did not remember the details of these talks with Jones; and it may well be that they did talk at times. TR 1708-09. <p> Two or three days later, the 7/15/94 written Safety Department direction to close the SB Lab came out, addressed to Martin Morse, signed by Jim Dochnahl. RX 21. In addition to stating the MSB Lab was in violation of DA-PAM-385-61, Chapter 8, and all operations involving agent at any concentrations must be immediately stopped, RX 21 also stated that proof of certification that all personnel in the MSB Lab are trained to DA-PAM- 385-61 and that all operations are in compliance to DA-PAM-385-61, must be shown to the Safety Branch's satisfaction prior to any further chemical agent surety operation in the MSB Lab. <p> Dr. Burton understood, but he did not indicate the source of this understanding, that Jones was unhappy with Reardon and had switched positions and given Dochnahl the assignment of overseeing the lab. <p> <hr title="Horizontal Rule">[Page 19]<p> As reflected elsewhere in this decision it was the week prior to all these events that, according to Jones, Reardon and Hampton, in their one-on-one conversations with the new Safety Manager and shortly after his arrival, had expressed their respective dissatisfaction with Hampton's replacement as Safety Manager, with Jones' hiring; with any need for Safety Department changes, and Reardon refused to assume work functions Jones requested. <p> When asked on direct if Jones while employed at EG&G ever told Dr. Burton he was concerned about agent's release into the air, Dr. Burton stated there was a concern about the release into the air; he stated there was concern about the release of chemical agent from the MSB building. TR 1709-10. In reply to the follow-up question of whether Jones had raised it, Dr. Burton's reply was not responsive to this question. TR 1710: 3-11. Then when again asked if during their conversation about the SB Lab shut-down where Jones, according to Dr. Burton, gave him no specifics but his DA-PAM-385-61 Chapter 8 toxic lab practices reference, Jones ever told Dr. Burton he was concerned about the release of agent into the air, Dr. Burton testified he did not remember this as a subject of conversation because they could have worked it out very rapidly "with this response I had from the government on that subject." TR 1710: 16-24. Dr. Burton on cross-examination at TR 1731-34 further testified as to the mechanics and operation of a laboratory fume hood and the charcoal screen for cleaning toxic or dirty substances rising through the hood into the atmosphere. <p> According to Dr. Burton, release of agent into the outside air at the MSB had been raised two years earlier, in 1991. By him. Dr. Burton had questioned whether there should be a filter on the MSB Lab a year or two after he arrived at TOCDF. He testified "we" asked the Army about it, walked it through and decided it wasn't reasonable because most of the agent used in the MSB is injected into the ACAMS which go through a flame which destroys the chemical agent. Dr. Burton testified that about 1991 "I agreed with the Army there was no environmental hazard or hazard to people in the area" associated with the question raised as to the filter required on the MSB hood, and whether charcoal filtering was necessary for dilute chemical operations. TR 1710-11; 1733-34. Dr. Burton indicated the CAL Lab has always had charcoal filters on its exhaust hoods. <p> Dr. Burton was more definite in his testimony Jones never raised any issue with him of dumping agent down the drain in the MSB Lab. He testified that was not ever true because this would be very hard to do in their operations where the vials were basically the only chemical agent on site, used by "top people," and they are traced, controlled and returned to the CAL Lab for destruction. TR 1711. A few hundred vials a week would be as many vials as the MSB Lab could have. TR 1712. He could not testify the blanked off sink drains would be necessarily discernable to an onlooker. TR 1764-66. <p> During the ten days the MSB Lab was closed Dr. Burton testified he spoke with Jones to try to get his input as to the problem so he could get in operation, and he did not find out sufficiently. It was only when he received Jones' Safety Department memo at RX 32, authorizing reopening, he found out Jones' concern was he felt the dilute lab operations should be operated under the neat agent rules of the Army's Chapter 8 Toxic Laboratory Safety Standards. <p> While Dr. Burton testified both the MSB Lab and the CAL Lab of EG&G's subcontractor are covered by the one set of documents, approved by the Army, to operate dilute chemical agent laboratories, by CX 105, the 1/7/94 PMCD (Baronian) authorization to the TOCDF Project anager, <p><hr title="Horizontal Rule">[Page 20]<p> only the CAL Lab at EG&G was authorized by the Army to start to conduct dilute chemical agent operations. TR 1755-57. <p> According to Dr. Burton the Army had never come up with good directions as to how dilute labs, RDT&E labs, low levels of agent labs, were required to operate. According to Dr. Burton dilute labs do not require the heavy butyl rubber gloves and specific clothing that concentrated agent required and Army regulations did not really define dilute agent labs' operations' practice. "It was mostly working with your client, the Army client which defined what were acceptable ways to work. And there were generally accepted standards for dilute agent." Dr. Burton explained why good laboratory practices are a concern in a laboratory's handling of even very dilute chemical agent, concerns which he said were best expressed in Jones' letter which reopened the lab. RX 32; TR 1728-30. <p> Dr. Burton testified it is good laboratory practice to keep toxic solvent or anything else away from the worker if the diluted chemical agent container is going to be open, and it should be opened under a ventilation fume hood in the laboratory. TR 1731. Dr. Burton testified the written procedures applicable to a dilute agent lab in 1994 required workers to have a laboratory coat, protective glasses, their shoes could not be open-toed and they were allowed to wear gloves "if they wished. But for the very dilute agent where there was no potential contact with the liquid agent there was no requirement for gloves." TR 1723-24. Dr. Burton then added, that is, if the dilute agent was in a steel container in the vial. The vials used in the MSB Lab were glass, he thought with aluminum caps not easily removed without a tool. Guello's testimony indicated however that when he accompanied Jones on the SB Lab visit which triggered the MSB Lab shut-down and Jones' questions, to the MSB Lab supervisor and then to artin Morse the MSB Lab branch chief, Guello saw several technicians working on open vials without septum or cap covers, and he had no way of knowing the concentrations of the dilute agent then being used. TR 1246-50. <p> Dr. Burton's testimony indicated there could be occasions in the MSB Lab operation where a vial could be uncapped. A vial would be uncapped when, due to evaporation and resulting changes and increases in agent concentration, the caps would be taken off and a new cap put on, one at a time - "The only time that there would be anything that, quote, would have open agent in the SB." TR 1724-1726, 1724:18-20. Dr. Burton could not say there was zero likelihood of an uncapped vial being set over in the process and because of the potential for exposure to liquid agent and solvent, the worker in an open vial situation would be required to wear gloves. <p> According to Dr. Burton's cross-examination his 1994 procedures required that before a dilute agent lab could start operations the lab had to have procedures in place and the lab had to have an Army inspection, both of which had occurred at the Battelle MSB Lab before Jones' EG&G arrival. TR 1720-21. However Dr. Burton also testified the Army did not inspect often, rarely inspected and came down mainly to look at the laboratories' chemical inventory once in a while. EG&G was the laboratories' major inspection force he testified. TR 1730. <p> Attached to Jones' 7/25/94 reopening memo was the Army's 6/22/94 "Clarification of Army Chemical Safety Program Policies," RX 32, the first time the Army had made such a statement, exempting dilute agent operations, except on an individual case-by-case basis and with a written certification of such exemption or waiver. Prior to 6/22/94 the Army required a written <p><hr title="Horizontal Rule">[Page 21]<p> exemption or waiver for an agent laboratory to conduct dilute operations without the protections the Army called for, including a charcoal filter. It was this written piece of paper Jones stated he unsuccessfully sought, from Morse of Battelle, responsible for the MSB Lab; from the Army-PMCD, through Dochnahl and from EG&G personnel, including Safety personnel and managers. <p> Dr. Burton testified on direct someone might say Jones' closing the Lab was to err on caution's side. But Dr. Burton testified he was frustrated because Jones never explained to him why the Army's regulation was being violated, or helped him to resolve the problem, and he believed Jones knew other dilute labs had operated "without this." <p> <p><u><strong>Analyses</u></strong> <p> According to Dr. Burton, prior to 6/22/94 and the Army's "Clarification" issuance he had permission from the Army to operate the dilute MSB Lab outside the Chapter 8 DA- 385-61 Army regulations for neat agent operations. According to Dr. Burton: "We'd worked carefully with our Army client, particularly the Army safety office" who was aware of how MSB operated. "We had worked with the Army and came up with what I felt were reasonable agreements on operating." TR 1715. Jones' question was where was the required writing to this effect. TR 2371-74. <p> Dochnahl's 7/15/94 personal note is at CX 37/575. It indicates that when Dochnahl, at Jones' direction, telephoned Dr. Burton to close down any chemical agent use at the MSB Lab, because not in compliance with DA PAM 385-61 Chapter 8, Dr. Burton would not do so because he said "this" was already hashed out with PMCD a few years ago. <p> Significantly, according to Dochnahl's note, Dr. Burton did not there advise that he did not know what Jones, Dochnahl and EG&G Safety were referring to in the Toxic Chemical Agent Laboratory Safety Standards of DA PAM 385-61 Chapter 8, at RX 49 pages 81-92. Or that Dr. Burton wanted to know what Jones and Safety were referring to, and why they were doing what they were doing. Rather his reference to already having hashed out something, to having hashed out "this" with PMCD, infers more was conveyed to Dr. Burton by Jones/Safety and known by Dr. Burton as to the basis of Jones' concern, than the thrust of Dr. Burton's testimony represents. Further Dr. Burton's statements to Dochnahl of hashing "this" out "a few years ago," would predate Silvestri's reference to the Army's more recent follow-up on corrections on preoperational findings. It infers knowledge of questions Jones raised on more ancient MSB Lab matters. <p>. Dochnahl also noted 7/15/94 Morse told him "he talked with Jones and said he [Jones] was right but that Tim Thomas [head of PMCD] allowed them to work this way but he would comply with Steve [Jones]." When questioned as to this notation Dr. Burton believed and suspected this was a reference to wearing gloves in the MSB Lab under certain conditions; that Jones apparently had seen and was concerned some laboratory workers were not wearing gloves. The question was what Jones had seen in the MSB Lab, according to Burton, who testified there was no gloves' requirement when the vials were sealed. The Lab had that agreement with PMCD. TR 1747-48. Dr. Burton's gloves references here indicate he had more knowledge of Jones' expressed concerns than his frustration statements would indicate. <p><hr title="Horizontal Rule">[Page 22]<p> When then asked why if there were such agreements as to the MSB Lab's operations, e.g., as to no gloves, no charcoal filter, there wasn't a writing to this effect, open and obvious to a new Safety manager or to the IG, Dr. Burton by his responses here, at TR 1748-1750, and in his responses at TR 1735-1736, TR 1763-1764, would indicate he believed his laboratory was operating under a lot of things that were written down and as far as he was concerned were written. But Dr. Burton did not in these references state the MSB Lab had the specific written waiver or exception from the pre 6/22/94 DA PAM 385-61 Chapter 8 requirements for an RDT&E dilute chemical agent laboratory operation. As distinguished from the written Army approval required to conduct a dilute nerve gas laboratory, which is what this witness' references to PMCD "signed off" on are interpreted to mean. In conjunction with his "hashed out a few years ago" statement to Dochnahl and his monitoring branch chief artin orse's agreement Jones was right. <p> However, there is no indication in Jones' testimony or, as reflected within, in the testimony of anyone else including Silvestri and Dr. Burton that, prior to 6/22/94 there was a written Army exemption or waiver issued to the MSB Lab to carry out dilute chemical operations at that facility without adherence to the Chapter 8 DA-PAM-385-61 neat agent laboratory requirements. Jones testified he was, as a result of his questions on reviewing the MSB Lab operations, seeking the written Army approval or waiver documentation for what he saw, including the absence of a charcoal filter on the outside air ventilation devices. Assumably this is the "piece of paper" reference of Silvestri's testimony. Dr. Burton while testifying he had raised the same MSB Lab charcoal filter absence question on his EG&G arrival, and it had been cleared with the Army, did not indicate he or Battelle had a written Army waiver on this question. From Jones' testimony his efforts to locate written Army waiver documentation in the EG&G Safety office and through Battelle were unsuccessful. TR 2371-73. <p> On cross-examination Dr. Burton did not remember if Martin Morse ever expressed to him that Jones may have been somewhat correct in his analysis of the MSB Lab. Dr. Burton did then testify he thought it was very hard to be completely wrong or right on this subject, he's not convinced of either, and he agreed that if he were a safety inspector who chanced on a laboratory where he thought there might be a problem, it was not improper to say shut it down until the inspector satisfied himself everything was all right. But Dr. Burton thought it would be helpful to tell him what the problem was so when he's doing something wrong he understands what it is and can fix it. TR 1742. <p> Dr. Burton's testimony is silent as to any contact by him with Silvestri, or Silvestri with him, over this incident, over the "waiver," the piece of paper of Silvestri's testimony. Information which Silvestri testified he so easily secured. <p> <p><strong><u>Dr. Burton on his Secretary/Safety Department Employees</strong></u> <p> Dr. Burton testified he was more angry about Jones' treatment of his secretary than the MSB Lab shut-down and he talked to both Skip Hayes and Ira Hall <a href="#F13"><sup>13</sup></a> <a name="RF13"></a> about this alleged Jones incident with his secretary and what he thought was Jones' unacceptable behavior. Dr. Burton's testimony does not reflect he ever talked to Jones, Hanny, James Smith or Silvestri about this incident. The record does not indicate Hayes or Hall ever did so. Nor it is reflected as a basis for Jones' counseling and termination. <p> <p><hr title="Horizontal Rule">[Page 23]<p> Dr. Burton testified prior to the MSB incident his "first real sensitization" to Jones was through what Dr. Burton's secretary related to him. He had met Jones at a few meetings but was not sure they discussed anything. His secretary advised him Jones had been down to visit the laboratory and Jones refused to sign the logbook and an information sheet reflecting the Laboratory's dangers, part of Battelle's lab entry procedures. <a href="#F14"><sup>14</sup></a> <a name="RF14"></a> His secretary told Jones he could not enter the lab without signing and Jones refused to sign "these blanks". Dr. Burton related what his secretary reported Jones had then done, which Dr. Burton testified made him unhappy because he thought it was very unprofessional of a safety manager. According to his secretary, Jones after refusing to sign, "apparently" walked around the area a while, came back and "ordered her" to give him the document which he signed without reading. TR 1702-04. However see Dr. Burton's cross-examination responses on this alleged incident, at TR 1761-63. <p> Like Reihman and Dr. Hutchins, Dr. Burton offered testimony as to his impression on the atmosphere in the Safety Department after Jones' arrival. Dr. Burton testified he founded his impressions on his "good working relationships with a number" of Safety Department employees. But these employees were not named by Dr. Burton and specific details as to any such employee were not given by this witness. Dr. Burton did not testify to any factual basis for his opinions as expressed at TR 1718-19, including as to the factual basis for the "turmoil ... and upsets". By these statements, Dr. Burton had a joking relationship, "as to who Steve [Jones] had fired today," with these unknown Safety Department employees and inferentially he had been given information as to "Steve... walked in and it seemed almost immediately he was threatening to fire people." <p> Since Dr. Burton indicated his Safety Department relationships were with Hampton and Reardon, it is inferred this is the information he was being given by these two Safety Department employees, including that Safety Department employees were looking for jobs. Dr. Burton's testimony was thus based on information he was being supplied, with no personal knowledge of the facts as to what had and was occurring in the Safety Department since Jones' arrival and Hampton's replacement; with no knowledge of one-on-one statements Safety Department employees had, by Jones' testimony, made to him on his arrival, or their conduct. The fact Dr. Burton with his background would unhesitatingly testify to the opinions he expressed on the generalized and second-hand basis he expressed, and without seeking knowledge of the other side of the story, gave pause when heard and on full consideration of the entire record does not serve to enhance the probative value of his presentation. <p> <p><u><strong>Hayes' on 10/4/94 DSHW Inquiry on MSB</u></strong> <p> Complainant elicited testimony from Hayes as to an unsigned 12/5/94 letter, CX 112, specifically its paragraph 7.directed to TAD and PMCD Toole by the Utah EPA counterpart (DSHW). This paragraph indicated EPA Region 8 had raised a concern with its state counterpart as to the ACAMS venting into rooms that will be toxic when operations begin, but currently had workers in them. It stated the state EPA component wanted to discuss the possibility of venting the ACAMS through a carbon filter during the systemization phase. It was noted the MSB Lab had no carbon filter on its fume hood, but the CAL Lab had carbon filters on its hoods. Hayes testified he was aware this issue was so raised and closed. TR 2302-04. He also sensed, in response to EG&G's questions on the unsigned 12/5/94 letter that it was probably a "bootleg copy" of a planned DSHW letter. He testified "bootleg copies" to EG&G were, and are DSHW's practice and since he never received the signed follow up copy this meant to him the questions raised were resolved to EPA's satisfaction with no regulatory insult on any one of them. He explained the ACAMS were vented to hot areas, the ACAMS that could not be vented to hot areas were <p><hr title="Horizontal Rule">[Page 24]<p> designated as high level ACAMS and therefore perfectly satisfactory where they were, and there was absolutely no need for a carbon filter on a fume hood in the MSB. TR 2320. <p> This unsigned letter reflects it was a warning on activities observed during an inspection conducted by DSHW staff 10/6/94 in response to a complaint by a former EG&G employee. Assumably this was Jones. Whatever the ultimate response to paragraph 7 of this "bootleg" letter, its contents indicate the state DSHW and EPA inspectors, on an inspection visit, raised charcoal filter questions as to the MSB's ACAMS's operations not unlike those Jones testified he raised on his initial visit to the MSB Lab where he saw workers without gloves and observed other attested activities. As described within EG&G contests Jones' testimony as to what questions he raised in connection with his SB Lab shut-down. <p> Hayes testified his philosophy as an environmental manager inspector is one should act conservatively to protect employees and the environment. If he observed a situation where he thought harm might come to an employee it would be his philosophy to stop the operation and to figure out what was to be done afterward. TR 2292. <p> <p><strong><u>Hydrogen Cylinder Incident of 7/13/94</u></strong> <p> <u><strong> Jones on Incident</strong></u> <p> Jones testified the leaking hydrogen cylinder was outside the MSB Lab; these outside cylinders, by way of pipes and tubes, fed the ACAMS. One of his Safety persons was concerned about a static spark setting off the hydrogen escaping from the cylinder. Jones testified he had one of his individuals call the fire department to respond to a right-now hydrogen gas leak hazard and they also called the EG&G control room to start getting people away from the area, so that when the TAD fire department arrived this people-evacuation operation had already started. TR 169-71. TOCDF EG&G did not have any fire fighting apparatus to fight a hydrogen fire. According to Jones, a hydrogen leak is serious business and if there was a spark in the hot summer weather, or with someone trying to fix the leak, an explosion could blow out the SB Lab building where monitoring operations with dilute agent were being conducted. <p> Mr. Silvestri considered Complainant's actions with respect to the leaking hydrogen cylinder improper, a very abrupt overreaction to the situation. While he did not recall whether PMCD was upset about this incident there was some concern by a lot of people including the PMCD that the Fire Department responded in the way they did, with sirens and flashing lights. Silvestri attested he "later found out" this response was because Jones told one of his Safety department people to call the Toole Army Depot Fire Department and tell the chief to respond "hot," "hot" meaning with sirens. TR 1097-98. Silvestri testified the proper procedure was to call EG&G's control room and the control room determines the nature of the assistance to request, either within or outside EG&G. Silvestri assumed the Fire Department, if called by the control room, would assess whether to respond "hot," and while Silvestri indicated there could be an emergency situation where it would take too much time to call the control room, this was not one of those. <p> However in relating his knowledge of the factual circumstances surrounding this leak's handling, Silvestri stated this information was not personally known to him and he could not recall <p><hr title="Horizontal Rule">[Page 25]<p> who gave him the information as to what Jones personally did or said at the time. TR 1135-39. Or any of the details as related to Silvestri by this unknown Safety department informant, except that Jones told the fire department to respond "hot." Silvestri could not remember whether he talked to Jones about this incident, or the actions he believed Jones took in connection with it although it contributed to his counseling/termination decisions. <p> Helser was the Safety Department employee Jones told to call the fire department and Helser testified Jones twice instructed him to tell the fire department to respond in a "hot" mode or response, which Helser understood to be with sirens wailing and lights flashing. Helser testified it was not proper to tell the fire department how to respond and do their business. TR 1841-42. Guello's testimony reflected only that Jones told Helser to call the fire department. <p> Helser in cross-examination on this event indicated that although he was twice told by Jones to tell the fire department to respond "hot," he disregarded this instruction and he did not tell the Fire department to respond "hot" because he felt Jones' direction was made to dramatize this event and was improper. Helser testified he explained the situation to the fire department and they made the judgment which, according to Helser, was not to respond "hot". Sirens were not on, blinking lights were not on. TR 1891-94. <p> Silvestri testified that because Jones had told the fire department to respond "hot", had told his Safety people to call the fire department directly, and Jones did not limit advice as to this hydrogen leak to the EG&G control room alone which Silvestri testified was the proper EG&G procedure to follow, this contributed to his six weeks later counseling decision. See redirect at TR 800-02. <p> Guello testified that when Jones asked Helser to call the fire department Jones was upset Helser did not have his safety shoes on. And Jones was upset Helser called the control room and asked them to call the fire department, which according to Guello is EG&G's policy and was what new employees were told to do in their initial training. <p> But, according to Helser's 7/13/94 note, when Helser interrupted Jones and Sam (Guello) in a meeting to tell Jones of the leak Sam Guello, who said hydrogen is a very dangerous explosive, also said the fire department should be called. CX 106; TR 1892. Guello's testimony as to his initial knowledge and involvement in the hydrogen leak incident differs from Helser's recordings. <p> Thus a different story is told in the notes Helser testified he kept on this incident. Helser recorded that both Jones and Guello told him to call the fire department, disregarding the EG&G policy known to Guello by his testimony. Helser recorded Jones told him to call both the fire department and the control room and Jones was upset because Helser first called neither but called the MSB supervisor who reported the leak to tell him to call the control room and Helser would call the fire department. So by Helser's representations, and despite Guello's testimony he would not have called the fire department, neither he, Jones nor Guello followed the EG&G procedures Silvestri attested played a part in the adverse personnel actions taken against Jones. The record indicates the leak was serious enough in its ramifications <p><hr title="Horizontal Rule">[Page 26]<p> that a HAZMAT <a href="#F15"><sup>15</sup></a> <a name="RF15"></a> team arrived on the scene in response. <p> Jones testified at the time of the incident Silvestri was very angry he had made the independent decision to call the fire department and said PMCD was angry EG&G allowed TAD personnel, the Toole Army Depot fire department, onto the TOCDF site. According to Jones, Silvestri was angry the SB Lab operations were stopped and that the Safety department did not fix the leak themselves. Silvestri told him he should have done what EG&G personnel did in the past, just taken the cylinder out to a field. Jones testified this was a violation of ANSI standards for handling such a problem. CX 40 is Jones' investigative report to Silvestri on this incident required under TOCDF's site system safety plan and it dates the incident to 7/13/94, also in Jones' third week on his EG&G Safety manager job, just before the MSB Lab shutdown memo. This report highlights the absence of an updated Emergency Response Plan at TOCDF. <p> <p><strong><u>Lockout/Tagout Program</u> - <u>MHE and Lifting Devices</u></strong> <p> Jones testified as to the implications of the danger tag procedures, also known as lock out/tag out procedures, at a chemical weapons incinerator during sytemization and operations. By his explanations at TR 183-85 he indicated the dangerous effects failure to properly follow such procedures, and to properly record and update such activities can have on the testing operations at this incinerator as well as on the actual agent operation. TR 184-88; 217:2-13. Jones described the serious shortfall in these procedures that he found at TOCDF. Lockout/Tagout Program is a deficiency noted on his 8/2/94 Internal Audit. RX 36. <p> Jones testified when valves, switches, pipes, plant processing equipment are tagged out and turned off so workers, electricians and welders, can work on them for a period of time and the control room's monitor panels and records do not correctly list and follow these procedures, and update as to locked on or off, in testing or in operations, nerve agent can be released. It is absolutely critical that when these operators turn on this valve and that switch, the indicator which says it is on or off is a correct reflection of that fact. It is essential proper procedures for this lock out/tag out operation be established, and that what actually occurs in the maintenance and production processes at this chemical weapons incinerator be properly recorded, followed up and kept current through documentation and record keeping. This is so, by inference, whether in the testing phase with stimulants and surrogates; or in the operations phase with agent. Failures here can, and at Johnston Island did, result in the release of live agent out of the stack. Or the release of other flammable substances. He testified substances or chemicals, handled and processed through the BRA and the pollution abatement systems will go down lines, valves, and machinery recorded as closed but actually open. <p> Thus, from Jones' testimony it is a reasonable inference maintenance and construction procedures involved in setting up this chemical weapons incinerator, by these danger tag procedures, impact on toxic and hazardous substances handled and to be handled at this facility. They impact on the chemicals and substances processed and to be processed there, for the operations of which the testing systemization phase was set up, subject to its RCRA permit, a RCRA permit which covers from any vertical construction upwards. <p> <p><hr title="Horizontal Rule">[Page 27]<p> Jones testified his and Dimond's work on the training necessary with the production workers on the danger tag procedures did cause additional manpower time, including with Safety department audits. He could not recall any feedback or reaction by EG&G managers to his activities in this area, but this was one of the EG&G deficiencies he advised Silvestri of on his 8/2/94 Internal Audit report. TR 188. <p> Jones testified if the rockets being processed through the TOCDF chemical weapons incinerator drop because the slings (or mechanical lifts) used in this operation are defective, the potential explosion, and a series of triggered explosions, could be catastrophic within the impact area, and could lead to an event that would break the walls and put agent outside of the containment. <p> Jones testified slings are used in the unpack area to lift the agent-containing munitions, the ONCs. He testified his 8/2/94 Internal Audit identified defective slings, not tagged out of service, as deficiencies. According to Jones his internal audit found that the lifting device inspection program at EG&G TOCDF was non-existent. He spent a lot of time with Dimond trying to correct these deficiencies. According to Jones this was a critical component in the Safety department, it was something the IG would not miss in their inspection because the Army is very concerned about these unstable chemical weapon munitions dropping in the processing to incineration. Jones found EG&G TOCDF was not complying with the Army's excellent program to ensure the lifting devices were inspected. "MHE and Lifting Devices" is listed as a deficiency in his 8/2/94 Internal Audit. CX 48/256. <p> Jones had no personal knowledge of any of the facts existing at EG&G after his 9/14/94 termination which resulted in the Army pre-operational reports and OREs, operational readiness evaluations, which he testified reflected findings similar to his 8/2/94 Internal Audit reports, the OREs admitted over EG&G's objections. Cxs 64, 70-73; TR 293-96, 302-04. CX 71 like CX 74 reflect pre-termination findings. Post hearing, as a basis for finding his representations here lack reliability and credibility, EG&G also urges failure to first exhaust Jones' memory and knowledge of the contents of his alleged 8/2/94 Internal Audit. However Jones' Executive Summary listing, its Work Division listing, with his explanation of the mechanics of the incinerator's process, in systemization and operations, to move the weapons in ONCs to destruction gives an indicia of reliability and credibility to his further explanations of the general outline and content of the deficiencies of his 8/2/94 Internal Audit. EG&G's arguments these were clearly industrial safety OSHA Army concerns is considered below. It is noted the unpack area forklift 10/95 ORE finding is on a "TSCA ORE" Worksheet Log, as is the lack of Safety department support. <a href="#F16"><sup>16</sup></a> <a name="RF16"></a> <p> <p><u><strong>Brine Reduction Area (BRA) Incident</strong></u> <p> <u><strong> Jones Version</strong></u> <p> Jones explained the BRA's operation is to take hazardous waste liquids from the chemical weapons destruction process, mostly from the pollution abatement system, through a series of huge dryers so as to reduce the waste liquids to a salt, which will then be packaged out as a hazardous waste. The simulant brine used at the time of the BRA incident resulted in sodium fluoride, which, depending on concentration, can be very hazardous and toxic. This is the incident which, according to Silvestri, also played a part in his decision Jones was near termination and should be counseled. Something went wrong in the BRA operation that day, 7/19/94, just before the MSB Lab shut-down memo. The BRA incident <p><hr title="Horizontal Rule">[Page 28]<p> occurred during Jones' fourth week of EG&G employment and just after Jones' meeting with Silvestri and Hanny on his personnel problems with Reardon and Helser. <p> . According to Jones, the brine had plugged up an auger or shaker at the bottom of the dryer and "all the sodium fluoride dust, a lot of it had blown out the top of this dryer into this large building." TR 194. Jones testified he received a call, he thought from the control room, stating there were people in the BRA covered with sodium fluoride and he needed to get out there. <p> Jones and Guello went to the BRA and Jones said he saw what he had been told: dust everywhere, white powder, maybe 10-12 workers working without any protective gear, covered with dust. Jones talked to them, some had red rashes, some had watery eyes from the dust Jones had seen. Jones found the supervisor of the BRA operation and asked to see his SOP (Standard Operating Procedure) for the operation and the MSDS (Material Safety Data Sheet), for sodium fluoride, at CX 43. <a href="#F17"><sup>17</sup></a> <a name="RF17"></a> The supervisor had neither at this operation, according to Jones. Jones testified he then started to find out what they were doing in that BRA operation to determine if they had a problem. One of Hayes' workers who arrived on the scene took off to get the MSDS for sodium fluoride and in the absence of the MSDS at the site and unsure whether Hayes' people would be able to come up with the MSDS, Jones testified he called Chemtrex, an emergency number for poison information, for information on the health aspects on sodium fluoride. TR 196: 13-22. As a result Jones knew this was not an immediate life-threatening situation and while in concentration sodium fluoride is quickly lethal, the reaction to it is immediate, not delayed, with no long-term effects. <p> Jones further testified the BRA workers' PPE <a href="#F18"><sup>18</sup></a> <a name="RF18"></a>, their level of dress, was not consistent with the 7/7/94 letter Jones had sent out on this and there was an upset condition in the BRA. Dr. Hutchins was there, and Silvestri showed up. TR 196:16-22. Jones testified he got with Silvestri and said the prudent thing was to get the exposed workers out of the BRA, get them showered and sent over to the clinic for their eyes and skin rashes. Silvestri protested at first, according to Jones, because he wanted to finish the BRA operations with these workers, but when the BRA supervisor said they could get another shift of workers in fairly quick in a higher level of dress, could do what Jones wanted for the workers' health, they all agreed, including Hutchins, Guello, another medic, and several other supervisors. <p> Jones also testified he was concerned about the spread of the sodium fluoride during the clean up process at the 7/19/94 BRA incident, with some of the dust going outside, through the bigger doors. He was concerned the sodium fluoride dust would get out of the building. TR 826-27, 851-52. <p> The record establishes the Safety department (Dochnahl) had given confusing advice to operating personnel without exact knowledge of the concentration of sodium fluoride and that until 8/4/94, and receipt of monitoring data and air samples results, the question raised by this BRA operations' exposure incident was such the workers were to wear full-face respirators with HEPA filters. Cxs 41-42, 44, 46-47. <p> Jones' 7/25/94 incident report was served on Silvestri and Hanny and Jones testified he received no feedback from either on this memo. CX 44. While Silvestri attested the 7/19/94 BRA incident played a part in his near termination/need for counseling evaluation of Jones' job performance, conveyed to James Smith 8/22/94, Jones was not advised at Smith's 8/24/94 counseling as to any EG&G <p><hr title="Horizontal Rule">[Page 29]<p> concerns on this BRA incident. Jones' 7/25/94 incident report noted the causes of the BRA incident, with an upset condition recorded by Jones, as he testified. He wrote there was conflicting and unclear Safety Branch guidance on the PPE to be worn, and failure by the on-scene Safety Department representative and BRA supervisor to recognize the dust generated during this operation exceeded expectations thus mandating PPE upgrade. As EG&G points out, it does not reflect dust went out the doors. <p> <p><strong><u>Silvestri on the BRA Incident</u></strong> <p> Silvestri testified he was asked by Bill Nenimen<a href="#F19"><sup>19</sup></a> <a name="RF19"></a> to come to the Brine Reduction Area to help resolve a problem because Nenimen believed, basis unstated, that Jones was about to close the BRA down for what Jones thought was a sodium fluoride problem. On his arrival a meeting of Jones, Dr. Hutchins, Sam Guello, Steve Leiss, the engineer in charge, was taking place and Silvestri found out, from whom not stated, that Jones wanted to close the BRA and stop the testing of the large capacity dryers on the basis the workers were exposed to a lot of sodium fluoride. There was sodium fluoride there but Silvestri said he thought the problem was the heat and the workers' protective clothing. TR 1092-95. Silvestri attested he, Dr. Hutchins, Jones and Guello agreed the workers should rotate out of the facility, shower, change clothes, get checked out in the clinic, put on additional protective equipment, come back in and finish their shift (they were then 6 hours into an 8 hour shift), and air samples should be taken and tested. Silvestri could not remember if Jones said he had to call the Poison Control Center to find out about sodium fluoride. <p> Silvestri attested he might have talked to Jones afterwards about his handling of the BRA incident. However prior to Jones' 9/14/94 termination Silvestri was unaware of any alleged concern expressed by Jones to the clinic's physician assistant as to the hospitalization of the exposed BRA employees, or of the details reflected in the post-termination report of the physician assistant at RX 53. Thus any such information on this represented occurrence, unknown to both Silvestri and to Smith, the fill-in Director of Administrative Services who conducted the 8/23/94 counseling and 9/14/94 termination interviews, could play and played no part in the represented basis for Jones counseling/termination. <p> Silvestri attested he thought Jones handled the BRA incident "in a bit of an abrupt manner with a lack of complete information;" he overreacted. However Mr. Silvestri agreed he did not personally understand the possible risks of the incident at that time but he attested he was satisfied with the counsel he received from other people who did understand. Inferentially Dr. Hutchins and Guello. But Silvestri agreed that by his deposition testimony he earlier indicated he understood the BRA sodium fluoride exposure to be diluted to the level of that in a salt shaker. However as indicated above until the later air sample test results were secured, and at the time of the BRA incident, the deciders did not know the levels of the sodium fluoride being dispersed, and until this was determined the BRA workers had to wear full face respirators with HEPA filters, rubber gloves and tyvek suits. CX 45. <p> <p><strong><u>Dr. Hutchins on the BRA Incident</strong></u> <p> Dr. Hutchins is EG&G's medical director. In 6/1994 he reported to Joe Hanny the Division Manager of Administrative Services. Prior to his 12/92 EG&G TOCDF employment he was the director of health services for TAD, the Toole Army Depot. At EG&G he is responsible for the appropriate <p><hr title="Horizontal Rule">[Page 30]<p> medical response to emergency medical problems, for its clinic, for occupational medical services, and medical surveillance of the TOCDF work force. <p> Dr. Hutchins' first contact with Jones was on the Hanta virus problem. There was an epidemic of deer mice at the time, virus carriers; and mice infestation at the site could put plant workers at risk. The Safety Department was going to take the lead in managing a group of people to go around the plant to clear out mouse droppings. Dr. Hutchins testified he was surprised and thought it inappropriate the two page information paper on protection from, and eradication of the virus problem, which he brought and explained to Jones should be given out immediately, did not go to the work force for a couple of weeks. Dr. Hutchins did not testify when this conversation with Jones occurred except to say this issue arose fairly soon after Jones' arrival. He did not explain why this paper's release from him was indirect through Jones/Safety; or what Jones/Safety had to do as to its release, albeit he earlier said the connection between the medical department and Safety was close. See also his cross-examination testimony at TR 1987-89. This inappropriate time frame is not set forth by Silvestri, James Smith or in the counseling memo as a basis for the adverse personnel actions taken again Jones. TR 1938-40. <p> Dr. Hutchins decided to go to the BRA and "find out exactly what the process was about" when someone in his office mentioned to him that the brine reduction trial was in process, it was hot there, it would be a long process and the workers might be getting fatigued. TR 1941, 1942. It was to be an 18 hour process using the same personnel, he testified. According to Hutchins he was concerned first about the fatigue - the heat stress factor, and then, the possible risk of exposure to sodium fluoride. He knew if sodium fluoride was not handled properly in the way people worked around it, it could be a health risk, and it can cause both delayed and acute problems. Dr. Hutchins' testimony also indicated that pulmonary edema from sodium fluoride exposure is not initially seen (1-3 hours), but probably after 6 hours. TR 1959,1978, 2006-07. <p> Dr. Hutchins testified that when he arrived at the BRA Guello, Dochnahl, the government engineer, Reed, and Steve Liess, the lead for the BRA workers, were there. Jones was not. He talked to Liess and some of the workers to see how they were feeling; to get information as to fatigue, fluid hydration, the work period, and he talked to Liess "about what they were doing as far as protection to airborne residue, things of that nature" TR 1943. He, Guello and Dochnahl talked about all these various items. <p> Dr. Hutchins testified he was very impressed that the air was very clean. He was struck by the "very clean personal breathing zone area," and he couldn't see any suspended particles, although Silvestri testified he saw sodium fluoride there on his arrival. However, Dr. Hutchins did see a small quantity of sodium fluoride on Liess and, as he recalled, one other worker; on eyebrows and "maybe the edge of the ear," but didn't see anyone covered with sodium fluoride dust. He "basically talked to virtually all" the workers and none had symptoms "except maybe a little bit tired and maybe in a couple of cases, peoples' faces might have been flushed." TR 1944. He thought it was the warmth and maybe they needed a little extra rest. <p> According to Dr. Hutchins there is a big door between the residue handling area and the BRA; he couldn't recall if it was open or closed but he didn't recall that the outside doors were open. TR 1945. <a href="#F20"><sup>20</sup></a> <a name="RF20"></a> <p> <hr title="Horizontal Rule">[Page 31]<p> Dr. Hutchins testified Jones came to the BRA three to four minutes after he arrived, began to talk to Guello and the small group discussing the process. He testified that while he was present Jones did not telephone a poison control center or Chemtrex to find out about sodium fluoride. "If that happened it was after my knowledge," and he couldn't recall if Jones raised a question with him about wanting to make such a call. While Dr. Hutchins testified he did not recall a lot of Jones' conversation, or Jones' discussion, he nevertheless did remember "he stepped away kind of to my left and walked away a little bit and said shut it down, it has to be shut down." TR 1946. To whom this was said is not indicated in Dr. Hutchins' testimony. (This Jones' "shut it down" version does not appear to fit in with the timing of Silvestri's attested advice from Nenimen.) <p> Silvestri came in, according to Dr. Hutchins, shortly after Jones and was listening toward the end of the conversation, making observations, asking questions. According to Dr. Hutchins when Jones made the shut down statement Silvestri said "let's think this through and decide whether this is absolutely necessary..." <p> According to Dr. Hutchins it was he, the industrial hygienist, (Guello/Dochnahl) Liess and Reed, who concurred with Silvestri's conclusion the process could be completed safely if the workers were allowed to rest, rehydrate, showered to wash out any residue on their skin, went to the clinic for a formal medical evaluation and then, dressed with higher protection including full face respirators, they could return to complete the trial run. Dr. Hutchins portrayed Jones' involvement in this discussion and decision as more or less just going along with the others' decision, after Silvestri had the others think the situation through and Silvestri concluded this should be done. Dr. Hutchins could not recall Jones in his hearing making any kind of statement as to whether he did nor did not concur. TR 1946-48. <p> Dr. Hutchins was certain, based on his stated observations and talks with the workers he said he talked to, that there would not be any kind of acute or chronic sequelae to this whole event. <a href="#F21"><sup>21</sup></a> <a name="RF21"></a> It was then near the end of Dr. Hutchins' shift. He felt he "had a handle on what was going on in the process," so he explained the situation to the physician assistant (PA) on 24 hours duty in the medical clinic, that the exposed workers would be coming to the PA for formal confirmation of Dr. Hutchins' impressions, with a medical chart official entry by the PA. Dr. Hutchins then left TOCDF but was available to his PA by telephone for discussion. TR 1948-49. Dr. Hutchins also testified he did not know what his individual PA's awareness, training and knowledge on sodium fluoride was in 1994 TR 1978; nor did he indicate this PA's individual background and experience although he testified generally as to the PA program. <p> While Dr. Hutchins', Jones' and Guello's testimony differs somewhat as to when Jones, Silvestri and Dr. Hutchins arrived at the BRA and how long Silvestri stayed, Guello testified Silvestri was present when these individuals and the working crew discussed the sodium fluoride/PPE concerns. Guello did not indicate Jones wanted to stop the testing on the basis of sodium fluoride exposure, but he questioned the adequacy of their PPE; Guello could not recall Jones raised a concern the BRA doors were open. When asked if the poison control center had to be called about sodium fluoride Guello could not recall Jones making that type of call because "we had all the information there," although whether in this response he was referring to information the participants believed they personally knew, or the MSDS of Jones' testimony, is unclear. TR 1251-55. <p> Dr. Hutchins' cross-examination indicated he made decisions based on his general knowledge as to sodium fluoride and its effects, his talking to the workers and what he testified he saw in <p><hr title="Horizontal Rule">[Page 32]<p> the BRA on his arrival and while there, without air quality testing at that time, and based on his belief as to the exposure which had occurred. TR 1960-64, 1975-76. Dr. Hutchins' cross-examination responses as to the medical basis for his judgment made while at the BRA, based on the stated symptoms and without a physical examination of the workers, reflect his belief that with this information only, and the workers' presence in a hot environment, a diagnosis could probably be made. Beginning at TR 1989. <p> But it would appear from the statements Dr. Hutchins agreed he did make, assumably in a prior taped interview, about the need for care in protecting the exposed workers especially until they knew what the actual percentage of sodium was in the compound used or resulting from the BRA process that day, there was in fact some question as to the extent of sodium fluoride exposure in the BRA process. TR 1997:21-25, TR 1998; 1999. His testimony "they had a little dust mask around their neck," but he did not see a face mask actually in place; and that day's conclusion until they knew more about the percentage the level of respiratory and skin protection was to be increased, would fit in with Jones' testimony as to the factual basis for his concerns on what he saw in the BRA that day. At the least Dr. Hutchins' testimony indicates such a level of dust, of unknown sodium fluoride content, the workers required masks with visual evidence on their faces of sodium fluoride residue, and not the very clean breathing area of his conclusions. <p> It would also appear from Dr. Hutchins' testimony on and references to when he saw the MSDS on sodium fluoride, that Jones' testimony on the unavailability of the MSDS at the BRA where the process was taking place, and the need to secure its information elsewhere is more in accord with what actually occurred. TR 1998-99, TR 2003-06. Dr. Hutchins' manner of responding to the questions on cross-examination on the MSDS document on sodium fluoride would indicate he reviewed it the day after the BRA incident, and was aware of the MSDS prior to the day of the BRA event, but he could not give an exact date as to when he was aware of the MSDS. Inferentially, the MSDS was not present in the BRA on the day of the test. <p> Dr. Hutchins testified his PA later called him to confirm he had not discovered any problems. However, they then agreed they needed to bring the workers back the next day, to look at them. Why, Dr. Hutchins did not indicate. But no worker problems were discovered then or subsequently. Dr. Hutchins also testified his PA related "I guess a disagreement if you will" with Jones who came to the clinic after Dr. Hutchins had left and then statedly wanted the workers admitted to the hospital for observation. TR 1949-51. <p> Dr. Hutchins testified he told his PA (Gardner), when he related the disagreement with Jones, either the evening of, or the day following the BRA exposure incident, to document the disagreement in a memo. TR 1950-53. However RX 58, the memo is dated more than two months later; 10/5/94, following Jones' termination. Silvestri and Smith had no knowledge of this exchange at the time of counseling/termination and as reflected above it is not indicated as a basis for same. <p> From Dr. Hutchins' explanation for the several months delay in recording the "occurrence form," which he attested was required in medicine, it is inferred there was no contemporaneous or near contemporaneous medical record or written memorialization, by the clinic, by the PA or by Dr. Hutchins of Jones' alleged statement. Dr. Hutchins testified RX 58 was in fact generated at <p><hr title="Horizontal Rule">[Page 33]<p> Silvestri's request, when it was known Jones was protesting his termination, "to be sure he [Silvestri] understood the issues." Both RX 58 and Guello's post-termination advice to EG&G as to his perception of these stated clinic events are characterizations and representations generated for litigation. RX 58, like a significant measure of what was attested by the various witnesses, reflects post-termination statements unknown to the deciding officials when they counseled and terminated, the actions which are the basis of Jones' whistleblower retaliation complaint. See also Dr. Hutchins' post-termination medical records review, at EG&G upper management's request, RX 64, 65 TR 1955. <p> <p><strong><u>Dr. Hutchins on Safety Department Management</strong></u> <p> Dr. Hutchins also alluded in poorly founded generalized opinions on direct, as to some fallout on general plant employees from Jones' way of managing his group. TR 1956-58. Testimony was elicited from Dr. Hutchins on direct that he gathered from various comments, comments and statements not specifically reflected in his testimony, from unnamed Safety Department employees, also not identified; that people were intimidated and were trying to get out of the "very tight fisted," "condescending" and, he felt, "quite stringent way to carry out management." He also so opined based on the occasional morning meetings he stated he would observe, although he also stated they occurred every morning. Since he did not attend these meetings, the basis of this latter statement is not reflected in his testimony. Nor does Dr. Hutchins attest to any specific personal knowledge or specific facts known to him personally as the basis for these opinions. Inferentially the same unnamed Safety Department employees were relating this unfounded, second-hand, information on Jones to Dr. Hutchins, which this physician represented as the basis for his testimonial second-hand judgments. <p> As elicited, Dr. Hutchins' opinions at this point served to erode the persuasive value of these statements. Moreover, this physician's willingness to make generalized, poorly founded statements, to offer such opinions without specifics; and with no personal knowledge of what had and was occurring in the Safety Department with and since Jones' arrival, and with no indication of his own management training and experience does not enhance the probative value of either these opinions, or what he testified occurred at the BRA and what in fact Jones said. Guello's testimony does not indicate Jones said shut down the BRA and Jones testified contrary to Dr. Hutchins and Silvestri. <p> Dr. Hutchins' description of the only specific event on which he based his judgment Jones was abrasive to people in his department, is at TR 2002-03. It was stated to be based on "my perception" Jones was irritated where, by the limited facts related Dr. Hutchins "motioned to" an employee to come out of the Safety Department meeting, with no preliminary explanation or advice to Jones who apparently was conducting the meeting indicated. Jones then said a meeting was being conducted and the employee could not leave. <p> Dr. Hutchins testified it was common knowledge, from whom or how acquired by him unstated, that at the time Jones was hired EG&G was looking for someone who had a fairly strong background in the chemical munitions safety process. Dr. Hutchins testified that after Jones left Skip Hayes filled in as Safety Manager on an interim basis until EG&G could find such a person, Guello. Dr. Hutchins' opinion was that Guello did not need to have specific experience in the chemical munitions safety process: Reardon & Helser had extensive experience. Essentially Dr. Hutchins was expressing the opinion a Safety Department manager who has worked in the Safety Department and who has individuals with experience in <p><hr title="Horizontal Rule">[Page 34]<p> the chemical munitions safety process did not have to have specific experience in the field. This is contrary to the impression the EG&G managers, expressed in this litigation as to the basis for Hampton's replacement. Hampton was, at the time he ostensibly voluntarily stepped down as EG&G's Safety Manager, in similar position to Guello. <p> <p><strong><u>Internal Audit</u></strong> <p> Jones testified to his usual methodology as a new safety manager, how he analyzed and effectuated what needed to be done in a new position, and he described his internal audit phase. TR 91-92. His TOCDF 8/2/94 Internal Audit was the result of his evaluation of TOCDF, a process he began within a week of his arrival and which he finished up the end of 7/94, early 8/94. His procedure and method was to research applicable regulations, to walk around inspecting to see if there was compliance, to list deficiencies, to figure out the full scope of what he had to do as Safety manager and at EG&G to prepare for the impending IG inspection. <p> Jones testified he went to 40 C.F.R., the RCRA regulations, and to 29 C.F.R., the OSHA regulations to seek the federal regulations applicable to his job and responsibilities; to the Army regulations, including those applicable to PMCD; he went through TOCDF contractual documents, the DIDs, the CDRLs, PRPs, SOPs (see TR 217-18 for the importance of SOPs to the operation of a chemical weapons incinerator). This was an exhaustive documents' review by him to try to figure out the Safety department's status at the time. The whole staff was involved in getting these documents to him and Jones used the broad area checklist he had developed at the IG to conduct his internal audit, which included RCRA type things, including emergency preparedness, EP. Jones' idea in the process was to be in a position when the IG inspected in mid 8/94 to say EG&G TOCDF recognized the shortfalls the IG would find on their inspection, but EG&G TOCDF was in the process of getting the deficiencies fixed. To show EG&G had a plan for the fixes. <p> Jones testified that in his walk-around to every building at TOCDF he looked for the shortfalls the IG inspectors would note in their mid 8/94 inspection; he looked at as-built blueprints, he looked for hazard analyses, for lockout/ tagout procedures and operations. He saw how the workers were working the equipment he inspected, and he looked at the inspection follow-up. <p> Jones testified that when he arrived at EG&G's TOCDF facility Silvestri and Hanny told him that except for the completion of the state permitting process, TOCDF was ready to go. The TOCDF incinerator facility had been built, the employees hired, the procedures written, and he was told to go into TOCDF as if it were ready to go. Jones testified hazard analyses are a mandatory part of an operational chemical agent weapons incinerator, impacting environmental as well as industrial hygiene issues. These "what if" analyses considered repercussions of a chemical agent exposure getting into the workplace; or worse, outside the plant. This included by mechanical malfunctions, including if a crane operation went wrong during destruction preparation and process; if a valve is misfed, if a waste stream line was misfed or burst; or if the pollution abatement system malfunctioned, the machinery malfunctioned. <p> Jones testified he put all his deficiency findings in a fairly lengthy internal audit document, reflecting programmatic as well as plant problems, including the lack of inspections, no <p><hr title="Horizontal Rule">[Page 35]<p> emergency preparedness plan, no MCE document, with improper or lacking hazard analyses a big issue. TR 220-21. Hazard Analyses and Hazardous Material Communication are listed deficiencies on his Executive Summary as are the Monitoring Program, Inspection Program, Safety Training and the Abatement Plan. About 2000 specific problems, as Jones recalled, were reflected, some minor. Andrews, his secretary, put it on a word processor he testified and he reviewed it, "chopped" it several times. He estimated that with attachments this document was probably 150-200 pages, first the Executive Summary and then the 15 categories or subsections broken down, followed by a deficiencies list. Jones' 8/2/94 Internal Audit Executive Summary advised Silvestri that using his DAIG Inspector checklist, on Army inspection TOCDF would probably be rated in 15 enumerated elements as failing deficiencies. <p> Jones could not recall if he, or Andrews delivered it to Silvestri, but Hanny also would have gotten a copy. CX 48/256-57 <a href="#F22"><sup>22</sup></a> <a name="RF22"> is the Executive Summary cover sheets of Jones' Internal Audit and according to Jones all the categories of deficiencies he listed there were significant. Jones testified that by his CX 48 EG&G lacked a CAIRA, a chemical agent response plan, an emergency preparedness plan for chemical operations. It was non-existent for chemical operations. They lacked one for dilute operations; they did not have one for the laboratory where they had more concentrated agent. <p> Jones attached to CX 48/256-57 his plan of action to correct the shortfalls and deficiencies of his Internal Audit, with milestones and set time frames for corrections. Testimony indicated the Safety staff were assigned work under Jones' action plan with very specific, mandatory and short time frame dates for a variety of actions they were to take. TR 210-25. <p> Guello's testimony indicated he and other Safety staff received and worked on assignments from Jones preparatory to the Internal Audit Executive Summary, the Audit which advised Silvestri of EG&G's IG deficiencies. RX 36. Guello testified Jones himself had already completed an audit of all reflected on RX 36, had interviewed and worked with his Safety staff to elicit information preparatory to this report. See also Hampton at TR 1436-40, Dimond at TR 1606-08 on this work. <p> Jones testified that Silvestri, shortly after he received the Internal Audit, came to him very angry, slammed it into Jones' hands and told him "Don't you ever put anything negative about this plant in writing", using his usual foul language when angry. TR 225-26, 267-68. Jones speculated Silvestri reacted in this fashion because all that the Pentagon had received coming out of Toole, until Jones' Internal Audit to Silvestri, was glowing reports about TOCDF. And what Jones reported to Silvestri was very contrary to what the Army had been told, to what the IG office knew while Jones was at the IG. Jones speculated Silvestri saw the repercussions if his audit document "ever walked the walls [halls] of the Army, so to speak." TR 226. His audit Jones testified was unlike other negative things put in writing at TOCDF in order to track them; his Internal Audit was the first study of this kind given Silvestri at the management level for implementation. Other negative documents stay in the shop, or a folder; they did not go to Silvestri. Jones explained the difference between his Internal Audit preparatory to the IG's visit and an EG&G quality assurance and safety audit by Jeff Bigger's shop. TR 814-16. Bigger, EG&G's quality assurance manager, testified that in 6/94, in that phase of systemization testing, everything on an<em> </em>internal audit had to be fixed. TR 2013-14. <p> <p><hr title="Horizontal Rule">[Page 36]<p> Jones testified he was surprised at Silvestri's reaction to his Internal Audit, at his angry cussing of Jones over this audit, telling Jones about the customer's anger, about "this kind of stuff walking the halls... he was angry because he didn't want this kind of information to go forward or to be presented outside basically my office, I guess." TR 268-69. He expected Silvestri's support Jones testified and he got the reverse. <p> Notwithstanding Silvestri's reaction and his return of the Internal Audit in this fashion Jones testified he continued to follow the plan of action it developed and reflected. He hoped to gain the other managers' support as he went along or, at worst, he testified he would have to individually cite each manager as he went down the path of correcting each of the Internal Audit's deficiencies. His Internal Audit as he sent it to Silvestri, returned to Jones by Silvestri remained in Jones' office. Jones did not take it home with him but for some reason he had a copy of the Executive Summary pages at his home. Jones explained he did a lot of his writing at home and somehow these pages must have been in his briefcase; he testified he has been unable to obtain a copy of his Internal Audit. He testified CX 49 <a href="#F23"><sup>23</sup></a> <a name="RF23"></a>, a copy of his partial worksheet used by him in preparation for the IG's inspection visit was obtained through discovery in this proceeding. <p> After his Internal Audit was completed Jones testified he continued with his plan of action to have the Safety staff address the audit-noted deficiencies. Team efforts were his plan. His efforts were to organize functional teams with broad areas covered. This involved a series of staff meetings, training his staff in the areas of his goals, and asking them to verify his work, to start working through his checklists and start correcting the deficiencies; trying to match their skills to the jobs, trying to distribute the workload, not overload one person unduly. Jones testified before his termination he had barely scratched the surface in starting the correction process, in starting the interaction with the members of management, to correct the audit's deficiencies. TR 810-14. See also cross-examination testimony on differences between his audit deficiencies and the post-termination letter to General Garrett. RX 55. TR 753-60. <p> Jones testified his missing Internal Audit material more fully reported noted deficiencies in SOPs (Standard Operating Procedures); incorrect or lacking hazard analyses on operations, including those involving PCBs; the lack of MSDSs at the work sites and deficiencies in the labeling of hazardous materials; the lack of Safety department inspections and inspectors in the plant. His listed Executive Summary deficiencies have been noted above and his attached "Work Division," which Silvestri agreed he received, reflects SOP as a listing. Jones testified his missing Internal Audit material more fully reported the lack of data document verification and lack of corrective follow-up on inspected deficiencies. Patti Andrews testified Jones' arrival had brought more plant inspections by Safety department personnel. CX 102. <p> According to Hampton a safety deficiency log had been implemented by the Safety Department, he thought in early 1994. RX 9/832-833, 835 While his testimony on RX 9/835 reflects a copy of a "Safety Deficiencies Tracking Log" used, he did not explain how the tracking was accomplished, or the tracking system to ensure deficiencies' correction prior to Jones' arrival. On cross-examination Hampton testified he had implemented a safety deficiency log in early 1994, probably 1/94. But when questioned as to how the deficiencies which he testified the safety inspectors wrote up and entered on a log sheet were kept and filed, and followed up on, and if there was a master document on deficiencies, Hampton stated the Safety Department as of Jones' 6/94 arrival had not created such a system -- they were working on it. TR 1493-94. <p><hr title="Horizontal Rule">[Page 37]<p> Then he testified he didn't know if a master safety deficiencies log or document existed in 6/94. Or if it existed after Jones left EG&G. But, he testified, it existed during his EG&G tenure, assumedly after Jones left. He testified because the computer people could not work out the bugs, it took several forms. TR 1494-95; 1513-14; 1521-23; 1526-27. Cross-examination brought out there was a variety of Safety department formats for reporting deficiencies, at the election of the reporting inspector, and that as of 6/27/94 and Jones' arrival Hampton's Safety Department did not have a master list of reported safety deficiencies. <p> <u><strong>Silvestri on the Internal Audit</strong></u> <p> Silvestri indicated that from the beginning of his EG&G employment Jones was involved in the preparation for the upcoming IG "courtesy" inspection the week of 8/15/94, and Silvestri thought Jones had done a very thorough job in preparing and organizing EG&G staff for the IG's visit. <p> As of 6/64, according to Silvestri, for TOCDF to begin hot operations they had various government surveys to go through. They had to conduct a series of trial burns and had to do certain things for the State of Utah. But the 8/94 IG auditors were to review EG&G's TOCDF plant as if it were operational and this IG audit had been scheduled before Jones' hire. <p> In preparation for the IG's audit to occur the week of 8/15/94 Mr. Silvestri testified he did receive and see Jones' Internal Audit Executive Summary as reflected in CX 48, pgs. 256-261, and he was surprised there were so many things Jones felt were broken. TR 1052, 1055, 1102-04. He did not remember receiving anything else with these pages, any thicker document. While the import of Silvestri's testimony is he did not see, recall or ask to see the audit results referred to in the Internal Audit Executive Summary, there is no question from his testimony he received Jones' Summary's written communication on TOCDF deficiencies, and its Work Division materials, and they then had an oral discussion on the deficiency items Jones reported, including EG&G TOCDF's emergency response plan [CAIRA (EP) of Summary listing] deficiency. <p> According to Silvestri EG&G did have an EP Emergency Response plan but it had to be changed to have the emphasis on operations as opposed to construction. Silvestri attested he considered a lot of the Audit's Executive Summary's listed deficiencies paperwork shortcomings. Document deficiencies such as the lack of a procedure to be changed, the lack of a complete preparation of a plan, the status of a particular manual or procedure at that particular point in time. TR 1155. <p> Silvestri remembered that Jones, in their conversation on the Audit Summary, mentioned that the CAIRA/EP, the emergency preparedness plan, needed a lot of development, with which Silvestri agreed. He knew of Jones' concern on the Audit Summary with the material handling equipment (MHE), the documentation as to the slings and so on, whether the equipment was properly inspected and certified. <p> During his sixth week as EG&G Safety Manager Jones advised its TOCDF GM of its deficiencies on the 8/2/94 Internal Audit Executive Summary. It is established by Silvestri's and Jones' testimony that his conversation with Silvestri on his Internal Audit took place shortly thereafter. However there is controversy between them as to what was attached to the Internal Audit Summary Silvestri received, <p><hr title="Horizontal Rule">[Page 38]<p> and how Silvestri received and returned to Jones what Jones attested he sent with the Internal Audit Executive Summary at CX 48. <p> Further Silvestri denied that in his conversation with Jones, sometime after receiving Jones' Internal Audit report, which he does not remember as a large report of 150 pages with 2000 deficiencies, he ever slammed it on Jones' desk <a href="#F24"><sup>24</sup></a> <a name="RF24"> or told him not to put safety concerns in writing. TR 1102, as led. <p> The IG inspection was scheduled for the eighth week of Jones' employment, two weeks later, 8/15/94-8/19/94. According to Jones' testimony he spent considerable time the week of 8/8/94 preparing EG&G staff for and in meetings, talking to EG&G managers, preparatory to the IG's visit. <p> <p><strong><u>Emergency Preparedness (EP)</strong></u> <p> Jones testified as to his Safety manager responsibilities for emergency preparedness at TOCDF, and the questions he raised on this issue during the first or second week of his employment and while starting to gather documents for his internal audit in preparation for the Army IG's scheduled 8/94 inspection. TR 179-183. He found EG&G did not have an on-site emergency preparedness plan (EPP or EP within) for the phase they were in. And no one on the EG&G TOCDF site had a copy of this plan. He raised this EP plan absence with Hayes who he thought, as the environmental manager of EG&G involved in the RCRA permitting process Hayes explained, would have it. Jones testified he unsuccessfully sought a copy of EG&G's systemization-operations EP plan from PMCD, (Jackson and Hanson); from the Utah EPA state entity; from Silvestri, from Hanny. Hanny didn't have it, wasn't real sure of its status. Jones testified early-on in his employment he wanted Silvestri to know he was pursuing the EP plan as part of his Safety manager job, and Silvestri's reaction was to tell him to talk to PMCD about it. See also redirect TR 794-96, 813-84. <p> The missing EP plan for systemization and operations, according to Jones, was a big problem at EG&G. It was completely off track. The EP plan takes a long time to develop with necessary written procedures and training to respond to worst case scenarios reflecting the effects of explosive potential at a highly toxic chemical weapons plant. Jones detailed the significance of needed MCEs (maximum credible events) which evaluate more than just one event; the worst case scenarios of what can happen with munitions, explosives, natural gas, a variety of events and the differing effects on the structural integrity of the various TOCDF buildings, the piping designs of the plant, and why the specifics of different CEs were significant to a solid EG&G EP plan. TR 180-81; 278-79. An MCE analysis focuses on the release of agent into the environment, TOCDF's big concern but according to Jones not necessarily the only one as there are other hazardous chemicals whose release is of concern. TR 279. As compared to Winters' later testimony as to why an MCE was not essential to an EP plan, how a generalized worst case scenario assumption was sufficient, Jones' testimony and explanation was very detailed and more enlightening. <p> However any differences between these two witnesses on this subject matter would not appear to effect what is clear from the explanations of both, that involvement in an emergency preparedness plan for a plant handling the chemicals/hazardous wastes TOCDF handled, subject to RCRA, TSCA and impacting CAA, would be a protected activity under these Acts. However EG&G, for the reasons reflected below argues and proposes otherwise. <p><hr title="Horizontal Rule">[Page 39]<p> Jones testified CX 75/659 is, from his understanding of Army operations a post-termination 5/1995 plant ORE, or Occupational Readiness Evaluation, and it reflects as an unresolved deficiency as of the 10/25/95 status date on the 5/95 ORE, the TOCDF emergency preparedness issue of his 8/2/94 Internal Audit deficiency report. It is reflected on the ORE as a category 1, most severe deficiency, meaning it had to be corrected before the TOCDF chemical weapons incinerator was allowed to burn agent, and it also reflected TOCDF did not have a specific MCE which must be available and is essential to support emergency planning activities, including the delivery of hazardous information to potentially threatened communities. TR 274-79. <p> Jones testified his Internal Audit addressed the lack of MCEs including the lack of an MCE down at the then-operational calibration laboratory assumably the CAL Lab. EG&G lacked an CE for the MDB, the munitions destruction building, "which [where] they used agent. They had hydrogen tanks right outside, that would have been a concern". TR 279:6-12. Jones testified as to the 10/95 ORE JP-3 item which reflected the lack of an approved EP, and CAIRA for the CAL Lab, this another deficiency of his Internal Audit, as were the 1995 CAL Lab hazard analyses problems reported. CX 71; TR 298-99. <p> But as reflected below, EG&G argues that by Jones MCE reference and the "CAIRA/EP" citation of his 8/2/94 Internal Audit, these reflect Jones' stated emergency preparedness plan concerns were Army regulations concerns, MCEs and a CAIRA <a href="#F25"><sup>25</sup></a> <a name="RF25"></a> plan being Army-required. Therefore, it is argued they were not stated nor perceived by EG&G as protected activities under the whistleblower protection activities of these Acts. <p> <p><u><strong>Gary Winters and Mike Hampton on Emergency Preparedness</strong></u> <p> EG&G Management Systems, another EG&G corporate component, has a placement group which under subcontract provides augmented staff and expertise to EG&G Defense aterials. Winters who in the past had secured other EG&G contract work through Management Systems, "the vehicle for contractually getting in," started at TOCDF for EG&G 4/7/94, as a temporary contract employee, for what was to be a 2� weeks project, to run an evacuation drill. TR 2055, 2099. Hampton was his supervisor and assumably hired him. At that time his emergency preparedness experience was in nuclear power with only one or two months at a hazardous waste incinerator and no experience with a chemical weapons facility. TR 2045:8-46. <p> Winters testified that in 4/1994 when he came to EG&G he understood TOCDF was scheduled to begin surrogate burns in the fall of 1994, and was scheduled to go to hot operations in 1/95 or 2/95, "toxic ops." TR 2147-48. This comports with Jones' understanding when he was interviewed and hired and which he testified he believed prevailed when he took over the Safety department. <p> As EG&G Safety Manager Hampton testified he was responsible for construction oversight as well as program development, writing plans such as on accident prevention, which at CX 32, includes emergency preparedness, system safety, and meeting deadlines to have the contract-required plans and programs in place and approved, ready to go when the plant was ready to go. According to Hampton the government had initially indicated they wanted plans for the whole-wide system: construction, systemization operations and decommissioning. Systemization and operations are most alike according to <p><hr title="Horizontal Rule">[Page 40]<p> Hampton, and as of 1993 TOCDF was in systemization, Hampton guessed the middle of systemization. However the record establishes that as of Jones 6/27/94 arrival the fall of 9/94 was the date set for surrogate burns preparatory to "hot" operations, full-scale incinerator burns of chemical weapons, then scheduled for early 1995, and PMCD was urging EG&G meet those dates. CX 113, 114. <p> According to Hampton there were problems with the Army's review of a couple of the plans originally submitted. The plans were very good for construction according to Hampton but probably not that great for operations. TR 1355-57. Agreement was then reached with the Army to write two different plans: one for construction and early systemization, and then EG&G would go back and start writing and implementing plans for late systemization and operations. <a href="#F26"><sup>26</sup></a> <a name="RF26"></a> <p> Hampton attested the emergency response plan for a chemical weapons destruction facility needed to be quite detailed, needed to meet certain requirements of the Army and EG&G. Winters as an EG&G contract employee was brought on to coordinate and write the EP for systemization and operations according to Hampton. Although he testified Winters was brought on to essentially give 100% of his time to developing that plan, Winters' testimony was he was initially brought on in 4/94 just to conduct drills. <p> Hampton's memos 4/15/94 through 4/29/94 advised managers as to deficiencies in the drill performances held and corrections to be made. RX 9/864-68, 876, 881; TR 1358-70; TR 1501-02. These drills, Winters' work, as Winters' testified are a component of this chemical weapon facility's response to an emergency, including the use of gas masks. <a href="#F27"><sup>27</sup></a> <a name="RF27"></a> According to Hampton EG&G's emergency response plan when first developed was very adequate for construction and "maybe the early systemization phase" but EG&G's updated emergency response plan was, he thought, lost by the "depot." TR 1368-72; 1498. Inferentially updated for the systemization phase they were then in and for operations of the TOCDF chemical weapons destruction facility. Reardon testified he had worked on Hampton's emergency preparedness plan a little bit, inferentially before Winters' arrival and the plan's loss. <p> This Army loss is what Hampton and the Safety Department found out about, 6-8 months after they sent it forward to PMCD and the Army. "We really didn't hear too much (a)nd we raised the question where is our plan? So that we can address the (Army's) comments and get on. And essentially because it got so old and there was really nothing happening with it on a consistent basis I think r. Winters basically just kind of started over..." TR 1370-1372. But Hampton could not recall when he first found out EG&G's emergency preparedness plan for systemization and operations was lost. TR 1503-07.<a href="#F28"><sup>28</sup></a> <a name="RF28"></a> <p> Winters 4/29/94 noted weaknesses in the emergency preparedness drills. RX 9/105-06. The purpose of his attached Emergency Preparedness Corrective Action Plan based on the drills' results was to institute a tracing system from the lessons learned, to document the weaknesses and their needed corrections, with due date assignments. Among the weaknesses he there noted was "Chng RCRA permit - del plume model," and he noted mask and drill work had to be conducted, that actions on emergency procedures, road control etc. were needed. While Hampton, in whose name these deficiencies/corrective actions were issued, testified he did not know what this action item was referring to, <p><hr title="Horizontal Rule">[Page 41]<p> RCRA is the Resource Conservation and Recovery Act and he understood that at the time this 4/29/94 memo was issued by his Safety department there was a RCRA permit covering the TOCDF chemical weapons destruction facility. TR 1501-13. <p> Another of the weakness/deficiencies Winters noted 4/29/94 was "Status TOCDF Emergency Plan Approval." He testified there was some question at that time as to the status of the TOCDF emergency response plan (EP) and he was told one had been drafted before he got there. It was under review, he heard by the Army. He did not know when it had been drafted but he thought Hampton had worked on it, it was a team effort of some sort. Winters did not know the Emergency Preparedness Plan's exact status. He wanted to find out where the EP was, who reviewed it, was it signed, what comments were made. He understood the EP's scope encompassed all types of emergencies, it was intended to cover OSHA and Army requirements for toxic operations and it had a CAIRA Plan annex. TR 2059, cross-examination at TR 2117-19. <p> Hampton testified a CAIRA (Chemical Accident or Incident) plan is a plan defining actions to be taken in response to a chemical agent spill or release. He thought that at the time of these 1994 and prior to 6/27/94 RX 9 reports on emergency preparedness there was a CAIRA plan but he didn't have much to do with it. A Dr. Dave Clark created and implemented it. (Otherwise unidentified in the testimony but at CX 110 a Battelle manager.) But Hampton assumed the Safety Department would review the CAIRA plan. Hampton agreed RX 9 contained no notations as to differences in the CAIRA plan or the emergency preparedness plan. TR 1529-30. <p> Winters testified that the regulations applicable to emergency preparedness issues at TOCDF are at 29 CFR 1910.38, the OSHA regulations on the employer's escape plan, an emergency plan of action that gets employees from danger to safety. 29 CFR 1920.120, the HAZWAFA Rule, applies to facilities with hazardous materials on site. He testified the Army's primary regulations on EP are AR-50-6, on the Army Surety program, with an associated pamphlet; and from there, DA-PAM-50-67, commonly known as CAIRA, or Chemical Accident or Incident Response or Assistance, has evolved. CAIRA concerns responses from the outside to an inside chemical agent accident or spill, which must be addressed by the employer and prepared for in its CAIRA EP plan. <p> According to Winters, DA-PAM-385-61, in its safety program dealing with chemical agent is an Army regulation which applies to an emergency preparedness plan. Its thrust is primarily to the daily operations of the workers who deal with agent, or are around agent, the precautions they must daily take, their protective equipment, their training in responses if something happens. The Environmental Protection Agency regulations apply to an EP/CAIRA plan, the source of which, according to Winters is RCRA, and CERCLA, the Comprehensive Environmental Response Compensation Liability Act. <p> It is under the whistleblower protections of RCRA, as well as TSCA and CAA, that this proceeding is brought and DA-PAM-385-61 is the Army regulation under which Jones raised his concerns as to the MSB Lab's operations and issued the shut-down letter. <p> Winters further testified that under RCRA an employer must have a contingency plan and procedures in place to respond to an emergency in case of the release of hazardous waste being processed and used. Winters testified based on what he saw 4/94 an MCE analysis had not been done at <p><hr title="Horizontal Rule">[Page 42]<p> TOCDF but that while an MCE is useful it is not essential to an EP because for lack of the information you can always over design a program. As of his testimony, he was not aware that a TOCDF MCE had been done although he said it had been discussed. And he had and has no knowledge at all as to what assumptions were made in the maximum credible event analysis which founded and inferentially founds TOCDF's EP. According to Winters the TOCDF emergency preparedness plan was signed off in 7/1995. TR 2114-19. <p> Winters on cross-examination testified as to the regulatory components of RCRA, 40 CFR Part 264, which set forth the emergency response plan aspects applicable to TOCDF and a contingency plan, and he also testified to his understanding of the 20 CFR §1910.120 training requirements for a emergency preparedness plan at a hazardous waste facility such as TOCDF, required under either OSHA or EPA standards. TR 2110-12. He described what the EP contingency plan requires, an evacuation action plan; plans and procedures for coordination, notification; an equipment availability listing. <p> On cross-examination he testified the TOCDF incomplete emergency preparedness plan he saw in 4/94 was deficient in the field response element, in the area of personnel responding to the scene of an event, but it did have a CAIRA component in its Annex C, which contains outside responses to the immediate spill area. Winters testified he believed Hampton himself had some question as to whether Hampton had the knowledge to complete the EP, and Hampton testified the Army "lost" the earlier pre 4/94 EP that the Safety department had submitted to them. <p> Winters' testimony explained how the emergency plan he referred to in his drill memos is one element of the EP plan and program required under RCRA, OSHA and Army regulations, TR 2059-2061. It lays out what is needed for such, the planning, procedures, the arrangement for facilities, equipment, trained personnel with practice in emergency responses so as to be able to do what is required to meet chemical agent accidents and incidents, spills and events. <p> Thus it is found when Jones arrived 6/27/94 at TOCDF, at a time when, by the testimony of Winters, Hampton, Jones, and the preponderance of the record evidence on this point, TOCDF was scheduled to conduct surrogate burns in 9/94, and hot operations in 1/95, under prior Safety Department management and personnel, the RCRA, EPA, Army- required emergency preparedness plan had been lost. Albeit by the Army, according to Hampton. And by inference, with no effective follow-up tracking until the spring of 1994. <p> Winters' anticipated short-term TOCDF assignment extended beyond 4/94. But he testified between 4/94 and Jones' arrival he did no further work on the incomplete EP plan and his Safety Department activities after the reported 4/29/94 drill and until Jones' arrival were primarily additional drills. TR 2116-17, TR 2061. <p> Winters' due date on the 4/24/94 emergency plan question was set for 5/3/94. This was almost two months before Jones' arrival. Jones' testimony indicated the questions he raised on his pre 8/2/94 evaluation of the Safety department operations, as to the status and location of EG&G's TOCDF emergency preparedness plan. Jones could not get information as to its status and location from the EG&G management personnel he questioned, including Silvestri. They referred him around to others, unfruitfully. Hampton's testimony indicated that in fact, according to him, the Army lost EG&G's EP plan and with no <p><hr title="Horizontal Rule">[Page 43]<p> response by the Army, the Safety Department started over to reconstruct the EP. Hayes' testimony reflected the overlap, the integration of the RCRA required emergency preparedness plans at TOCDF. <p> Winters testified he was not aware in 4/94 that Hampton was thinking of stepping down as Manager. And Winters first learned there was going to be an organizational change when in a 6/94 staff meeting Hampton shared this information, and that Jones was coming in. TR 2107-08. <p> Hampton while aware of what Winters was doing was not involved in the details or in analyzing Winters' work. TR 2125. Winters believed the untitled job description he had when he came in 4/94, a copy of which he stated Hampton maintained, generally indicated he would perform emergency response activities. TR 2099, 2103 Winters testified a month before Jones' arrival, in writing, he requested an assistant of Hanny to work on the EP, on the program and procedures items that needed to be fleshed out and revised. Winters testified he wanted a professional, someone who did not need start-up time. Out of a group of resumes provided by EG&G's outside Management Systems corporate group Winters recommended Jeff Vahl a mechanical engineer with emergency preparedness experience, in what specific field unknown, who started at TOCDF shortly before or after Jones. <p> Winters was led on EG&G direct to state Vahl was hired to assist him, in developing the emergency preparedness program. TR 2061-2. But Winters on cross-examination indicated that on Jones' arrival he was not provided a copy of Winters' request to Hanny. Winters and Vahl shared an office at TOCDF and knew each other from past employment; in various phases of other projects Winters had been either Vahl's superior; or Vahl had assisted Winters. TR 2123-28. <p> Winters testified that while Vahl worked with him on drill preparation, one or so, because he had finished the majority of the drills, their work focus changed. On cross-examination he indicated Vahl did not have an independent track in terms of working on EP on Jones' arrival. TR 2123. . <p> At his and Vahl's first meeting with Jones where Jones was attempting to find out who they were, what they did, their skills, Winters testified that when he and Vahl told Jones what the focus of their activities was Jones said the temporary employees were being underutilized, they could be used for other things, and they would most likely be assigned other duties the Safety Department needed like industrial hygiene (IH). Winters testified he had no prior experience in IH. At a meeting, a day or two later, Jones mentioned he needed Safety specialists for shift work and he was going to consider that. TR 2063-65. Shift work involved 24 hour Safety department coverage including night duty, the night duty Silvestri's Executive Assistant indicated provided Safety employees with unoccupied time opportunities. <p> Winters testified he expressed concern to Jones on this advice that his and Vahl's energies should be devoted to emergency preparedness, it was an important, a highly visible area and he and Vahl should be permitted to do "what we were out there to do." Within a week he had another conversation with Jones where he told him that without an emergency preparedness plan, the Seabrook Nuclear Power Station, ready to go operational had been held up for two years. TR 2065-66. He said Jones was not persuaded. However cross-examination indicated the hold-up circumstances of this facility were unique to it and unlike TOCDF. TR 2131-33. <p> <p><hr title="Horizontal Rule">[Page 44]<p> Winters testified with Jones' assignment of safety inspection duties he did do safety inspections work, OSHA-type work he characterized it, looking for OSHA violations, including walkarounds, help in issuing hot work permits for welding in close quarters. TR 2067. On cross-examination he testified that while familiar with the other non-EP regulations of OSHA 29 CFR §1910, he was not familiar enough to claim expertise in things like lockout/tagout and electrical safety. However, he proceeded to perform inspections with some guidance provided by Jones and his own preparation. He attested he received assignments from his team leader "which changed quite a lot;" or from Jones, with the majority of his assignments from Jones directly. <p> According to Winters he had a "sense" Jones did not understand the need for an emergency preparedness plan, and Jones did not understand the regulations require it. According to Winters Jones stated CSEPP, the Chemical Stockpile Emergency Preparedness Program, the agreement between the Army and FEMA would cover it all, with which Winters in his testimony disagreed. TR 2066-67. See also TR 2076. However on cross-examination he testified CSEPP is not distinct from emergency preparedness planning, it is one of the elements of an emergency preparedness plan EP that you go through. TR 2136. More importantly, Jones' 8/2/94 specific Internal Audit Executive Summary advice on EG&G deficiencies, "CAIRA (EP)" and the "Work Division" page Silvestri testified he did receive, and Silvestri's and Jones' testimony on their emergency preparedness discussion precipitated by Jones' Internal Audit deficiency advice, indicate Winters' "sense" was not correct. RX 36. Winters like all the Safety Department employees who testified recalled he did some work on Jones' 8/2/94 Internal Audit assignment at RX 36/299. <p> By Winters' testimony he had only one conversation with Jones where he expressed his "big hole in EP concerns" and this, and his Seabrook citation conversation occurred at or shortly after Jones' arrival, in conjunction with Jones trying to find out who was doing what in the Safety Department and assess the department's needs. Winters' testimony reflects no further conversation by him with Jones, no further approaches to or advice to Jones referable to this matter, or to the time impact of his other Safety assignments on EP work. However Winters' testimony does reflect he thereafter spoke to Bishop of PMCD about his Safety Department assignments, and their impact on the EP work. And, after the PMCD - called meeting, which Winters' contact with PMCD Bishop generated, Winters spoke directly to Silvestri about his Safety Department assignments and their impact on the EP work. <p> None of Winter's testimony on anything he testified to was reflected by James Smith or Silvestri in their testimony, or in the 8/24/94 counseling report as a basis for the adverse personnel actions founding this whistleblower complaint. But in litigation and post-trial, EG&G, on its articulation of a legitimate non-discriminatory reason to terminate, states Jones reassigned away from people's areas of expertise important to EG&G. <p> In the middle 8/94 Winters made a major presentation to senior EG&G management regarding emergency preparedness. Winters stated he knew there was a letter from Tim Thomas PMCD to Silvestri requesting a briefing or status report on EP. This letter resulted, Winters testified, from Winters' contact with PMCD Bishop, Thomas' advisor, because after speaking to Winters, Bishop was concerned with the EP program at the time, "(he) was concerned Jeff Vahl and I had been kind of stripped away from the program... particularly upset that Jeff Vahl was stripped away to head up the rodent abatement team... sidetracked to go chase rats." TR 2068. According to Winters Bishop, as a result of Winters' conversation with him, was the driving force behind this meeting. It was attended by Silvestri, <p><hr title="Horizontal Rule">[Page 45]<p> Jones, EG&G senior management; Thomas and Dave Jackson of PMCD. Winters testified he ran his presentation by Silvestri before the actual meeting including his advice the materials were 18% complete. He thought, although he was not certain, he provided these materials to Jones and he testified Jones had asked him to speak at this meeting. <p> PMCD Bishop, the driving force in this meeting after Winters' initiated contact with him, was also the PMCD individual who was to respond to EG&G's request for Army status on the emergency plan, the plan Hampton testified the Army had "lost," which caused EG&G to start over, in the face of a 9/94 surrogate burn date. <p> Winters testified the only feedback as a result of this mid-8/94 PMCD meeting with Thomas was Thomas' request there be more detailed scheduling of EP assignments in the computer program scheduler. But Winters testified he did not have a chance to do that and he did not think access was a problem; it was just getting time to do it that was the problem. However he could not recall meeting with Jones on this time problem; Jones did not say Winters could not respond to Thomas' scheduling request but Winters testified he could not recall directions from Jones that he should, or how he should. TR 2072, 2139. However he understood he was suppose to put the schedule log together after this meeting. There is no indication Winters advised Jones, prior to his "EP is dead" advice to Silvestri of these time concerns. Silvestri on 8/18/94 had advised all EG&G/Battelle employees that all EP work was to be unified and coordinated in the Safety department with Jones the contact point. CX 100. <p> Winters characterized his EP emergency preparedness "point papers" assignments from Jones after this meeting as "side" assignments. He did not offer any indication as to the percentage of his work spent on each. TR 2073. <p> Then one day the end of 8/94 he chanced to be talking to Silvestri's secretary. To Sue Ann Powell it is assumed who, as reflected on the Safety department personnel events, was a significant Silvestri advisor/informant. Winters was with her "to schedule a conference room or something like that," when Silvestri came by. Just in passing. Silvestri asked how emergency preparedness was going. Winters said "Henry EP is dead." According to Winters he then told Silvestri the emergency preparedness plan EP wasn't moving because he was assigned to other duties, he didn't have Vahl working with him on it. <p> Silvestri said "EP is not dead it's very much alive" and "something like we're going to pay a visit to Dave Jackson." Winters knew Silvestri was upset with his message. That day, or the next Silvestri took him to Jackson's office, without Jones, to discuss the progress of the emergency preparedness plan. No effort was made to incorporate Jones in the meeting. According to Winters, Jones, who apparently had heard about the meeting came along toward them coming out of the PMCD office and appeared upset he was not invited. Winters did not indicate whether Silvestri was present when Jones asked Winters what they were doing in PMCD, to which Winters responded "we were discussing [the] emergency preparedness program status," but Winters did not indicate any advice or exchange by Silvestri to Jones when Jones met them. <p> While Winters at trial could recall Jones "had a wild look in his eyes," looked angry, and he interpreted Jones words, in his question "what were you doing in there," <p><hr title="Horizontal Rule">[Page 46]<p> as angry, he could not recall the specifics of any further response or any explanation he then gave Jones. By his generalized responses Winters told Jones nothing of his conversation with Silvestri, as his testimony would indicate he earlier told Jones nothing of his "chasing rats" conversation with Bishop of PMCD although he knew of Jones' concern through staff meetings and memo that Jones or team leaders be kept apprised of PMCD contacts affecting Safety work. Shortly after the Silvestri-Jackson-Winters meeting Winters was moved from Jones' supervision to James Smith's, he testified to devote his full-time to the EP program and so he would not be distracted by what Smith characterized to him as "firefights." TR 2073-75. However Winters also testified that notwithstanding this move, after Jones' arrival he first began work on the EP in 10/94, although Smith in 8/94 or 9/94 had written a memo <a href="#F29"><sup>29</sup></a> <a name="RF29"></a> to Silvestri indicating he would work for Smith and not Jones so he could work 100% on emergency preparedness. TR 2092-93, 2117. <p> <p><strong><u>IG Inspection 8/15/94-8/18/94</u></strong> <p> Jones testified he used his IG background during the two weeks after the 8/2/94 Silvestri audit events and prior to the IG inspectors arrival at TOCDF to prepare EG&G managers and personnel, to work with PMCD personnel. TR 310-14, 319-20. Jones testified he knew seven of the eight inspectors on the IG team, he knew what they looked at, pretty much knew their agenda, and he knew the primary reasons the IG was at Toole for this inspection. In his 8/3/94 memo to Silvestri on his IG inspection preparations Jones advised him he had been working with Dave Jackson PMCD and his staff on the visit. CX 53. Hanny as of this date was on the EG&G distribution list as Administrative Services anager, thus assumedly he was still at TOCDF as of this date. This IG inspection brought not only the IG inspectors but Army personnel from Aberdeen, PMCD's headquarters. <p> According to Jones at the IG's nightly out briefs the IG brought up the issue of the "lessons learned" from the Johnston Island incinerator, that the mistakes made at JI had not been captured and relayed to Toole. According to Jones this was the same issue he raised at his first meeting with Silvestri. The "lessons learned" from the JI problems, from the agent stack releases and the exposures there; from the JI liquid incinerator and furnace problems, and the rocket sheer problems, fairly common knowledge at the Pentagon, were not being relayed to Toole. Jones testified this TOCDF deficiency on incorporation of the "lessons learned" from the JI operation was written up in the IG's report on this 8/94 TOCDF inspection. TR 321-23. See CX 54; RX 50. <p> <p><strong><u>Report to IG on Treaty Compliance Facility</strong></u> <p> Silvestri testified that during the IG's 8/94 visit the issue of the treaty compliance facility's site safety submission came up and "(t)here were some people that thought that Steve had led the IG inspector to that issue." Silvestri did not further identify the "some people." Silvestri also testified that although he did not have a problem with Jones' contact with the IG regarding an on-site TOCDF treaty compliance facility being constructed at the time, but not by EG&G under its contract, he thought it was inappropriate for Jones to talk to the IG after Silvestri told him this facility was not part of EG&G's contract. Silvestri knew the customer, PMCD, was aggravated and upset by the contact with the IG relative to this building and PMCD's being upset upset Silvestri to some extent. Both before and after this incident PMCD had expressed in sharp terms to Silvestri, based on questions Jones had raised with <p><hr title="Horizontal Rule">[Page 47]<p> PMCD, that the treaty compliance building was outside the scope of EG&G's contract. TR 1158-60, 1104-05. He testified his understanding was that the treaty compliance facility's site safety submission, an outline of a safety program to be followed, had to be approved before any construction on the building could begin and he was not aware PMCD was directing Jones' staff, independent of Jones' knowledge, to work on this site safety submission. TR 1056-57. <p> Helser, who described the approval process for a site safety submission, testified that in prior Army jobs he had worked on site safety submissions and a site safety submission is required by the Department of Defense (DOD) for any kind of a hazardous operation involving explosives and communication. When asked if it is required by environmental statutes, by the EPA, Helser testified it is required by DOD explosive safety requirements, which predate most environmental laws. TR 1831-32. <p> Helser testified RX 72 is the application site safety submission and the subsequent approval for the treaty compliance building at TOCDF. The building is to be used by the Russians to sample, observe and verify the U.S.'s destruction of the Toole chemical weapons stockpile and it is not EG&G's responsibility to work on this building. According to Helser, RX 72/342, dated 7/7/94 is the final review/approval letter to Toole on the treaty compliance building's site safety submission, from PMCD Edgewood MD. He testified it was communicated from PMCD headquarters to the local field office by that letter date and, according to Helser, the approval would have been verbally communicated to PMCD Toole. TR 1832-39. <p> Helser's testimony did not indicate personal knowledge of the facts as to the actual dates of receipt and manner of communication (verbal) from Maryland to the local PMCD of this specific site submission approval at RX 72/342, albeit he testified he had in the past worked as an outsider on PMCD's pre-inspection team TR 1903 - 1904. Further 7/7/94 falls within the second week of Jones' EG&G employment and the dates as to when Jackson complained to Silvestri are not set out in his testimony or the 8/24/94 counseling report. <p> Other than Silvestri's second and third hand advice from unidentified "some people," there is no indication that such advice to the IG by Jones did occur. The basis of "some people's" advice to Silvestri, is unknown but Silvestri acted on it in the personnel actions here. <p> <p><strong><u>Jones on Mitre Report</strong></u> <p> Jones testified the Mitre Report, named for the corporation which developed it for the Army, is a Safety Assessment Report <a href="#F30"><sup>30</sup></a> <a name="RF30">, a compilation of deficiencies and hazards associated primarily with TOCDF, relative to design and piping type things, valves and flanges, the machinery. Jones testified he first saw and received CX 56, an excerpt from the Mitre Report when it was routed to him, through Hanny for his action, he thought in mid 8/94, sometime after the 8/4/95 date on CX 57, the EG&G internal document known as a PAF, Project Action Form. According to Jones the Mitre Report was an identification of the hazards in the TOCDF chemical weapons incinerator's systems, the piping system, its agent system, its waste feed system, the deactivation destruction furnace. It is basically an engineering review of the hazards at TOCDF. <p> <p><hr title="Horizontal Rule">[Page 48]<p> When the Mitre Report was routed to Jones through EG&G he testified he was presented with a directive, a piece of paper which told him to implement the Mitre Report into his EG&G Systems Safety plan. The fact is the Army, by Administrative Contracting Officer Smith's 8/3/94 letter to Silvestri, which attached the Safety Assessment Report, did so advise; Smith the Army official who had the actual contract authority and responsibility to direct EG&G's work under EG&G's Army's contract. CX 55; TR 335. Given this directive Jones testified he attempted to figure out what this directive meant and to implement it into the System Safety plan. He worked with John Hanson, the PMCD engineer, with Kurus of PMCD, and he tried as well to walk it through with Kurt Allen the EG&G Safety department engineer, to figure out what the Army wanted the EG&G Safety department to do on the Mitre Report. TR 325-27. Reihman explained John Hanson is an employee of SAIC. SAIC is another contractor working for the Army. SAIC has support roles to the Army, independent of EG&G's contract, which is the main systems contract for TOCDF. <p> The Mitre Report had, Jones thought, over 3000 hazards associated with TOCDF categorized into RACs, Risk Acceptance Codes, RAC-1 to RAC-4, which reflected the seriousness and dangers of the uncorrected hazards. RAC 1 is the most severe, most dangerous hazard, something which if not corrected can result in an immediate catastrophic event. RAC-2 is not quite as serious a problem but a likely incident portended, if not corrected. As Jones understood the contents of the Mitre Report forwarded to him for his Safety department action, after looking at what he understood to be the law applicable to these Mitre Report hazards, the Safety department would have to do hazard analyses. So with the engineers Jones went into the TOCDF plant to see if, on a random sampling basis, the corrective actions on RAC-1s reflected in the Mitre Report had been put in place. They could not find that corrective measures on some of the sampled Mitre Report's noted hazards were there, such as a particular valve in the TOCDF piping system. "On every occasion that we thought we were going to find something out there [in accord with Mitre Report reflection of correction taken] we couldn't find it." TR 330. <p> After further study of the Mitre Report and the EG&G routing directive to him, Jones concluded hazard analyses would have to be done on each and every identified Mitre Report serious problem and a lot of work would be required on the "as built drawings" of the TOCDF piping systems and the engineering chart, to redraw them to bring them back up as changes were made, and to make sense out of this blueprint and "as built" drawings problem. Jones explained it is very important to keep a current blueprint of all of the incinerator's piping system. Hazard analyses depend on this current, up-to-date information. "And, if you take a valve out that someone thinks is there and you go turn it off and it's not there, you're going to have trouble." TR 331-36. <p> Such explanations, as reflected below and within, lead to the reasonable inference that in an chemical weapons incinerator, where lethal, highly toxic nerve agent is, or is shortly to be processed, with its inherent hazard, and where the hazardous waste product of its processing is to be protected from contact and impact on the plant's workers and the environment, whether inside the plant or outside the facility in the event of the release, by mechanical, construction or other error, accident or explosion; that construction, and systemization prior to actual nerve agent and chemical weapons destruction has an inextricable foreseeable impact on the environment. Jones testified that any of the Mitre Report's RAC-1 hazards, basically plant system problems which deal with systems and the imminent catastrophic release of the chemicals processed through the destruction incinerator, have environmental implications. They go to the heart of environmental issues as well as occupational safety issues. TR 344. <p> <p><hr title="Horizontal Rule">[Page 49]<p> Jones testified when he received EG&G's internal document, the PAF of CX 57, which he believed would normally be created by Allen Reihman, Silvestri's assistant, the "no action required" option box on this form was not checked. It was left open according to Jones. The undated handwritten note on CX 57 is Jones', per his testimony. TR 336-38. <p> Jones testified that subsequent to his handwritten note, on the evening of 9/13/94, he had a meeting with Allen Reihman on the Mitre Report and this note. Reihman called him in, asked him what his note meant, wanted more details as to the meaning of this note on his desk. Jones testified he then told Reihman what he had done relative to the Mitre Report, working with John Hanson and Kurt Allen, and the resulting conclusions Jones had drawn, the substantial and lengthy effort involved, how long it would take to do the RAC-1 hazard analyses under 29 CFR §1910 on the GB, seron, chemical agents which Jones thought were involved. These analyses were OSHA law requirements instituted after the Bhopal India leak, according to Jones. A minimum of six months, 150 hazard analyses at the worst. TR 339-41. At the date of this Reihman meeting, according to Jones, they were talking about TOCDF going operational, into "hot" operations, in 1/95, 2/95, maybe 4/95. This was after a slippage in dates from 7/94 to 9/94 as he began his EG&G employment. TR 340. His message to Reihman on the Mitre Report would involve more EG&G delay. <p> According to Jones, at that meeting Reihman told him before Reihman presented it to Silvestri Jones should confirm with the Army that they expected EG&G to do the hazard analyzes Jones told Reihman he understood were required under Contracting Officer Robert Smith's general direction. That same evening, after this Reihman meeting Jones testified, he went to John Hanson. When Jones requested Hanson confirm whether EG&G was suppose to do a hazard analysis on any of the identified 3000 deficiencies which would cause some kind of serious injury or environmental release, Hanson said that was not what the Army wanted at all because Hanson had been told by Dave Jackson Jones was expected to sign a document accepting these risks as acceptable. <p> Jones and Hanson then talked a bit about the legality of this, their discussion did not go very far and then Jones went to see Dave Jackson, Jones' local PMCD Army counterpart. Jackson and Jones had basically the same discussion about the Mitre report. According to Jones, Jackson told Jones not to worry about signing a risk acceptance document. This was Army-unique legal, and they could get around the OSHA rule. Jones told Dave Jackson, according to Jones, that "we" also have the risk acceptance protocol in the system safety plan, where only certain Army officials could accept certain risks. TR 343:12-14. Then he and Jackson talked about a prior Toole meeting, with Aberdeen PMCD Headquarters people, TAD people, the JI civilian contractor, where getting around Aberdeen PMCD's advice Aberdeen was not going to accept serious RACs anymore was discussed. It was there indicated the rules could be changed so the contractor, outside the Army umbrella, would have authority to accept. TR 344-45. According to Jones, as a result of this earlier PMCD Army meeting he described with Army headquarters personnel, discussed with Jackson the night before his termination, the Army was in a state of flux on this changing. It had been specifically said at the Aberdeen personnel meeting it would not be much of a problem to change a private contractor's or EG&G's internal documents (the CDRL according to Jones). Essentially some type of paperwork alteration could be done so Jones as Safety Manager or a private contractor could sign off on the risks given Aberdeen's advice they were not to send serious RAC's to Aberdeen PMCD, Aberdeen PMCD would no longer accept them. A private contractor's acceptance would be a shield against the OSHA issue. TR 344-46, 671-73. <p> <p><hr title="Horizontal Rule">[Page 50]<p> Jones testified that while he believed in his Jackson conversation on the itre Report the internal documents could be changed, he disagreed with Jackson as to the legality of this military-unique suggestion to exempt from the applicable OSHA rule although the Army had been successful with this argument in other applications. TR 343-44. Jackson at their 9/13/94 meeting on the Mitre Report indicated it was important to Jackson that they resolve the Mitre Report risk acceptance issue. TR 346-47. <p> Jones' representation is that the only response he received, as a result of his one talk with Reihman on the Mitre Report was his termination. He was not able to advise anyone at EG&G of his night conversations with Hanson or Jackson. The next morning he was called to the termination interview before he could do so.. <p> By Jones' testimony and beliefs his actions within EG&G relative to this itre Report, that he would have to sign off on the Mitre Report's RAC-1 findings, if PMCD Dave Jackson's proposal as to how this could be done were to be followed, and his conversation with Allen Reihman as to the Mitre Report's complications for EG&G and the delays attendant on compliance, were responsible, with his other Safety Manager actions and his 8/2/94 Internal Audit for his firing. <p><p> <strong><u>Silvestri on Mitre Report</strong></u> <p> Silvestri testified that prior to Jones' termination and until he saw Jones talking on TV about the Mitre Report and its RAC-1 references, CX 56/329, he knew nothing about the itre Report and had never seen it. He agreed the Army's 8/3/94 Mitre Report's covering letter's direction to EG&G and to his attention, from Robert Smith the Army's Administrative Contracting Officer, and one of the contract award fee evaluators, was to incorporate it into EG&G's program. <a href="#F31"><sup>31</sup></a> <a name="RF31"></a> The Report was date stamped received in EG&G 8/?/94 the unclear day probably 8/4/94 given the PAF 8/4/94 date. <p> On further investigation after Mr. Jones' termination Mr. Silvestri attested Allen Reihman his Executive Assistant told Silvestri there was no EG&G action required by virtue of the Mitre Report. TR. 1071-74. Silvestri thought the routing slip (Project Action Form) he later saw in connection with this Mitre Report, said no action was needed on the Mitre Report other than to incorporate it into the EG&G safety plan. CX 57. As reflected within this is not what the handwriting on the PAF CX 57 slip says, and who checked the no action required box is unknown. According to Mr. Silvestri's testimony, the itre Report was a compilation and summarization of findings through the years of various risk assessments. There were, he thought, when he left EG&G in the summer of 1995 four RAC-1 findings to be resolved. <p> Silvestri attested, when questioned by EG&E counsel, that after Jones' termination Reihman told Silvestri he had had a conversation with Jones relative to the Mitre Report and Jones told him no EG&G action relative to the Report was required. TR 1105-06. As reflected within, Reihman did not testify Jones ever told Reihman this. The fact Reihman gave Silvestri to so understand raises question as to what, given Reihman's testimony on the Mitre Report occurrences between Reihman and Jones, Reihman actually told Silvestri. <p> While the testimony as to the contents, date and outcome of this Jones-Reihman conversation differs, Jones' testimony and Reihman's, establishes as Jones contends that Jones and Reihman had a conversation on the Mitre Report issues. Silvestri denied he ever discussed this Jones-Reihman pre termination conversation with Reihman, Dave Jackson or John Hanson prior to Jones' termination. <p><hr title="Horizontal Rule">[Page 51]<p> The photocopy of the internal Project Action Form on the Mitre Report reflects it was assigned to Jones through Hanny 8/4/94. While there are factual disagreements as to who checked the "no action required" box on this Form, the undated handwritten comments referable to this Report reflect Jones conveyed information to Allen (Reihman) that EG&G would be asked, after PMCD screened out closed risks, to verify remaining risks, to accept the risks or conduct Hazard Analyses to reduce or eliminate them, and this effort could be very substantial. It also indicated "John Hansen [SAIC] says this is for our information only," and was prepared to brief Reihman if he wanted. <p> The Form supports Jones' testimony he discussed the Mitre Report findings and directions with John Hansen (of SAIC), before he wrote Reihman, and conveyed information on the 8/4/94 itre Report's implications to Reihman. <p> <p><u><strong>Reihman on Mitre Report</u></strong> <p> Allen Reihman who at trial worked for EG&G in strategic planning was Henry Silvestri's executive assistant and technical advisor in 6/94. Prior to his 1990 EG&G employment he worked for PMCD for two years as a chemical engineer. His executive assistant position with Silvestri was basically a staff one. He was Silvestri's deputy, in charge in his absence and he provided advice on programmatic and technical issues. Reihman received and distributed to appropriate TOCDF EG&G components/personnel all correspondence addressed to Silvestri, briefing Silvestri on important issues. By inference, Reihman, on review of all outside and some internal correspondence that came through Silvestri's office, determined its importance. See also TR 1669-70. As to safety deficiencies reports at TOCDF, Reihman testified there is some overlap among the Safety, the Quality (Jeff Biggar ), and the Environment departments. TR 1642-45. He testified he and Silvestri had discussed getting a safety program which was more up and running for an explosive chemical agent environment prior to Jones' arrival but he did not indicate any involvement in the circumstances of Hampton's replacement and Jones' hiring. TR 1670. <p> Reihman testified Jones came to him to discuss the Mitre Report sometime in 8/94.<a href="#F32"><sup>32</sup></a> <a name="RF32"></a> It was well in advance of his 9/14/95 termination, according to Reihman, but his belief as to chronology was general. TR 1646-47. Jones expressed concerns to him that there were risks to EG&G because of the Mitre Report; a lot of work that EG&G would have to take on as a result. Jones mentioned the Johnston Island contractor stated they were not going to accept the Mitre Report risks, they were going to take actions to resolve the risks. See also TR 1686-87, 1688. Reihman recalled Jones spoke something along the lines of EG&G accepting the risks or signing for the risks. But he did not have the impression it was Jones personally who would have to accept or sign for the risks. <p> While Reihman did not recall Jones quantifying the impact on EG&G of correcting the Mitre Report problems, he did recall Jones told him it was a lot of work. He denied he ever told Jones that if it would add six months Jones had to clear that with Dave Jackson PMCD before they went to Silvestri. <p> Reihman did not know if any of the Mitre Report RAC-1 hazards were ever reviewed by EG&G personnel, or reviewed by Army personnel at the TOCDF site and he testified Jones never discussed with him that Jones had gone to and checked on some of the hazards. [With Hansen and Veronica Kuras.] TR 1685-86. <p><hr title="Horizontal Rule">[Page 52]<p> On cross-examination Reihman testified he leafed through the Mitre Report, RX 56, in a cursory manner, and while he had heard the term RAC-1 Hazard, he was a little out his depth in that area, but basically a RAC-1 is more severe. <p> According to Reihman he first saw the 8/3/94 letter to Silvestri from Robert Smith, Administrative Contracting Officer, which attached the Mitre Report the day of his deposition. CX 55/322. And that day he first saw the note headed "Allen," at CX 57/436, with "Steve" at the end. Reihman testified that when Jones brought him the Mitre Report and expressed his concerns about "a lot of work" which EG&G would have to take on because of the risks, Reihman was unaware EG&G had been given the Mitre Report officially and by Smith's CX 55/322 letter. He was on vacation the week it came in he testified. He assumed when Jones brought it to him that it was given to Jones by someone at the safety system working group, an informal copy "a heads up, if you will." <a href="#F33"><sup>33</sup></a> <a name="RF33"></a>. <p> Reihman did not know who in EG&G, acting in his absence, gave the itre Report to Jones but typically Ira Hall filled in in Reihman's absence. Reihman agreed that from CX 57, an EG&G Project Action Form, someone in authority at EG&G had directed Jones to take a look at the itre Report. <p> On direct examination Reihman said he told Jones he'd look into it and Jones left the itre Report with him. Within a few days Reihman took the report to Dave Jackson's office and discussed with Jackson Jackson's interpretation of the Mitre Report. Dave Jackson PMCD told him there were no additional risks that were going to be placed on EG&G as a result of the Mitre Report, and it was under the Army's general responsibility to see that the Mitre Report deficiencies were corrected. "And that if anything EG&G had to do would be drafted to do that, do that by the Army if there's any discrete items as a result of the report that would have to be taken care of by EG&G" TR 1648-1649. Hanny's testimony reflected the necessity of getting PMCD's responses in writing; and that PMCD communicated their wishes through the General Manager. TR 2340-41. <p> Reihman testified on direct he had a follow-up conversation with Jones where he told Jones what Dave Jackson said in terms of the risks to EG&G, in terms of the actions that EG&G had to take. When is not indicated. <p> While Reihman testified he did not recall seeing Jones' handwritten note to him at RX 40 (same as CX 57/436) and first saw it at his deposition he stated its contents are consistent with the information he obtained from Jackson that for now the Mitre Report was only for EG&G information. However Contracting Officer Smith's 8/3/94 advice to Silvestri in attaching the Mitre Report was: "(y)ou are directed to use it in implementing your Safety System Program." While Reihman testified one way of interpreting Contracting Officer Smith's direction was that it was to be used in implementing their system safety program, looking back at his talk with Dave Jackson and what Jackson said, according to Jackson EG&G had to take action on the Mitre Report only when specifically directed. Reihman then added to his cross-examination response that Jones' handwritten note at CX 57 to "Allen" also indicated EG&G was to take no action at that time, and it was pending further government direction that EG&G action would be taken on the Mitre Report. However Reihman who testified he was not familiar with Jones' handwriting testified he never saw the handwritten CX 57 note until deposition. He then revised this response to he did not remember seeing it until deposition. <p> <p><hr title="Horizontal Rule">[Page 53]<p> According to Reihman, EG&G received the Army's assurance from Dave Jackson that actions were being taken to resolve the Mitre Report risks prior to agent and toxic operations, TR 1685. Dave Jackson told him it would not make sense for EG&G to work on and resolve the Mitre Report risks, and it would be duplicative effort for EG&G, since the Army was working it out at a programmatic level. <p> Reihman on cross-examination agreed it wasn't surprising, given Jones' advice from the systems contractor at Johnston Island that that contractor was going to resolve the Mitre Report issues and not accept the risks, that Jones would immediately think it necessary for the EG&G Safety anager to resolve the Mitre Report risks. But Reihman testified after he got back to Jones to explain to him Dave Jackson's instructions, then it was surprising Jones would think it was incumbent on the EG&G Safety anager to resolve the risks. <p> Reihman did not testify as to any further contents of this second conversation with Jones on the Mitre Report, or Contracting Officer Smith's 8/3/94 directions to Silvestri and EG&G. Reihman did not date the occurrence of their second conversation after he statedly sought and received Jackson's feedback. He had no knowledge of any further conversation Jones might have had with Jackson on the Mitre matter. Reihman did not think there was ever a written retraction of Contracting Officer Smith's CX 55 8/3/94 direction EG&G use the Mitre Report in implementing its safety program. Nor was there any reason to, according to Reihman. Apparently because of Reihman's oral advice from Dave Jackson PMCD. In connection with this Dave Jackson advice Reihman testified it was not EG&G's policy to make sure the Army's PMCD directions were in writing and he attested a lot of communication about PMCD project directions to EG&G were verbal. TR 1689-91. Since Hanny's deposition and trial testimony indicated the problems with PMCD oral advice and communications to EG&G personnel, and the safety program to which Contracting Officer Smith referred in directing EG&G to implement the Mitre Report is set out in the contract, Reihman's representations/reflections here as a staff person are not those of Hanny. <p> <p><strong><u>Parties' Contentions on Jones' <em>Prima Facie</em> Case</u></strong> <p> Jones suffered adverse employment actions, the pre-termination counseling and then his termination. EG&G grants, and by Silvestri's and Smith's testimony it is established that Jones' activities/involvement in the MSB Lab shutdown, the BRA incident, the hydrogen cylinder and the IG treaty compliance building events contributed to, played a part in and motivated EG&G's decision to take these adverse employment actions, although EG&G contends Jones' poor management of their Safety Department was their major motivation in these decisions. Respondent contends Silvestri and Smith, the deciding and effectuating EG&G officials, were unaware Jones had raised Mitre Report issues, a contended protected activity, with Reihman, Silvestri's deputy at EG&G. Complainant contends his Mitre Report activities, a protected activity, were known to EG&G and played a part in EG&G's adverse personnel actions. <p> EG&G does not disagree Silvestri was aware of Jones' 8/2/94 Internal Audit report on EG&G Safety deficiencies preparatory to the IG's 8/15/94 inspection to the extent reflected at CX 48, pgs. 256-261; RX 36, pgs. 294-302. But there is disagreement as to what Jones additionally sent Silvestri on or with the 8/2/94 Internal Audit. However by EG&G's presentation and arguments Jones' 8/2/94 Internal Audit and report of TOCDF's Safety Department's deficiencies in 15 Safety program sub-elements, including CAIRA (EP) emergency preparedness, hazard analysis, hazard material communication and the monitoring program, played no part in and did not motivate their decisions to counsel/terminate. <p> <p><hr title="Horizontal Rule">[Page 54]<p> More important, EG&G argues that Jones' Internal Audit and activities on this Internal Audit; his MSB Lab shutdown, his BRA and hydrogen cylinder activities; his expressed concerns on the Treaty Compliance Building and MITRE Report were not protected activities under the statutory whistleblower protection provisions here so as to establish the required elements of his <em>prima facie</em> case. Because, they contend by what Jones said in these activities/events and by what EG&G perceived, Jones was concerned with and expressing himself under OSHA and Army rules "unique to chemical weapons;" he did not communicate and was not perceived by EG&G as communicating concerns about "environmental" compliance under these statutes. Jones did not raise "environmental concerns" about events he reasonably believed violated RCRA, TSCA or CAA is EG&G's position; he never once expressed to anyone he believed EG&G, in these events, was violating RCRA, TSCA or CAA. <p> EG&G in urging Jones has not proved his internal complaints were "grounded in reasonably perceived violations of the environmental acts" cites to three cases for this proposition. <em>Minard v. Nerco Delamar Co.,</em> 92-SWD-1, Sec. Dec. 1/24/94; <em>Johnson v. Old Dominion Security,</em> 86-CAA-3, Sec. Dec. 5/29/91, <em>Aurich v. Consolidated Edison Co. of New York, Inc.,</em> 86-CAA-02, 4/23/87. <em>Aurich</em> stated that while a complainant's complaint asbestos had violated the outside air would appear to trigger the CAA whistleblower protection, a complaint limited to airborne asbestos as an occupational hazard, and a complaint which related only to occupational safety and health, would not so trigger. <p> <em>Minard</em> cites to this <em>Aurich</em> language to state "the environmental whistleblower protections are intended to apply to environmental and not other types of concerns," and <em> Minard</em> indicates the protected activity analyses is not the same for every employee. This language is the basis for EG&G's argument that, given Jones' experience and training "in the field of environmental compliance," since in these internal complaints he never expressed or stated that EG&G was violating TSCA, RCRA or CAA but made numerous citations to OSHA and Army rules, Jones did not meet his burden of showing he raised "environmental concerns" about events he perceived violated TSCA, RCRA and CAA. He raised "other types" of <em>Aurich/Minard</em> concerns which EG&G urges are thus not protected activities under these statutes. Since briefing the Board has issued, and the factfinder has considered on the Respondent's <em>Minard/Aurich</em> arguments <em>Tucker v. Morrison Knudson</em>, 94-CER-1, (ARB 2/28/97). It was there held safety violations did not relate to environmental safety. However the totally dissimilar facts here are not the facts of the safety incident in <em>Tucker</em> which is the subject of the <em>Tucker</em> holding. <p> Complainant's position is the very performance of Jones' Safety Manager job duties were protected under RCRA, TSCA and CAA since environmental and safety issues are so inextricably related at an extremely hazardous chemical weapons incinerator as to so find. Just as the Secretary found quality assurance/control functions to be protected activities in the nuclear industry. <em>Hill v. TWA,</em> Cases No. 87-ERA-23, 24, Sec. Dec. 5/24/89. Further Complainant argues whether it is found his Safety anager job performance was itself protected activity in this extremely hazardous environment/facility, he engaged in discrete instances of protected activity in shutting down the MSB Lab, in his BRA and hydrogen cylinder activities, in his Internal Audit and in his Mitre Report activities. <p> <p> <p><hr title="Horizontal Rule">[Page 55]<p> <u><strong>Analysis</strong></u> <p> While EG&G had an Environmental Branch under Hayes, on 7/14/94 and before the Complainant took his first MSB Lab close-down action, Jones wrote a memo to EG&G management (Hanny) which reflected his belief that in this chemical surety operation EG&G's Environmental & Surety/Safety Branches shared many responsibilities and decisions and were subject to the same regulations; they should be organizationally in the same EG&G Division. He indicated this was what the Army was moving to due to the overlapping regulations under which Safety and Environmental worked, and because of their overlapping responsibilities. He advised Hanny that in the two weeks he had been at EG&G issues had arisen because Safety and Environmental were not in unison due to differences in the regulations and law, he was sure more issues would arise and a close working relationship between Safety, Surety and Environmental was essential for an effective chemical surety program. CX 35/231. <p> It was Hayes' personal opinion, as reflected within, as the TOCDF environmental compliance officer that in the summer of 1994 there were some overlaps between the 29 CFR OSHA requirements and those under the RCRA regulations at 40 CFR. <p> Then specifically, Hayes reviewed the 12/95 approved Personnel Training Plan (CDRL), under TOCDF's Army contract and reflected the merger and overlap between OSHA and RCRA requirements, acknowledged that 40 CFR, the RCRA regulations of EPA and the 29 CFR level of training meet the RCRA requirements. TR 2280-81. Safety training was a deficiency item on Jones' 8/2/94 Internal Audit. Hayes reviewed the contract provisions' specific statements as to TOCDF jobs which had hazardous waste management responsibilities. Hazardous waste management is involved in the unpack area (UPA), the BRA operation, the laboratory positions and agent chemist position. These were the jobs and functions the Safety manager and Jones inspected here. The monitoring plan was also an Internal Audit deficiency. The Safety branch inspected for monitoring, inspected the nerve gas laboratories and their monitoring, and nerve gas security and accountability were among Safety's duties and Jones' Internal Audit work assignments. These are all activities which fall within the regulatory parameters of TSCA, RCRA, CAA, under EPA. <p> It is found the thrust of this presentation, including Hayes' testimony in juxtaposition to issuances under and in effectuation of the specific language provisions of EG&G's TOCDF contract with the Army, reflect the Safety manager's job functions, as attested and described by Jones, were involved with and required under RCRA. While in the summer of 1994 many EG&G managers may have had the obligation to review and comment on surety and security and environmental compliance, Jones in his job functions at issue was specifically and clearly one of these managers. TR 2288-89. <p> As of the summer of 1994 the emergency response plan was the Safety Department responsibility and Safety and Jones, after the Army lost their initial plan, were in the process of developing the emergency response plan, with a RCRA "Contingency Plan" required. According to Hayes the contingency plan is now very much reflective of the emergency response plan. A facility's plans to handle accidents and incidents resulting from their toxic substances operations and their hazardous wastes operations, in their impact on its workers, on the surrounding community and on the environment, including the outside air, by whatever name or form, are vital requirements under TSCA, RCRA and CAA, and their enabling regulations. <p> <p><hr title="Horizontal Rule">[Page 56]<p> EG&G, by its arguments, seeks to separate the Safety Manager's advice to the GM as to deficiencies in the emergency preparedness plan, which was a component of his job function, from what were this facility's and these GM's known responsibilities for emergency preparedness plans under the environmental statutes it was intimately subject to, given the nature of the ultrahazardous toxic and hazardous substances for which it was systemizing. This separation is urged on the basis this was an Army facility and an Army contract with Army language, citations and verbiage in the details the Army required of EG&G TOCDF's safety inspections and quality assurance/control. <p> However when by 8/18/94 memo to all EG&G/Battelle employees Silvestri advised emergency preparedness work activities which until then had been spread out across divisions and branches with work overlap fragmentation and miscommunication were to be unified under the Safety Branch as the single point of contact, coordination, authorization, direction and approval, with questions directed to Jones, no such distinction as to Army-OSHA, RCRA Contingency Plan, emergency preparedness work was made. Army Contracting Officer Robert Smith was served with this Silvestri advice. CX 100. <p> EG&G in its proposed findings on each incident Jones claimed protected activity sets forth the view that absent specific Jones references to RCRA, TSCA or CAA, given Jones' stated references to Army regulations this indicates he was not thereby raising, and was not perceived by EG&G as raising, issues protected by the environmental statutes here, but exclusively Army safety issues were raised/perceived. <p> EG&G urges segregation of compliance with RCRA, TSCA and CAA provisions, from what it argues are solely-stated Army safety concerns, EG&G's argued focus on Army and OSHA rules because Jones was a Safety Manager in a incinerator governed by OSHA and Army rules unique to chemical weapons, as a distinguishment and dichotomy so as to hold Jones did not, as a result, state protected "environmental concerns," or "environmental statutes" concerns, is not persuasive. <p> The specific statutes at issue, RCRA, TSCA , and CAA are generally referred to as environmental statutes. The specific environmental concerns of these particular statutes are that RCRA regulates the treatment, storage, transportation and disposal of solid and hazardous waste; TSCA applies to the manufacture and distribution of chemical "substances" and CAA regulates the quality of ambient air, that portion of the atmosphere external to building to which the general public has access. Jones' 8/2/94 Internal Audit Executive Summary and the materials Silvestri stated he did receive specifically state EG&G is deficient in its emergency preparedness plan, in hazardous material communication, in hazard analysis; in its accident and incident reporting, in its inspection and monitoring program, and its abatement plan among other areas. These are the very concerns at a hazardous waste chemical weapons incinerator which impact RCRA, TSCA and CAA regulations under these specific statutes, generally known as environmental statutes. That such concerns as so expressed by a Safety Manager at such a facility, to a General Manager of an RCRA licensed incinerator preparing to incinerate highly toxic nerve gas weapons and handle their hazardous waste by-products, whatever internal verbiage is used and must be followed in military reporting, would be perceived by a Safety Manager and a General Manager, as reasonable men in these positions, as not impacting on the environment, under RCRA, TSCA and CAA is, in my view, unpersuasive. Further Jones' attached Work Division detailed these and additional subject matters he stated deficient and requiring work, including agent security and accountability, laboratory safety, lightning protection, a system safety plan, and he specifically stated an "environmental" component and concern on the deficiency materials Silvestri agreed he received. <p> <p><hr title="Horizontal Rule">[Page 57]<p> TOCDF is a facility which required a RCRA permit from vertical construction up. It is designed for the business of handling and operating a plant to dispose of toxic and hazardous chemicals and waste. The by-products of the incineration and destruction of the toxic nerve gases and their repositories; the weapons with their casings and enclosures, some containing PCBs, will be handled at various TOCDF sites, including the BRA. This is so indicated by Jones' and Hayes' testimony. This is the nerve agent for which the Army, in its laboratory handling, set out their Chapter 8 DA-PAM 385-61 procedures for TOCDF handling and destruction. All these activities, in the handling, the movement, the incineration and disposal of the ultra-hazardous immediately lethal nerve agents and their enclosing containers is done under military, Army auspices and control unique to the nature of these toxic agents and their weapons and to the control the military by statute has over these unusual gases and weapons. The record indicates, including by Winters' testimony how vital an emergency preparedness plan called for by RCRA is to such a facility, to its workers and to the surrounding community in the event of incident or accident. <p> Internal complaints which "touch on" public safety and health and compliance which falls under RCRA, TSCA or the CAA can be activities protected by these statutes. The nature of the complaints and the factual setting and circumstances as they impact and touch on the statutes under which the whistleblower brings his discrimination complaint have to be considered in each case. TOCDF, while governed by OSHA and Army rules unique to chemical weapons and their control, was also governed by the RCRA, TSCA and CAA provisions which apply to a hazardous waste site incinerating toxic chemicals and impacting, in the process, on the ambient outside air. Reardon testified the RCRA permit envelopes everything needed to run TOCDF. "It includes safety items in it also, so there are some safety requirements in the RCRA permit." TR 949. The contractor's and the Army's compliance with these environmental statutes which cover TOCDF is through Army rules, regulations and procedures. <a href="#F34"><sup>34</sup></a> <a name="RF34"></a> <p> EG&G argues it is a stretch of the law when Complainant urges case law which held the questioning of safety procedures protected activity under the whistleblower protection provisions of the Energy Reorganization Act (ERA) and that this principal should not be applied here as the ERA is an industry-specific OSHA statute, designed to insure the safety of nuclear plants, as those at issue are not. <em>Nichols v. Bechtel Construction Inc.,</em> 87-ERA-44 Decision and Order on Remand 9/26/92. <p> However as the ERA applies to the nuclear industry, RCRA applies to the specific and particular industries which handle hazardous waste; TSCA to those that handle defined and other ultra hazardous toxic chemicals. Were internal reporting of safety concerns and procedures at the specific industries covered by RCRA and TSCA, which can affect public safety and health, excluded from these Acts' whistleblower protections it would serve to stifle raising internal safety concerns, concerns which can affect the environment under these statutes. It would stifle the raising of safety and safety procedure concerns as serious in their impact and effect on the public health and the environment as those in the nuclear industry albeit not as widespread. Bhopal v. Chernobyl. Here the internal reporting of safety concerns and the questioning of safety procedures by the Safety Manager in this chemical weapons incinerator, uniquely and solely controlled by and subject to military, more than touches on compliance with the environmental statutes under which his whistleblower complaint is brought. Such actions are the essence of assuring that a military facility with TOCDF's purpose, handling the unique toxic chemicals and hazardous wastes it handles and solely controlled by the military and by its contractor under a military contract, comply with RCRA, TSCA and CAA. <p><hr title="Horizontal Rule">[Page 58]<p> Jones described some of the problems the IG inspectors noted which they brought up with EG&G personnel at their nightly out briefs. This included EG&G workers who, when the conveyor system rollers did not properly operate to push the munitions down the equipment in the Control Handling Building, physically gave them a push with cheater bars. In his testimony Jones described this IG noted concern in their systemization inspection as strictly an industrial safety issue. However on the factfinder's review and analysis of all of the presented fact evidence as to the TOCDF operational activities in this chemical weapons destruction facility, when what the parties variously term industrial matters is considered against the underlying concerns of the statutes here, TSCA (toxic substances), RCRA (hazardous waste), and CAA, when the environmental impact and potential impact of these various safety issues and questions is analyzed against the unique and ultra hazard to the environment, both internal and external, of a mechanical mishap in these nerve gas weapons' handling through the destruction incinerator, a faulty conveyor system operation, it becomes evident the implications of what is termed "industrial" safety violations in the mechanical and other operations of this particular and unique incinerator on an unspeculative basis, impact the environment. TR 320-21. While not all do, the discrete actions of Jones' presentation do. <p> It is true TOCDF's Safety manager operates under Army rules at this chemical weapons nerve gas incinerator, and by review of the myriad of military documents concerning the contractor's operations under this contract, Army references are essential in EG&G's inspections/actions/documentation under this contract. <p> Yet by EG&G's argument, although its Safety Manager is responsible for EG&G's emergency preparedness plan, and operates under Army rules and references as to such, e.g., CX 32/133, by his Army reference citations instead of specifically to RCRA or TSCA, when in his 8/2/94 Internal Audit he advised EG&G of its deficient emergency preparedness plan, and of its other deficiencies impacting RCRA, TSCA and CAA, he was not stating a RCRA whistleblower protected deficiency. Nor, it is argued, in so stating, did its managers, including its General Manager, at this ultra hazardous toxic chemical and hazardous waste facility, thereby perceive he was advising them of an environmental compliance concern or a RCRA deficiency. <p> Jones in his Internal Audit Executive Summary did not cite to any specific Army or OSHA rule. Nor did he state his enumerated deficiencies and his work division items were RCRA, TSCA or CAA deficiencies/requirements. Respondent in its proposed finding (#81) adroitly uses record statement/documents to support its "Army rules focus therefore lack of protected activity" argument. <p> It would also appear EG&G is urging that to hold Jones' expressions reasonably perceived environmental concerns, given his background he should be held to some more precise, different or higher standard in defining these environmental Acts' involvement in his expressed safety and audit concerns. <p> Jones' background was Army inspections and the military, his "environment" training limited. His hearing impression is that in his pre EG&G employment he knew, under the military directions and authority he was given, what he had to do, and he did it; and that, generally, what he was doing was covered under environmental statutes. He testified he was weak on the environment side, the IG team had environment experts or engineers as needed and he was not one. He is <p><hr title="Horizontal Rule">[Page 59]<p> not viewed as an expert in environmental compliance and on these statutes so as to hold him to a different standard on reasonable belief or preciseness of advice in conveying to EG&G concerns which clearly involve, affect and impact the environmental statues under which this whistleblower complaint is brought. <p> When Jones raised with EG&G managers his concerns about the MSB Lab, the BRA, the Treaty Compliance Building, the Mitre Report and as reflected on his Internal Audit, they knew from what he told them he had concerns about the operations and procedures at a facility where shortly, by their schedule and the one the Army was pushing for, hazardous wastes and toxic chemicals would be processed. As EG&G's Quality Assurance Manager Biggar testified, everything had to be fixed now. It was a situation where the integrity of the operation, in its machinery, in its operational procedures, in its documentation, and in its follow-up on safety problems, was essential. This was known to its EG&G managers and to its General Manager to be such and required. Jones' Internal Audit advice as to a deficiency in the emergency preparedness program and its accident reporting program, however denominated and adroitly argued from; his advice as to deficiencies in its inspection and monitoring program, and in its hazardous material program were statements to the GM as to TOCDF deficiencies which in its handling of toxic chemicals and hazardous wastes covered by the environmental statutes at issue would affect public health and safety and the readiness of the facility to handle and cope with operational events impacting the workers and the community. <p> To argue Silvestri perceived Jones' emergency preparedness concern as related only to Army regulations and not RCRA so as not to be protected activity under RCRA, is unpersuasive. <a href="#F35"><sup>35</sup></a> <a name="RF35"></a> The GM of such a facility, a poison gas incinerator and a hazardous waste facility, knows the significance of an emergency preparedness program for its operations, its workers and the community. The GM knows the significance of the RCRA permitting process and its requirements, and generally the monitoring, inspection and abatement requirements of the environmental statutes under which such an ultra hazardous facility operates. <p> Aside from these bases for being unconvinced by EG&G's view of what occurred here, and its arguments, the record would indicate Army rules and OSHA rules on poison gas handling and processing to destruction, including its hazardous by-products, overlap with and effectuate and are comparable to the requirements of RCRA, TSCA and CAA. To distinguish them for purposes of holding a Safety Manager who raised the concerns Jones raised here unprotected by these statutes sets a different standard for a facility subject to these environmental standards but of statutory necessity operating under military auspices and procedures. <p> By Jones' testimony Silvestri knew Jones could not locate in the Safety Department EG&G's EP program or plan for toxic operations, or for the systemization operations they were currently in. While Silvestri testified EG&G had an EP plan for construction, EG&G was then over a year into systemization, with no EP for imminent toxic operations. The Army had "lost it" according to Hampton. And he had started over with the Army, not long prior to the date TOCDF was scheduled for surrogate burns. The emergency preparedness plan was a topic of discussion between Silvestri and Jones when Silvestri received the Internal Audit deficiencies' report. This was in my opinion clearly a protected activity under these statutes, known to Silvestri and EG&G to be a protected activity. <p> It is found and concluded that Jones in his Internal Audit engaged in protected activity under RCRA, TSCA and CAA and that EG&G was aware of this protected activity. <p><hr title="Horizontal Rule">[Page 60]<p> When Jones raised concerns about the Treaty Compliance Building and its Site Safety Submission he was raising concerns about a building on TOCDF subject to a RCRA construction permit albeit built by another contractor and not subject to EG&G's contract. A building designed to hold laboratories where agent, subject to the same toxic chemicals and hazardous waste handling provisions of these Acts, would be monitored and tested; subject to the carbon filters and waste removal provisions which meet "environmental" standards. RX 72. This was a reasonably perceived concern under these environmental statutes raised by the new Safety Manager during the course of his initial assessment of the TOCDF facility; and Silvestri knew such approval, subject to RCRA, was required prior to construction, albeit not EG&G's responsibility. It is found and concluded that in raising these concerns Jones engaged in activities protected under these Acts, and EG&G knew he was engaging in such protected activities. <p> It is further found that in Jones' discrete activities where he raised concerns as to the handling of dilute agent at the MSB Lab, asked questions as to the laboratory operation's handling of agent and the laboratory's procedures; when he raised questions as to the protection of BRA workers handling and exposed to a chemical of unknown toxicity during a hazardous waste procedure; when he participated and responded in the handling of a potential explosive condition outside the MSB Lab where dilute agent operations took place, Jones engaged in activities protected under these Acts. And further, that Silvestri who knew of these Jones' activities knew that these activities were protected under these Acts. <p> Jones' undated handwritten note reflects his stated concerns as to EG&G's verification and acceptance of the Mitre Report risks, the need to conduct Hazard Analyses to eliminate these itre Report risks. The Mitre Report reflects the various potential hazards of and risks to the TOCDF incineration plant operation, a plant involving toxic chemicals, hazardous wastes and impact on outside air. <p> There are credibility questions as to the number and dates of the Jones-Reihman conversations on the Mitre Report and its implications for EG&G. But aside from the conflicting testimony as to what Reihman knew of Officer Smith's written directive, what Reihman did or did not tell Jones to do, and whether Reihman had a second meeting with Jones to tell him of Reihman's advice from Jackson, Reihman's testimony supports the fact Jones raised with an EG&G manager significant Mitre Report questions which if not corrected could impact on the TOCDF facility, on the environment inside and outside TOCDF, and the environmental statutes at issue. Jones' advice as well as a cursory reading of the Mitre Report so indicate. <p> While EG&G argues Jones' Mitre Report concerns were limited to OSHA required Hazard Analyses that had to be performed and they did not perceive he had environmental concerns in his advice to EG&G, this Report, its referred-to Hazard Analyses, and the basis for such as reflected in Jones' note's referral to its book of plant safety risks with its TOCDF Hazard Tracking Log, touch on public health and safety and the environment. By their statements and from the book's contents, what is reflected is known to the reader, including EG&G managers readers, to potentially realistically impact and effect the environment at this chemical incineration plant. The protections of the environmental laws at issue, RCRA, TSCA and CAA, in their effect on public health and safety, are impacted by the Mitre Report's contents and directions. The fact is Jackson's oral advice, as Reihman related it, is inconsistent with Contracting Officer Smith's written directive to Silvestri. Reihman's representation he as Executive Assistant did not know of Officer Smith's directive and he relied on oral advice of a PMCD subordinate to Thomas and Officer Smith in the circumstances reflected gives pause. <p> <p><hr title="Horizontal Rule">[Page 61]<p> EG&G posits that Reihman, the only EG&G manager Jones talked to about his itre Report concerns was not involved in the decision to terminate Jones. However Silvestri testified the advice he received from Reihman as to Jones' alleged "sleeping on the job" statements was the basis for his termination decision. It is found Reihman was the EG&G manager from whom this contested sleeping-on-the-job statement originated and Reihman testified he advised Silvestri of his conversations with Reardon and Hampton on this event/statement, but not Jones or Jones' supervisor at the time. So Reihman and his statements to Silvestri were in fact involved with and a stated basis for the termination action. <p> Further, on analysis and evaluation of the conflicting versions of this "sleeping on the job" statements and events, set out below, what is clear is Reihman not only responded to Reardon's approach on this matter, he went out of his way to talk to Hampton about it, under the circumstances set out within, and then he told Silvestri about it. <p> This Executive Assistant, second in command at EG&G TOCDF, as reflected below testified he conveyed information to Silvestri received third-hand from two lower-level employees, about an essentially minor personnel matter of no note but to the involved parties. Yet he, and Silvestri, would represent Reihman conveyed nothing to Silvestri about Jones' expressed Mitre Report concerns, concerns involving substantial work and of potential financial impact to EG&G at TOCDF. This is unbelievable. <p> In adjudging the credibility of the Silvestri-Reihman representations on Silvestri's lack of knowledge of what Jones conveyed to Reihman about his Mitre Report concerns and their implications for TOCDF, what has also been considered is the credibility impression Reihman's testimony left with the factfinder as reflected within when he was examined on the statements, originating in his contact with Jones, which have become the basis for the "sleeping on the job" statement, in post-termination litigation represented as so important to Silvestri's termination decision. Analysis of the various witnesses' statements as to exactly what was said on this incident, and what Jones allegedly said, with Reihman's personal presentation when testifying that the sight of Reardon and Hampton that night, without more noted, just happened to "kick in" Reihman's statements to Jones to keep Safety employees busy, did not impress. It was adjudged to reflect a significant post-termination and litigation effect. Reihman's explanations on this personnel incident did not engender confidence in this witness' credibility overall. <p> For all the reasons reflected here and within which cast doubt on Reihman's litigation veracity, the indication by Silvestri and Reihman that Jones' advice as to serious Mitre Report concerns affecting TOCDF's completion was not conveyed to Silvestri is disbelieved. Jones' and not Reihman's version of these Mitre Report events between them is credited. <p> It is found and concluded Silvestri knew pre-termination of Jones' expressed concerns to Reihman on the Mitre Report, and the "for information only" notation does not obviate the impact of Jones' advice this could be very substantial. It is found and concluded this was protected activity under these Acts. It was protected activity known to both EG&G managers. It was advice known to the EG&G management who played a part in and effected the adverse personnel actions. Their representations this Jones' advice did not play a part in the termination action are discounted and disbelieved. <p> In order to establish the fourth element of a <em>prima facie</em> case a complainant must present evidence sufficient to raise the inference that the complainant's protected activity <p><hr title="Horizontal Rule">[Page 62]<p> was the likely reason for the adverse action or actions. It is well established that such a connection can be proven by circumstantial evidence. <em>Mackowiak, supra</em>. <p> Silvestri testified he "dressed down" Jones for the MSB Lab closure; he believed Jones acted improperly and abruptly in the BRA and the hydrogen cylinder incidents. These adverse Silvestri perceptions of Jones in these events, and Silvestri's belief from some unnamed sources as to Jones' IG disclosure as to the Treaty Compliance Building contributed to his decision Smith counsel and terminate Jones. <p> Against this background the thrust of Silvestri's representation is weighed, that although surprised at the number of deficiencies found on the new Safety Manager's systematic audit he never said what Jones said he said, did not react negatively to Jones' Internal Audit report and actions, and he viewed Jones' advice here positively. The facts as to this conversation and encounter, what was said and done by the participants, like so much of this presentation on the various events stated to be the basis of EG&G's actions reflect totally conflicting versions of this event and the conversation between them. However, the following observations on the evidence reflect Jones has presented sufficient evidence to raise an inference his 8/2/94 Internal Audit and his protected activities before it, and his Mitre Report advice after it, with Silvestri's beliefs as to Jones' protected activities statements to the IG, were the likely reasons for the adverse personnel actions. This is notwithstanding Silvestri's representations Jones' Audit report and actions, unlike Jones' prior Safety substantive actions (MSB, BRA, hydrogen cylinder) were received positively by Silvestri, played no part in the adverse personnel actions; and that what Jones said occurred between them never occurred. <p> It is a fact TOCDF was a high profile operation at the time and EG&G was under Army pressure to keep to its operational schedule and the schedules were slipping. EG&G was interested in securing additional Army incinerator contracts and within TOCDF, and to EG&G employees, it was known TOCDF was not as ready as was being represented. The deficiencies' analysis of the new Safety anager, on a systematic overall audit on arrival, was a surprise in its breath to the General anager. The work involved to meet the Internal Audit's deficiencies, shortly before the surrogate burn date the Army was pushing for, required overtime efforts. <p> While for the reasons stated below it is found and concluded the actual decision to terminate Jones was made earlier than 9/14/94, the facts at face value are that he was terminated less than 12 weeks after his 6/27/94 EG&G arrival. And that just eight weeks after Jones EG&G arrival, he was advised by James Smith on 8/23 or 8/24/94 counseling he was as near to termination as Smith had ever seen. <p> In the two intervening weeks between the Internal Audit event/conversation, the IG inspection team, on which Jones had served prior to his EG&G employment, was at TOCDF or, under Jones' direction, TOCDF Safety and EG&G managers were preparing for this IG inspection. <p> Then, the 8/24/94 counseling just after the IG's departure, was assigned to a temporary fill-in Administrative Services Manager arranged for by Silvestri who had no knowledge of Jones, of Safety Department personnel or of Safety activities since Jones' 6/27/94 arrival but what Silvestri told him. Essentially both his management and safety experience was limited; he was a staff person. Hanny, <p><hr title="Horizontal Rule">[Page 63]<p> who was a player in the pre 8/23/94 TOCDF EG&G/Safety Department events, who had confidence in Jones as of his TOCDF departure, and would not have taken this adverse personnel action as of his leaving, to nearby Salt Lake City just shortly before, date unclear, was essentially removed from this counseling event. Add to this Hanny's testimony he told Jones to slow down on his audit before he left. <p> Then there are the facts as to the manner in which James Smith conducted the 8/24/94 counseling session, as reflected below on the issue of legitimacy of business reasons so generalized and unspecific, except as to PMCD, as to be a meaningless exercise to a counseled employee expected, by such advice, to improve in his personnel relationships. The timing and how EG&G handled these adverse personnel actions are factors which support an inference these actions were motivated by and related to Jones' Internal Audit deficiencies and other protected activities. <p> The following facts are also considered in weighing the differences in Silvestri's and Jones' version of Silvestri's expressed attitude on the Internal Audit and whether Jones' protected activities were the likely motive for the adverse personnel action of 8/24/94 and, with his protected activity on the itre Report, for his 9/14/94 termination. Jones came to his EG&G employment as a highly rated technician and manager. His ratings over the years, and Captain Pickering's testimony establish his technical and management abilities, and his experience. Captain Pickering had no personal contact or relationship with Complainant following Jones' exemplary Safety Manager job under him. <p> Respondent's arguments as to why Jones should be found to lack credibility on his Internal Audit encounter with Silvestri and in his statements as to what occurred between him and Reihman on the Mitre Report, have been weighed with the impression as to Reihman's credibility set out above and within. They have been weighed with the following impressions from Silvestri's testimony on the MSB Lab, the BRA and hydrogen cylinder events, stated by him to be part of the basis for his decision Smith should take the adverse personnel actions because of the improper and abrupt Safety decisions Jones made, information never conveyed by Smith to Jones. To the extent what Silvestri states on these events represents hostility or animus toward Jones' Safety actions in these pre 8/2/94 Audit events, in the face of these witnesses contradictory testimony as to what occurred between them, they bear in some measure on what was more likely than not this witness' reaction to Jones' Internal Audit deficiencies report. <p> When Jones, after the MSB Lab shut-down memo, advised Silvestri in the meeting where Silvestri "dressed him down" for this action, and might have used his foul, self-described "colorful" language, he stated he knew Jones' concern was the absence of a written Army waiver, "a piece of paper" to conduct the Lab's dilute chemical agent operations in the manner Jones said he observed. Not in accord with then known and applicable Army standards for such an agent laboratory operation, absent a written waiver; and, in the presence of a written waiver, not in accord with good laboratory practices. <p> How agent is handled in a laboratory, and good laboratory practices in its handling, is a concern of Army regulations and the regulations applicable to RCRA, TSCA and CAA. It is a function which touches on the public health and safety, and of an impact known to those charged with managing a facility as dangerous in its operations as TOCDF. However arguable as to whether it was "protected activities," at the least, safety in agent handling was Jones' concern. And it is the concern of Army rules, pre and post 6/22/94, and of these environmental laws under which the Army and TOCDF operate. <p><hr title="Horizontal Rule">[Page 64]<p> What is more reasonable than not to the circumstances of a new Safety anager observing site operations as part of his usual job arrival audit methodology, is a concern with the total of what he said he viewed at the Battelle MSB Lab operation, and not just one employee's lack of gloves. Thus Jones' testimony is convincing his concerns encompassed the entire lab operation as he and orse, Dr. Burton's on-site supervisor, saw and discussed it. Jones and Morse were the on-site individuals Guello testified were experienced in agent laboratory operations; Guello was not. <p> Dr. Burton testified he had previously raised some of the same concerns Jones testified he raised as to the MSB Lab's operation when he initially viewed this laboratory. While he testified he thrashed this out with the Army previously, and Silvestri in describing his counseling motives which resulted from this incident faulted Jones for not contacting Dr. Burton and getting this information, Dr. Burton did not testify he secured a written waiver or permission in whatever transpired previously between him and the Army; the written certifications of Jones' RX 21 shut-down memo. Further Morse, who knew what Jones was seeking, and questioning, by a recording credited as contemporaneous stated Jones was right. After Silvestri's "colorful dressing down," and advice to Jones to get this laboratory open as quickly as possible, it is reasonable to assume, if there were a written "piece of paper," under the pre 6/22/94 exemption/waiver requirements, Jones would have opened this Laboratory far earlier than the week it took. <p> Dr. Burton testified that notwithstanding Morse's note agreed Jones was right <a href="#F36"><sup>36</sup></a> <a name="RF36"></a>, until the 7/25/94 reopening memorandum he did not know the basis on which Jones was questioning his laboratory's operation, other than Chapter 8 of DA-PAM-385-61. Thus on 7/15/94, when Silvestri dressed Jones down for his Lab closure, Silvestri could not then have been in possession of any knowledge from Dr. Burton of the existence of a piece of paper written waiver advice and could not then have gone through the little bit of time process with Dr. Burton by which Silvestri represented he determined Jones made a mistake. That he was, as a result, abrupt in his safety decision on inspection of the MSB Lab. <p> Silvestri reacted negatively to Jones' action immediately on knowledge of what he had done, telling him so. He testified he was upset with Jones' action, PMCD was put out over it; as he and PMCD were concerned about the TAD Fire Department's "hot" sirens and flashing lights response to the hydrogen cylinder incident. But without further investigation and based on unknown sources, Silvestri faulted Jones as responsible for the Fire Department's TOCDF arrival, when the presentation here, as reflected above, does not so indicate. As he faulted his Safety job performance in making an alleged statement to close down the BRA operation where the toxicity of the substance the workers were exposed to was unknown, impacting on the level of protective clothing required in this hazardous waste operation. Unlike the immediacy of Silvestri's adverse reactions to Jones' MSB Lab and hydrogen cylinder actions, it is unclear when Silvestri so evaluated Jones' BRA activities. Silvestri's testified motivations in counseling over these stated Jones' actions reflect, at the least, anger and disagreement with Jones' actions and evaluations of safety situations in a toxic chemical/hazardous waste operations environment, and a concern with the effect of Jones' actions on PMCD, and on TOCDF's continued operations. <p> With this background, it is reasonable to infer that the new Safety anager's Internal Audit Executive Summary advice on a comprehensive Internal Audit basis as to systematic TOCDF deficiencies was more likely than not, notwithstanding EG&G and Silvestri's representations, connected to the adverse 8/23/94 personnel action. Silvestri testified he did not overrule Jones' MSB Lab shut-down <p><hr title="Horizontal Rule">[Page 65]<p> order because he did not want to overrule a new Safety Manager two weeks on the job. Silvestri's representation he kept the MSB Lab shut ostensibly only to support the mistaken new Safety anager, is not persuasive. Given the lack of clarity in the EG&G witnesses' testimony as to the existence of a pre 6/22/94 written Army waiver, the fact the Lab was closed after Jones' attested and credited unproductive search, was opened only with the 6/22/94 memo, and with a week's delay after Silvestri's "dressing down" of Jones, these facts, more likely than not, would indicate the questions the new Safety Manager raised immediately on his arrival were not so simple of resolution as EG&G represents. While the factfinder in no way adjudges, on this presentation, the correct and incorrect of this controversy which existed at Lab shut-down, about which reasonable men technically knowledgeable may disagree, the circumstances of Silvestri's reactions to Jones' activities have a bearing in adjudging the contradictory testimony as to Silvestri's reactions, as conveyed to Jones, when he received the Internal Audit deficiencies advice. When surprised by the new Safety Manager's advice that so much was broken at TOCDF. <p> Thus Jones has established his <em>prima facie</em> case. It is found and concluded he engaged in protected activities covered by these Acts; EG&G was aware of these protected activities; he suffered adverse employment action and there is sufficient evidence presented to raise the inference Jones' protected activities were the likely reason for his counseling and termination. It is further found and concluded that EG&G has presented evidence that Jones was discharged for legitimate nondiscriminatory reasons. <p><p> <u><strong>Legitimate Business Reasons for Termination</strong></u> <p> <u><strong>Safety Department Organization and Jones' Version of Personnel Problems</strong></u> <p> Mike Hampton was out Jones' first week at EG&G and he first met Hampton his second week at EG&G. According to Jones at this meeting Hampton expressed some anger and very much disgust that Hanny had brought in another Safety Manager. Hampton was very confrontational to Jones, he testified. Hampton told Jones the Safety program was in good shape, they were proud of it. Hampton indicated he wanted it to stay the same. The indication to Jones from this first meeting with Hampton, including the way Hampton related his message, was Hampton would be a challenge to work with. According to Jones he responded to Hampton by telling him let's work together, let's work it out. Jones testified he kind of expected Hampton's reaction since EG&G had brought in another manager over Hampton. There was no Safety department organization on Jones' EG&G arrival. At hire Jones understood there was Jones the manager and the staff. Hampton the former Safety department manager was subordinate to Jones. TR 347-48 <p> Jones testified Reardon, at their first meeting, which preceded his second week meeting with Hampton, was even more vocal in his anger about Jones' Safety department arrival, especially in coming in over Hampton and the very good job he and Hampton had done. Reardon termed Jones's employment a punishment of Hampton. He flat out told Jones they, he and Hampton assumedly, were going to continue to do what they were going to do, they were going to do what they had been doing; they would keep their program the way it was. Reardon here told Jones, according to Jones, there was nothing Jones could do about it and he told Jones he had protection, but did not identify his protection. <p> <p><hr title="Horizontal Rule">[Page 66]<p> Jones testified he responded to Reardon by saying let's not create a lot of problems; give me a chance to find out what you have. If you have a great program, let's keep it on track, let's not change it. I'm open. Reardon was not happy with Jones' response but left satisfied he had had his say, Jones thought. TR 350. Cross at TR 715-718. <p> Jones testified his first meeting with Helser, his first or second EG&G day, was pretty much the same as his first Reardon meeting. Helser was very vocal, more so than Hampton. Helser told Jones he was angry he had been brought in, was very defensive about the things the Safety department had done, told Jones they were going to continue as they had in the past, and there was nothing Jones could do about it. Jones testified he tried to respond to Helser's statements similar to how he had responded to Reardon, give him a chance to find out and work with him, let's work together. "I'm here and I'm not leaving, I uprooted my family." TR 351-52. <p> Jones testified he knew Reardon had a very good reputation in the Army chemical surety business, had worked for an Army individual who was one of the best Army security people and Jones had, prior to his EG&G arrival, met Reardon through this individual. Jones, on his arrival and in evaluating his Safety department, in trying to match Safety employees strengths with the jobs Safety and Jones needed done, saw Reardon as a natural fit for physical security, an area Jones was familiar with based in his Navy security officer job. But with limited Army experience Jones needed help and "train up" in the Army area, and he saw Reardon as this source. Sometime early in his Safety department managership Jones asked Reardon to help him at least part time and to take over some of the security functions. Reardon refused according to Jones and told him he was not going to do it. TR 352. Given this response Jones then tried to convince Reardon it was the best thing to do. He asked him to look at the Safety staff and see that Reardon had the qualifications and experience, the others did not; and Jones needed him in the security job. Reardon agreed with these statements of Jones, but continued to refuse to do the security job. TR 831-32. <p> Jones said he accepted Reardon's refusal since he did not want to put him in the job he did not want, and he asked Hampton, who had a bit of security training to continue to help Jones do security job functions. TR 353. See also Jones' cross-examination testimony at TR 722-25 as to Reardon's and Helser's continued path of insubordination and lack of cooperation, Hanny's indication of Safety problems and being under the gun to get ready for the IG's inspection. <p> At the time of Reardon's refusal Reardon was working closely on the Battelle laboratories' deficiencies, including CAL Lab ventilation and other problems. For a meeting on the status of identified TOCDF Lab deficiencies called by the Army early in Jones' EG&G employment he asked Reardon to get him ready, to get a list of the deficiencies so he could look them over, understand them, train up and be prepared. Jones looked over Reardon's resulting document and felt satisfied he understood the deficiencies. There were a number of Army people unknown to Jones at this meeting attended by Dave Jackson PMCD. The Army, in going through the deficiencies, began to talk about deficiencies not on the list Reardon had prepared for Jones, deficiencies Reardon had dropped off and omitted from the list he gave Jones. Not very far into the meeting Jackson ended it, telling Jones they were adjourned until Jones went back and figured out what deficiencies were open. Jones was embarrassed and he requested Reardon's explanation as to the omission. According to Jones, Reardon offered no explanation, he just told Jones there was nothing he could do about it. Jones' impression was Reardon was trying to embarrass him and had decided to embarrass the EG&G Safety program under Jones. Jones told Reardon he felt his actions were deliberate and as the Safety manager he would not tolerate that. <p><hr title="Horizontal Rule">[Page 67]<p> Jones testified his RX 34 7/26/94 memo was issued to insure a Safety staff member would be available at the plant's scheduled critical 7:30 a.m. daily production meetings. When the Safety member assigned to attend such a meeting reported his unplanned absence to the Administrative Section's answering machine number rather than directly to the Safety department, so substitute coverage could be arranged, this meant Safety did not know of the assigned employee's absence until 10 or 11 a.m. and unless Jones went down to the shops he would not know of the assigned employee's absence from the shops' meeting. By Jones' testimony, it was such an absence by Reardon, and Reardon's lack of timely notification, which resulted in this memo. TR 397-98. <p> Jones' cross-examination testimony at TR 715-18 as to the factual events between Jones and Reardon, and at TR 718-20 as to Jones and Helser, in the initial weeks of Jones' EG&G employment, including at TR 717:2-718, indicate the basis of Jones' insubordination conclusions as to both these employees, which included the cumulative effect of all their statements to Jones reflecting resistance to and refusal of work the new manager wished of them; as well as going over the new manager's head and behind his back, to PMCD Dave Jackson and telling the new manager they would continue to say and do as they wished because they had protection. <p> Jones testified that to tell the truth he was not sure what Helser did on the Safety staff from his arrival until mid 7/94. Jones knew however what he assigned Helser to do; to review SOPs, to do hazard analyses and do inspections, none of which were done by Helser. Helser told Jones he was directed by PMCD to do other activities and he would not tell Jones what he was doing. "I had a very difficult time with Chris Helser." TR 356. <p> Jones testified he had several meetings with Helser where he expressed his concerns about Helser's performance, told him he must perform the jobs Jones assigned him; he was his supervisor and the only way the Safety department was going to work was if Helser did his assigned duties. Jones testified Helser point blank told Jones he was going to do what he wanted to do, there was nothing Jones could do about it, he had protection and Helser would point down the hall through the double doors, to PMCD's adjacent office area. <p> Jones testified that even after these work refusals and work events with Reardon and Helser he attempted to secure their cooperation. He talked to them, counseled them, tried to get them to cooperate in efforts to get them to do his assigned Safety department work; to work with him. He indicated to them the importance of keeping the Safety program on track, told them he wanted to work with them, that they could work it out together. Jones testified that in all his experience in the Safety field and as a manager he had never before experienced employees who were as "flat out insubordinate" as Helser and Reardon were to him, and to his job requests. TR 357. <p> Early in 7/94 he had a meeting with Reardon and Helser together where he asked them basically to knock it off. They just smiled, pointed down the hall and Jones knew he had a serious problem on his hands. <p> By this point Jones testified he had gone to Reddish, the EG&G Human Resources anager and to Hanny about Reardon's and Helser's actions, contacts where he asked each for their help and guidance in working through the Reardon-Helser problems, since he was unfamiliar with EG&G's inner workings on how to handle these situations. When Reddish told Jones to talk to them again, try to work this <p><hr title="Horizontal Rule">[Page 68]<p> out, and Hanny told him the same thing, Jones did. He held the joint meeting with Reardon and Helser where he asked them to work together with him, work it through, with no cooperation voiced by Reardon, or Helser and no improvement. They laughed at him, Jones testified, told Jones they were going to do what they wanted to do, and there was nothing Jones could do about it. TR 358-59. <p> At this point Jones went to both Reddish and Hanny and told them insubordination is insubordination; that it's time for termination. He told them it was an unworkable situation, something needed to be done. Jones's option was to get them out of Jones' Safety department, these employees were not going to work it out. They talked about transferring them to another department, moving them, but according to Jones Hanny said no, termination is the right action for their behavior; and Reddish agreed. <p> The 7/18/94 meeting with Silvestri, on this insubordination problem followed, attended by Reihman. The MSB Lab shut-down memo had been issued 7/15/94.<a href="#F37"><sup>37</sup></a> <a name="RF37"></a> It was here Jones told Silvestri about Reardon's and Helser's conduct and statements, what had transpired with them, about the steps Jones had taken "to try to mitigate these guys' behavior and that we wanted to take termination against" Helser and Reardon. TR 359. Silvestri asked Reddish what was in Reardon's and Helser's personnel files and was told by Reddish that nothing derogatory had been entered in their files. Silvestri then told Jones he was not going to allow the termination to go forward until Jones had done documentation "to protect us," the company Jones assumed. Silvestri told Jones to go forward and work with Reardon and Helser and to start documenting their behavior so if it continued later termination action could be taken. TR 360. <p> Jones testified that after the Silvestri meeting, and after his first weeks' evaluation of the Safety department, Jones decided he and the department needed a better structure. He also thought it might be better for Reardon and Helser to work through a buffer, that maybe what they needed was to get away from Jones on the personnel issues. He decided to set up two teams in the department under the two individuals he had evaluated as strong after his initial weeks in the department, Guello and Dimond. His organizational chart followed. RX 71. And, he testified, as the new Safety department manager, it was his 7/20/94 memos' intent to set up a true team leader concept not a true supervisory role. <p> It took a couple of days on Jones' part to figure out how to follow Silvestri's documentation direction on Reardon and Helser. Jones testified that after thinking about how he could follow Silvestri's direction without highlighting and pointing out to Safety staff that Jones was treating Reardon and Helser different from the rest of the staff, and in thinking about what Reardon and Helser had done in the first weeks of his EG&G arrival, which violated what Jones had asked them to do, he wrote the series of about ten 7/20/94 memos reflected at RX 22-RX 31. TR 727,741. These were specific memos which directed that Safety department personnel work on projects Jones assigned them, and they were not to do various things so Reardon and Helser and the Safety staff clearly knew what Jones' intentions were. TR 361; RX 22, TR 743. <p> Jones testified that since Reardon and Helser had found out "through the grapevine" he had tried to take termination action he brought them into his office together and told them he was serious about this behavior, it had to change, they were at a crossroads in their Safety department employment and they were going to go down this path. <p><hr title="Horizontal Rule">[Page 69]<p> Among the 7/20/94 memos which Jones issued in furtherance of Silvestri's documentation discussion, and Silvestri's advice as to how the insubordination issue should be handled, memos which EG&G argued and presented through their witnesses as juvenile in their request for the employees' "read and understand" signatures <a href="#F38"><sup>38</sup></a> <a name="RF38"></a> was one issued because of Hanny's request on Safety's long distance calls. "A lot" of these calls could not be accounted for, Jones testified. RX 24, TR 731-32. Another, RX 25, was Jones' request the Safety employees have their safety shoes, mask and glasses at work, ready for emergencies. TR 732-733. Jones testified an emergency arose and one of the Safety employees had tennis shoes on; his safety shoes were in his car in the parking lot. Guello testified as to Jones' reaction to Helser's lack of his safety shoes in response to the hydrogen cylinder incident. Then there is the 7/20/96 memo which first advised staff they are authorized and "indeed encouraged" to go to EEO or Personnel with an issue they want resolved at that level, and further stated they must check out with Jones or their team leader whenever they leave for administrative actions. "No questions will be asked." RX 26. Silvestri testified knowledge of this memo, along with Jones' handling of the MSB, BRA and hydrogen cylinder incidents contributed to his Jones' counseling/termination decisions. Silvestri did not testify he had personal knowledge of the contents of this memo, or of Jones' team leader organizational memo. Sue Ann Powell, Silvestri's secretary, supplied him this information, from sources unnamed. <p> Jones explained the personnel-administrative offices are at another site. (Inferentially Stark Street. Human Resources is outside the gated TOCDF site.) They are not at the PSB building where Safety and PMCD occupy adjacent offices. By this memo Jones testified he wanted to ensure Safety knew before the departing employee left so this employee's assigned job could be covered. Jones testified Reardon kept a production team waiting for his presence and safety work when Jones thought Reardon was going to this job. Instead Reardon went to Human Resources and Jones received an angry call from the production people about the Safety department holding them up, complaining Safety was not where they said they would be, when they said they would be there. Absent advice by Reardon as to his non-attendance, Jones had to immediately arrange for Safety department coverage, by someone else. Thus he issued the RX 26 memo to avoid this problem. <p> Another 7/20/94 memo, RX 27 stated all PMCD & SAIC <a href="#F39"><sup>39</sup></a> <a name="RF39"></a> coordination and work will be done only after clearance and approval by a team leader or Jones, and prior to such PMCD/SAIC work. Jones testified it was issued because Helser was not doing the work Jones assigned him, Helser was basically taking direct supervision from PMCD; and additionally PMCD, according to Jones, tended to issue verbal guidance and Jones wanted to make sure it was clearly understood what the Safety department was agreeing to do for PMCD, if it was appropriate, and that Jones was in the loop on this. See also RX 29, 33 (7/26/94 memo) to similar effect, and Jones' testimony as to his need to retract Dochnahl's incorrect BRA/PPE memo. Jones on cross-examination at TR 738-39 explained the necessity for Safety Manager/team leader control of the PAFs and an out of control situation on his take over of the Safety department. See also Jones' cross-examination TR 734-37, redirect at TR 832-33, his testimony on the reasons behind this memo, including the impact of PMCD work assignments on his Safety staff, including two weeks work by Winters, which he as Safety Manager needed to know about, with a chance for input by the new Safety Manager as to its assignment. Jones explained his need to know what was going on with his staff, through these specific directives, in order to determine Safety Department projects' priorities, particularly given the attitude and conduct of Reardon and Helser. See also redirect at TR 834-35. <p> <p><hr title="Horizontal Rule">[Page 70]<p> Jones testified RX 28, the 7/20/94 memo which advised Safety staff they were to work only on assigned projects given them by Jones or their team leader was issued because Reardon and Helser told him they were going to work on what they wanted to work on. This is the memo Reardon in his testimony used as his justification to tell Silvestri to go to Jones to get Reardon permission to take this GM on a VIP plant tour. And which he used as justification for his non-appearance at this VIP tour after Silvestri had given him the "thumbs up" sign, following Silvestri's contact with Jones. Because, Reardon testified, the permission he awaited was never conveyed to him by Jones or his team leader. See also Jones' cross-examination on this Reardon action at TR 741-43. <p> Jones testified that after Reardon's non-appearance at the GM's VIP tour Silvestri was very angry. Silvestri told Jones he had an employee who was engaging in selective compliance and "I should have let you fire the motherfucker when you tried to." TR 382. Jones testified he never on any other occasion saw an EG&G employee refuse to comply with the GM's request, and Reardon was not disciplined for this action. Cross-examination testimony on this incident is at TR 741-43. <p> Near the end of his audit work-up preliminary to his 8/2/94 audit report Hanny agreed to Jones' request for a temporary extended 50 hour work week to get all the program elements on line. RX 30. Safety Department shift work was scheduled to start 8/1/94. <p> Jones testified his 7/20/94 memo on the team-set-up, the team leaders and Safety Department organization was issued based on his evaluation of Guello's and Dimond's interactions with him during his first weeks in the Safety department and on Jones' evaluation of their background, experience and potential in terms of Jones' thoughts as to how he wanted to organize and set-up the Safety department's functions. After this memo's issuance Hampton told Jones he was upset with Jones' decision and set-up because Hampton and Hanny had a deal worked out, before Hanny brought Jones in, in which Hampton was going to be a shift supervisor with four individuals working for him. Hampton then told Jones he wanted to see Hanny on Jones' organizational decisions and team leader assignments, and he took off to see Hanny. Until this Hampton advice, Jones knew nothing of any such deal or Hanny arrangement with Hampton. <p> Then, Jones testified, Hanny telephoned him, told him he had an agreement with Hampton before Jones was hired that Hampton would be the supervisor of the four Safety people who were going to be on the shift and Hanny then asked Jones to make that happen. Jones did not respond on the phone to this Hanny request. <p> Jones testified he felt his organizational decision and two team leader selections were appropriate; that to that point Hampton had been very disruptive in the Safety department, and Hampton was very defensive of the safety program Hampton had managed. Jones did not want what Hanny wanted done as a result of Hanny's secret agreement with Hampton, the agreement which to that date Hanny had never revealed to his new Safety manager. After thinking Hanny's telephone request over Jones wrote to Hanny 7/27/94, at CX 60. He asked this EG&G ASD manager responsible over the Safety department not to overrule Jones' organization and team leader decisions. Jones' problem with this replaced manager on his EG&G arrival were stated: "Mike Hampton, Chris Helser and Pat Reardon's behavior has been reprehensible and totally unprofessional. I would not consider any one of them to have the same leadership skills as Sam [Guello] and Steve [Dimond] unless their attitude change dramatically." TR 365. He suggested Hanny have Hampton work directly for Hanny, and told Hanny he had discussed this with Hampton who was open to the idea. As the record indicates, Jones' efforts, through requests to EG&G <p><hr title="Horizontal Rule">[Page 71]<p> managers Hanny and Reddish, to transfer this replaced Safety department manager from his direct supervision because of the new manager's reported perceptions of Hampton's disruption and lack of cooperation on the new manager's arrival were unsuccessful. <p> On receipt of this Jones memo Hanny came to him, told him he had thought his telephone request over, and he would not overrule Jones' decision as he was the new Safety manager. Hanny also told him it was wrong of him to have had a secret agreement with Hampton without telling him before he arrived so Jones could avoid the blunder or what look like a blunder of leaving Hampton out when Hanny had made an agreement with Hampton. Hanny raised no concerns as to Jones' organizational structure changes and team leader concept at CX 60. From Jones' testimony Hanny's only concern was to fulfill his secret agreement with Hampton after Hanny's post-7/20/94 meeting with Hampton, where Hampton voiced his displeasure with Jones' management decisions, a meeting which Jones was not a part of. TR 366-67, 402-03. According to Jones Hanny advised him he had talked to Hampton about his behavior in the Safety department since Jones' arrival and assured Jones that Hampton had made a turnaround, that Hampton had assured Hanny he was going to be a team player. TR 367. Neither Hanny nor Reddish gave Jones any such assurances as to Reardon. TR 705-06. <p> After Hanny's visit Jones testified he reflected on what Hanny told him of his secret agreement with Hampton, Hampton's former position in the department and decided notwithstanding Hampton's conduct and attitude to date, and in the best interests of Hampton, to make him a team leader. This required a revision of his Safety department organization and assignments, the team leaders, who would work under which team leader, doing what. According to Jones Hanny was very pleased when Jones submitted the revision with Hampton as one of the three team leaders. Jones testified he made Hampton in essence the emergency preparedness coordinator with some other duties. TR 367. <p> According to Jones, Hanny, in his meeting with Jones where he advised it was "wrong of him" to have had a secret agreement with Hampton, made two commitments to Jones: he would talk to Hampton and ensure Hampton's attitude improved and because of the changes Jones had implemented with his arrival as Safety manager, Hanny would talk to the Safety staff to tell them he supported Jones, he supported Jones' direction. See 7/27/94 RX 35 memo. Assumably this 7/29/94 meeting, which is unmentioned by any EG&G employee but Jones, took place shortly before Jones presented his 8/2/94 Internal Audit to Silvestri and issued its Work Division directions and time frames to the staff. Helser testified a lack of transition by EG&G management was somehow responsible for what he said and did <em>vis-a-vis</em> Jones' arrival. <p> Jones testified that after his initial weeks in the Safety Department spent gathering information as to its operations and what its staff did, evaluating what needed to be done including by his walk-throughs, his work on his IG audit preparations, his talks with various staff members, permanent and temporary, he played around with or "massaged" various organizational arrangements and staff organizations. He used chart set-ups in this process, some prepared on Patti Andrews' computer. He testified only two were formally published to the staff, similar to that of RX 71 and the one necessitated by Hanny's secret agreement with Hampton. See RX 59/571. He testified the working copies of the charts he played around with in this exercise were on his and Andrews' computer. Jones testified he does not use the computer extensively and he also testified this computer information could be accessed by others in the Safety Department. Jones testified when he was terminated, and on arrival back at his office to pick up his <p><hr title="Horizontal Rule">[Page 72]<p> possessions, accompanied by Reddish, his office had been cleaned of all his Safety Department work materials. Some of the organizational charts EG&G evidenced reflect names unknown to him and not reflected in any EG&G witnesses' testimony. <p> Several of the EG&G Safety employees testified to many and changing organizational and work assignments during Jones' short tenure. However Jones in James Smith's 8/24/94 personnel action was not counseled on this controverted fact. It was not reflected in Smith's testimony or in his counseling 8/24/94 memo, and Silvestri's allusions on this were generalized, emanating from his secretary, Sue Ann Powell. It was not reflected as a basis for the adverse personnel actions EG&G took against Jones, whatever the contradictions in the various witnesses' testimony <em>vis-a-vis</em> Jones'. <p> Jones on cross-examination testified that although it has been a long time, his impression was when Alan Reihman came in to tell Jones he needed to keep his night shift people busy, Reihman said he caught Safety people either sleeping or napping or dozing. Jones testified Reihman did not say how many, or who. Jones testified he did not try to figure out who Reihman was referring to because he had worked night shift, he knew how difficult it was to initially accliminate yourself, and he wasn't going to do a witch hunt. TR 720-22. Jones testified he told only Guello of Reihman's sleeping on the job conversation. His testimony indicated, as with the organizational set-up changes, that the issue of this Reihman occurrence and employees "sleeping on the job" was not brought up by James Smith in the counseling or termination interview. TR 833-34. Silvestri's testimony would date Silvestri's knowledge of this controverted event to after counseling and prior to termination. <p> On cross-examination Jones testified that before he ever came back from the 8/24/94 counseling session it had quickly become office gossip he had gotten into trouble. "That was not a very well kept secret ... it was pretty common knowledge I had gotten into trouble ... even before I got out of Jim Smith's office ..." TR 751-52. While Jones thought he told Guello James Smith had characterized the session as a pre-termination brief, Guello had prior knowledge something was going on and that Jones was in trouble. Jones explained he was trying to understand and trying to get to the bottom of whatever was upsetting to James Smith, since Smith had not imparted this to Jones at the session. Jones talked to managers and subordinates to try to find out what he had done, had he done anything to them personally, to try to find out how their working relationship was, to try to find out who Jim Smith had talked to, what were their concerns about Jones' behavior and professionalism, if there was something Jones could do better. Jones talked to Dave Jackson trying to find out if he, or the customer was upset with what Jones had been doing, to find out if Jackson was involved. Jones testified he wanted to do better following the counseling, to understand what he was doing wrong to do better and make everybody satisfied. Dave Jackson, he thought, already knew about the pre-termination counseling when they had this talk. TR 750-54. <p> Silvestri testified it was inappropriate for Jones to share the fact of the 8/24/94 counseling session with PMCD, and with other EG&G employees, and Silvestri's belief this sharing was inappropriate played a part in his decision to effectuate termination. However by the testimony of both James Smith and Jones, and the contents of the counseling memo aside from the specific reference to PMCD Jones was told nothing as to the specific basis for any of Smith's oral and written statements to him, which he must improve. <p> <p> <p><hr title="Horizontal Rule">[Page 73]<p><u><strong>Silvestri's Version</u></strong> <p> Silvestri attested his decision to terminate Jones was probably most involved with Jones' management of his subordinates. TR 1112. According to Silvestri he first learned of difficulties between Jones and his subordinates when HR Manager Reddish advised him Jones wanted to terminate two Safety people for cause, Pat Reardon and Chris Helser. Silvestri decided to hold a meeting with Jones, Joe Hanny and Reddish. It appears this meeting occurred 7/18/94 <a href="#F40"><sup>40</sup></a> <a name="RF40"></a>, between the 7/15/94 MSB Lab shutdown memo, and the 7//19/94 BRA incident, and after Silvestri dressed Jones down for the SB Lab shut-down he believed inappropriate. The 7/15/94 shutdown ended Jones' third week at EG&G. It appears his fourth week started with this meeting where he requested upper management's help with the personnel problems he believed he had encountered on his EG&G arrival. <p> Silvestri testified at their meeting Jones conveyed he wanted to fire Reardon and Helser and Silvestri there said he knew both Reardon and Helser and "that" was never his impression of their conduct. Silvestri did not set forth the specific basis of his contacts with and his pre-7/18/94 knowledge of Reardon and Helser, or of their conduct and attitude on the job, and to supervision, on which he based these impressions, although Silvestri attested he personally know they were good solid Safety department employees. Silvestri attested at the meeting he wanted to know if there had been past instances like "this." The specific of the "this" was not described by Silvestri. However in further explanation of the "this," which precipitated Jones' request and the meeting, while Silvestri could not recall the specifics of Helser's behavior which Jones termed insubordinate Silvestri thought that with Reardon it had to do with whether Reardon would remain on the safety or security side of the Safety department. And whether Reardon would forego a safety career for a security career. Silvestri testified he did not think that was unusual. Silvestri did not view it as insubordinate conduct at all. According to Silvestri it was an employee's right to express to his supervisor that a move is bad for their career and long term objectives. TR 1112-14. <p> At the meeting Silvestri testified he wanted to know "what's the story here, what's going on," if there had been instances of this in the past, had there been any other counseling sessions. And since there were no reprimands and good reviews in the Reardon and Helser files, inferentially by Hampton, and since based on Silvestri's generally stated personal knowledge of Reardon and Helser they did not register as insubordinate in Silvestri's eyes, Silvestri told Jones he would not allow their termination to go forward. When in leading fashion EG&G counsel asked if he wanted Jones to document these employees before firing, Silvestri's response was if there was truly an issue with their performance the proper action to take was to write it up, counsel the employee, hope to get "that" situation corrected. While Silvestri could recall Reddish's concern was the abruptness of the action, he could not recall any input from Hanny at the meeting. <p> There is thus a conflict between Jones' description of what Reardon said to him in their initial unwitnessed one-on-one meetings, i.e., he did not want to do the security work Jones as the new EG&G determined he needed him to do part-time; and Silvestri's attested understanding from the 7/18/94 meeting, the "this" was only that Reardon stated he did not want to do the Safety work requested because of his career objectives. Silvestri's testimony did not touch on or address Jones' testimony he told Silvestri of all of Reardon's statements to him: that Safety did not need a new manager, Safety was doing excellent work before Jones arrival, etc., and Reardon's statements he would not do security work, statements which, as described by Jones, were far more than encounters where an employee merely <p><hr title="Horizontal Rule">[Page 74]<p> expressed career desires to a brand new manager. Essentially Silvestri told Jones no action would be taken by EG&G upper management, Silvestri-Hanny; Jones was to handle it himself. Reardon and Reddish's testimony indicated Reardon had sought Reddish's counsel almost immediately following these one-on-one conversations with Jones. What Reddish told Silvestri about these conversations he had with Reardon is unknown, as indicated within, from either Silvestri or Reddish's testimony. But Reardon's 7/18/94 note reflects Reardon was told "confidentially" mid-morning that Jones was trying to dismiss him, had set up meetings with Hanny and Reddish to do this. <p> Silvestri testified he then viewed Jones' stated problems with Reardon and Helser, and Jones' characterization of Reardon's conduct as insubordinate, conduct Silvestri did not view as at all insubordinate, as reflective of Safety Department's deteriorating morale. <p> In testifying, in defense-led fashion, that this meeting with Jones, Hanny and Reddish on Jones' request raised concerns with him as to Jones' performance as a manager, Silvestri stated he saw confusion in the Safety Department as to who was responsible for what element. He testified he knew there were people being made group leaders with staff members reporting to the group leaders rather than the Safety Manager, as his secretary Ruth Ann Powell had shared her concern on this with him, voiced to her by unnamed others; and her concern on Safety department morale. Silvestri testified he found this very improper, and a move to stifle the very open relationship the Safety department members had with him and all levels of management when, at the same time, he learned of another Jones' memo to staff that they could not communicate outside the Safety organization unless they went through their team leader or Jones. TR 1073-74, 1114-15. <p> The 7/20/94 memos as to team leaders was, by Jones' testimony, his response to the advice he received at the Silvestri-Hanny-Reddish meeting, that absent documentation nothing would be done by EG&G management as to Reardon's conduct in refusing a Jones' assignment, Helser's refusal of work from Jones, or Helser's and Reardon's stated attitude as to their performance of Safety Department work under the newly appointed Safety Manager's direction. Essentially they would not follow him. When questioned by EG&G counsel as to whether Jones' handling of the Reardon security-safety assignment incident, the basis for the Jones, Hanny and Reddish meeting with him, raised concern as to Jones' performance as a manager, Silvestri. appears to have amalgamated into his response of his impression of deteriorating Safety department morale and confusion, the post-meeting 7/20/94 Safety department assignment memos. TR 1114-15. But it is found and concluded Jones did not institute the formal written team assignments until after the 7/18/94 meeting. <p> However, it was clearly the thrust of Silvestri's testimony as to the 7/18/94 meeting, when Jones sought Reddish's (HR) assistance in handling the conduct problems Jones, the new Safety anager, stated he encountered with Reardon and Helser on his EG&G arrival, including Reardon's stated insubordination and refusal to do the kind of work the new Safety Manager decided he needed him for at that time, that Silvestri viewed these events, and Jones' request, as a problem with Jones. The implication of Silvestri's response to the problem Jones presented was no action of any kind would be taken at that time by EG&G management or Personnel (HR), as they did not register as insubordinate in Silvestri's eyes. Jones would have to handle the situation himself. <p> <p><hr title="Horizontal Rule">[Page 75]<p> No written EG&G personnel practices or policy materials, including for supervisors, were given Jones by Silvestri or Reddish then or at their initial meetings and Silvestri did not know what if any such material or information was given Jones at the EG&G orientation. Silvestri testified that although it was not correct under EG&G policies post probationary period employees could not be terminated for the convenience of EG&G, in telling Jones the process to follow 7/18/94 he did not advise Jones he could have these employees terminated for the convenience of the company. RX 3 at 22; TR 1164-65. But Silvestri was sure he said at that meeting EG&G needed a lot more background into the reasons for the termination, which he didn't see in the file. <p> Silvestri attested that prior to the date Jones was counseled or terminated he did not see or review the various 7/20/94 memos to his Safety staff subordinates which Jones issued. But Silvestri knew of them, through Ruth Ann Powell, his secretary. Hampton later described Powell as one of his friends. Jones attested he issued these memos to meet the Hampton-Reardon-Helser staff personnel problems he had encountered on his arrival at EG&G and following the Silvestri/Hanny/Reddish meeting where Silvestri told Jones he would have to document before he took any action. <p> His secretary, Powell, came to Silvestri to report on problems in the Safety organization with a lot of unnamed unhappy people due to "changing directions, things like that." Silvestri did not at that time speak to Jones about Powell's or her unnamed informants', concerns. However he asked Reddish if Reddish knew of a memo telling Safety branch people they could not go to Human Relations or EEO without first going through their team leader or Jones. (Assumedly RX 26.) When told Reddish knew of such a memo, Silvestri indicated that was unacceptable and he asked Reddish if he would take care of it or would he like Silvestri to take care of it. Silvestri's testimony did not indicate how Reddish knew of such a memo, or what Reddish knew of the memo's specific contents and conveyed to Silvestri. However Reddish later testified he first heard of this memo from Silvestri. <p> Silvestri testified he did not know the 7/20/94 memo re visits to HR/EEO had been almost immediately rescinded. Silvestri offered no further testimony as to his personal knowledge of the contents of any of the other 7/20/94 memos. The implication of his testimony is he never discussed the memos with Jones or Hanny, nor his attested concerns they reflected on Jones' management conduct. Thus all the information Silvestri received about these memos, from his secretary and her unnamed Safety department informants, was second or third hand. His knowledge of the contents of RX 26 was also second-hand, statedly through Reddish and Powell, Sue Ann Powell's informer unidentified. But for the fact the quoted information was related through Sue Ann Powell, his secretary, the circumstances under which this unknown informant carried this information to Sue Ann, who said what to her, when, is unknown, but according to Silvestri's testimony, she was made the conduit of this information which he accepted totally. He did not investigate beyond Reddish and their limited contact as to RX 26. See also TR 1121. Thus he never heard the circumstances Jones related that Reardon's lack of advice as to his absence from a scheduled TOCDF job, to go to HR, resulted in the memo's request to "check out" with Safety when the employee left. <p> Silvestri also attested he was upset and embarrassed when Pat Reardon never showed up to attend the tour Silvestri was to conduct with PMCD Tim Thomas, one of the evaluators of the contract's award fee. He did not however take any disciplinary action with respect to Pat Reardon's no-show, or talk to Reardon about it, because he testified, without further explanation, "I didn't have a problem with Mr. Reardon's performance." <p> <p><hr title="Horizontal Rule">[Page 76]<p> Silvestri testified that aside from the meeting Hanny attended on Jones' request for a personnel action on Reardon-Helser, he spoke to Hanny about Jones on a couple of occasions prior to Hanny's summer departure from TOCDF. Once because his secretary Ruth Ann Powell came to him with advice Jones had instructed his secretary not to cover the office phones in the absence of Ruth Ann or the receptionist. Ruth Ann wanted Silvestri to straighten out this hardship so Silvestri called Hanny, told him he was not happy with what Ruth Ann told him, told Hanny "that's not the way we've done business down here, everyone has to cooperate and help everyone out as it's a small office." Silvestri asked Hanny to take care of it. Silvestri's testimony did not enlighten further as to the substance and subject of any further conversations he had with Hanny relative to Jones, although he attested he had talked to Hanny of some of his concerns about Jones' performance. <p> <p><strong><u>Evaluation</u></strong> <p> On further evaluation there is no indication in Silvestri's testimony, or that of Hanny, that Silvestri talked to Jones or Hanny about Hanny's agreement with Hampton, by Jones' testimony kept a secret from Jones at and on his employment and until the week prior to the 8/2/94 Internal Audit. That is, that Hampton, on stepping down as Safety Manager so that Jones the outsider could be appointed, was promised by Hanny that he would, in fact, continue as the Safety Department's second in command. At the same time Hanny represented to Jones at hire and thereafter he would have a free hand in his management of the Safety Department and his appointments and utilization of staff. Hanny, by this testimony, confirmed he so misled and misrepresented to Jones. Hampton's testimony indicated Hanny promised Hampton far more, found herein to have further affected the new Safety manager's ability to manage, direct and control. <p> <p><u><strong>Silvestri on James Smith's Involvement</u></strong> <p> According to Silvestri Hanny in the summer of 1994 was asked "by the company" to go to a different location, in Salt Lake City, to work on a proposal for another chemical demilitarization site. This would require Hanny to be gone for a fair amount of time. James Smith was brought in from Dayton, Ohio 8/22/94 to temporarily assist because Silvestri knew him to be capable and also to learn about the chemical demilitarization program. <p> James Smith, Director of Business Development, EG&G Technical Service Group, Dayton Ohio has been employed by EG & G since 1988. He typically works in Dayton Ohio. Since his employment he has been in staff administrator positions with EG&G and at hearing represented the nine companies in EG&G's Technical Services Group, in developing and growing their business with the U.S. Air Force. In his 1994 Dayton position Smith supervised a secretary and an engineer. Smith's background is not technical. His right hand man, an engineer, was a qualified technical person of assistance in the potential customer discussions which were Smith's job. <p> His TOCDF assignment began 8/22/94 and he believed he left TOCDF the third or fourth week in 10/94. He has not been back to TOCDF to work for any extended period since. He explained Silvestri and his boss felt that because Hanny was going to be away for a prolonged period on a proposal, [in Salt Lake City], because he had little to no exposure to a chemical demilitarization operation, and because Smith was submitted as the administrative support manager for EG&G's Anniston proposal, it would be an opportune time for Smith to come in, train and get exposure to a chemical demilitarization contract. <p><hr title="Horizontal Rule">[Page 77]<p> James Smith was assigned by Silvestri to conduct the 8/23/94 or 8/24/94 counseling session with Jones, and the 9/14/94 termination. He did both, leaving his temporary TOCDF assignment about one month after 9/14/94. <p> On Smith's arrival at TOCDF Silvestri spent a fair amount of time talking to him about the Safety program and told Smith he was very close to terminating Jones, it didn't look like Jones was going to work out. He told Smith he thought Jones acted abruptly in the MSB Laboratory close-down, the BRA and hydrogen cylinder incidents; Silvestri was very concerned with Jones' relationship with the client PMCD. He told Smith of his "larger issue" concerns, the morale in the Safety Department; about the Human Resources memo; and Jones telling his secretary not to answer the telephone, very divisive issues he told Smith. TR 1120-22. <p> By Smith's testimony, shortly after Silvestri introduced him around, he discussed Jones and his termination thoughts, either on 8/22/94 or 8/23/94. Silvestri told him "relatively strongly" he was very concerned over Jones' management style and the way he was managing his people, getting along with his people, getting along with the customer. <p> Silvestri's testimony including as to what Smith replied in response to this "very close to terminating advice," by implication indicated Silvestri was ready at that time to terminate Jones. But he was persuaded by Smith "before you do that let me talk to Steve and see if we can make it better. Let me try and communicate to him what those concerns are and see if we don't improve the situation." TR 1121. <p> <p><u><strong>Smith on the Counseling Interview</u></strong> <p> The EG&G Probationary Employee's Review form, stated to be an evaluation for the month of 8/1994 is signed by James Smith as Jones' supervisor 8/24/94, in the 9th week of Jones' EG&G employment, Smith's third day at TOCDF, and following the completion of the Army IG's inspection the week before (8/15/94 to 8/18/94). It states that on Tuesday 8/23/94 Smith counseled Jones <p><dl><dd> regarding complaints from EG&G and government managers relating to: 1) relationship with our customer (challenging, confrontational), his subordinates (demeaning them in public), and general lack of good judgment and acceptable interpersonal skills. As Safety Manager Mr. Jones must do much better.</dl> <p> CX 63, also RX 43. <p> Smith testified he prepared the counseling memo which bears his 8/24/94 signature, RX 43, and in preparation for the counseling session he reviewed only Jones' hiring documents, not further described, the only documents in Jones' personnel record. He had no substantive meetings with Jones prior to the session, met him only in passing, as an introductory thing. Prior to 8/24/94 counseling and termination, Smith did not see or review any of Jones' 7/20/94, 7/26/94-7/27/94, memos to the Safety staff, he did not review Jones' 8/2/94 tasking memo to the Safety staff on the Internal Audit, or the various Safety Department organizational charts EG&G evidenced. RXs 22-30, 33-35, 37. RXs 59-62, the RX 71. <p> <p><hr title="Horizontal Rule">[Page 78]<p> While Smith in testifying could not recall if he told Jones in the counseling session Silvestri had taken umbrage at the fact Jones allegedly shared some information with the IG, Smith's deposition indicated he did. But he did recall stating to Jones, from the counseling sheet, that Jones was confrontational with the customer. Confrontational meant to Smith, although nothing was specifically so stated to Jones, that Silvestri told him Jones had taken a safety issue outside the preview of EG&G's contract to the Army IG team. Smith's understanding of Silvestri's statement was this "basically set the company up and yourself up for confrontation with the customer". But, by Smith's testimonial recollection, this Smith understanding of "confrontational" was not specifically so stated by Smith to Jones in the counseling session. While Smith did not understand the IG's role at TOCDF, he understood they had an inspection role and had some authority as to how TOCDF was operated. TR 868-70. <p> Smith's testimony when questioned by EG&G counsel, indicated Silvestri told him Jones told the IG the Army at TOCDF had not submitted a site survey or safety plan for the treaty verification building. Smith could not recall telling Jones in the 8/24/94 counseling session this statement by Silvestri was the specific basis of his advice and memorialization to Jones on: "complaints from EG&G and government managers relating to: 1) relationship with our customer (challenging, confrontational)...." He did recall at counseling/termination he relied solely on what Silvestri told him as to this customer event, he made no investigation or inquiry as to these facts on his own, and he gave Jones no further information as to, or response opportunity to item 1) of RX 43. Smith did however recall a post-termination conversation he had with Dave Jackson of the Army. In it, in an "oh by the way" statement, Dave Jackson pulled out a document Jackson said was the site survey plan for the treaty verification plan. Smith did not look at this document, or its date. TR 889-91, 897-98. <p> Smith's impression was Silvestri's greatest concern in their pre 8/24/94 discussion was Jones' management style, the way he was interacting with Safety Department people. The Department's morale was getting blown away according to Silvestri, and it might get to the point where some key people would start to be lost from the Safety staff. No Silvestri specifics on this were indicated in Smith's testimony. <p> Smith testified that when Silvestri, on 8/22/94 or 8/23/94, told him he was considering terminating Jones, Smith told him he had been there for two days, and since Jones reported administratively to Smith, to at least give Smith a chance to counsel Jones before Silvestri took termination action. <p> At this point in his testimony Smith said he did not have any discussions with anyone else before the counseling session. TR 875. Later he changed this statement, in response to leading question by EG&G counsel and without any explanation of this revision. TR 881-884. He also did not believe he had any discussions with anyone from Human Relations prior to the 8/24/94 counseling session. But he did recall he went to Reddish, of Personnel-Human Resources, for EG&G information on how to evaluate a probationary employee, and he may have discussed Jones and the planned counseling session with him. What specifically he may, by his revised statement, have discussed with Reddish was not indicated in his testimony. <p> Smith told Jones in the 8/24/94 session Silvestri was very irritated and this session was as close to a pre-termination session as Smith had ever seen, although Smith agreed he had never before counseled anyone in a pre-termination session. <p> <p><hr title="Horizontal Rule">[Page 79]<p> Smith did not mention or counsel Jones 8/24/94 on the MSB shut-down incident; or his handling of the hydrogen gas leak near the MSB Lab; or his handling of the BRA incident, and according to Smith prior to the 8/24/94 counseling session nothing was said to Smith by Silvestri about Jones not being a good Safety manager. <p> Reddish had given him the blank of the Probationary Employee's Review form at R X 43, but Smith wrote it up. Smith, in writing up its information and contents relied solely on what Silvestri told him the prior day about Jones. The inference from Smith's testimony as to what occurred at this counseling session, and from what he there said to Jones, is that after he wrote up the Review form's contents from Silvestri's statements, before the meeting, at the meeting he essentially read or stated to Jones what he had written. He told Jones these were Silvestri's concerns, relayed to Smith, over Jones' management style. "It was in conflict with the way Mr. Silvestri and the company saw their managers doing business, that he was confrontational with our customer, that he demeaned some of his employees and that it was basically unacceptable behavior." TR 877. <p> Smith could not recall if he gave Jones examples of what he was referring to at that time. It is noted on evaluation of Smith's "don't recall" response here, it would be memorable and recallable whether in such a session, never ever before conducted by Smith, he did, or did not, give the counseled employee examples of what he, and his memo, referred to in generalized fashion. The nature and significance of the session, and the circumstances under which this witness assumed or was given this assignment, would make it memorable. As would the events which shortly flowed from it, including media attention. See testimony at TR 878, 894-95. <p> However Smith did recall Jones responded by telling him he was trying to run a Safety program under difficult circumstances on his recent arrival, with the prior Safety manager on site. Smith remembered that he interrupted Jones at this point. He essentially cut off Jones' response. He told Jones he wasn't talking about the Safety program, he was talking about the way Jones was getting along with people, managing his resources, the confrontational side as well as demeaning the employees. This ended Jones' response efforts, and concluded the counseling session by Smith's recollection. <p> Smith's impression from this exchange, which as Smith reflected was the total of what was said, was that Jones did not listen to what Smith was saying, he wanted to address the Safety program instead of the management style issues. TR 878-79, 891-92. Smith testified he provided Jones with no further guidance 8/24/94 as to how he should conduct himself. "Mr Jones must do better" was the counseling memorialization note. But Smith testified in this session no particular training was offered Jones, no progressive discipline was considered by Smith, or transfer, demotion, or work in some other capacity. When asked by Jones' counsel how Jones was suppose to improve ( "Mr. Jones must do much better," RX 43), if not provided with the information to do so and examples of what Smith meant and was referring to, Smith's response was that "at least in my mind... it wasn't ambiguous to me ... those are fairly clear objectionable actions...," Silvestri's concern about "treating his employees ... demeaning them". TR 891-93. However Smith then indicated his opinion as to what is demeaning depends on a lot of things and he had no information on, and sought no information as to the specifics of such. This included from Jones who Smith cut-off in his counseling session response and inquiries; or as to the Safety department circumstances and facts surrounding whatever Silvestri had told Smith about Jones and Safety department personnel. Smith's testimony is totally devoid of the <p><hr title="Horizontal Rule">[Page 80]<p> alleged basis of RX 43's second item: "demeaning subordinates in public, general lack of good judgment and acceptable interpersonal skills". <p> While Smith's testimony indicated he had and secured no knowledge of or information on the specific circumstances of any Safety department personnel occurrences, or demeaning public occurrences it also indicated no such specifics of any kind were conveyed to him by Silvestri. Further he agreed he knew nothing about any difficulties Jones was having, or stated he was having, in obtaining Safety department subordinates' cooperation on work projects; he knew nothing of the circumstances of Reardon's stated insubordinate refusal to participate in the GM's tour, or of Jones' difficulties with Helser. TR 891-96. Essentially Smith agreed he couched the contents of the counseling/ termination "through the eyes of Mr. Silvestri." He made no independent judgment as to whether these actions should be taken against Jones based on what he had seen and reviewed, which was essentially nothing. He did not have, and by his testimony he made no attempt in his counseling session to obtain Jones' side of the story; or at termination. <p> Reddish testified he attended the 8/24/94 counseling session and said nothing. Smith could not recall if Reddish was there, he may have been. Smith's explanation for the fact the RX 43 Probationary Employees Review form, which by its format calls for his the employee's dated signature, was not signed and dated by Jones until 8/31/94, almost a week later, is that through oversight he had it on his desk after Jones left the session. Smith testified he then took it to Reddish and asked Reddish to talk to Jones and have Jones sign it. TR 886-87. Inferentially 8/23/94 or 8/24/94, as this is not the kind of document/event a manager lets sit on his desk <p> As Jones explained, he received this Review form, which has a space for the employee's signature under Smith's signature, in the mail. The Review form bears Jones' signature dated 8/31/94, and Jones testified he signed it the day he received it, a week later, after he telephoned Reddish about it, and was told "just sign it and don't be too concerned about it." TR 424, 429. <p> After the session Smith had several substantive contacts with Jones, including in staff meetings, and in working on paperwork, on personal slots, where he had no personal concerns about Jones' behavior, or the way he handled himself in these interactions. TR 879-80. <p> Other than what Silvestri saw written on Smith's RX 43 memorialization statement on the 8/23/94 counseling session with Jones, Silvestri at trial had no personal knowledge of what was said to Jones at the session. He testified he had no knowledge of what goals Jones was told to meet to reform his performance and behavior, and he did not know if Jones was offered additional training by EG&G to meet these goals and Silvestri's stated concerns. <p> Silvestri testified Jones came to him after the Smith counseling meeting. While he testified he then told Jones why the counseling session took place, Silvestri was not specific in his testimony as to what he then told Jones. He said Jones told him "sure the people in the Safety Dept aren't going to like me. I am finally making the lazy sons of bitches go to work". Silvestri said he was told by Jones the customer people were no good and the Safety people weren't qualified. Since Silvestri testified he knew the Safety people were all solid knowledgeable people who were willing to work and who had done <p><hr title="Horizontal Rule">[Page 81]<p> a good job, this response was unsatisfactory to Silvestri who expected Jones to respond as to how he was going to make the situation better. <p> <strong><u>Post-Counseling to Termination</strong></u> <p> Morale deteriorated thereafter Silvestri attested. "People told me" Jones shared the counseling session with his subordinates and the customer, actions Silvestri thought inappropriate behavior. Silvestri testified he viewed Jones' advice to the client, after the Smith 8/94 counseling session, that Jones was to make and keep PMCD happy as very inappropriate behavior. Silvestri attested this meant to him that the counseling was not having the effect he intended. <p> Jones' participation in meetings was non-existent, according to Silvestri, and he was very ineffective at that point. Since Silvestri did not attend Jones' Safety Department meetings, the basis of this perception could only have been at the weekly branch manager meetings, or if the monthly management review meeting occurred after 8/24/94 and prior to 9/14/94 termination. TR 1139-41. Silvestri's generalized references here to Jones' post-counseling ineffectiveness at meetings did not reflect the specifics for these conclusions. TR 1123-24. Winters' testimony reflected his and Silvestri's exclusion of Jones from a mid-8/94 PMCD meeting. <p> <p><u><strong>"Sleeping on the Night Shift" and "Lazy Bitch" Incidents</u></strong> <p> Between counseling and termination Silvestri testified he learned of two more incidents. Alan Reihman told Silvestri he found out Jones told members of the Safety organization that management accused them of sleeping on the night shift. Silvestri did not know who Jones meant by management, but Silvestri did not believe it came from Reihman and it did not come from Silvestri. Then it was reported to him, again by his secretary, Ruth Ann Powell, that Jones told Patty Andrews, Jones' secretary, Silvestri had called her a "lazy bitch" in connection with the earlier telephone answering incident and Andrews was so upset by that statement she was looking for another job. This is one of the few incidents where, after Silvestri was advised of some statement attributed to Jones by a third or unidentified party, Silvestri testified he contacted the party who statedly made the statement, here, Andrews. Silvestri testified Andrews advised Silvestri Jones so stated to her and she was concerned with her future in the company as a result. Silvestri testified he denied to her he ever made such a statement about her, "I would never say such a thing and furthermore, if I had a problem with her I'd take it to her, I'd talk to her about it." However Andrews' deposition testimony indicates Silvestri did not have any conversation with Andrews about these alleged statements of Jones until after Jones' termination. CX 102:8-10. <a href="#F41"><sup>41</sup></a> <a name="RF41"></a> <p> However Hanny, called in rebuttal by Complainant, by the contents and date of the conversation he had with Silvestri about a "lazy bitch" remark by Jones, tells a different story than Silvestri. And in Hanny's telling he indicates Silvestri knew of a "lazy bitch" reference earlier than he attested. <p> Hanny testified he left TOCDF around the first week in 8/94. Hanny's remembrance of the Patti Andrews incident at hearing, which inferentially occurred prior to his early 8/94 departure, was he and Silvestri had a discussion in Silvestri's office where this was an issue. But maybe, he testified, he did not listen carefully so he did not know who called who what. TR 2342-44. However at deposition he <p><hr title="Horizontal Rule">[Page 82]<p> testified Silvestri came to him with a "big complaint of the secretary in the group. And I hadn't heard about it. He accused Steve, he had accused Steve of calling her a bitch'. And there was something else, another adverb with it, it was a lazy bitch' or something like that." Hanny's further deposition response indicated he had a clear memory of the incident. Hanny could not be confused that Silvestri was the one who called Andrews a "lazy bitch." Silvestri told him the secretary had complained Jones had called her a "lazy bitch." On deposition Hanny testified Silvestri told Hanny he needed to do something about Jones calling Andrews a "lazy bitch". <p> According to Silvestri, in general terms he made the decision to fire Jones the early part of the 2nd week in 9/94, by calendar 9/12/94-9/16/94. By Silvestri's testimony he decided to terminate Jones before he ever knew of Ruth Ann Powell's advice as to Patti Andrews and the "lazy bitch" statements, or before speaking to Patti Andrews. He explained this termination decision made before Ruth Ann approached him on the "lazy bitch" matter by saying he told Smith he did not see things getting better, he thought it was getting worse. Silvestri did not explain the basis for this "getting worse" belief. Silvestri told Smith he was going ahead with Jones' termination, Smith should start it and let Silvestri know when it could be accomplished. Friday 9/16/94 of the second week in 9/94 was to be the day, at the end of Jones' 12th week as EG&G Safety Manager. Thus the only specific post-counseling Safety department personnel incident prior to Silvestri's termination decision on which he based his termination decision was the "sleeping on the nite shift" management advice incident. <p> Then, he testified, he learned of the "lazy bitch" statement and at an unspecified meeting he saw Jones was not contributing where, Silvestri testified, his undelineated contribution was necessary. Silvestri said he attributed Jones' ineffectiveness to his sharing the counseling session with his employees, his peers, the customer. So he called Smith and told him to proceed immediately with Jones' termination, which instead occurred 9/14/94, according to Jones the day after Jones' advice to Reihman on the Mitre Report and the day after, by Jones' testimony, his contacts with PMCD, including Dave Jackson where they had a discussion about revisions that could be made to the EG&G contract documents to enable him as its Safety Manager to sign-off on the Mitre Report RACs. <p> Smith returned to Ohio over the Labor Day weekend. (9/5/94 Monday was Labor Day.) When he returned to TOCDF, sometime Labor Day week, his first day back he and Silvestri had a conversation where Silvestri "mentioned to me something about an occasion where a female Safety department employee had accused Mr. Silvestri of calling her a profane word and he denied that and basically that's it, that's the straw that breaks the camel's back." It was only when then asked what did this have to do with Jones, that Smith testified Jones was the person who told the female employee Silvestri had called her this name. Smith's testimony did not further refer to the "sleeping on the job" allegation so significant to Silvestri's termination decision; nor did Smith indicate any information on this incident was conveyed to him, or known to him when he was told to terminate. <p> Between this conversation with Silvestri and the 9/14/94 termination, a week later, Smith said he was involved with some Human Resources people on the termination. Smith here, contrary to his earlier unled testimony, indicated he telephoned Hanny in Salt Lake City to advise him of "both these activities," counseling and termination, and EG&G counsel's question interpolated and stated information about a first conversation with Hanny before the counseling session. TR 883:22 - TR: 883:2. This was not reflected in Smith's prior testimony and is inconsistent with his earlier representation at TR 875:17-18. After being so led, and without any further clarification, Smith's response here would appear <p><hr title="Horizontal Rule">[Page 83]<p> to indicate Smith also called Hanny before the counseling meeting. And after being again led at TR 883:11-13, Smith's response here would also indicate two Smith contacts with Hanny. However, in light of his prior testimony, the manner of questioning and elicitation of this information serves to confuse and erode probative value. <p> But whether one or two conversations, this witness' testimony indicates Smith's conversation or conversations was essentially to tell Hanny of Silvestri's decisions, to advise Hanny "most of these events had taken place or were going to take place." TR 881:22 - 882:6; TR 2350. <a href="#F42"><sup>42</sup></a> <a name="RF42"></a> According to Smith, when he told Hanny Silvestri felt very strongly about the issues surrounding "this" counseling, Hanny said "I support it, I concur with it." TR 882-83 <p> Smith's testimony as to his Hanny conversations reflected no information conveyed or exchanged as to the specific basis of Silvestri's decisions to counsel, and then terminate Jones. There is no indication any information was solicited or elicited by Smith from Hanny as to Hanny's knowledge of the Safety department facts and circumstances which were the basis for Silvestri's statements to Smith about Jones, the Silvestri statements which are reflected only in the generalized and conclusory fashion the above recitation of Smith's testimony sets forth. And there is no indication in Smith's testimony here on his Hanny conversation or conversations, nor in Hanny's later testimony as to the contact he received from Smith about the termination, that Hanny ever offered any statements or facts as to the circumstances of Hampton's replacement, Jones' hiring, or any of the Safety department personnel events with Hampton, Reardon and Helser prior to his early 8/94 departure, at which time Hanny testified he had confidence in Jones and he did not believe Jones' behavior warranted termination. <p> The impression from Smith's testimony is he called Hanny to tell him of Silvestri's decisions, out of respect for the fact Hanny was the still permanent Manager of the Administrative Services Division, and Smith was only a temporary fill-in. See also TR 884. <p> On 9/14/94 Smith called Jones into his office in Reddish's presence and when he sat down told him "Steve, basically things just have not changed - in Henry's mind, have not changed from the time of the counseling session." According to Smith, Jones then interrupted him and asked if he was being fired and Smith replied "you're being terminated for the convenience of the company." An interchange followed, and Smith could not recall exactly what was said but he did recall Jones saying something about building a good safety program and Smith again said "this has nothing to do with the Safety program, this has to do with the way you're getting along with your subordinates and your relationships with our customer." Smith could not recall if any comments were made by Reddish. Reddish's testimony indicated he said nothing in either the counseling or termination meeting. Smith testified he did not advise Jones he was being terminated for engaging in the practice of issuing the 7/20/94 Safety Department RX 22-30 memos; or for handling himself improperly in dealing with the MSB Lab shut-down, or because he conducted himself improperly in the BRA incident. According to Smith, these were not interview issues at his termination, nor were they at his counseling, notwithstanding both he and Silvestri testified the MSB and BRA incidents were factors in Silvestri's counseling/ termination decisions. Of note is the lack of any reference to the "sleeping on the job" incident. <p> <p><hr title="Horizontal Rule">[Page 84]<p> Smith testified one night prior to the termination he was in the plant, his object to introduce himself to the Administrative Services/Safety people on shift duty. When he introduced himself to Helser, Helser proceeded to bring up the fact he had some real concerns and had made written complaints about Jones to Human Resources. Smith testified he cut Helser off, told him his approach was inappropriate, " if it's in the Human Resources channel, then that's the right place for it to be." Of note on this approach is that there is no indication in the record that Helser, before Hanny's departure ever so approached Hanny, and it occurred a month after the incidents of concern to Helser by his testimony. Smith testified no one came to him wanting to transfer out. He thought Patti Andrews came to him the day before Jones' termination to advise him she was considering taking another EG&G job away from Safety. TR 888. Andrews' testimony indicated her transfer conversation with Smith pre-dated Jones' termination and it was not initiated by her. She was called to Smith's office by Reddish. <p> The implication and inference to be drawn from Smith's testimony as to Silvestri's 8/22 or 8/23/94 advice to him on Jones, is that but for Smith's request he be allowed to counsel Jones, Silvestri's termination decision had been made as of that point. This was just days after the IG team's departure from the TOCDF EGG site, the IG team of which Jones was formerly a member. The IG inspection for which Jones had drawn up the 8/2/94 Internal Audit report to Silvestri. <p> <p><strong><u>Reddish's Involvement in Personnel Events</strong></u> <p> Reddish is Human Resource (HR) Manager for EG&G and has been for five years. Prior to this he had been Human Relations manager for two unnamed companies. <p> <u><strong>Reddish on Hampton</strong></u> <p> Reddish testified prior to 6/94 he was involved with his immediate superior, Hanny, and Silvestri in discussions which occurred when Hampton indicated "he wished to take a second position and no longer remain as the Safety manger." TR 2172-73. He was led on direct to state he understood this was a voluntary action by Hampton, as he was led to state he thought Hampton was "very happy" with this approach. He was also led to testify that he did not have the impression in any of his conversations with Hampton about Jones after his arrival that Hampton was "just sorry that he had given up the Safety manager's job." TR 2179. <p> Reddish testified that within two or three weeks of Jones' 6/27/94 arrival he had his initial conversation with Hampton about Jones. Hampton came to him "in the car" about his experience with Jones. Reddish testified "(w)e would often ride together." TR 2175. <p> He testified he had approximately three or four conversations with Hampton about his Jones' concerns. In the first, Hampton expressed some concern about how Jones was going about handling the Safety Department, his "mistreatment of people." By this Reddish understood Hampton meant Jones was doing a lot of reassigning of duties; frequently those assignments would change. Reddish here did not indicate any specifics as to what Hampton told him as to mistreatment; who was being reassigned, what specific assignments changed. Rather he indicated Hampton's expressed concerns in generalized fashion and stated Hampton expressed a concern as to Jones' general approach to handling people. Reddish indicated Hampton did not then express a concern about Jones' personal treatment of him. But he did in three to four later conversations. In a later conversation Hampton's concern was Jones had <p><hr title="Horizontal Rule">[Page 85]<p> reassigned him and put him on shift work. "There was even some talk later on about discharging Mr. Hampton." TR 2176. <p> According to Reddish, Jones came to talk to him about discharging Hampton because he was being disruptive and not cooperative. Reddish advised him that "maybe he needed to proceed a little slower," that Hampton had been with EG&G about five years, had a good record, there was certainly nothing in his file that would necessitate discharge at that point." TR 2175-76. Reddish thought "we agreed that if it was in fact a problem," Jones would have to start documenting it and "going through a process before we could consider termination." <p> Then, according to Reddish, Jones returned shortly after this conversation to discuss transferring Hampton to Ira Hall's department, the Technical Support Division. CX 110. But this possibility "kind of died" after Reddish discussed this possibility with Hall. While, according to Reddish, Hall acknowledged he thought a lot of Hampton, would like to have had him, Hall indicated "it was difficult to determine how he could use him in his department." TR 2177-78. <p> <strong><u>Reddish on "Sleeping on the Job" Allegation</strong></u> <p> Then after a generalized response on direct as to the substance of the other Reddish conversations with Hampton on Hampton's dealings with Jones, i.e., "probably more of the same... concern about other employees in the department," the leading question was asked whether Hampton ever told him Jones accused him of sleeping on the job. Reddish responded he did. The date or approximate date of this conversation was not indicated. The substance of Hampton's advice to Reddish on this was Reihman, working late, "apparently had made some observations about the Safety Department which he mentioned to Mr. Jones the next morning. And apparently it was interpreted that they were sleeping on the job". Reddish's TR 2178:21-25 response, as well as EG&G's leading questions on direct as to "sleeping on the job," would indicate "sleeping on the job" was Hampton's interpretation or interpolation. Hampton told Reddish Jones talked to him directly about this. <p> Yet when cross-examined on this sleeping on the job testimony at TR 2227-28 Reddish, when asked if he ever asked Jones his side of the story, testified he believed he initially heard about the situation from Jones. Jones told him Reihman reported to him "they were sleeping on the job." However his TR 2190:19-23 responses on direct would indicate he did not talk to Jones about the incident related to him by Jones' subordinates. Then when asked on cross if Jones said Reihman told him they were sleeping on the job, or goofing off, or loafing off, or they didn't have enough work to do, Reddish replied "as I recall" the initial report was sleeping. This is not consistent with Reddish's direct testimony where he covered the substance of Hampton's statements to him by testifying "apparently it was interpreted that they were sleeping on the job." TR 2178. <p> On cross-examination Reddish testified he saw no sensitive situation or difficult position in Jones taking over as Safety Manager, with Hampton there, because, according to Reddish, Hampton was not demoted, he voluntarily removed himself, "he had asked to take a second position." As reflected within, Hampton and Hanny's testimony, with that of Jones, establish otherwise. Nor did he think there was anything sensitive about Jones coming into a group who were friends, many of whom had worked together for one to eight years. <p> <p><hr title="Horizontal Rule">[Page 86]<p> Reddish stated he was unaware Hanny, on Jones hire, had advised Jones he would have a free hand to make personnel changes. While Reddish did not know if such advice would be routine, he stated it would not be unusual. "Certainly he needs that latitude." However Reddish, when cross-examined as to his knowledge of any promises Hanny had made to Hampton with respect to his duties when Jones became Safety manager, testified he was aware Hampton would take a "second position" to Jones. Reddish did not testify how he was aware of this promise; whether he was told of such promise by Hanny or Hampton or both. Reddish testified he did not know for a fact whether Jones was ever advised of this promise to or understanding by Hampton. It is inferred Reddish never advised Jones of any knowledge of Hampton's "second position" to Jones when Jones came to him about Hampton's stated disruption and uncooperativeness in Safety on Jones' take-over. <p> As to his driving to work with Hampton, Reddish testified he and Hampton drove to work together "(s)everal times a week, as often as we could." It was an hour's drive both ways and they "surely" talked about Jones on these drives. <p> <strong><u>Reddish on Reardon</strong></u> <p> Reddish's direct testimony was that Reardon also came to Reddish three or four times. The first time about two weeks after Jones' hire. The substance of the conversation was his treatment by Jones: "basically accused him of lack of knowledge of his job, unable to perform his job." According to Reddish he was generally familiar with Reardon's performance and he understood him to be a very good employee, he had a number of years at TAD and appeared to have a lot of expertise in his field. Reddish in describing this conversation with Reardon did not indicate that Reardon advised him of any of the specific job circumstances which had resulted in Jones' advice to Reardon of Jones' evaluation and problems with Reardon's knowledge and job performance. Reddish, aside from knowledge of Reardon's past TAD employment history, which he assumably obtained from an employee's job application, did not state the basis on which he knew, or could opine, that Reardon was a very good employee in his EG&G work. <p> On cross-examination Reddish said Jones in talking to him about Reardon questioned his credentials, questioned "their" work ethic, told Reddish he was trying to get them to work, that sort of thing. Jones related a very similar situation with Helser's performance he said. Reddish could not recall if Jones told Reddish Reardon was insubordinate but he testified insubordination was a basis for dismissal at EG&G. Reddish recalled he pointed out to Jones Reardon's "pretty good" EG&G record, satisfactory performance for a year, and that this was the first we heard of it. <p> Since Silvestri also made reference to nothing in Reardon's file assumably EG&G maintains some file on it employees. Whether based on job performance, job conduct or both is not explained. Nor is any methodology of evaluation, in what form, by whom, reviewed by whom, etc. indicated. It is assumed this Reardon file was based on Hampton's evaluation of Reardon. Other than these poorly founded references, as related Reddish did not provide the basis for his knowledge of Reardon's job abilities and conduct as an EG&G employee when Reardon came to him about his problems with and complaints as to Jones. <a href="#F43"><sup>43</sup></a> <a name="RF43"></a> Reddish was never Reardon's supervisor. It is not indicated he had personal knowledge and expertise in the Safety Department functions on which Jones, by Reardon's statements, was evaluating Reardon's job performance. This first conversation would, by Reddish's dating, have occurred the week Jones was seeking the written <p><hr title="Horizontal Rule">[Page 87]<p> SB Lab waiver, preliminary to Lab shut-down. The MSB Lab was Reardon's responsibility according to Dr. Burton, and Jones thereafter used another employee in Reardon's stead. <p> Then Reddish remembered in another of his conversations with Reardon he told him Jones was reassigning him to perform some duties, a surety issue, that were not really in Reardon's expertise, not in his background. Reddish wasn't sure how that was resolved. However this record establishes surety was within Reardon's expertise and background. This basic error and lack of appreciation for this fact by this chemical incinerator's HR Manager casts doubt on the foundation for his opinion Reardon was a very good EG&G employee and surety was not his expertise and background. The represented reason for Hampton's replacement was a lack of chemical agent background, such as Reardon and Jones had. Thus this HR Manager's opinions on Reardon's job performance <em>vis-a-vis</em> Jones' appraisal, when Reardon came to complain to Reddish about Jones' evaluation of him, appear conjecture, as well as erroneously founded. Inferentially Reddish's opinions were based on some unstated written performance evaluation by Hampton, or Hampton's car conversations. <p> Reardon also told Reddish during one of their conversations he was keeping a log, a chronological record of events between Reardon and Jones. Reddish suggested Reardon give this to him, which Reardon did. Reddish kept it and reviewed it but since he did not indicate he talked to Jones about any of the conversations Reardon had with him, or Reardon's stated concerns and problems as related to Human Relations, what use Reddish made of this log, and the purpose of his request <em>vis-a-vis</em> Jones is not reflected in his testimony. <p> Through their mutual boss, Hanny, Reddish said he learned Jones wanted to terminate Reardon, he thought in late 7/94, early 8/94. Reddish represented he did "not clearly" understand Jones' reasoning for wanting to terminate Reardon. While he might have been involved in discussions with Jones about terminating Reardon, Reddish stated he really did not recall if he was and he testified there was never a time that Jones' reason for wanting to terminate Reardon became clear to him. It is unclear and unknown from his direct presentation where chronologically or sequentially this "might have" discussion with Jones and Hanny might have occurred in the sequence of Reardon's four conversations with Reddish. Silvestri testified he knew, from the 7/18/94 meeting Reddish attended, that Jones' representations as to Reardon's response to his request he perform the Safety Department surety functions were among the bases for Jones' termination request. Thus Reddish is disingenuous here. And it is significant, in adjudging credibility, that Reddish either misunderstood Reardon's surety expertise and background, or accepted Reardon's representations, in a situation where a new more experienced in the field Safety Manager in the first weeks of his arrival was making personnel assignment judgments. <p> Reddish was led on direct to testify that with these contacts with him by Hampton and Reardon, and Jones' requests of him referable to Hampton, he was beginning to have concerns about Jones' management. But his testimony indicated Reddish had not shared with or discussed with Jones what Reardon was relating to him. <p> <strong><u>Reddish on Helser</strong></u> <p> Then Reddish on direct related two contacts with him by Helser. The substance of Helser's concern was "very similar" to Reardon's. Reassignment of duties; Jones had taken him <p><hr title="Horizontal Rule">[Page 88]<p> off shift work, put him on a regular day duty somewhat removed from his training. However, by Helser's testimony, he had been put on a shift duty assignment. As a fifth man, only in a fill-in capacity, which Helser did not want when Safety went on 24 hour shift work in 8/94. This was different from Hampton's coverage arrangement with Helser, when Safety was not responsible for 24 hour shift work. Helser's testimony did not indicate dissatisfaction with Jones assigning him work removed from his training. Helser did testify to what occurred among and between Hampton, himself and Jones referable to a scheduled training trip. <p> The specifics of Helser's testimony were not described in Reddish's generalized reference to Helser's complaints. While Reddish by his generalizations indicated Helser came to him with complaints about the new manager's decisions, by Reddish's testimony he either misunderstood or the correct factual basis of Helser's displeasure with Jones' decisions was not elicited. Since Reddish did not indicate he advised Jones of Helser's complaints and generalized as to what he did tell Silvestri "about this sort of thing," Reddish's poorly and erroneously founded responses and explanations do not engender confidence in their probative or persuasive value. However Reddish was sure that after he had these meetings with Hampton, Reardon and Helser he discussed these issues with Silvestri. When asked as to his specific conversations with Silvestri he responded, unspecifically, <p><dl><dd> I'm sure there were specific conversations. Henry and I had an arrangement where it was very easy for me to talk to him about this sort of thing. He oftentimes had heard about them before I, I could even get to him. But yes, there were several conversations. TR 2183-84. </dl> <p> See also Reddish's cross-examination at TR 2225. Reddish's testimony as presented did not enlighten as to just what Silvestri had "oftentimes" heard, and from whom. Nor did he indicate why, in his HR Manager function, he would be going to Silvestri and not Hanny, his and Jones' superior. <p> While Reddish testified he was familiar with Helser's performance and he had been a good employee, as with Reardon Reddish did not testify as to the basis for this knowledge or familiarity. Helser had then been employed by EG&G four months. But Reddish did not believe, although he was not certain, that he was a probationary employee. TR 2209. <p> According to Reddish he learned, he thought through Jones, Jones wanted to terminate Helser for performance issues. This was not resolved according to Reddish. It was delayed, and he indicated to Jones processes had to be gone through before termination; i.e., talk to the person, give them a chance to correct their problem; if that didn't work, there was a written document placed in their file. A suspension after a written warning was an option, but two or three things had to occur before a termination. TR 2184-85; 2215-16. However Reddish testified there are circumstances in which these steps do not occur at EG&G. If the situation is serious enough, any of these steps could be waived by the GM, including as to termination procedure. Since it is found as a fact there was no talk with Jones prior to the circumstances of the written CX 63, this step was waived with Jones. And, as reflected in Reddish's cross-examination this suspension option was not considered by EG&G in the personnel actions against Jones at issue here. <p><hr title="Horizontal Rule">[Page 89]<p> Reddish on cross-examination testified he did not tell Helser Jones tried to fire him and he does not know if Hanny or Silvestri told Helser this. TR 2224-25. <p> Reddish testified Jeff Vahl came to see him once because he was offended by a name he was "frequently called or referred to... skinhead." Vahl had close-cropped hair like a brillo cut or a shaven head by the witnesses' various testimony. Reddish did not testify when this conversation occurred, if this occurred before or after Jones' counseling and/or termination, and he testified there were no other Jones problems conveyed to him by Vahl in this contact. He testified he never talked to Jones about Vahl and the "skinhead" remark because he thought Hanny was going to handle that. He believed he talked to Hanny about the Vahl issue. TR 2185-86, TR 2210-11. But Reddish never explained how this conversation with Hanny and not Jones came about, when, what precipitated it, what its contents and outcome were. It is an enigmatic reference by Reddish, another generalized, poorly founded statement. <p> Reddish testified Dochnahl after his vacation, which he did not date, came to see him because of his concern Jones had told him to get a haircut before he returned. Reddish testified this was inappropriate because it does not have much to do with his job and EG&G does not require certain hair styles. Reddish did not testify as to any other Jones problems conveyed to him by Dochnahl in this contact. As with the Vahl conversation, Reddish did not specifically indicate that this Dochnahl contact was conveyed to Silvestri. Nor did he indicate he conveyed this Dochnahl "haircut" contact to anyone prior to Jones' counseling/termination. TR 2185-86. <p> It is noted neither Silvestri's nor Smith's testimony make any reference to these two specific undated visits by these two Safety Department employees to Reddish, about the Vahl "skinhead" Dochnahl's "haircut" remarks; nor does the 8/24/94 counseling memorandum. <p> The basis of Reddish's testimony as to his being aware of "some frustration" in Dimond, although he never spoke to him about Jones as his manager, as support for his impression of very low morale in the Safety Department by the end of 7/94, did not serve to enhance the probative value of his opinions. TR 2187. He did not explain how what he stated he saw in Dimond, in response to Reddish's unsolicited how is it going question, " i.e., "confusion," "his body kind of answered me," was related to Jones as a manager. Or how he knew "virtually everyone in the Department was looking for a job ... sending out resumes, wanting to leave ... a radical change from the past because they had been a pretty close-knit working team." It is inferred this stated Reddish knowledge came from Hampton, Reardon and Helser alone as he does not indicate otherwise, nor reflect any knowledge based on personal experience and exposure to this department. <p> Reddish's opinion as to an effective Safety Department prior to Jones' arrival is, from his testimony, based solely on the absence of a time loss accident in over two million man hours. As the Army's award fee evaluation reflects, there are many additional components to an effectiveness rating. Additionally Vahl was not part of the Safety department prior to Jones' arrival and since Winters, Helser, Dimond, and Guello became Safety department employees in the two or three months prior to Jones' arrival, the close knit working Safety department team appears to have been essentially Hampton, Reardon and Andrews, who came to Safety in 2/94. Kurt Allen's length of Safety service and Dochnahl's, a temporary, is unknown. Allen and Dochnahl did not testify in this proceeding. <p><hr title="Horizontal Rule">[Page 90]<p> According to Reddish it was Silvestri who told him about a Jones memorandum instructing his people they had to receive permission prior to coming to HR, which was contrary EG&G's policy and Silvestri asked Reddish to tell him to withdraw it. However review of RX 26, does not reflect a statement permission had to be secured. Reddish's testimony does not indicate that in following Silvestri's request on this memo, he or Silvestri secured any information as to Jones' attested basis for such a memo, Reardon's unadvised non-appearance at a scheduled job. <p> When Jones contacted him because Jones perceived Hampton disruptive and non-cooperative to the new Safety manager, Reddish advised Jones to be slow in documentation action. But from Reddish's direct testimony he did not talk to Jones about Hampton's, Reardon's and Helser's concerns as expressed to Reddish. Reddish thought he was present when Hanny in mid-8/94 talked to Jones "about that." TR 2190. How this meeting came about, how it was initiated, who initiated it, did Reddish initiate it, was not indicated by the manner of Reddish's direct testimony. Reddish is off on his dates, and on the sense of sequence from all the witnesses' testimony as to what occurred it is found any Hanny meeting with Jones on Safety Department personnel problems with Reddish in attendance was in connection with the 7/18/94 Silvestri meeting. Reddish did not even unambiguously explain the basis on which he believed Hanny was going to speak to Jones, when, about the Vahl "skinhead" remarks. But by Reddish's direct testimony the message Hanny gave Jones at this meeting was he should slow down, perhaps carry a smaller stick, maybe he needed to evaluate the people a little closer. But Reddish could not recall if Jones had any response to Hanny's statements. TR 2190-91 <p> However on cross-examination Reddish then inconsistently testified he did tell Hanny about the visits of Hampton, Reardon, Helser, Vahl, and Dochnahl. TR 2212. But he never told Jones about the Vahl ("skinhead"} or Dochnahl ("haircut") visit. He also there testified he was sure he talked to James Smith about examples of Jones' demeaning behavior, although James Smith in his testimony could not recall any, and further Smith inconsistently testified he talked only to Silvestri about Jones. When asked how Jones was to know what he was doing wrong if not so advised in the 8/24/94 counseling session, Reddish testified he did not know. It's really not his "position" to tell Jones. He thinks it was James Smith's responsibility. <p> Reddish also testified that while in his conversations with Jones he told him about the EG&G processes he would have to go through to meet personnel problems, Reddish does not get involved in, and it not his function, to assist or advise someone in Jones' position to solve the employee problem Jones told him he had encountered, or to help the personnel get along. That would be Smith's (or Hanny's) function he said. TR 2211-13. <p> According to Reddish's direct examination, prior to 8/94 and prior to, he thought, the mid 8/94 meeting with Jones and Hanny where he believed he was present, and which is found above to have actually occurred in connection with the 7/18/94 Silvestri meeting, he had three or four conversations with Silvestri alone about Jones' management. Reddish did not explain why such one-on-one conversations with Silvestri without Hanny, his and Jones' supervisor, took place; how they were initiated, the circumstances which precipitated them. It is inferred either these occurred at Reddish's initiation, or Silvestri initiated them. While Reddish indicated "I believe he (Silvestri) was becoming very concerned about the management style in the Department" Reddish could not recall any specifics Silvestri relayed to him. TR 2191-93. But Reddish said he told Silvestri the things he had learned from the subordinates. These can only be what Reddish obscurely testified to here. On cross-examination he testified <p><hr title="Horizontal Rule">[Page 91]<p> he did not bother to find out what Jones' side of the story was, on any of the unspecific incidents he related to Silvestri, and which by Reddish's generalized testimony related in this proceeding are just as unspecific and cryptic. TR 2212-13. If Reddish, in his "easy to talk to Henry" conversations with Silvestri related anything on the Vahl ("skinhead") Dochnahl ("haircut") conversations he testified he had with these employees, Reddish's obscure presentation does not so indicate. Nor does it persuade such specific information was conveyed to Silvestri pre-termination. Nor does Silvestri's unspecific testimony. <p> <p><strong><u>Analyses</u></strong> <p> On analyses of Reddish's testimony as to what he told Silvestri, and Reddish's direct presentation, it is noteworthy, given the dearth of specifics in Silvestri's testimony as to just what he knew, from whom, when, on which of the Jones' events in the Safety department ostensibly form the basis of a judgment as to Jones' "management style" problems, that Reddish is also so unspecific, cryptic and obscure as to what specifically and particularly he told Silvestri. TR 2183-84, 2191-92. The leading question on direct as posed as to "the things you had learned from the subordinates," adds to the cryptic impression of James Smith's 8/24/94 memorialization. TR 2192:6-8. Since the counseling memorandum states it was EG&G managers' complaints, and then aside from an unspecific, undetailed and generalized reference to demeaning employees in public, cites no further particulars, this elicitation of Reddish's testimony, from the only EG&G manager to that date reporting such information to Silvestri, serves to add to the impression the termination decision was made pre 8/24/94 counseling. <p> <strong><u>Reddish on Counseling Meeting</strong></u> <p> According to Reddish in this 8/24/94 meeting Smith talked to Jones "pretty carefully" about some concerns they had with Jones' management style. "It was essentially all about his management style and treating of people." TR 2195. However RX 43 indicates it was also about PMCD. And while Reddish could not recall if Jones sought more detail about what the problems were, both Smith and Jones' testimony establish this did occur, and that Jones was cut-off by Smith in his responses. Further, this and what occurred at this session, by both Smith and Jones' testimony, would have been memorable, particularly to a personnel expert. It was not as Reddish recalled. It is beyond incredible for a witness experienced in the Human Relations/Personnel field to represent that what, by the testimony of both Smith and Jones, occurred there was a pretty careful statement of concerns which the employee was to correct through knowledge gained in this counseling session. It reflects, as do many of Reddish's representations, adversely on his and EG&G's credibility. <p> When asked about the provisions from the EG&G - Army contract which state: "The safety person shall report and work directly for the contractor's corporate office," Reddish testified he did not know what this meant. CX 30, at H-32, paragraph 47. He had never seen this paragraph before and it was not the case at TOCDF that Hanny was not Jones' supervisor, and he would find it hard to believe Hanny, Smith or Silvestri were not authorized to fire Jones. TR 2217-19. <p> Reddish testified Smith failed to give the Review form RX 43 to Jones to read and sign at this 8/24/94 session, as would typically occur in such a session. Reddish testified Smith realized this mistake, asked Reddish to take it down to Jones to sign, which he did, and he had no conversation with <p><hr title="Horizontal Rule">[Page 92]<p> Jones at that time. Since by EG&G's personnel record Jones' RX 43 signature is dated almost a week later, 8/31/94, more in accord with Jones' testimony as to what occurred, i.e., it was received by him in the mail, Reddish's testimony is not reliable here. <p> According to Reddish in the widespread Safety Department problems with proven employees there were sufficient reasons for Jones' counseling and for his termination. It is inferred Reddish's reference here was to Hampton and Reardon since Helser and Vahl were recent EG&G employees. His thoughts on Andrews reflected below, are expressed only as his thoughts, not her words to him. <p> Reddish testified the Andrews transfer issue surfaced after the counseling and he related it to Silvestri just as he testified to it. He did not indicate he related it to either Hanny or Smith. According to Reddish Patty Andrews talked to Reddish three or four times, the first probably in mid 8/94, all on her transfer. She expressed a desire to get out of the Safety Department and he arranged it. He did not testify she told him anything about Jones, or other than she wanted to get a job outside the Safety Department. They had a posted job in another department and she was selected to be moved as soon as she could be replaced. Andrews deposition at CX 102, 63:21-25 through 64:1-3 refers to this transfer to an environmental clerk position as a promotion. Reddish thought she wanted to transfer because she was very upset with morale and the general feeling within the Safety department. TR 2190. However, he did not testify Andrews told him this. Moreover he did not testify why, if given only this information from Andrews' mouth, he would go to Silvestri. Reddish testified this was all he advised Silvestri as to Andrews. While Reddish heard from Silvestri about some name calling, he was not involved in this. TR 2227. <p> However Andrews' deposition reflects inconsistencies and conflicts between her testimony, and that of Reddish, Smith and Silvestri. It also indicates James Smith was not testifying to the whole story of his Safety department employee contacts. <p> Patti Andrews was deposed in Atlanta GA 3/20/96 by telephone. This deposition was transcribed 3/21/96. <a href="#F44"><sup>44</sup></a> <a name="RF44"></a> Her affidavit, RX 73, was admitted over complainant's objection. TR 1784-1810. See also TR 1175-1205. on the deposition's earlier admission. CX 102. This decision reflects the credibility problems in this case, the many conflicts, inconsistencies, involving the witnesses who testified before the factfinder. It is thus of special importance that attestors to the contested EG&G events could be adjudged in person. This absence affects the weight given Andrews' testimony. As does a revision of her testimony by affidavit. CX 102(78). <p> Jones testified Hanny agreed to provide telephone coverage during Andrews limited training absence each week, and to work with Silvestri on this. Then one week, when Sue Ann Powell was called on as Andrews' fill-in as a result of the usual fill-in secretary's absence that day, Powell, unhappy, protested to Silvestri and Andrews. Hanny then rescinded this agreement telling Jones Silvestri chewed him out on this and Andrews or Safety had to cover Safety's phones in Andrews' absence. This precipitated Silvestri's later statement to Jones, very loudly made when he caught him, as to "that little or lazy bitch ... he would fire if she can't do the work." Jones testified this Silvestri remark came up in a conversation he had with Andrews on the telephone situation, he could not recall if he told her this or if she had already heard it, Silvestri having said it loud enough, and Andrews having talked to Powell. While <p><hr title="Horizontal Rule">[Page 93]<p> Andrews was in their conversation a little upset, Jones testified he then told Andrews everyone knew she was a good and willing worker. TR 386-89; 745-49. <p> Andrews testified that while Jones was still employed she was called by Reddish to a meeting at Smith's Stark Road office. Reddish did not indicate the purpose of the meeting but he attended it. Smith inquired as to why she was leaving the department to accept the environmental department position and she told him she was ready to make a change, that it was too difficult to work under Jones on a daily basis. Smith then asked her what she thought of Jones' management techniques and she told them she felt they were somewhat irrational and hard to deal with on a day to day basis. She told him if Jones had not become Safety Manager she would not be leaving Safety. She did not however recall when after Jones' arrival she decided to leave the Safety department. <p> This is the sum total of her words and advice to Smith in response to his questions. Her testimony reflects no specifics given to Smith. Similar to her conclusional last sentence of her 9/23/94 statement on Jones. RX 44/327. None of her litigation presented helter-skelter, organizational elements and priorities changes from day to day, "sometime hour to hour," elicited on direct, were reflected by her as conveyed to Smith pre-termination. (17-19). None of her cross-examination statements of 73-77:21; 78:2-7 as to changing assignments and organizational charts were stated by her to have been related to Smith. <p> Andrews testified on or about 9/23/94 she and Silvestri had a conversation in his office about the phone issue. Andrews did not testify as to the precipitating circumstances surrounding the 9/23/94 conversation and how she was brought or directed to Silvestri's office. But Silvestri there told her he had not said the things that had been relayed to her by Jones. Jones had said to her that Silvestri said "quote if the lazy bitch doesn't have enough work to do, we'll fire her', unquote and that her was me." Silvestri told her 9/23/94 if he had a problem with her work or lack of work he would be the one to tell her, he would discuss it directly with her. (9). She could not recall whether she was asked to write the 9/23/94 memo by Silvestri, or Reddish or did this on her own but she gave the memo to Reddish. A witness who cannot recall these particular circumstances, her I don't recalls, gives pause as to her representations. Whether Andrews is currently employed is unknown, but she indicated her husband, who was employed by TAD, Safety Office, and transferred to a similar position with the Army in Georgia, has been self-employed for about a year. In these circumstances she stated she hired an attorney but she does not know who is paying his fees, or if she is paying his bill. <p> On all these considerations the fact Andrews testified by deposition and was not seen by the factfinder as she testified plays a significant part in the evaluation and weight afforded her representations and attestations, including her "preservation of her job" references when her testimony also indicated she concurred with Jones' revision of her job duties, she told Reardon he had a "say so" in what Jones gave him because Jones gave her and others what they liked, and EG&G management did agree with her job revision to the extent her NAQs were assigned to another division. Personal credibility is, as this Decision indicates, of tremendous importance in the findings reached with contradictory witnesses, and conflicting statements as to the factual events among and between them. The witnesses' personal presentations, seeing them as they testified and responded, their demeanor, reactions, as well as the contents of their testimony become of paramount significance in the weighing process. Thus less weight is given to some of Andrews' representations. <p> <p><hr title="Horizontal Rule">[Page 94]<p> There is inconsistency in Andrews' representations as to when she met with Silvestri. Her sworn testimony indicated it occurred after Jones' termination. This conflicts with Silvestri's testimony, and would tremendously undermine Silvestri. However her 9/23/94 statement indicated a late 8/94 Silvestri conversation, after a conversation she had with Hampton, precipitating event unstated. <p> There is no indication in Reddish's testimony that Andrews told him, in making her transfer request, that she was upset with Safety Department morale, or told him anything on the "lazy bitch" events. Yet he took it upon himself, by Andrews' testimony, for reasons unknown, to call her to Smith's office where conclusional and derogatory statements on Jones were solicited from this secretary. Andrews' reflections of what occurred undermines Smith's testimony as to how he handled the Jones' adverse personnel actions, did not talk to any Safety department employees. And the absence of any reference in Andrews' sworn testimony as to advice to Smith on the "lazy bitch" statements represented as so important to her and to the adverse actions EG&G took against Jones serves to support the impression Complainant argues: post-termination rationalizations for litigation purposes. <p> Andrews' pre-termination responses to Smith were bare conclusions and serve to enhance the impression of superficiality and foregone conclusion in EG&G management's handling of the Jones personnel action between counseling and termination. Further her testimonial additions, her deposition perceptions as to "management style," add to the impression that this witness' statements, as with many of the EG&G witnesses' statements on Jones, reflect EG&G post-termination litigation development of information from their employees, of questionable or non-existence pre-termination, to support actions taken without documentation pre-termination, now subject to investigative and media attention. <p> Reddish thought it was after the counseling he became aware of the erratic assignment of duties, sometimes changing more than once a day. Other than referring to changed assignments in this conclusory fashion, Reddish gave no specifics as to changing duties made known to him and by whom. <p> As far as Reddish knows, after the 8/24/94 counseling Smith and Silvestri discussed terminating Jones. He was called by Smith who said "they had decided" to terminate Jones, Reddish should prepare for such and be with Smith at the termination. As to the termination meeting, he testified as to its limited content at TR 2199-2200. <p> On cross-examination when asked if Jones' behavior changed following 8/24/94 counseling Reddish indicated he did not believe it did. But other than his reference to Andrews' transfer request, he indicated no factual basis on which he personally could base this conclusion, or how he would have occasion to know. <p> Reddish's cross-examination responses at TR 2225-26, indicated that other than what he attested to, as to Hampton's, Reardon's and Helser's statements to him, about which he did not talk to Jones; and the Vahl/Dochnahl undated "skinhead"/"haircut" statements, he had no other specific reason for Jones' firing. While he at TR 2226:13-14 referred to "personal observations of other managers" Reddish did not enlighten as to who these managers were, and what the observations were. It must be assumed these references were to Silvestri and perhaps Reihman, although Reddish's testimony as elicited on the "sleeping on the job" incident does not reflect he talked to Reihman, or received any of his information about this statement from anyone but Hampton. <p> <p><hr title="Horizontal Rule">[Page 95]<p> Reddish, who could not recall if Jones asked for his help, believed the counseling report on Jones reflects progressive discipline, and he would be amazed to think EG&G would even have to consider management training for somebody of Jones' level. TR 2223. <p> Reddish was asked on direct if either he or with any other member of EG&G management considered whether Jones' subordinates were simply reacting to more stringent performance standards. "Certainly at first I did. You know a new manager, a new person on the block often times that happens," but he concluded there apparently were some problems on Jones' side because they became so many problems, all of which sounded so much the same. However, other than Reddish's undated Vahl ("skinhead") and Dochnahl ("haircut") conversations, from Reddish's testimony the problems which "sounded so much the same" were with Hampton, the replaced manager, Reardon his long-time Safety Department colleague, and Helser. <p> According to Reddish he had no knowledge as to anyone arranging to clean out Jones' office prior to his arrival back, with Reddish, to clear out his office, and he did not arrange for this. <p> <p><u><strong>Evaluation</u></strong> <p> On evaluation it is found that Jones was never advised by Reddish, Smith or Silvestri of any complaints referable to the "skinhead" or "haircut" remarks. Never advised in person, or in RX 43 memorialization by any EG&G manager. Further, it is not clear from Reddish's testimony as to exactly when he was contacted by Vahl or Dochnahl as to these remarks: pre 8/24/94, pre or post termination. It cannot be found Reddish's testimony as elicited establishes he told either Silvestri or Smith of his Vahl or Dochnahl conversations pre 8/24/94, or pre or post-termination. This record reflects EG&G gathered and solicited much information on Jones from its employees post-termination, in connection with the various post-termination actions and it is not always clear from the EG&G witnesses' amalgam in presentation what reflects facts known to them pre-termination as divorced from what has been discussed and solicited thereafter. <p> Reddish was however contacted by Hampton, Reardon and Helser pre counseling. These are found to be the only Safety employees, aside from the limited Vahl and Dochnahl contacts, who made contacts with Reddish. As to these three employees, when Reddish testified he knew Reardon and Helser were good EG&G employees with proven EG&G records, by his testimony as given, he had no personal knowledge as to this. Moreover, as to a foundation for these statements as to Reardon's and Helser's past EG&G job performance and conduct, when presented with the contrary evaluation of the new Safety Manager, from Reddish's and Silvestri's generalized testimony, (and Reddish could convey to Silvestri only what he attested here), the most that can be inferred from their "record" reference is an evaluation by Hampton. An evaluation by the replaced Safety Manager who as reflected below is found not to have been replaced at his request and voluntarily, but replaced following a lowered Safety Department performance evaluation on EG&G's fee award determination and because, ostensibly, he did not have the expertise to bring the Safety Department into imminently scheduled surrogate and toxic agent burns, the expertise the new manager brought to his evaluation of Reardon and Helser. <p> To the extent Silvestri represents he relied on Reddish's statements as a basis for his judgment, and Silvestri in his testimony rarely mentioned the names of his sources, the probative value of his representations as to knowledge of Reardon's and Helser's past performance and conduct, on the issue of legitimate business reason-pretext, and preponderance of the evidence on a dual motive analysis, suffer. <p><hr title="Horizontal Rule">[Page 96]<p> It reflects on the credibility of both. This is because Reddish was not a reliable witness. And his testimony was not, at telling points, credible. Further, inferentially it reflected judgments and statements affected by his friendship with Hampton. Hampton described Reddish as his friend. They had a relationship outside the office, and spent considerable time daily driving to and from where they both lived, talking about Jones. Whether Jones and the deciding and effectuating official knew of this relationship is unknown. If only in appearances, at a time when Safety Department personnel events were occurring with a new manager, the relationship reflected does not engender confidence in objectivity and reliability. Then, the contents of Reddish's testimony, as reflected above, gave great pause. Credibility was not found in Reddish's personal presentation and witness stand statements. <p> <p> <strong><u>Safety Department Employees</u> - <u>Reardon</u></strong> <p> Reardon a Toole Army Depot (TAD) employee since 7/86, was by hired by EG&G 1/93. Chris Helser was employed by EG&G 4/11/94. Both had been together as Toole Army employees, as quality assurance specialists for ammunition surveillance (QASAS).<a href="#F45"><sup>45</sup></a> <a name="RF45"></a> Reardon with Helser were indicated by Hanny to be the Safety department personnel most knowledgeable in the chemical agent - toxic substances field. Reardon testified that at the Toole Army Depot and for about 4� years before his EG&G employment he had had occasion to work with Dave Jackson, PMCD, "(b)ut not closely" he added. TR 902. While at the TAD surety office, Reardon was involved in training new EG&G employees and in this capacity met Hampton, then EG&G's deputy Safety Manager. Reardon testified that when employed at EG&G under Hampton as Safety boss they were a small department. Inclusive of Hampton, five in number, with plans for a position "between us and Mike." When Jones came aboard and in preparation for shifts (24 hour Safety coverage) there were 10. <p> Since Helser, Guello, Dimond, and Winters were employed by EG&G and Safety within a few months of Jones' 6/27/94 arrival, and Vahl just at Jones' arrival, prior to the 4/1994 expansion of Safety, Hampton and Reardon were part of a very small group. Reardon thought Hampton a very good manager and the program on track for meeting the agent operation. <p> Reardon testified he felt Hampton had the abilities to bring the Safety department into operations and his knowledge of why Jones was hired to replace Hampton was, he said, "probably secondhand," not indicating from whom. However his testimony does not indicate he received, or the Safety Department employees received, prior to or at Jones' arrival, advice from EG&G management officials, including Hampton, as to why Hampton was replaced. <p> Reardon testified he felt Hampton had the abilities to bring the Safety Department into agent operations. But Reardon, just trying to figure out why Hampton was replaced and with no personal knowledge as to the reasons for EG&G management's replacement decision, had suppositions and secondhand knowledge from unknown sources. On this basis Reardon testified he understood the logic - he said PMCD wanted someone with an Army background and Hampton did not have prior Army experience although he had been working with the Army for several years as EG&G's Safety Manager, was getting very good with the Army's regulations and working ways, and they were then in agent operation preparation work. On these suppositions and source unknown secondhand knowledge, Reardon testified he not only <p><hr title="Horizontal Rule">[Page 97]<p> understood, he thought Hampton understood. Thus clearly absent direct advice by EG&G management officials to the Safety Department employees at Hampton's removal and Jones replacement, Hampton is inferred as the source of this information. Whether what Reardon understood from Hampton conformed with the facts is another question, raised by the witnesses' presentation. Moreover Reardon's response when asked whether Hampton welcomed Jones, his lack of response to the specific TR 906 question as asked, the reply's contents, his responses at TR 966-70, 978-80, and the impression overall as to the welcome Jones received, including from Hampton and Helser the two longtime Toole Army site and/or Safety employees affected by the new Safety Manager's appointment and arrival and Hampton's removal from this position, do not engender an inference of warm welcome.<a href="#F46"><sup>46</sup></a> <a name="RF46"> It is also inferred the Safety department employees who had served under Hampton's management did not know of the lower efficiency ratings Hampton received on EG&G's Army award evaluation. Or of Safety department problems Hanny, according to Jones, advised Jones of in Jones' pre-employment interviews. There, according to Jones, he was specifically told by this EG&G management official he would have full rein in setting up the Safety department. <p> Reardon attested when Jones made it clear on his arrival he thought the existing Safety program was in bad shape or was not effective Reardon disagreed and professionally resented it, because he believed Jones did not have a real good or thorough knowledge of what it was like before. But Reardon testified he kind of brushed it off. Reardon's testimony is not enlightening as to specifically how Jones made this clear to Reardon or Safety Department personnel on his arrival. TR 906-07 <p> Reardon testified he never heard Jones be abusive to anyone, and other than what he attested as to his one-on-one conversations with Jones, his knowledge of what transpired between Jones and others was secondhand. <p> Before Jones arrived Reardon testified three-quarters or more of his 18 month EG&G employment had been in safety, the rest in surety.<a href="#F47"><sup>47</sup></a> <a name="RF47"> His prior TAD employment was in the Surety office, where, he said, his duties were both surety and safety and in which he learned Army safety regulations. He also attested that at EG&G prior to Jones' arrival he was involved in the formal hazard tracking log in which deficiencies were reported and the documentation on the corrective actions to be taken were recorded. <p> According to Reardon after Jones' arrival the Safety Department atmosphere was suppressive, less enjoyable, strained "throughout" not just for him. In his opinion constructive work dialogue with the rest of the staff seemed to be suppressed. However Reardon dated this suppression, from his point of view, to 7/5/94 and prior to the 7/20/94 memos. On 7/1/94, the Friday of Jones' first week on the job he talked to Jones, "the first day I worked with him." It is clear from both his and Jones' testimony that this was the first time Jones spoke with Reardon about his job duties in connection with Jones' review of the EG&G Safety Department on his 6/28/94 assumption of responsibility following his 6/27/94 conversation with Silvestri. <p> Totally conflicting testimony as to this conversation was presented by Reardon and Jones. Reardon denied he ever told Jones in their initial conversation that he was disgusted with his EG&G appointment, that Jones could not make him do anything at EG&G Safety because he had protection from Dave Jackson at the Army's local PMCD. He denied he ever used non-verbal actions, i.e., pointing to the <p><hr title="Horizontal Rule">[Page 98]<p> nearby PMCD offices and saying to Jones he couldn't do anything to him because he had protection. Rather, Reardon testified, he had no negative feelings about Jones' coming. However Jones was not, he testified, an unknown to him on his EG&G arrival. Reardon, in his TAD surety work accommodated the IG team of which Jones was a part on its inspections. He dealt with him "a little bit." <p> According to Reardon on 7/1/94 Jones asked if he would be interested in the security job and, "I can almost quote myself that I told him I could take it or leave it, I really wasn't that interested in that, that safety was more for my career, that I wanted to stay or have my main focus on." Reardon's personal presentation on the stand, as he testified on this conversation, and what was said, and what he said, are memorable, including by demeanor. Jones had testified to the contrary. Reardon's representations of he could almost quote, in personal presentation, raised question in the factfinder to be weighed for credibility with the entire presentation. <p> In response to the question of whether Jones had suggested a part or full time security job, and that it would have been a full time job, Reardon indicated that after their initial conversation 7/1/94 about the Safety security job, the job he told Jones he could take or leave, "we" sat down and divvied out the involved job duties and it became "very apparent" it would have been full time. That was his personal impression and opinion and by his testimony he did not believe the Department's best interests superseded his career concerns. He thought it was possible to do the job another way, that other individuals could do it. Reardon's notes indicate the "we" he sat down with 7/5/94 to reach this "very apparent" conclusion were Hampton and Helser, not Jones. RX 70. And he recorded Jones had told him he would still be involved in safety. <p> According to Reardon on July 5, 1994 after thinking about it over the weekend he had two conversations with Jones. In the first he told Jones he did not want to do security work full time, his reasons were his formal credentials were in safety, his interests were in safety and for his carer he wanted to stay in safety. According to Reardon Jones didn't say much in this meeting but he thought Jones was "kind of surprised that I said that." Then, there was a post-lunch 7/5/94 meeting with Jones where Patti Andrews was in attendance. There Jones told Reardon "he was shocked that I would do that," that he was very disappointed in him, "he would accept my resignation and if he had been there longer he probably would have fired me." Andrews, who could not recall why Jones told her she was there, but could recall Jones' statements as to Reardon's attitude and lack of willingness to cooperate in the Safety department, testified Reardon and Jones were cursing back at one another. CX 102 (77-8)(55). It is to this conversation that Reardon dates his suppressive atmosphere. <p> Reardon did not indicate at this point in his testimony as to the two 7/5/94 conversations, where he obtained the information as to, or the basis for his attested belief that between their two meetings that day Jones had talked to Reddish, about Reardon, and whatever occurred between Jones and Reardon in their one-on-one conversation. TR 919. <p> However, at a later point he described a conversation with Reddish after "the security incident," where he wanted to tell Reddish what happened, how unfairly he thought he had been treated, to get Reddish's advice, let Reddish know what happened. TR 930. If Reardon knew 7/5/94 that Jones went to Reddish, EG&G's HR Director, between their 7/5/94 conversations, which is what his initial testimony indicates, absent explanation of this knowledge, where did Reardon get this information? <p><hr title="Horizontal Rule">[Page 99]<p> It is inferred it came from unnamed EG&G parties, in the know, who advised Reardon of Jones' contacts with Reddish relative to Reardon. This was Jones' first encounter with an EG&G Safety department personnel problem, Jones' first contact with Human Relations for their assistance, within days of his arrival. The import of Reardon's testimony is he was then getting advice from someone within EG&G as to Jones' contacts with Reddish. <p> According to Reardon the outcome of the second post-lunch 7/5/94 meeting with Jones in Andrews' presence was that Jones told him he would not be doing security and nothing was going on his record. Thus, it is inferred, Reardon had achieved what he wished in these 7/5/94 discussions with Jones. By his later testimony Reardon indicated that although Jones acceded to his request, in furtherance of his career and personal interests, not to be assigned to security and advised him nothing Jones said to him in their post-lunch 7/5/94 conversation, where Jones counseled him as to his view of Reardon's attitude, would go on his record, Reardon went to the HR Manager to discuss his version of the events, having heard from unknown sources of Jones' contact with HR. <p> Since Reddish indicated that what Reardon came to him to complain about was Jones' evaluation of his job performance, there are differences in these witnesses' testimony as to the circumstances of Reddish's involvement. The lack of specificity in Silvestri's testimony, compounded by Reddish's cryptic generalizations as to what he told Silvestri about his conversations with Reardon, information Reddish's testimony does not persuade Reddish was conveying to Reardon's first or second line supervisors, Jones and Hanny, leaves an uneasy impression as to what role Reddish was playing in Safety department events. Reddish was at the time driving to/from work with Hampton, Hampton complaining to Reddish about Jones' "mistreatment of people," albeit Reddish dated the Hampton initiation of these conversations somewhat later. <p> Then Mike Hampton told Reardon, "as a friend," Jones was trying to fire Reardon and Helser. Reardon testified that is how he found this out the week, or the second week after the "initial safety problem," as Reardon termed it. <a href="#F48"><sup>48</sup></a> <a name="RF48"></a> <p> Reardon testified he made two memoranda for the record, just to put his recollections of happenings on the record and he gave these to Reddish. RX 70 593-599, 6/21/, 7/21. He recalled he had two conversations with Reddish about his problems with Jones, maybe three. See also TR 980-83. He testified however some in the Safety department were able to get along with Jones. TR 943. <p> Then a week later which would date to the end of the second week of Jones' EG&G Safety department employment, Reardon was involved in doing work on the pre-operational survey of agent operations at the CAL Lab. There was a meeting with Jackson - PMCD, on which the testimony of Jones and Reardon conflict, for a status report on the tracking and correction of the pre-inspection findings. Reardon had been assigned by Jones to put together a status listing for this meeting. By Reardon's testimony, major things not minor things which did not necessarily deal with safety. According to Reardon, everybody's talk was very cooperative at this meeting although he testified Jackson brought up some other findings not on Reardon's list which he knew about. Reardon denied Jones' testimony Jackson stormed out of this meeting saying EG&G's Safety was unprepared. However he also testified there was a debatable <p><hr title="Horizontal Rule">[Page 100]<p> finding about the CAL Lab and he and Jackson drove down to have a friendly conversation with Dr. Burton, the CAL Lab manager, about it. <p> Reardon's testimony also indicated he and Jones had a subject matter conversation at some point after the day when Jones first saw the MSB Lab operations on his EG&G arrival and raised the questions as to this Lab's authority to conduct its operations under dilute agent procedures rather than the pre 6/22/94 neat agent procedures. TR 944-47; 948-49. According to Jones it was as a result of the questions this newly arrived Safety Manager asked as to this area, questionable and gray as he left the IG in 6/1994, and the absence when he sought it of any documentation given to him by on site EG&G personnel, including Safety personnel as to a pre 6/22/94 DA PAM 385-6 written "waiver" record for the MSB Lab; and absent EG&G documentation as to the 6/22/94 changes made in the Army regulation, that the MSB Lab was closed. Reardon had done the CAL Lab pre-operational survey Silvestri referred to and from Reardon's responses to the questions as asked it is inferred Jones attributed the problems he encountered in coming up with the MSB Lab documentation in some measure to Reardon and the quality of his work. According to Reardon he knew on 6/27/94 that under Army procedures (385-61) dilute agent did not require the same type of procedures as neat agent. How he knew is not indicated. <p> Jones' testimony as to the significance of documentation, and follow up on deficiencies is reflected throughout his testimony and Silvestri's testimony reflected the high importance of documentation to EG&G's operation of this facility. It is one of the Army's contract evaluation standards for a fee award. Reardon testified that preparatory to the Safety department going on shift operations (as of 8/1/94 by other testimony) since Jones as Safety manager questioned whether Helser and he were suitable for shift operations Jones had other employees including Guello go with them, watch them to validate what they could do, "bird-dog" Reardon termed it. Reardon was not happy with this as one of the staff who accompanied him (Dimond) had less service in the Safety Department. Reardon testified he did not like the new Safety Manager questioning his abilities and performance. TR 931. Reardon's testimony and that of Guello's as to advice by Jones to Guello to mix-up Reardon's assignments while teamed with Reardon, ostensibly to check out Reardon's abilities for shift operations, was information shared by Guello with Reardon after Jones' firing. Neither Silvestri nor Smith, the deciding officials in the adverse actions, had any such information prior to counseling and the firing and it could not be a basis for either action taken; or Silvestri's attested perception of deteriorating Safety department morale. <p> Reardon testified after Jones instituted the team leader organization concept during the first month of Jones' employment, the team leader Reardon reported to changed once a week and he is sure he reported at one time to Hampton, as Hampton testified with absolute certainty. TR 1406-15. It is found however as a fact within that Jones did not begin the written formal team leader assignments until his 7/20/94 memos, and on Jones' credited testimony, that of Hampton and Reardon discounted, and on the sense of all the witnesses' testimony as to what was occurring with Hampton-Reardon-Helser on Jones' management takeover, it is found that Reardon did not report to Hampton. <p> On or about 7/21/94 Reardon testified he responded to Silvestri's request to provide tour support by saying he was sure "we" could, but Silvestri needed to go check with Jones first because "we" needed Jones' approval before the General Manager's request could be met. <p> The contents of Reardon's responses as to why he so responded to Silvestri, how he acted and what he said when Silvestri came to his office, with the "team leader" not "Jones" content of Rxs 27:295; 28:296, with Reardon's direction of Silvestri to Jones, not his <p><hr title="Horizontal Rule">[Page 101]<p> team leader, along with how this witness impressed when so testifying, and the overall impression of his testimony, added to the factfinder's judgment Reardon acted in a manner deliberately calculated to inflame Silvestri and undermine Jones' position. TR 908-911; 974-978. This was Jones' fourth week on the job. This witness had to be seen to appreciate the basis on which his credibility is found wanting, TR 910-911, to hear and watch Reardon as he explained why he never showed up for the tour after Silvestri came into his cubicle, gave him the "thumbs up" sign, and told him it's all set up, i.e., that Reardon was waiting for Jones or his team leader to come to him, his belief he had to do things "exactly correct" because it was more strict with Steve [Jones] as compared to Mike [Hampton]. <p> Reardon's explanation including his "trying to do the right thing, trying to protect myself and that's why I did that" was so totally unbelievable based on his demeanor and the circumstances Reardon related as to enhance the overall impression that Reardon was a difficult employee to handle, and served an agenda of his own, as his stated response to Jones' surety job assistance request would indicate. The actions/responses Silvestri testified he adjudged not unusual and an employee's right. <p> <p><u><strong>Sleeping on the Job Allegations</u></strong> <p> According to Silvestri the event after the Smith counseling session which resulted in his decision to terminate Jones was when he learned from Reihman Jones had advised Safety staff members that management had accused them of sleeping on the job. <p> Thus, aside from Silvestri's generalized statements that morale continued to deteriorate, and Silvestri's belief Jones' sharing of the fact of Smith's EG&G counseling was inappropriate, what Silvestri knew of, and the basis for Jones' "sleeping on the job" statements/actions become of some significance in adjudging the termination issue here, one of the components of the retaliatory adverse personnel actions Jones charges. According to Reardon after Safety Department personnel started shift operations 8/1/94 one evening when he arrived at work Jim Dochnahl whom he was relieving told him Jones told the team leaders (Dochnahl was not a team leader) that Reihman had come to Jones to tell him Hampton and Reardon were sleeping on the job. Reardon testified he was not sleeping on the job, and since Reihman was still in his office that night he went to Reihman with Dochnahl's advice. Reihman's testimony does not indicate Reardon identified the source of this alleged Jones' statement. Reihman told Reardon he had not said that but he said as Reardon reflected at TR 932:18-24, "there was a real paperwork jam ... we've got people going on shift ... they might have more of an opportunity to get that paperwork done... ." <p> Reardon testified Jones a week later had a meeting with him and Hampton where he advised them an unnamed senior manager reported to Jones they were sleeping on the job. TR 934-35. According to Reardon Jones, when pressed by him, would not tell him who it was, and said Reardon would probably embarrass himself if he pressed it, and he wouldn't recommend Reardon doing so. According to Reardon, he did not push further to "go talk to that guy" because he decided to let it slide since he knew the truth would come out as he had talked to Reihman who related the above quoted explanation to him. But he contacted Reddish after his Reihman conversation to tell Reddish what happened and just let Reddish know what the entire story was. TR 933, 980-83. <p> Guello testified Jones told him at a daily meeting they had that Reihman had caught Hampton and Reardon sleeping on the night shift. This is contrary to Jones' testimony he never named the <p><hr title="Horizontal Rule">[Page 102]<p> employees sleeping on the job to anyone in the Department. Guello did not remember if there was anyone else present when Jones told him this. According to Guello he asked both Reardon and Hampton if "it" were true. Both said "it" was not. Reardon's testimony as to how he learned of Jones' sleeping-on-the-job statement did not indicate it came from Guello. TR 1261-1262. <p> After Hampton came back from a week's vacation in 8/94 he testified Winters, and he thought Dochnahl came to his office to tell him he and Reardon had been accused of sleeping on the job and to ask him if Jones had jumped on him yet, said anything to him. That night by phone he talked to Reardon at home, who told him he had talked to Reihman, the person who supposedly so accused. Reardon told Hampton Reihman told him that's not what was said at all and that this all came about because Reihman said he commented to Jones that "we have a couple of people identified in the Safety Department loafing at night and even sleeping on the job and that it needed to quit. And when it got back to us from Steve that Pat and I were named." TR 1423-24. <p> This is not what Reardon testified Reihman said to him. TR 932. "Loafing" was not included in Reardon's recitation. Nor in Hampton's recitation of what Reardon said Reihman said to Reardon, was there any indication of the need to do paperwork on night shift because the work was slow at night. <p> Then later, according to Hampton, he had an opportunity to speak to Reihman and he asked Reihman if he really said "that." Reihman told Hampton "he didn't say it at all. He named no people, made no reference to sleeping, and his comment was that with the day shift workload, the night shift guys had to make sure they carried their weight." TR 1422-24; also TR 1426:7-13. <p> Thus by Hampton's testimony, Reihman gave to Reardon and to Hampton two different, contrary versions of what Reihman supposedly said to Jones. Since by Silvestri's testimony it was the advice he received from Reihman as to Jones' alleged sleeping-on-the-job statements which was the deciding factor in his direction to Smith to terminate after the 8/24/94 counseling session, the witnesses' varying testimony becomes of some significance in determining EG&G's motivation in the termination adverse action which followed the counseling adverse personnel action. <p> Reihman later testified he spoke to Silvestri about these "sleeping-on-the-job" conversations he had with Reardon and Hampton but he was unspecific as to what he told Silvestri. Silvestri's testimony reflected no knowledge of the specifics of any of these events or conversations, nor is there any indication any EG&G manager, or the HR personnel manager Reddish, sought any information from Jones as to this event or Jones' alleged statements which form the purported basis of the termination action. <p> Then on 8/23/94 according to Hampton, the day before Smith's 8/24/94 counseling interview, Jones had him come into his office. He told him an EG&G senior manager had identified "a couple of people in the Safety Department as loafing at night and even sleeping on the job. And Jones indicated that I was one of the people named." Jones wanted to know if there was any reason to believe it was true. Hampton said of course not. Hampton wanted to know the EG&G manager and Jones <p><hr title="Horizontal Rule">[Page 103]<p> told him that wasn't important, he just needed to get it straightened out and he was concerned it might be true. TR 1425. <p> In Hampton's recitation of this conversation with Jones somehow Reardon's name came up. Hampton couldn't remember exactly how, either Hampton offered or asked something about Reardon being named. According to Hampton, Jones then told him that as Reardon's team leader Hampton should bring Reardon in, so Jones could say the same thing to Reardon. Reardon, when brought in, said it was crazy. Reardon wanted to know from Jones who the EG&G manager was, as they both knew, from Reihman's advice to both of them, that Jones was lying. And they wanted to get Jones to admit it was Reihman. But Jones never told them who the EG&G manager was. See also Hampton's cross-examination testimony on this incident, in response to the "set up" question, where he indicated he and Reardon planned not to advise Jones they had information from Reihman, as to what Reihman supposedly said. And where Hampton now said Reihman's statement was "something like loafing and even sleeping on the job", qualifying his statement as to what Reihman allegedly said. Hampton then depreciated the difference in his testimony, an explanation which also did not enhance his credibility. TR 1561-66. <p> Hampton agreed he never heard the Jones-Reihman conversation and he could not recall if any of his co-workers who informed him as to or discussed the Reihman "sleeping on the job" conversation heard, or advised him they heard the Jones-Reihman one on one conversation. "But they shared with me the conversation Jones had with the staff in the morning meeting." TR 1557-59. Winters' later testimony, as to what he recollected Jones said when he attended the meeting, adds to the impression "sleeping-on-the-job" was an interpolation and interpretation added by others after Jones' actual meeting statement. <p> <p><strong><u>Reihman and Insubordination Discussion</strong></u> <p> Reihman testified that in the summer of 1994 Silvestri asked him to join in a meeting with Jones and Hanny. There Jones explained to Silvestri he wanted to terminate two employees explaining they were "incompetent and insubordinate or something along those lines... Henry asked him (Jones) some questions about had they been disciplined or what type of examples would there be... it wasn't a real strong foundation for termination. And Henry did not approve did not allow Steve to terminate those two employees." TR 1653-54. Reihman provided no further information as to what type of examples were given by Jones which resulted in Reihman's conclusional statement it was not a strong basis for termination, Reihman's generalization an echo of Silvestri's and Reddish's generalizations. <p> <p><u><strong>Reihman and "Sleeping on the Job</u>"</strong> <p> Reihman when asked to date the conversation he had with Jones about night shift work responded in very generalized fashion it was within the two months Jones was employed. TR 1655:10-17. See cross-examination at 1661:2-10. Then he explained he had previously talked to the operations and maintenance personnel when they went on 24 hour shifts to tell them there may be some shifts where there is not a whole lot of work in the plant, and they need to make sure they had a backlog of work there at all times to make sure they didn't have a lull in the shift. He testified that now that the Safety Department was going on 24 hour coverage he had the same discussion with Jones. Reihman testified he wanted to make sure Safety employees were busy during the night shift. <p> <p><hr title="Horizontal Rule">[Page 104]<p> According to Reihman he was working late and he had seen Safety people there. "I just kind of kicked my brain in gear and I just thought to talk to Steve and mentioned it to him." However by the implications of Reihman's responses on direct this conversation and the circumstances that "kicked in" his thought to speak to Jones occurred after Safety began shift work 8/1/94 and after the other EG&G components had started on shift work. Seeing something at night triggered his message to Jones. On direct, to leading questions, Reihman testified he did not see workers sleeping on the job and he did not see them for long enough "to make that kind of judgment," i.e., that he thought they looked lazy or like they were loafing. TR 1655-56. Then on direct he was asked to reiterate the message he thought he gave Jones in that conversation, which he did at TR 1657:1-6, to make sure they had a backlog of work with milestones and that they had things to do in case there was a lull because some shifts were very busy and other shifts were not demanding of Safety department people. <p> According to Reihman Reardon came to him to tell him he had "heard" Jones, in a staff meeting, had said: <p><dl><dd> "I had seen people sleeping on the job or being lazy etc. and that he was kind of using that as a lever against some people accusing them or saying that I had accused them of sleeping on the job and being lazy." TR 1657.</dl> <p> At no point in his testimony as to what Reardon said to him in initiating and conducting this encounter with Reihman, did Reardon identify to Reihman the "people" from whom he had "heard" this alleged Jones statement. TR 1657:7-18. Reihman indicated he then responded to Reardon, telling him "that" wasn't true. He told Reardon basically what he previously attested he told Jones. <p> Then, Reihman testified, he talked to Hampton about "that." He sought Hampton out, just kind of pulled Hampton out of the lunch area on day shift, and "reassured him that it wasn't true what was alleged that I had said." Reihman believed he discussed "these issues" with Silvestri. There is nothing in Reihman's testimony to indicate Hampton approached him, as Reardon had done, about "that" or "it" or "these" issues. Reihman's testimony does not indicate Hampton relayed anything to him about what he had heard. Further, by Reihman's testimony as to what Reardon had told him "people" had told Reardon, there was no mention of Hampton or how many Safety department employees were allegedly mentioned by these "people." Inferentially Reihman, who was privy to the new Safety Manager's report to Hanny and the General Manager of specific Safety employees he perceived insubordinate, was not concerned with securing these facts prior to responding to second-hand anonymous reports reported by one of these employees, when he sought out Hampton and bypassed Jones and Hanny. <p> On direct, according to Reihman, Silvestri mentioned Jones' termination was because he was having trouble with his treatment of people and his management abilities. According to Silvestri's testimony it was the "sleeping on the job advice" he received from Reihman which was the determining factor in Jones' termination. In evaluating this event, and Reihman's representations on it, Hampton's specific dates on RX 5 are not found to be necessarily reliable, true or creditable since Hampton, as adjudged and evaluated within from Jones' arrival was ostensibly creating notes for his own purpose. <p> <p><hr title="Horizontal Rule">[Page 105]<p> By Hampton's RX 5/63 Franklin Planner typed note, dated Thursday 8/18/94 after his return from vacation, he was "confronted by two of my co workers" and told Jones at a meeting in his absence had said two Safety employees on shift "had been seen loafing and not doing their work and even inferred that they were sleeping." <p> Significantly, Hampton's note while it details the specifics of what he was told by these unidentified co-workers enigmatically omits any identification of the co-workers who advised him of Jones' statements at the meeting. Further the words he there attributed to these co-workers were "seen loafing and not doing their work." The far more significant words "sleeping", and the basis for Silvestri's termination decision, according to Silvestri, was Hampton's, or his informants' interpretation or interpolation. <p> According to Hampton's note Reardon, in his telephone call that night to Hampton's home, told him he had spoken "confidentially" to Reihman. RX 5. The implication of this is Reardon understood from Reihman Reihman was keeping Reardon's conversation with him secret from someone. Reihman's testimony reflects no confidentiality in his conversation with Reardon. But Reihman did keep Jones in the dark as to his conversations with Reardon and Hampton. By Hampton's note, and according to Reardon, Reihman singled out no people and Reihman told Jones that with the large amount of paperwork being done on the day shift and the slower pace of work on nights, "we all needed to make sure the night people have plenty to do." <a href="#F49"><sup>49</sup></a> <a name="RF49"> <p> On cross-examination Reihman revealed it was seeing Reardon and Hampton on the night shift, for a period of time, which "kicked in" his decision to speak to Jones about keeping the night shift busy. However Safety night shift work had started before this conversation. And if according to Reihman it was his practice to similarly so advise other managers on initiating shift, e.g., operations and maintenance, since Safety shift work started 8/1/94, this thought to speak to Jones did not occur to Reihman on the initiation of Safety shift but sometime thereafter. <p> Then when cross-examined as to whether Reihman's own 8/19 note at CX 104, on one line "-monitoring-", followed on next line by "time - screwing around'" could have been his reference there as to what he saw on the night shift in the Safety department, Reihman replied that in the vernacular of the project "monitoring" specifically is the laboratory monitoring function. So, he said, that note had something to do with monitoring the laboratory function at TOCDF. But he did not remember what he was referring to in his "screwing around" notation. <p> Reihman's response at TR 1644: 6-14, was not a direct answer to the question as asked. Reihman by his deflected response here, by his explanation's total content, and with his attested lack of remembrance as to what he meant by his "screwing around" quotation marks expression, having taken care to explain that "-monitoring-" is TOCDF language, did not in person impress as convincing or credible. Nor does it on review of CX 104 as written and in total. TR 1662-64. "Screwing around," as used and reinforced in its use by quotation marked recordation, are generally terms of some recollectable meaning to the user. <p> Similarly Reihman was unconvincing in stating he was concerned that what he had stated to Jones was being misrepresented to Reardon and Hampton and "to the Safety staff" so as to go to Silvestri with the story, yet he could not remember why he did not talk to Jones about what <p><hr title="Horizontal Rule">[Page 106]<p> Reardon had conveyed, or give Jones a chance to tell him his side of the story. And he nowhere attested he knew through Reardon's generalized second or third hand statement who the Safety "people" were who were conveying what, to whom, how many times removed, including "lever" use. <p> According to Reihman he worked with Jones on administrative type issues, not personnel issues and when he described his functions as Silvestri's executive assistance, he did not include the handling of personnel matters. However by his testimony Reardon had approached him, skipping two supervisory levels, Jones and Hanny, the Administrative Services Manager, depending on when Hanny left, and anyone who filled in for him until Smith's arrival. And Reihman, after being an attendee at the Silvestri, Jones, Hanny meeting concerning the new Safety Manager's stated insubordination problems with the replaced Safety Manger Hampton, and his long-time Safety subordinate Reardon, engaged in this discussion in which an employee represented his manager was making and using as a lever alleged statements by unidentified and unstated third parties. Further, Reihman proceeded to contact Hampton about the matter, kept Jones in the dark, and then told Silvestri about "these issues." The straightforwardness and genuineness of this witness in this matter was not enhanced by his testimony, nor was it by his personal impression when he offered some of his responses as noted within. <p> As with Dr. Burton and Dr. Hutchins, on direct Reihman was asked about his observations on morale in the Safety Department "during this period." And as with the responses of Drs. Burton and Hutchins, Reihman had no personal knowledge but of the fact situations as to which he attested. But his testimony indicated he listened to rumors as to mistreatment from unidentified people and was willing to swear "you could tell there was morale problems in the area just viewing people," albeit he indicated this was "subjective." This generalized response, including in contents, did not enhance the probative persuasive value of this EG&G manager's testimony, particularly given his background. <p> Winters was led on EG&G direct as to "any comments about anyone sleeping on the job," by Jones. Winters' responsive statement was, "he made allegations" Hampton and Reardon "when they were on shift work were not busy and that they may have been sleeping on the job." When then asked when and where, he testified that filling in for Hampton he attended a team leaders' meeting "and that's when he made the allegation to the team leaders I thought was pretty much like team leaders make sure your people are working at night and make sure they have things to do. So it evolved from that type of meeting." <p> However Winters also testified "he did not say he observed the people sleeping... the only thing he said was that Allen Reihman <u>implied</u> Chris Helser or Mike Hampton and Pat Reardon were sleeping on the job. But he didn't say anyone observed it. TR 2084-85 (emphasis added). <p> Winters' statements, when he was elaborating and was not led, indicate that Reardon's and Hampton's testimony they were told by unnamed individuals Jones said Reihman said they were sleeping on the job is suspect. <p> More revealing and enlightening on the actual "sleeping on the job" statements, the transmutation, was what was disclosed by Winters on cross-examination on the incident <p><hr title="Horizontal Rule">[Page 107]<p> where he testified Jones "barked commands at them," getting Winters attention by screaming, from two offices away, "Winters front and center." This was a scream Winters believed everyone in the north end of the PSB building heard, and it occurred while Helser was there. However he later hedged on whether he knew who was actually physically present that day. No other witness so attested to such occurrences or perceptions from such occurrences. Either referable to them individually, or that they heard it, or even heard about it third or fourth hand, as much of the representations as to what Jones said and did were in this trial, i.e., the screaming, barking, or the words used. <p> When Winters on cross-examination was questioned on this specific representation as to Jones' name calling which he thought abusive, he was asked about his "big balls" reference to Jones. He denied he had ever stated anywhere that Jones had "big balls." It was however brought out Winters' post-termination written statement assessing Jones for the anticipated OSHA investigator's interview, RX 66, stated: Jones "(is) overly daring (big balls)". Winters explained he was, in fact, quoting Jones' words about himself and because of the press of time he did not put quotes around his reminder-jog the memory notes for the OSHA interviewer. However RX 66 reflects he did have time to put in quotes other words he inferentially attributed to Jones' mouth and his parenthetical references appear to be Winters' own assessments conveyed in this interview. <p> Moreover it is noted that Winters there wrote "(s)aid Mike and Pat were not working' at night", with no reference to the sleeping quote or to any implied sleeping which became so pivotal and deciding as Silvestri's stated basis for termination. So important to Reardon's and Hampton's attested concerns and fears from Jones' alleged "sleeping on the job" statements about them, attributed to Reihman. And so important to Reihman's concern to assure Reardon and Hampton, and to tell Silvestri, without talking to Jones, about what Reardon was representing, conveyed second and third hand. <p> <p><strong><u>Helser's Involvement</strong></u> <p> Prior to his EG&G Safety specialist 4/11/94 employment and since about 1986 Helser had been at the Toole Army Depot. He was hired by Mike Hampton who, he testified, offered him the job because of his work in the chemical demilitarization program and his extensive experience at Toole. He had been an Army civilian employee trained in nuclear and chemical weapons and ammunition, to a QASAS <a href="#F50"><sup>50</sup></a> <a name="RF50"></a> certification, and had worked as an Army chemical weapons and munitions inspector. He had been an Army program analyst, and an environmental protection specialist coordinating work with the state, the EPA, and the program manager for chemical demilitarization (PMCD). TR 1811-18. <p> Helser testified he has known Reardon for ten years, Reardon worked for him at the Toole Army Depot, for 5-6 months he thought, and he worked with him as a QASAS. For a year and a half they shared the same cubicle and they are pretty good friends, on a professional level Helser testified. Helser also knew Dave Jackson prior to his 4/94 EG&G employment and worked with his PMCD group in Army pre-inspections. <p> Helser testified he was the acting EG&G Safety department chief when Jones came onboard and he had about 12 years experience working with chemical weapons issues. Hampton was not <p><hr title="Horizontal Rule">[Page 108]<p> at TOCDF the day of Helser's conversation with Jones, Jones' second day, while taking Jones on a TOCDF tour. Hampton had been off for three weeks and there was no transition; Jones and Hampton did not meet each other when Jones started. <p> Helser testified that day Jones asked him his background and said he understood he and Reardon were QASAS; he had a lot of respect for QASAS training and experience; wished he had more in his staff, and as far as he was concerned he really had no use for the rest of the staff. This, Helser testified, he found unsettling. Jones testified he never made such a statement to Helser. According to Helser Jones expressed an interest in the fact Helser had been filling in for Hampton for the prior three weeks and Jones asked that Helser fill in for him, more or less like an administrative assistant and continue the day to day operation in the office, so Jones could figure out what was going on, and figure out where he wanted to go. Helser testified he was uncomfortable with that but he didn't say anything to Jones at that point. <p> Despite his pre EG&G background, and the extensive work he had done at EG&G since his arrival Helser testified he was uncomfortable as a new employee with Jones' request for help. Significantly, he also added, he knew Hampton was due back and Hampton had been the Safety department manager for 4-5 years, would find out Helser would be Jones' second in command and Helser said he would be in a difficult position. The fact Hampton, and Hampton's reaction to whatever Helser decided, was the source of Helser's attested discomfort notwithstanding his pre EG&G background and his EG&G experiences is indicated in TR 1825:4-8. According to Helser he asked Jones "(w)hat about Mike Hampton?" and Jones said Hampton is not the manager. <p> Helser denied he ever told Jones he was angry he was hired and when asked if he defended the Safety department's track record to Jones he replied he didn't think that was an issue in any conversation he had with Jones. <p> Helser's led testimony on direct indicated he began keeping a journal, first handwriting things, then putting it on a computer disc, inferentially from his handwritten notes, because he felt uncomfortable about office events and fearful about his position. While these notes were not admitted, for the reason the transcript indicates, the thrust of Helser's testimony indicated this notekeeping alleged relatively contemporaneous began almost immediately on Jones' arrival, his first or second week. <p> Shortly after he started Jones, in a conversation where a site safety submission was discussed, told him he wanted to talk to him about his attitude, his lack of a "can-do" attitude, showed him Jones' award plaque, and advised Helser he was a whiner and complainer. Helser testified the two events which preceded this conversation, what Helser termed his "legitimate complaints and valid concerns" which precipitated it, were: Jones' request he take over security, and Jones' request as to Helser's shift work assignment. TR 1826-29. According to Helser, when Jones talked to him about having a "can-do" attitude Jones told him he was going to give him the same talk he had given Reardon. <p> About these prior "legitimate complaints and valid concerns" which Helser thought precipitated this "can do" conversation, Helser testified Jones wanted him to take over as security representative for the Safety department and "I was reluctant to do so" because, he explained, he was afraid he would get trapped into doing security for a substantial part of his time and <p><hr title="Horizontal Rule">[Page 109]<p> "that's not really what I had hired on with EG&G for." See also TR 1818:3-20, TR 1826-27. On cross-examination, he indicated he knew Reardon "deferred" the job and he knew Jones was trying to find someone else to do the security job. TR 1881:12-16. <p> When cross-examined on whether he had any reluctance in telling a new manager, trying to pull the operation together for readiness to burn chemical agent, that he did not want to do what the manager requested of him, Helser's indirect response was he felt and he could not see that any transition had occurred. TR 1882-83. In effect Helser's response indicated Hampton was his concern. Hampton's reaction to Jones' request of Helser, and Hampton's position in the Safety department was his concern. <p> Further his response indicated, based he said on his pre EG&G management experience, his attitude and opinion: that EG&G TOCDF management and Joe Hanny failed. They failed to provide some kind of transition in the Safety Department management change to Jones, and that was why he turned Jones' request down. Helser opined there should have been a sit down provided between Jones and his predecessor Hampton, and Helser expressed concern Hampton had not been consulted. Assumably his knowledge of Hampton's position and relegation was based on what Hampton told him. <p> According to Helser the other precipitating event in the "can-do" whiner- complainer conversation Jones had with him was over Helser's shift work assignment. When Safety went on shift work, four people working the shifts, Helser testified Jones told him he wanted him to be the fifth, fill-in, shift person to cover if one of the assigned four was out on training, vacation or sick. According to Helser, to be the on-call person permanently, 7 days a week, 24 hours a day. Basically, according to Helser, to fill-in on a moment's notice although it would appear the only unplanned event was sickness. Helser's testimony was "we had rotated it on a weekly basis," under Hampton "taken turns ... where it only landed like every fifth week or so, when it was your responsibility." TR 1828:12-22. However the record establishes Hampton did not arrange Safety Department full-time shift work coverage. This Safety Department shift work began 8/1/94. Helser is referring to a Hampton coverage arrangement when Safety Department demands were different. <p> The content of the leading question to Helser on direct was that he told Jones he didn't want to do this shift work assignment and he told Jones it wasn't fair. TR 1828:23 Helser's response to this question, where he indicated Jones "basically" said he was going to have to do it, in Helser's "ground rules" references, given his earlier testimony and responses, serves to confuse and obfusticate as to just what he is stating occurred and was said in this incident. As indicated within, this incident is not recited in the generalized testimony of Silvestri or Smith as a basis for any action taken. It is not reflected in the generalized counseling report. <p> On direct Helser denied he told Jones in the site safety submission/plaque "can-do attitude" conversation he was going to do just as he had in the past; there was nothing Jones could do about it or ever pointed down the hall and told Jones he had protection from PMCD. He denied he and Reardon in a meeting with Jones laughed at Jones and told Jones they were going to do what they wanted to do; pointed down the hall to PMCD's location and said they had PMCD protection. Helser denied he ever refused to work on Jones' hazard analysis assignment and told Jones he was going to work on PMCD assignments. <p> <p><hr title="Horizontal Rule">[Page 110]<p> Helser testified he was scheduled for toxic area training (TAT) training in how to wear chemical demilitarization protective suits, to take place in the third week in 7/94 at Edgewood MD (Calendar 7/18/94 - 7/22/94.) He indicated just two or three weeks before Reardon and Guello had gone to this training and his training had been scheduled 4-6 weeks before. TR 1845. This scheduling would thus have occurred while Helser was the acting Safety Manager, prior to Jones' arrival, or just as Hampton was leaving the position. <p> The morning of Friday 7/15/94 Jones held a meeting with Helser and Hampton, and Helser thought, Patti Andrews, on the issue of plant inspection for lightning protection. This was an issue Helser was handling. Jones advised the government wanted a meeting the following Tuesday to discuss how EG&G would proceed with the lightning protection plan, apparently involving disaster planning. TR 1845:17-18. Jones told Helser he would attend this requested meeting. Helser then told Jones he could not attend this meeting. Helser "announced to him or I told him" of his scheduled East Coast toxic training, traveling on Monday to be away 8-9 days. Jones "flat out" responded Helser was not going. Helser was certain Jones knew of his scheduled training before this meeting because "I mean he was the manager." "Everyone" in the office was aware he was leaving, according to Helser, and the schedule was posted although he did not say how or where. TR 1848-49. <p> This was the Friday of Jones' third week at EG&G. It was the week of the MSB Lab shut-down and hydrogen cylinder occurrences and the week prior to Jones' meeting with Silvestri, Hanny and Reihman on Helser's and Reardon's conduct and expressed attitude, as related by Jones, on his EG&G arrival and take over of his Safety manager responsibilities. <p> When asked on direct if Jones gave him any reason why he was not going to the TAT training , Helser did not respond to this question. Instead he answered that Hampton told Jones he could not cancel Helser's training, the only one who could cancel it was Silvestri. Helser testified Hampton pressed Jones, while Helser "just more or less sat there." Jones said they had too much of a workload and could not afford to send anyone. <p> Apparently, from Helser's testimony, this meeting then became totally involved with Helser's announcement, Hampton making statements to Jones as to what Jones could not do <em>vis-a-vis</em> Helser, and that only Silvestri, who was not there that day, could cancel Helser's trip/training; Helser essentially stating at the meeting why it was not convenient for him to cancel the planned trip the Friday morning before his scheduled Monday departure because all the office arrangements had been made, he lived alone and had just moved into his house, notified his family in San Francisco, stopped his mail and paper. In describing what he later told Jones in their one-on-one conversation after this meeting, he told Jones he did not want to waste his weekend making plans to go, if he wasn't going. <p> Helser left work that Friday with Jones' advice he come in Monday with his bags packed ready to go on a later flight if Silvestri, on Monday, did not overrule Jones' cancellation request. When he arrived home there were two recorded messages from Jones on his telephone answering machine telling him to go directly to the Edgewood Maryland training class Monday morning, as originally scheduled, which he did. <p> That Friday evening, according to Helser he was doing something socially with Jim Dochnahl. He played Jones' telephone messages for Dochnahl. He attested he wanted a witness to listen <p><hr title="Horizontal Rule">[Page 111]<p> to the tape because, "if something happened to the machine or the power went out or whatever I wouldn't have that tape ... everyone in the office was aware of this, of conversation we had had, ... I thought I was being set up for insubordination". TR 1855. <p> Aside from the fact Hampton and possibly Andrews were present at the lightning/disaster planning meeting where Helser's stated unavailability triggered Hampton's and Helser's statements and reactions to Jones' decision, as manager, that he needed Helser the following Tuesday at a client-requested meeting, and would cancel his trip, Helser did not further advise how everyone in the Safety office became aware of Helser's conversations, his subsequent contacts, meetings and discussions with Jones on Jones' decision. When he came back from Maryland Helser testified he "heard from a number of people in that office" that Jones had taken action to fire him and Reardon, but nothing was said to him. TR 1913-14. Helser did not identify who the people were who so advised him, or the basis of their knowledge as stated to him. <p> Helser's testimony he involved Dochnahl in his disagreements with Jones' decision and took these steps with Dochnahl because he thought he was being set up by Jones for insubordination, with Helser's testimony as to the content of these one-on-one conversations with Jones, after the Hampton-Helser-Jones meeting, are in the factfinder's judgment more revealing of Helser's insubordination concerns, when weighed with his further testimony and Skip Hayes' testimony on both Reardon and Helser. <p> According to Helser, in connection with Jones' decision Helser called the training coordinator; Jones called the director of training and, according to Helser, tried to get Dimond substituted on his TAT travel and training arrangements. TR 1850-52. Then Helser had another post-lunch discussion with Jones, after he met Jones in the hall. Jones had earlier given him his decision and instructions as to what to do Monday. Helser now again told Jones he wanted to know whether he was going or not going. "I said I had other things to do. I would like to be able to make plans ... there ought to be some kind of consideration given for my convenience and my time and everything else ...". Not satisfied with Jones' response to this that he do what he had to do, Helser testified he pursued Jones into his office and he told Jones he didn't believe Jones' discussion and concerns had anything to do with the business needs and professional goings-on in the office. He asked Jones if this is personal. It is found Helser's described continued questioning of Jones' decision to cancel Helser's trip and training, at that time, so Helser could attend the government-requested meeting on the issue Helser had been working on was a confrontational pursuit of Jones. <p> Cross-examination indicated Helser had turned down Jones' request to assist him for a few weeks in handling Safety department matters until Jones could figure out what was going on in the Department, and where he wanted to go. At this time Hampton had been out for three weeks; Guello and Reardon had been out for two weeks on training prior to Jones' arrival. Another Safety employee Kurt Allen was at reserve training for three weeks, Helser's testimony indicated Safety was overwhelmed and behind in the preparation of hazard analyses during the initial weeks of Jones's EG&G's Safety Department take over; TR 1842-1843, 1883-1885,1905-1908; he was behind in his TOCDF Safety projects. Dr. Hutchins expressed concern about the time it took Jones and Safety Department to take action on his Hanta virus paper and eradication team, and Dr Burton was concerned about Jones'/Safety Department speed of work on the Battelle laboratory needs. <p><hr title="Horizontal Rule">[Page 112]<p> According to Helser TOCDF was scheduled to go hot 1/95 but he could tell after his employment when he had a chance to assess EG&G's safety program that from a chemical plant view they still had to tighten up regulations and documents and things like that. He could see a lot of work had to be done to bring things up to implementing chemical and explosive standards. He responded, when asked if Hampton was qualified to take the program through agent operations, that he understood Hampton did not plan on it. While this was unresponsive to the question as asked on cross-examination, how he elected to respond infers Helser was getting Hampton's version of why he would not continue as Safety Department manager after three years of working with the Army as Safety Manager. Helser was unaware and uniformed as to what this record establishes: Hampton's performance evaluation, as evaluated by the Army, had fallen and his removal from the manager position was not voluntary as Hampton represented. <p> This entire day's TAT specific events as described by Helser post-termination, by the unspecific generalized testimony of both Silvestri and Smith, were not known to the deciding officials in Jones' counseling and termination. But Helser's presentation on this day's occurrences, including his and Hampton's interactions with the new Safety Manager three weeks at EG&G, reflect Hampton's directions to Jones on a matter which did not involve him, and Helser's post-lunch pursuit and public statements to Jones which go beyond questioning a manager's decision and instructions and into the area of insubordination. Based on what Helser represents he said and did, by the facts as he related they occurred at TOCDF that day, and what Helser said, insubordination is the flavor of these events. This is notwithstanding Helser's representations in this litigation as to the basis of his insubordination concern. Helser's explanation for involving Dochnahl, when he was in possession of recordings of Jones' instructions, in addition to being not persuasive of the represented basis of this action, serves to enhance the impression Helser, with Hampton had an agenda of their own in this specific and their other dealings with Jones the new Safety manager, and what they conveyed to their Safety co-workers about Jones. <p> Helser repeated his opinion that EG&G management had not done an adequate transition on the Safety Manager change. And Helser testified he did not feel Hampton was included in any of "this", when he defectively answered the question of whether there was any truth to Jones' testimony that not long after his arrival he asked Helser to do some assignments and Helser told him he had other things to do, he was working on other assignments. By his responses and statements at TR 1883:12 - TR 1889, and the inferences therefrom and the impression this witness conveyed to the factfinder on the stand, in demeanor and substance, Helser's and Jones' testimony establish Helser in fact refused Jones' requests and Helser did tell Jones he was going to work on the projects Hampton had assigned. In effect Helser told Jones he decided to get Hampton's assigned technical review work done because he had not had time to do it while managing the office in Hampton's absence. And Helser so advised Jones, when Hampton was no longer the Safety Department manager, and when Hampton was not there. And when Jones requested and asked Helser's assistance and Helser's work under Jones' direction and priorities, on and shortly after Jones took over as EG&G's new Safety Department manager, it is found Helser did not cooperate. <p> Hampton's cross-examination responses to the questions asked through TR 1890 indicate that although by his testimony he had been filling in for Hampton, he told Jones, when Jones approached him to continue in these duties for him, that he decided to do otherwise, to do other work of his own and not Jones' choosing. This was because, as Helser explained on the stand, he believed this would usurp Hampton. This witness' testimony and demeanor indicate he had his own agenda and plan for how <p><hr title="Horizontal Rule">[Page 113]<p> the Safety Department should be run. According to him no attempts had been made to include Hampton, "I mean Mike Hampton had been the manager for four years." This was Helser's concern, although he was then only a three month EG&G employee. In the picture Helser presented, when he testified he did not say he would not do what Jones requested, just said he would be uncomfortable, this was not a credible or believable witness. TR 1890. <p> Helser testified to four or five organizational changes, on cross-examination beginning almost immediately after Jones arrived, far less than the inconsistent testimony of other EG&G witnesses. TR 1912. And after being led on direct to agree this created some confusion, he then testified to having four different team leaders. TR 1856-57. <p> Helser testified Jones called Jeff Vahl "skinhead" on two occasions, and Vahl twice corrected Jones on this. He said Jones referred to Jim Dochnahl as John Denver, and Dochnahl told Helser he was irritated by this reference, but he did not know if Dochnahl told Jones that. Helser testified he thought Jones' Safety-reminder gorilla unprofessional, as he did Jones' advice to his cubicle - mate, Reardon, that reading a newspaper at his desk at lunch looked unprofessional, he should go to the lunchroom. <p> Helser was "dumbstruck" Jones, at a meeting, asked him to get him a cup of coffee. He testified he was annoyed and humiliated and thought this was designed to put him down in front of his co-workers. TR 1861-62. See Jones' testimony at TR 2362-63 on the meeting environment and getting coffee. None of these post-termination attestions of Helser's were referred to in Silvestri's testimony nor by Smith, nor are they reflected in the 8/24/94 counseling note. Helser testified he did not complain to Reddish or EG&G management about these occurrences he believed demeaning. <p> Helser when cross-examined on Jones' memo request that all correspondence leaving Safety come through him, RX 33 7/26/94 , agreed it made sense Jones would want to know what was happening in Safety albeit in the absence of a Safety deficiency log, a new form for which Kurt Allen was working on, there was a log of daily activities and occurrences which he presumed the Safety anager was reading. TR 1896-1902 <p> Helser's unelicited statements at TR 1853:3-10 to no posed questions; his manner of responding in initially unresponsive fashion but with elaboration on what he wished to convey about himself, TR 1855:20 - 1856:10, impressed as a designing witness with an agenda of his own, well-prepared in questionable detail to convey a planned impression as to Jones' conduct, abilities and character. So too did Helser's testimony as to Jones' spending 80 - 90% of his time in his office; his expressed opinions at TR 1909-11 that the leads never got a chance to do their work, the in-house joke. Helser impressed as a wily witness. See also Helser's testimony at TR 1841-44 as to Jones' hazard analyses instructions, his references to the unnamed "three or four of us talking about it afterwards;" his elaborations at TR 1846:14-25 through TR 1847:14, and his cross-examination at TR 1905-08 on these earlier statements which cast aspersions on the quality of Jones' safety inspector work. These latter Helser - alleged Jones' statements on hazard analyses actions/lightning protection certification are not reflected as a basis for Jones' counseling termination, or known to Silvestri/Smith. <p> <hr title="Horizontal Rule">[Page 114]<p> Further Helser's testimony here reflects the Safety Department, prior to Jones' arrival, was being criticized by outside components for the quality of its work products. And as of his arrival Jones was under Safety Department workload pressures. This enlightens as to Jones' position on arrival and his need for assistance. It places the effect of Helser's stated refusal, for the reasons he indicated, his concern as a three month employee for what EG&G upper management had done to Hampton; Hampton's notes immediately on Jones' arrival, and Reardon's response to Jones' assignment request in perspective. <p> To the extent Helser's testimony reflects his opinions on Jones' safety inspector activities, which Silvestri stated he never questioned, it infers a witness on a mission. It does not enhance the probative value of his presentation where a credibility judgment must be made in the face of conflicting testimony on facts of importance to the determining issues. <p> Hayes testified his deposition assessment of Helser was pretty much the same as his deposition assessment of Reardon. Hayes remembered commenting specifically in deposition on Reardon's interpersonal skills, his ability to be able to talk to a manager, to get his point across, to develop on the part of the managers who are several echelons above his a degree of concern relative to the safety issues, a trust in Reardon's judgment relative to safety concerns. While as of Hayes' 1995 deposition in connection with this proceeding he believed Reardon had make significant strides in his basic interpersonal skills as defined by Hayes, Hayes still believed Reardon had a ways to go. TR 2296-2300 <p> When asked how he as an EG&G manager would deal with and react to an employee who refused to perform a requested task, an incident he viewed as insubordinate, Hayes replied that would very much depend on the situation, the task and the employee at that particular time and while Hayes testified he could not give a rule of thumb which would apply across the board to deal with that situation, he would most definitely take some action with respect to the situation. He testified he viewed insubordination as something that most definitely must be carefully evaluated by a supervisor and acted upon. Hayes testified if he had an employee whatever the situation who continued in his view to be insubordinate he would take appropriate action and under certain circumstances removal would be a consideration. On deposition Hayes had testified he would remove on continued insubordination. TR 2292-96. Hayes testified he had minimal interaction with Jones at EG&G, probably had occasion to discuss several issues while he was there and from his point of view his interaction was favorable. <p> While Helser testified things did not improve in Safety, his TR 1915-16 testimony indicated this lack of improvement involved only "certain people." Cross-examination on Hampton's RX 5/67 8/31/94 entry belied a lack of improvement after Smith's counseling, from Reardon's and Helser's perspective <em>vis-a-vis</em> Jones. This Helser then attributed to the microscope EG&G management had placed Jones under due to complaints by other staff members. Thus when Silvestri attested no improvement after counseling contributed to his termination decision, that is not what Helser's testimony here or Hampton's note indicate. <p> <p><strong><u>Guello's Involvement</strong></u> <p> Guello as of trial was EG&G's Safety and Security manager. He was employed by EG&G 5/1/94, as an industrial hygienist, when Mike Hampton was the Safety department manager. Guello's background was 22 years as a Navy industrial hygienist, followed by similar work at private industrial firms. <p><hr title="Horizontal Rule">[Page 115]<p> While Guello was a new EG&G Safety Department employee at the time Jones replaced Hampton as manager, unlike the other EG&G employees who responded to questions as to the reasons for Hampton's replacement, Guello stated from his observations EG&G felt it was similar to the Industrial Hygiene program, where the program was probably stagnant, not progressing rapidly, some problems may have been highlighted. Someone more aggressive was probably wanted to bring the program along more rapidly so that it would be ready for operations. Guello never felt his job was at risk while Jones was employed, or that Jones was trying to terminate him. He did attest to Jones' reorganization and team set ups after his arrival. TR 1239-40. <p> According to Guello the Safety Department's organization changed many times after Jones' arrival and with his division into teams, but Guello's position and duties stayed stable. As the record indicates Dimond's position did. But it was a continual shuffle of the reporting positions of Mike Hampton, Pat Reardon and Chris Helser. Guello did not consider it any problem that Gary Winters and Jeff Vahl, two other Safety employees who worked in the area of emergency preparedness, were given assignments after Jones' arrival as safety specialists although they did not have training or expertise in safety. <p> According to Guello Helser and Reardon were Army toxic ammunitions experts who had received a great deal of training and were very knowledgeable in chemical agent munitions safety. While Guello attested he had worked with both Helser and Reardon and he had no questions as to their competence, his testimony also indicated that as of Jones' arrival, Guello an industrial hygienist was a two month EG&G hire whose background was not that of either Helser, Reardon, or Jones. Guello had little experience in the chemical agent subject matter which was the basis for the MSB Lab shutdown, in which Reardon was the experienced employee - knowledgeable as to the applicable criteria and regulations who had worked on the certifications Silvestri referred to in his testimony on this event. <p> Jones advised Guello he had had prior unfriendly dealings with Dave Jackson of PMCD and that Jackson had a negative opinion of Jones. TR 1243. Testimony elsewhere indicated that during the course of his IG inspector employment Jones had been involved in the shut-down until deficiencies were corrected of the TAD CAMDS project for which Dave Jackson had some responsibility. Dimond testified Jones told him that when he was on the Army's IG team he got Dave Jackson his PMCD counterpart fired from another job.<a href="#F51"><sup>51</sup></a> <a name="RF51"></a> <p> Guello's testimony as to his observations of Silvestri's management style at EG&G, Silvestri's conversations and communication with Guello, was in response to a question time framed from the 5/1994 beginning of Guello's EG&G employment. Since Guello became Safety Manager after Hampton's summer 1995 departure, and given his references in his responses to Hampton as part of these Silvestri contacts, Hampton being Safety manager until Jones' arrival, and restored as Safety anager or acting Safety Manager or joint Safety Manager with Skip Hayes (TR 2000-1), with Jones' departure, Guello's responses and impressions are an amalgamation - over time. They do not specifically enlighten as to his pre 9/14/94 observations as to how Silvestri managed. TR 1235-36. See also TR 1280-81. <p> Guello recalled being in Jones' office when Reardon "our security specialist" was called in and Jones told Reardon he did a poor job in security, that's the reason the security program wasn't in very good shape, and told Reardon he would do security full-time. According to Guello Reardon told Jones he didn't want full-time security, he wanted safety. And Jones just told him to leave his office. Jones then told Guello Reardon had been insubordinate, had refused to do work, and that <p><hr title="Horizontal Rule">[Page 116]<p> he would fire him. However Guello did not attest Jones' reference at that undated event to Reardon's refusal to work was based on that incident alone. While Guello attested he did not feel Reardon was "insubordinate or anything like that" or belligerent, Guello, in his first statement in response to the question of whether he judged Reardon in this encounter to be insubordinate, and prior to this stated conclusion, first prefaced his response to the question as asked by replying, notwithstanding the courtroom presence of his EG&G managers, "I was very surprised actually that Pat was so emphatic that he did not want to do the security job full time." TR 1245. It is inferred Reardon in his continued Safety department employment works under Guello as the current Safety Manager. <p> At the same time Jones told him he was going to fire Reardon, Guello testified Jones told him he was going to fire Helser because he was lazy and incompetent; inferentially the same day Reardon told Jones in Guello's presence, he did not want full time security, he wanted safety. TR 1245-46. Guello thought the event initiating Jones wanting to fire Helser was Helser's described lack of preparation in the hydrogen cylinder incident. TR 1258-59. Guello's testimony is unclear as to the dates and sequences of these conversations. <p> Guello also testified Jones, he stated at the time he wanted reasons to fire Reardon, asked him to switch Reardon's assignments so that he would fail at resolving discrepancies at the CAL Lab, a high visibility important assignment at the time. TR 1262-63. However Guello's testimony does not reflect he shared this information as to Jones' controverted statement to him with anyone at EG&G or in EG&G management, prior to Jones' termination. TR 743. It was only after Jones' termination, according to Reardon, that Guello advised him of this. Thus this fact would not and did not play any part in EG&G management's decision to counsel and terminate Jones. <p> Guello testified he told Jones when Jones told him about Smith's pre-dismissal counseling that the issue with Hampton, Reardon and Helser was the real big one, and perhaps Jones could take a different approach. TR 1268-69. And Guello suggested he try personal contact with Dave Jackson to resolve the PMCD issue. See TR 1269:2-7. <p> Guello testified he had no problems in talking to Jones, or bringing up problems, and at times he worked on projects outside his IH field for Jones. There were times when Jones wanted to make changes in the people under Guello, as team leader, where Guello complained and told Jones don't do that as it was too far removed from Guello's hygienist field. But Jones never suggested his job was in jeopardy as a result and Guello thought Jones had confidence in him. <p> Guello testified that while he now has the same job Jones had as EG&G Safety Department manager and the job description has probably not appreciably changed as Safety anager, if anything went wrong with the incinerator, environmental concerns are not his concerns. It is noted this conflicts with the contracts CX 32, pg. 143 statement of the Safety Manager's environmental concerns, with the Accident Prevention Plan (CDRL) an effectuation of the Army's contract for the TOCDF chemical weapons destruction facility, and with Hayes' and Reihman's testimony. On evaluation of all the evidence to decision this testimony by the current EG&G Safety Manager, absent any indication of changes, is disquieting, reflecting a litigation coloration. <p> <p><strong><u>Dimond's Involvement</strong></u> <p> Steve Dimond, a high school graduate, retired from the military after 20 years where <p><hr title="Horizontal Rule">[Page 117]<p> he worked for 10 years as a nuclear, biological and chemical non-commissioned officer. As such he inspected and wrote procedures to help correct findings. While in the military Dimond had hands-on teaching experience with chemical agent. Dimond had management and supervisory experience in the military, including as squad and platoon leader. And while in the military he had worked for several years with Skip Hayes, the EG&G Environmental Manager during Jones' employ. <p> Following his military retirement Dimond was employed for a couple of years as a HAZMAT team leader where he managed 2-150 people depending on spill size, before being hired by EG&G as a safety representative. He was hired by Hampton and began work 6/1/94 and at that time he believed Hampton was the Safety Department's acting manager. He has no industrial hygiene experience. Dimond continues as an EG&G employee. <p> Within a couple of weeks of Jones' arrival he was moved into a Safety Department team leader position, with the employees who reported to him changing, but with some constant including Vahl. He testified Reardon reported to him at one time. Dimond could not recall the number of Jones' organization changes but he thought it was more than two, with a recollection of four changes in one week and emergency response under him for half a day. But the team leader concept remained constant under Jones' various employee placements within the system he instituted. <p> Dimond testified he was concerned with his team leader appointment not because he lacked management experience, but because of his lack of industrial safety experience in making the decisions that would be asked of him. TR 1615:8-17 But his big concern was having Hampton work for him because Hampton hired him and he understood he was a certified safety professional. Other than this knowledge of Hampton's background, and the fact he was the EG&G Safety Manger replaced by Jones, Dimond reflected no other specific knowledge of Hampton's education or work experience on which he thought Hampton was better qualified. TR 1614. See also Dimond's TR 1614:10-17 response which infers Hampton was the only Safety department employee he was uncomfortable supervising. <p> However on discussion of his concerns with Hayes, Hayes advised it was a chance for promotion. He counseled Dimond to express his concerns to Jones; not to turn it down and offer to take it having expressed his concerns to Jones. Dimond testified after he did so he told Jones he'd do the best job he could and Jones assured him as long as he was working in Safety Hampton would not report to him; but Hampton later did. Dimond could not recall whether this was the conversation where Jones talked about Hampton going to work for Ira Hall because Jones felt Hampton was burned out and could use a break from Safety and maintenance. <p> Dimond recalled Reardon and Helser did not get along with Jones. There were some arguments. One was because Reardon did not want the security position Jones offered, he wanted shift safety. But Dimond could not recall if the security job was full-time or part-time. As a result of these Reardon-Jones arguments, on a confined space entry procedure he was to watch Reardon and then write up whether he did everything appropriately. Jones asked him to monitor Reardon on this one duty. Jones' explanation to Dimond of his monitoring request was that because of Helser's and Reardon's extremely bad behavior, he had written a recommendation to Hanny they be fired for their behavior. Later on he felt he had put Hanny in a bad position, so somehow he wanted to bring them back on track and this was like a <p><hr title="Horizontal Rule">[Page 118]<p> recertification procedure. TR 1622-23. Dimond testified he wrote Reardon performed appropriately but he also recalled an incident where Reardon stood silent, not supporting Dimond in a lockout/tagout procedure. CX 62/330. <p> Dimond testified Vahl told him he was going to say something to Jones about Jones' reference in Safety meetings to Vahl as "skinhead". TR 1601-02. Dimond did not know if Vahl ever said anything to Jones. Dimond's direct testimony as to Vahl's response was led. TR 1601:20-22. While he testified Jones referred in meetings to Jim Dochnahl, who had long hair and a moustache, as Johnny Denver or Johnny Colorado, Dimond reflected no conversation with Dochnahl referable to this naming. TR 1602-03. <p> Dimond could not recall that he ever told George Cook, when he visited EG&G Safety and Jones, that he had real direction now that Jones had taken over the Safety Department manager position. But see cross-examination responses at TR 1617-18. George Cook, whom Jones supervised at the Navy, testified Dimond so stated to him. TR 263. <p> Dimond testified he knew Jones had confidence in him, Jones was easy to approach, he could not recall being reprimanded by Jones, Jones did not treat him in an abusive manner and when asked if he was ever demeaning to him Dimond responded probably joking around once in a while but "I didn't take it seriously." Dimond testified Jones encouraged him to get certified as a safety professional, and when asked if Jones helped him improve his skills Dimond replied Jones helped him improve some of the ways of looking at the job and he indicated Jones helped him on his lockout/tagout assignment. TR 1616. <p> <p><strong><u>Gary Winters on Safety Personnel Matters</strong></u> <p> Winters testified he considered himself publicly disciplined when at a staff meeting Jones brought up his 7/20/94 "Coordination with PMCD and SAIC" memo RX 27/280 and asked him to read it aloud. These are Jones' instructions as to coordination of information as to such Safety work through Jones and/or his team leader. Winters testified this occurred after Jones learned he had had a conversation with PMCD Bishop, who visited Winters at EG&G to ask when the next EP drill would occur, and Winters told Bishop he didn't know, and it's not on the schedule. Public punishment for just being civil to Bishop was Winters' interpretation of this event; he testified he had no detailed conversation with Bishop, just answered his question. He did not testify he told Jones or his team leader of this conversation. <p> Winters' testimony on this staff meeting occurrence does not indicate Jones, in bringing up the RX 27/280 instructions and asking him to read them aloud, made any reference to the Bishop visit as Winters related it. Winters thought Jones' memos and their signing were overkill and petty. He did not indicate the date, or approximate date of this staff meeting, or whether it occurred before or after Winters' conversation with Bishop about his work utilization and assignments by Jones, the contact which precipitated the top level PMCD-EG&G meeting on the EP plan. There is no indication in Winters' testimony that pre-termination he ever advised any EG&G manager, including Silvestri, Hanny, Smith of his interpretation of public discipline in this incident. <p> <p><hr title="Horizontal Rule">[Page 119]<p> Further, with Winters' lack of indication of any advice to Jones as to his "chasing rats" conversation with PMCD Bishop or of his "EP is dead" conversation with Silvestri; and his testimony drills, not performed since Jones' arrival and not the work focus of his and Vahl's initial conversation with Jones, were now, by this PMCD contact with Winters, a concern of PMCD personnel, Winters lack of advice to Jones on this drill inquiry, and this witness' stated perception of a public discipline and his representations give pause. <p> When Winters testified he believed Jones was abusive and berated staff he based this on several stated occurrences which included his own stated perception of public discipline as to Jones' coordination of work instructions, RX 27/280; and his testimony Jones had him prepare some memoranda a clerk would normally prepare, had him do some typing when no one else was available which he testified was a misuse of an emergency preparedness coordinator. The circumstances under which this typing occurred and the content of the memos was not indicated in Winters' description in this instance of perceived abuse. <p> Further, Winters' testimony indicated his 10/19/94 assessment for the OSHA interviewer and inferentially stated to this interviewer, conveyed opinions as to Jones' management actions and decisions referable to Reardon, Hampton and Helser and to meet Safety Department's needs for which Winters' had no factual knowledge, including knowledge of the background and circumstances of the individual workers involved and the basis of the manager's decision. Winters' RX 66 statements indicate an individual willing to make statements and judgments about that which he did not know. It also adds to the impression, from Hampton's and Reardon's testimony, that the removed manager Hampton and his long-time subordinate in their attitude to the newly appointed Safety Manager significantly impacted and affected their recently hired co-workers' perceptions of Jones and their reactions to his new management. At RX 6 Winters reflected Jeff Vahl was "favored;" Mike, Pat, Chris, and Doc were "lashed." <p> What Winters did have a stated factual basis for, an occurrence factually known to him was his observation Jones referred to shaven-haired Vahl as "skinhead;" Vahl told Jones he was upset by this, and he heard Vahl tell Jones he had a real name. And once when Jones entered the men's room and saw Vahl and Winters together, he said: "What are you guys, a bunch of faggots." TR 2080-81. Jones testified he did make and should not have made this remark and statement. This later statement was unknown to any EG&G manager until after termination and EG&G's post-termination solicitations from its employees. <p> According to Jones the TOCDF work culture and environment was more like a construction site; very casual, a lot of crude language, a lot of joking, teasing one another, putting names on people. According to Jones on one occasion Jeff Vahl came into the office and it appeared to him he had shaved his head. Jones thought it was funny and told him he looked like a skinhead. Vahl thought this remark was funny, according to Jones; he took it as a light hearted joke. TR 124. Hampton's 7/13/94 note reflects Jones advised Dochnahl he was only kidding in his haircut question. RX 5/58. <p> Winters testified Jones mentioned that he inspected the CAMDS site when Dave Jackson was there and that Jackson was going to get back at him for something Jones exposed at Jackson's site, embarrassing to Jackson. TR 2086-87. Winters offered testimony on direct to his subsequent ( pre or post termination unknown) conversation with Jackson about this, a conversation Winters initiated because, he said, he was curious. It would appear this curiosity conversation with Jackson provided the basis of some <p><hr title="Horizontal Rule">[Page 120]<p> of Winters "contest" "battle" language including in his statements to investigators at RX 66, a statement not then subject to cross-examination. <p> Winters testified Jones was not good at keeping employee information to himself; told him he was going to discipline Hampton; how he was going to get rid of Dochnahl, elsewhere indicated as a temporary employee, and told him Smith had discussed something which led him to believe it was his first termination notice. Winters testified he was not use to managers sharing this kind of information. Winters did not testify he advised any EG&G manager of any of these personnel events and his stated perceptions prior to Jones' termination. Winters' testimony indicated that after Jones termination EG&G asked its employees to turn over any notes or materials their employees believed "might be relevant or be of interest" on Jones, as a kind of memorandum. TR 2162. <p> Winters' testimony, including in its indication of statements he prepared for an OSHA investigator after Jones' termination, reflect his testimony, as with all of the EG&G witnesses dependent on EG&G for their jobs, for their job references, and for their representation, as well as Jones', have to be carefully screened, analyzed and evaluated due to their self-interest in the circumstances and the effect of the significant post-termination newspaper publicity and investigative attention this matter has received with the attendant job and elsewhere post-termination talk, preparation, resurrection, and revision of what occurred, to distill out what is reasonable to find actually occurred -- was said and done pre-termination. <p> Other than these specific fact situations which occurred prior to Jones' termination, Winters' testimony as to Jones being the worse manager he ever encountered, TR 2082-83, including his opinions as to Jones' setting priorities are without foundation in any facts known to Winters as to what was occurring and had occurred in the Safety department and with Reardon, Hampton and Helser on and after Jones' arrival and which was the stated basis of Jones' organizational/assignment actions. He had no knowledge of what had occurred with Hanny, with upper EG&G management, and at the Army award evaluation of the Safety department's operations and management. Winters had no knowledge of the demands being placed on the new Safety department manager. Winters' testimony here echos his 10/1994 RX 66 assessment. <p> Winters' testimony reflects he is used to disciplining himself, to keeping himself on track and he thought Jones' memos petty. But by Reihman's testimony as to his need to remind professionals to keep busy, his need to remind professionals' supervisors to keep them busy, it is inferred EG&G supervisors and managers had to give instructions to staff which could be regarded by work-disciplined employees as unprofessional. <p> Jones' counseling/termination, according to CX 64, and Smith's testimony, was not based on Winters' many opinions on Jones, including how Jones decided, as the new Safety Department manager, to utilize Winters or any of the Safety department staff nor on failure to meet the job performance requirements and functions of the Safety department; nor to prioritize the work. Further there is no indication in CX 64, in Silvestri's or Smith's testimony they had knowledge at the time the adverse personnel actions were taken as to much of what Winters attested, e.g., his meeting with PMCD Bishop, the driving force behind the mid-8/94 post 8/1/94 PMCD - EG&G upper management meeting on the EP. Silvestri did not even mention the EP presentation Winters gave or the Jackson-Silvestri-Winters meeting from which Jones was excluded as playing any part in either the counseling or termination discussion. Silvestri's <p><hr title="Horizontal Rule">[Page 121]<p> testimony as to Jones' utilization of people was, as reflected within, so generalized unclear and murky as to infer post-termination rationale based on litigation solicited employee statements. <p> <p><strong><u>Former Manager Hampton </strong></u> <p> Mike Hampton who has a B.S. in Industrial Safety was employed by EG&G at TOCDF in 11/89. He became acting manager of the Safety Department three months prior to his late 1991 permanent appointment as such, a promotion. This appointment coincided with Silvestri's 1991 arrival as EG&G's TOCDF General Manager. According to Hampton he approached Silvestri to be made the permanent manager. Silvestri asked him some basic questions and, he believed, talked to the client and some other EG&G management officials all of whom were comfortable with his appointment. <p> Prior to his EG&G employment he was employed 1987 - 1989 as senior safety and health engineer by Kennicott Copper, winding up construction operations and at the start up of their smelter and refinery. Once the Kennicott facility was online and running, he was responsible for its operations. Prior to Kennicott he was employed on shift safety and health by Kerr McGee in their Illinois mining operations, in construction as well as the new operations. <p> Hampton testified he regarded Reardon, Helser, Reddish, Ruth Ann Powell and Patti Andrews as friends of his based on his EG&G employment. <p> Hampton's explanation on direct examination as to the circumstances of his stepping down as Safety Department manager, at no pay loss but with bonus loss implications, was in response to EG&G leading questions phrased as to his approaching EG&G management to step down although he felt he had done a good job to that point. According to Hampton he talked to Hanny about relieving himself of the burden because he felt, heading into operations, the late systemization phrase, moving into heavy agent, this would be advantageous and the best thing for the project, and for EG&G "to have someone who lived and breathed Army safety." Hampton's explanation was that Army safety rules, documents, requirements, policy, were different than what he was used to under OSHA. "(M)aybe the best thing for me personally to relieve myself of that burden," earlier having alluded to growing stress and the amount of workload in the Safety Manager position. Hanny thanked him, Hampton attested, for his honesty, thought that a worthy approach, and later told him he spoke to Silvestri and PMCD, who all felt comfortable "with that approach." TR 1393-94. On direct examination Hampton referred to his 6/9/94 memo to Hanny, RX 9/977, TR 1382. But this memo was not further explained until cross-examination. <p> Prior to his EG&G employment Hampton had no supervisory experience. TR 1446-47. At trial he was employed and had been since 8/1995 by HAPTIS, a hazardous waste incinerator, a smaller plant which he thought better suited to his career goals. Hampton also testified he was represented by EG&G counsel in this proceeding. TR 1442-44, TR 1484-86. The day Jones was terminated Hampton resumed his Safety Department manager position, on an acting basis. According to Hampton he was asked by James Smith, because EG&G felt he was the best person to fill the position, to resume this position and Hampton felt he was the best person of everyone there to be managing the Safety department. <p> <hr title="Horizontal Rule">[Page 122]<p> Given his explanation of why he had stepped down, i.e., his lack of heavy agent Army safety experience, Hampton when questioned as to why he agreed to resume this position, attributed it to his concern for what was best for the project. TR 1453. <p> The impression from Hampton's explanation was that stepping down as Safety Department Manager and the hiring of a new Safety Department manager was his idea, a voluntary decision and action, he initiated the whole idea for the good of the project. Cross-examination, and Hanny's later testimony indicated Hampton was not telling the full or true story. TR 1458-60. He was forced to step down because of Safety Department inadequacies which had affected the Army's 4/94 evaluation of the EG&G Safety Department under their contract provisions, and affected EG&G's fee award evaluation, the surprise Silvestri testified he did not like from his managers. <p> Hampton testified his Franklin Planner, RX 5, which shows notes on Jones beginning 7/5/94 is not his entire Planner covering the full period of Jones' EG&G employment. He testified these were notes he kept to protect himself, a practice he began not with Jones' arrival but probably about the time Jones tried to fire Reardon and Helser for reasons Hampton believed absurd, because he feared for his position. <p> Hampton, at cross-examination TR 1458-60, explained his 1994 discussions with Dave Jackson, his PMCD counterpart which led to his decision he should step down as EG&G Safety anager, prompted, he said, by Jackson's indication Hampton needed to better prepare for operations. These Jackson-Hampton conversations were peripheral to core issues Jackson commented on to Hampton, plan development and procedures, things Jackson wanted to get in and correct. Hampton denied any knowledge Jackson talked to Hanny about these concerns and while he testified Hanny told him he had had discussions with Jackson, according to Hampton he did not know "exactly" these discussions' intent. Hampton's evasive response and comment was "(t)hat was his job to have discussion at that level with Jackson." TR 1460. <p> In testifying on the 6/9/94 document which reflects his response to Hanny on the Army's 4/94 criticism of the Safety Department's performance for EG&G award fee purposes, where the Safety department's rating fell from pluses to satisfactory, Hampton said he knew these fallen ratings resulted from comments made to EG&G by several groups in government and partially by PMCD, but he did not know exactly what government officials so evaluated. RX 9/977-80. The Army had indicated: <p><dl><dd> "The evaluation indicated a problem noted in the SC's [contractor's] ability to align various programs in accord with specific Army policies... This evaluation indicated much work is required to come to grips with the overall program as listed in Army requirements. This issue is identical with other Army programs which the SC will be judged on in the future." ... <p> <dd> "The SC seems to struggle with understanding the Army environment in which they will operate in the operational mode."</dl> <p> RX 9/977; TR 1382. <p> According to Hampton this told him the Army was saying the overall program needed some work to meet the task at hand which was safety and operations. TR 1536-39. It is found clear from <p><hr title="Horizontal Rule">[Page 123]<p> this evaluation that before agent operations ever began, the Safety department under Hampton's small-group management had problems meeting the customer's requirements in the contract phase they were then in. Hampton testified he believed this Army "verbiage" was too harsh and he defended what his Safety department had done in the 6/9/94 memo to Hanny. There he pointed out to Hanny Safety Department plans which were being written in accordance with Army standards and regulations and stated "I ask you does this look like we're having a difficult time aligning programs with Army policies," and otherwise indicated the Army's evaluation was unfair and unjustified. RX 9/977 <p> When cross-examined as to whether EG&G management was concerned with this lower award fee and Army analysis, and whether it was suggested by Hanny and Silvestri he get help in meeting Army standards, Hampton denied either so suggested and he evaded a straightforward response as to EG&G's award fee concerns. However he did testify he and Jackson talked about gaining some support for Hampton, support "working for me," by some individuals who were about to retire from the Army safety field. TR 1546. Inferentially, by these remarks Dave Jackson had some Army retirees in mind who Hampton believed would work under him. <p> Hampton's cross-examination at TR 1541-61 and how Hampton responded on the stand to questions asked indicated that notwithstanding all his representations it was his idea to step down as Safety Manager; that he stepped down in the best interest of the project, and because of a desire to avoid stresses in his life, in fact, he felt at the time of the Army's critical comments which inferentially resulted in his removal from his Safety Manager position, that he could do the Safety manager job and he was upset with Jones as Safety Manager as well as upset with Hanny. His anger with Hanny was because, according to Hampton, he had been told he would continue in a supervisory role and once Jones came aboard that did not seem to be the way Jones was organizing the Safety department. <p> Hampton testified that although he had no prior experience in a chemical demilitarization facility he had worked in a chemical process before, and he believed he could get to the point of having the expertise needed to manage the Safety department, to bring it successfully through the Army standards and he was capable of handling the Safety Manager job if he decided to handle it. But when Jones came aboard and he did not get the supervisory position he believed Hanny promised him, he was upset because he believed he was not being treated with respect. <p> According to Hampton, Jones told him Hanny never told him about any promises to or arrangements with Hampton and that Hanny had told Jones to run the Safety Department as he saw fit. Hampton testified he never went to Hanny or Silvestri on the issue of his position in the Safety Department and he testified he "probably" felt betrayed by Hanny and was frustrated by not being in a proper position in the Safety Department. <p> Hampton could not recall ever asking Hanny about Hanny's deal with and promise to him after this advice by Jones. He could not recall ever having a meeting with Hanny about this deal and promise, after his discussion with Jones where, according to Hampton, he told Jones what Hanny said and why Jones was there. Inferentially this was a reference to Hampton's testimony he was responsible for Jones, or a new Safety Manager, being at EG&G Safety because he elected to step down; he initiated this change. He recalled only, in generalized fashion, he wrote a date unknown memo to Hanny about the "current situation and the way I was being treated." <p> <p><hr title="Horizontal Rule">[Page 124]<p> Hampton's attested inability to recall his statements to the OSHA investigator as to his feelings about what Hanny had done, about Jones' arrival and how he was being treated by EG&G with the new Safety Manager's arrival, and when he began to feel this way, belied his credibility. As did his demeanor when responding to this line of questioning. His lack of memory as to very memorable events in juxtaposition to his 7/5/94 RX 5 entry, and his testimony he at that time had discussions with Reardon and Helser about their concerns with Jones and "a lot of different things," indicated Hampton, early on and when just back from personal leave which occupied part of Jones' first week on the job, began to disparage Jones with his Safety staff associates and friends whom he had hired, supervised and evaluated prior to Jones' arrival. RX 5, 7/5/94. On 7/5/94 by Hampton's note he felt like he was being squeezed out, with very little respect from Jones and with a reduction in his responsibility and authority. He then added: "Most of the other staff members think so too." TR 1550-57. This date coincides with Reardon's one-on-one conversations with Jones, the initial basis of Jones' insubordinate perception of Reardon. <p> Hampton testified he found out Jones was being considered for the EG&G Safety anager position about March or April 1994 when Jeff Princpale, the Army chemical surety manager told him this. Hampton testified the first time he saw Jones was very briefly at the general orientation for new employees. On direct examination he denied he was angry Jones was brought in. Later cross-examination testimony and personal presentation vividly established otherwise. On direct examination he also denied he ever told Jones he was angry Jones was brought in; he ever told Jones he did not want Safety department changes; and he further testified Jones reviewed the Safety department with him only in a very sporadic way. TR 1394-96. <p> According to Hampton between 6/27/94 and 9/14/94, the dates of Jones' EG&G employment, he recollected six Safety department staff organization reconfigurations. This is far fewer than the other Safety department witnesses attested. He felt it was a slap in the face to be placed under Steve Dimond, the Department's most junior member given his own experience, education and professional certification. Hampton was led on direct to testify Jones intended Reardon to be full-time in security. The basis of this belief was Reardon told him so. However Reardon's presentation indicated he, Hampton and Helser together decided it would be a full-time position. <p> According to Hampton what created conflict between him and Jones <a href="#F52"><sup>52</sup></a> <a name="RF52"></a> was the 8/4/94 day, while in Jones' office and after Jones had asked him about a duty, Jones then told Hampton he really needed to straighten up his negative attitude. People in the Safety department were beginning to complain he was dragging them down. <p> Hampton testified that irritated him because no one else had said anything to him in terms of dragging them down. According to Hampton he asked Jones who these people were; Jones said everybody, just ask them yourself. He told Jones he would and, he said, Jones said call them in. Hampton then went through the Safety department grabbing whoever was available, Guello, Andrews, he thought Dimond; took them to Jones' office and questioned them as to whether they had been complaining about Hampton's negative attitude. <p> According to Hampton "they were so shell-shocked that they were being confronted with this," that they murmured a few things, kind of stuttered to be sensitive to what was <p><hr title="Horizontal Rule">[Page 125]<p> a sensitive issue. There was discussion between the various parties but Hampton testified he could not recall what was said. However in the "shit" references below, cross-examination brought out he did have recollections as to what was said by the other Safety employees he had called in. According to Hampton Jones told him in the other employees' presence that operations people were complaining Hampton was uncooperative, they had tried to help Hampton get onboard "and all that." Hampton's note reflects that when he pressed Jones for who in operations had commented on his attitude, and was told manager Sanderson for one, he replied Sandy Sanderson was always two-faced. CX 110. The bottom line according to Hampton was Jones told him he could shape up, straighten up, and become a team player or if he handled it the way he was currently, Jones would force him out. This sounded like a threat Hampton told him. Jones told him it was not and Hampton told him the Utah Industrial Commission might think it was. TR 1420-22. Hampton dated this meeting from his Franklin Planner notes at RX 5. <p> There is a complete absence of any reference to this occurrence in Guello's or Andrews' testimony. According to Hampton he was following Jones' "instruction guidance" when he grabbed his three fellow Safety Department employees, brought them into Jones' office and questioned them as he stated he did after Jones had counseled him about his attitude. Hampton could not recall telling the OSHA investigator that Jones was an idiot for allowing him to bring the staff in and question them. He agreed he got very angry during this meeting and that when Guello told him he was a bit defensive about his work being changed, he told Guello he did not give a "shit" about the changes. However he was then advised by Guello he did give a "shit." Guello's testimony does not refer to this exchange. <p> <p><strong><u>Hanny on Hampton's Replacement</strong></u> <p> Hanny was called as a rebuttal witness by Jones. He testified he has worked for EG&G for about 25 years, and as of trial was working on proposal activities for EG&G. <p> Hanny testified that in the spring of 1994 he decided to replace Hampton as Safety Dept manager because, notwithstanding Hampton's prior experience and certified safety professional status, he felt Hampton did not have as much experience as he needed with the chemical agent area. Hanny testified it was not correct Hampton volunteered to be demoted. In fact Hanny told Hampton it was immaterial to Hanny whether Hampton stepped down or whether he hired someone who had adequate background. But, according to Hanny, when not able to hire the person "we really felt was important there" Hampton did decide he would step down "and let someone else come in and supervise" TR 2332, 2352-56. Hanny testified an individual Hampton had in mind, through his discussion with Dave Jackson, "who would have still worked for Mike ... and he would have been a very senior individual" became unavailable when he decided not to retire from Dugway. <p> Hanny testified that with Hampton he interviewed other individuals Hampton had in mind for the Safety manager job. But, by Jones' testimony, Hampton was not present at his interview for the job. Only Reddish was present with Hanny. By inference Hampton had no involvement in Hanny's decision to hire Jones. Jones was hired, Hanny testified, because he needed a Safety manager who had a reasonable background with chemical agent. TR 2335-36. <p> <p><hr title="Horizontal Rule">[Page 126]<p> Hanny's testimony, as the record establishes, indicated that at Jones' hire and arrival TOCDF was scheduled for hot operation in 1/95, with surrogate burn operations scheduled for the fall of 1994. Hanny testified Jones had the responsibility, with others, to clean up those problems necessary to bring the plant into compliance for operations within that time; before the point of chopping the rockets, or going hot. One Jones duty was to update the safety plans for systemization and operations, and Hanny's testimony indicated EG&G was behind in fulfilling its contract update requirements so as to be ready to go operational in chemical agent operations. TR 2336-37. <p> When Hanny was asked if he told Jones on coming onboard he had a free hand to make personnel changes he replied he did not recall specifically talking about personnel changes but did tell Jones he had a free hand to implement the things he thought the Safety department needed. However when his "yes" deposition answer to this same question, with the addition "I told him he had, that he had quite a, quite a bit of freedom in what he was going to do," was brought to Hanny's attention, he then indicated that is what he believed he said to Jones. TR 2338 <p> While Hampton denied he wanted a two manager Safety Department, his cross examination responses, including at TR 1559-1560 as to what he was willing to admit he wanted, with his entire presentation, his explanations, and particularly his demeanor when testifying, establish and it is found this was a former Safety Manager who had not stepped down willingly, who believed he had been betrayed by Hanny and EG&G management, who thought the Safety department should be managed and organized as he wished and who would use his associates and friends, hired by him to oppose and question the need for a newly appointed outsider Safety Manager, and this new Safety manager's initial attempts to set up the Safety department to meet TOCDF needs as Jones stated he perceived them on his arrival, i.e., the scheduled 8/94 IG audit, the imminent surrogate burns and "hot" operations, and the correction of the Army's award fee deficiencies. Friends and former subordinates who by their testimony did not know Hampton had been forced out because of the Army's award fee and earlier evaluation of his Safety department and Hanny's decisions. Including the use, by Hayes' evaluation of Reardon and Helser, of employees who needed improvement in their interpersonal skills in dealing with a manager. <p> According to Hampton he talked to Reddish about the "sleeping on the job" issue, and the 8/4/94 "force me out" issue and then Hampton generalized "(t)here were other chit-chat items that we talked about but they were other event sort of things as well." Essentially Hampton testified he was relaying to Reddish Hampton's version of Safety Department events and what Hampton believed were Reardon's and Helser's concerns. Reddish's later testimony indicated he was not only, as Hampton described their relationship, the former Safety anager's friend, Reddish had a relationship outside work where these conversations occurred. <p> Hampton thought all Jones' 7/20/94 memos were ridiculous because they were all very trustworthy, he never had any trouble with anyone, Silvestri, Skip (Hayes), Hanny did not have them doing that and Hampton never worked with anyone who had him do that.<a href="#F53"><sup>53</sup></a> <a name="RF53"></a> <p> 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 <p><hr title="Horizontal Rule">[Page 127]<p> 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. <p> 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. <p> 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. <p> 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. <p> 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. <p> <p><hr title="Horizontal Rule">[Page 128]<p> 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. <p> 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. <p> 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. <p> 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. <p> 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. endacity affects numerous aspects of Hampton's and Reardon's testimony as to their dealings with Jones. <p> <p><u><strong>Evaluation - Legitimate Business Reason</u></strong> <p> 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. <p><hr title="Horizontal Rule">[Page 129]<p> 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. <p> 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 anager'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. <p> 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 anager 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. <p> 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. <p> 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 SB 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 <p><hr title="Horizontal Rule">[Page 130]<p> 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. <p> 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 anager's attitude and conduct, as found, on his former subordinates and Safety Department events. <p> 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. <p> 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. <p> 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. <p> 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. <p> 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 <p><hr title="Horizontal Rule">[Page 131]<p> 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. <p> 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. <p> 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. <p> 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. <p> 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. <p><hr title="Horizontal Rule">[Page 132]<p> 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. <p> <p><u><strong>Pretext in Both Adverse Actions' Process and Bases</u></strong> <p> 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. <p> 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. <p> 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. emorable 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. <p> 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. <p> 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 SB 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 <p><hr title="Horizontal Rule">[Page 133]<p> 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. <p> 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. <p> 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. <p> 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. <p> 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. <p> 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. <p> <p><hr title="Horizontal Rule">[Page 134]<p> 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. <p> 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. <p> 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. <p> 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. <p> 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 <p><hr title="Horizontal Rule">[Page 135]<p> 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. <p> Aside from whatever Reddish and Reihman conveyed, the specifics of which are unknown, what else did Silvestri know prior to these events? <p> 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. <p> 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. <p> 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. <p> 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 <p><hr title="Horizontal Rule">[Page 136]<p> 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. <p> 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. <p> 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. <p> 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 <p><hr title="Horizontal Rule">[Page 137]<p> 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. <p> 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. <p> 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. <p> 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. <p> 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. <p> <p><hr title="Horizontal Rule">[Page 138]<p><strong><u>Relief Sought</strong></u> <p> <strong><u>Post Termination Actions/Effects</u></strong> <p> 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 <p>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. <p> 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 <u>Los Angeles Times</u> and <u>Wall Street Journal</u>. 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 aryland 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. <p> <p> <u><strong> Damages Claimed and Awarded</strong></u> <p> 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. <p> 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. <p> 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 <p><hr title="Horizontal Rule">[Page 139]<p> 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. <p> 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. <em>Hansard v. Pepsi Cola etropolitan Bottling Co.,</em> 865 F.2d 1461 (5th Cir. 1989). <p> 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. <p> 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. <p> 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. <em>Doyle v. Nuclear Service</em>, Case No. 89-ERA-22 Final Decision and Order 9/6/96. On the basis he urges, a finding and conclusion in accord with <p><hr title="Horizontal Rule">[Page 140]<p> his request is reached if reinstatement is not made. <a href="#F54"><sup>54</sup></a> <a name="RF54"> 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. <em>Deloach v. Delchamps, Inc., </em>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. <p> <em>Doyle</em> 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. <em>See Price v. arshall Erdman & Assoc.,</em> 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 anager earnings is calculated to $588,040. The difference is $499,469. This is found to be the appropriate front pay away. <p> 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. <p> Complainant's 1994 - 1995 tax returns reflect that Jones lost each of the five Severn aryland 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. <em>See Blackburn v. Metric Construction Inc.,</em> <p><hr title="Horizontal Rule">[Page 141]<p> 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. <p> 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. <p> 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. <em>Wulf v. City of Wichita,</em> 883 F.2d 842 (10th Cir. 1989);<em> Nochumson v. Los Alamos National Laboratory,</em> 92-CAA-1, Decision and Order 9/ /94. <p> 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. <em>Smith v. Wade,</em> 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983); <em>Wren v. Spurlock,</em> 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. <p> <p><strong><u>Attorney Fees</u></strong> <p> 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. <p> <p><hr title="Horizontal Rule">[Page 142]<p> Based on the above specific findings of fact and recommended conclusions of law the following <strong>RECOMMENDED ORDER</strong> is issued: <p> <p> <center><strong><u>RECOMMENDED ORDER</strong></u> </center><p><dl> <dd> 1) EG&G shall reinstate Steven Jones to his TOCDF Safety Manager position with identical wages, benefits and conditions of employment. <p> <dd> 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. <p> <dd> 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. <p> <dd> 4) EG&G shall pay Steven Jones reasonable compensatory damages as follows: <p><dl> <dd> 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. <p> <dd> 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.</dl> <p> <dd> 5) EG&G shall pay Steven Jones $1.00 in exemplary damages.</dl> <p> <p> <p> <p> ELLIN M. O'SHEA <br> Administrative Law Judge <p> <p> EOS:brt <p> <p><strong><u>NOTICE:</u> 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. <em>See 61 Fed. Reg. 19978 and 19982 (1996).</em></strong> <p> <p><p><p><center><strong>[ENDNOTES]</strong></center><p> <a name="F1"></a><a href="#RF1"><sup>1</sup></a>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. <p><a name="F2"></a><a href="#RF2"><sup>2</sup></a>Jones' 3/8/96 Pre-Hearing Statement seeks redress only under TSCA, RCRA and CAA. <p><a name="F3"></a><a href="#RF3"><sup>3</sup></a>Colloquially known as poison gases, and referred to by the witnesses as "agent." <p><a name="F4"></a><a href="#RF4"><sup>4</sup></a>It would appear the TOCDF facility's initial construction was begun by Morrison-Knudson and at some point thereafter EG&G took over. <p><a name="F5"></a><a href="#RF5"><sup>5</sup></a>Utah DSHW = Division of Solid and Hazardous Waste. <p><a name="F6"></a><a href="#RF6"><sup>6</sup></a>40 C.F.R. Environmental Protection Agency regulations, contain regulations in effectuation of the various environmental Acts, including TSCA and CAA. <p><a name="F7"></a><a href="#RF7"><sup>7</sup></a>RX 9 page citations from Hampton's presentation can also be by the last three digits of Bates number. <p><a name="F8"></a><a href="#RF8"><sup>8</sup></a>Surety is the security of chemical weapons. Safety is safety in their handling and use. <p><a name="F9"></a><a href="#RF9"><sup>9</sup></a>ACAMS = Automatic Continuous Agent Monitoring System or automatic gas chromatographs. <p><a name="F10"></a><a href="#RF10"><sup>10</sup></a>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." <p><a name="F11"></a><a href="#RF11"><sup>11</sup></a>If not specifically listed, the nerve gases named here could not in their hazardous effects be excluded from TSCA's coverage. <p><a name="F12"></a><a href="#RF12"><sup>12</sup></a>Jones described a later 8/94 incident where a vial placed on an air conditioning duct fell off and broke. <p><a name="F13"></a><a href="#RF13"><sup>13</sup></a>Ira Hall Manager of Technical Support Division, same level as Hanny. CX 110. <p><a name="F14"></a><a href="#RF14"><sup>14</sup></a>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. <p><a name="F15"></a><a href="#RF15"><sup>15</sup></a>29 C.F.R. 1910.120(a)(3). <p><a name="F16"></a><a href="#RF16"><sup>16</sup></a>CX 73/VK 16a and CX 73/617 VK 15 respectively. TR 307-08. <p><a name="F17"></a><a href="#RF17"><sup>17</sup></a>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. <p><a name="F18"></a><a href="#RF18"><sup>18</sup></a>PPE = personal protective equipment. <p><a name="F19"></a><a href="#RF19"><sup>19</sup></a>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. <p><a name="F20"></a><a href="#RF20"><sup>20</sup></a>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. <p><a name="F21"></a><a href="#RF21"><sup>21</sup></a>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. <p><a name="F22"></a><a href="#RF22"><sup>22</sup></a>Same as RX 36/297-98. <p><a name="F23"></a><a href="#RF23"><sup>23</sup></a>Same as RX 53. <p><a name="F24"></a><a href="#RF24"><sup>24</sup></a>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. <p><a name="F25"></a><a href="#RF25"><sup>25</sup></a>CAIRA = Chemical Accident or Incident Response or Assistance. <p><a name="F26"></a><a href="#RF26"><sup>26</sup></a>Assumably this was the EG&G Safety Department written emergency response plan which Hampton later testified the Army lost. <p><a name="F27"></a><a href="#RF27"><sup>27</sup></a>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. <p><a name="F28"></a><a href="#RF28"><sup>28</sup></a>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. <p><a name="F29"></a><a href="#RF29"><sup>29</sup></a>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. <p><a name="F30"></a><a href="#RF30"><sup>30</sup></a>Otherwise denominated the Safety Assessment Report for the Toole Chemical Agent Disposal Facility dated 5/27/94. CX 56. <p><a name="F31"></a><a href="#RF31"><sup>31</sup></a>Actually states "(y)ou are directed to use it [Report and its Hazard Tracking Log] in implementing your System Safety Program." <p><a name="F32"></a><a href="#RF32"><sup>32</sup></a>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. <p><a name="F33"></a><a href="#RF33"><sup>33</sup></a>Safety system working group not otherwise explained by Reihman. Nor why he would so assume. <p><a name="F34"></a><a href="#RF34"><sup>34</sup></a>And on review of 40 CFR and 29 CFR, they track them in various areas, e.g., laboratories practices. <p><a name="F35"></a><a href="#RF35"><sup>35</sup></a>Jones by what this record establishes occurred, was not raising the concerns that resulted in the decision in <em>Crosby v. Hughes Aircraft Co.,</em> 85-TSC-2, Sec. Dec. 8/17/93, aff'd <em>Crosby v. United States Department of Labor,</em> 55 F.2d 338 (9th Cir. 1995). The facts on Jones, and his expressed concerns, are far different than <em>Crosby</em>, and <em>Crosby's</em> concerns. <p><a name="F36"></a><a href="#RF36"><sup>36</sup></a>Moreover Dr. Burton's testimony did not reflect any discussion with Silvestri at any time about the laboratory's closure pre counseling/termination. <p><a name="F37"></a><a href="#RF37"><sup>37</sup></a>Whether this meeting preceded or followed Silvestri's "dressing down" session with Jones is unclear. <p><a name="F38"></a><a href="#RF38"><sup>38</sup></a>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. <p><a name="F39"></a><a href="#RF39"><sup>39</sup></a>SAIC is another Army contractor. <p><a name="F40"></a><a href="#RF40"><sup>40</sup></a>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. <p><a name="F41"></a><a href="#RF41"><sup>41</sup></a>Andrews' deposition testimony is inconsistent at points with her 9/24/94 written statement. <p><a name="F42"></a><a href="#RF42"><sup>42</sup></a>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. <p> <p> <p><a name="F43"></a><a href="#RF43"><sup>43</sup></a>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. <p><a name="F44"></a><a href="#RF44"><sup>44</sup></a>This deposition reflects no agreements by counsel as to the deponent's review. The citations to Andrews' testimony herein are by the deposition page. <p><a name="F45"></a><a href="#RF45"><sup>45</sup></a>It is assumed they were both civilian employees in their Army employment. <p><a name="F46"></a><a href="#RF46"><sup>46</sup></a>Hampton was not by his testimony introduced to Jones but asked Jones to identify himself the first day on duty orientation class Hampton held. <p><a name="F47"></a><a href="#RF47"><sup>47</sup></a>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. <p><a name="F48"></a><a href="#RF48"><sup>48</sup></a>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. <p><a name="F49"></a><a href="#RF49"><sup>49</sup></a>This note also adds "paperwork" to the Reihman-Jones conversation, not specifically reflected in Reihman's testimony. <p><a name="F50"></a><a href="#RF50"><sup>50</sup></a>QASAS = Quality Assurance Specialist Ammunition Surveillance. <p><a name="F51"></a><a href="#RF51"><sup>51</sup></a>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. <p><a name="F52"></a><a href="#RF52"><sup>52</sup></a> Aside from small skirmishes over philosophy, the way things were written, alluded to at TR 1417. <p><a name="F53"></a><a href="#RF53"><sup>53</sup></a>However CX 51/294-295 reflects EG&G read and sign as read forms. <p><a name="F54"></a><a href="#RF54"><sup>54</sup></a>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. <p> <p> <a name="ATTACHMENT"></a> <strong><u>ATTACHMENT "A"</u><center> </center><p> <p><pRE> 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.</strong> </pre>    <div role="contentinfo"> <div class="row footer-one"> <div class="large-12 columns hide-for-small"> <a class="left" href="https://www.dol.gov/"><img src="/img/dol-logo-white.png" alt=""> <span class="header-logo-type-white">UNITED STATES <br> DEPARTMENT OF LABOR</span></a> </div> </div>   <div class="row footer-two"> <div class="large-3 columns line-b-peach"> <p> United States Department of Labor<br> Office of Administrative Law Judges<br> 800 K St NW<br> Washington, DC 20001<br> <a href="tel:+12026937300">(202) 693-7300</a><br> <a title="OALJ Home Page" href="/">www.oalj.dol.gov</a> </p> </div> <div class="large-3 columns line-b-peach"> <p><strong>FEDERAL GOVERNMENT</strong></p> <ul role="navigation"> <li><a href="https://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=https://www.whitehouse.gov&exitTitle=www.whitehouse.gov&fedpage=yes">White House</a></li> <li><a href="https://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=https://www.usa.gov&exitTitle=www.usa.gov&fedpage=yes">USA.gov</a></li> <li><a href="https://www.dol.gov/agencies/oasam/civil-rights-center/resports/notification-and-federal-employee-antidiscrimination-retaliation-act-of-2002">NO FEAR Act Data</a></li> <li><a href="https://www.dol.gov/cgi-bin/leave-dol.asp?exiturl=https://osc.gov/&exitTitle=osc.gov&fedpage=yes">U.S. Office of Special Counsel</a></li> </ul> </div> <div class="large-3 columns line-b-peach"> <p><strong>LABOR DEPARTMENT</strong></p> <ul role="navigation"> <li><a href="https://www.dol.gov/general/topic/spanish-speakingtopic">Español</a></li> <li><a href="https://www.oig.dol.gov/">Office of Inspector General</a></li> <li><a href="https://public.govdelivery.com/accounts/USDOL/subscriber/new?topic_id=USDOL_167">Subscribe to the DOL Newsletter</a></li> <li><a href="https://www.dol.gov/newsroom/newsletter">Read the DOL Newsletter</a></li> <li><a href="https://www.dol.gov/easl/">Emergency Accountability Status Link</a></li> <li><a href="https://www.dol.gov/general/siteindex">A to Z Index</a></li> </ul> </div> <div class="large-3 columns line-b-peach"> <p><strong>ABOUT THE SITE</strong></p> <ul role="navigation"> <li><a href="https://www.dol.gov/general/foia">Freedom of Information Act</a></li> <li><a href="https://www.dol.gov/general/privacynotice">Privacy and Security Statement</a></li> <li><a href="https://www.dol.gov/general/disclaim">Disclaimers</a></li> <li><a href="https://www.dol.gov/general/aboutdol/website-policies">Important Website Notices</a></li> <li><a href="https://www.dol.gov/general/aboutdol/file-formats">Plug-Ins Used on DOL.gov</a></li> <li><a href="https://www.dol.gov/general/aboutdol/accessibility">Accessibility Statement</a></li> </ul> </div> </div>       <script src="/js/foundation.min.js.download"></script>  <script> $(document).foundation(); </script>  <script src="/js/rem.min.js.download" type="text/javascript"></script>       </div> </div> </div> </div> </body> </html>