Seeking Jobs and Seeking Justice, December 2000 – December 2001
Those readers who have been laid off can readily appreciate how I felt in the days following my last exit from ORNL. One goes through the various stages of grieving over a loss: shock, denial, anger, etc. At first, I didn’t know how to feel about things. Maybe it was an honor to be laid off by a bunch of people like the then-current ORNL management; maybe it was not a bad thing not to have to be subject to a bunch of (pardon my French) pusillanimous ass-kissers like my upper rad protection management. Maybe after all, Mei and Mlekodaj were the unlucky ones and Geber and I the lucky ones.
But then I thought about what I had loved about ORNL: the smart people, the humming hive of activity, and most of all, the variety of work — it was a radiological smorgasbord for a health physicist. I had been in the thick of socially useful and intellectually interesting work. And now it was taken away from me.
I felt bad every day. For the first month or so after I was laid off, although I looked for a new job and I worked on my upcoming health physics conference presentations, I felt stunned and as if I were moving in slow motion. I spent a lot of time in recuperative activities. I took a two-hour nap every afternoon. I was there to greet my daughter when she came home from her day at high school. I watched television, which I had done very little before my layoff; I saw Law & Order, Forensic Files, and CSI, which I had never watched before. (My husband opined that I watched “catch the bad guy” shows because I needed to be reassured that the good guys would in fact win eventually.) I was still a stalwart of the Oak Ridge Community Band and the Greater Knoxville Cactus and Succulent Society, but I felt as though I were set apart from those two “families” that formerly I had felt a part of; I felt marked somehow, different. Everybody in the band and the cactus club was most sympathetic to me — they were still my friends, after all. But even so, when we in the band were playing an emotional climax to some classical piece, I felt keenly the sadness of life; everybody else seemed to be just casually playing notes while my emotions were resonating wildly like a plucked string and I felt as if I were going to fall apart. When we in the cactus club were discussing the minutiae of club business, I often felt that it was pointless and inane. Even so, I kept going to band and the cactus club because I knew it was important to maintain connections when you have been emotionally wounded.
As Bette Midler once sang, you got to have friends. If it hadn’t been for my all my friends — in the band, in the cactus club, and especially in my layoff support group — I am sure that I would have plunged into depression. It’s certainly a comfort to have your self-respect, but you need the warm fires of human contact to keep your spirit intact. My best friend of all was my husband, who may qualify for sainthood to have stayed married to me for 30 years.
The Support Group Forms and Examines the Situation
DOE likes to demonstrate to communities “hosting” DOE sites and to workers at these sites that it is not indifferent to the impact of its operations, including the impact of layoffs. So they supported a counseling and advising group in Oak Ridge that maintained a jobs bulletin board and gave resume-writing and job networking seminars to laid-off workers. In attending such seminars, I got to know various other people who were laid off when I was. (These were all non-union people because as I noted earlier, the union people all went immediately to jobs at other Oak Ridge Reservation sites.) Our seminar group evolved into a support group, which met at a center run by a church. We continued to meet nearly every week for months. This source of support and information was invaluable in my personal healing process and I have made some friends I would never have known otherwise.
In early 2001, we heard that the employees who were still at ORNL were given a pay raise in December 2000, retroactive to 1 October 2000. Many layoffees immediately called their congressmen, DOE, etc. to protest. Those raises were supposedly the result of the performance reviews due prior to October 2000, were given on the basis of work done during the previous 12 months, and were supposed to have been effective on 1 October 2000. To save money, UT-Battelle had deferred the raises until we layoffees were all gone and then had awarded them retroactively to those who were left. This obviously raised legal issues, among other reasons because we had worked for two months past the 1 October date. DOE made UT-B award us our raises retroactively. After a few months, we all got a little check for the difference; however, nobody got any interest on the involuntarily deferred compensation. With this retroactive raise, my final salary was $78,000 a year. Besides, the pay raise, there was another issue: because UT-B gave us 60 days’ pay in lieu of notice, they could legally list us as being on the payroll until about 1 February 2001. Thus UT-B was given “credit” by the State unemployment people for having us on the payroll those extra two months and we were not allowed to collect unemployment until February. However, we were allotted vacation time only through our last day, 1 December 2000. Many people felt that if UT-B got credit for having us on the payroll those extra months, we were also entitled to the extra vacation time.
Our support group discussed our situation and especially the age problem. At my layoff, I was 50 years old; nearly everybody in our seminar group were as old as I or older. Some of us had heard (with several being told this explicitly by their supervisors or other friendly managers) that UT-B top management had said that they wanted young blood and that ORNL needed to divest itself of older people. Many thought that DOE had approved this; at least, DOE knew what was happening. We tried to calculate the average age of all of those laid off: during my last week at ORNL, someone had given me a copy of the list of layoffees, so we wrote down the ages of those we knew and guessed at the others. As I noted earlier, the union layoffees were laid off strictly according to seniority; they therefore were properly excluded from any calculation of average age of those laid off completely at the discretion of management. The average age at ORNL was in the mid-40s, according to UT-B, but the average age of the non-union people laid off was clearly higher. Over the next few months, this issue was raised with DOE, to no avail; they took the word of UT-B that everything was okay, that UT-B had done a statistical analysis that showed no age bias. Clearly only a lawsuit could get this issue aired. Subsequently perhaps 20 or more of the layoffees (not including me), using several law firms, began lawsuits against UT-B for age discrimination.
Of more interest to me was that of the 92 total people on the layoff list, some 29 were from the safety, quality, and oversight groups (see below). AEG was among the most gutted of all groups, since its 3.5 rad engineers (the .5 being Mei) had been reduced by 2.0 rad engineers, i.e., by about 60%; even if the Source Control people were included, they constituted probably only an additional 1.5 people. No rad techs were laid off; again, I had been told by Sims himself that two techs and a complex leader had taken voluntary layoffs (VRIFs) and that thus three rad tech jobs had been saved, but he added that there were still at least a dozen contract (temporary) rad techs who could have been laid off at will, if ORNL management had chosen to do that to save money. It is also interesting to note that the person who was laid off from the Office of Independent Oversight appeared to be the only one in that organization with any rad protection expertise. It was clear that the types of workers laid off were more important than the numbers per se.
Organization Number Laid Off % of Total Layoffees
Environmental Protection and Waste Services Division 5 5.4
Office of Independent Oversight 1 1.1
Office of Nuclear Safety (ONS) 4 4.4
Office of Radiation Protection (ORP) 5 5.4
Office of Safety and Health Protection (OSHP) 11 12.0
Quality Services Division 3 3.3
Total ESH&Q + Independent Oversight 29 31.5
TOTAL ALL ORNL LAID OFF INVOLUNTARILY 92 100
In later testimony, Carol Scott (whose Operational Safety Services Division (OSSD) included the former ONS, ORP, and OSHP), stated that 31 people in her organization left either voluntarily or involuntarily, or more than 10% of the ORNL total of slightly under 300 who left either voluntarily or involuntarily. Of her 31, 20 were laid off involuntarily, as shown above. I am not sure how many people in the non-OSSD categories shown above left voluntarily, but on a pro rata basis there would be 16 total ESH&Q and oversight people leaving voluntarily. That would come to a total of 45 leaving from all these categories both voluntarily and involuntarily, or 15.2%. Now, clearly 15% of the ORNL workforce was not ESH&Q and independent oversight; in fact, I think it was well under 10%. So for 15 % to be laid off in total — and, especially for 29/92 = 31.5% to be laid off involuntarily — meant that UT-B was preferentially laying off ESH&Q and oversight people, and in numbers far beyond their actual proportion of the workforce.
Besides this, there were other quirks. Of the five people laid off from the Chemistry and Analytical Services Division, two were black females, one of them being ORNL’s only certified clean room specialist. (I found it interesting that as The Oak Ridger reported on 30 December 2003, the new ORNL head after Madia, Dr. Jeff Wadsworth, said that he was “holding his direct reports personally responsible for improving diversity among their staffs”.) Two layoffees, within a few days or weeks prior to their being laid off, had been given significant awards for their work; one attended the big ceremony at which he received his award one day after receiving his layoff notice. One of these people and some other layoffees described in detail how their functions had been stripped from them one by one, many well before the layoff list was supposedly decided; often these were chargeout functions and their new work was overhead-funded work. As it was put, “first management defunds you and then they lay you off”. Prior to his layoff, one person went to Beierschmitt to complain about being moved to an unfunded or less favorable position; he had put in for a voluntary layoff, but had changed his mind and withdrawn his application. Then, of course, he was laid off anyway. Another person said he had been told that he was a “peer group of one”, i.e., he was not put into a work group category with others to determine who would be laid off, but had been artificially placed in his own category. Thus in many instances people were laid off when others with the same job titles or similar job responsibilities were not — and more important, when the work they were doing still needed to be done.
On the other hand, besides the clean room specialist, there were some other people who had unique qualifications for what they were doing, but were still laid off. There was a person laid off from the Plant & Equipment Division, an exempt (professional-level) engineer, who had been what we might call the official safety engineer for a building run by an O&R division. In his position — whose functions were required by DOE for the building’s hazard Category III — he had to have a certain amount of experience, education, and familiarity with the building and also had to have particular DOE-specific training. Thus his becoming qualified to hold this position had taken some time and effort. The building manager had not been provided any notice in advance by the Plant & Equipment Division that the engineer was to be laid off; in fact, the layoffee’s own supervisor did not know until the day before that the layoffee was to be laid off. (It appears that the supervisor and others were told that only two of the building engineer group were to be laid off; since one took a voluntary RIF, only one should have been laid off involuntarily. But in the end, all of them were laid off.) The building manager was thus suddenly left with no qualified person to fill the engineer position and no way to get one in the short term. Continuing to run this Category III building for an extended period of time would be a violation of DOE requirements (e.g., 10 CFR 830). The manager wrote an angry memo to the Plant & Equipment Division, complaining of this treatment. But as the laid-off engineer pointed out, the real culprit was UT-B, who had issued the “no advance notice” edict and had treated everybody with similar job titles as interchangeable parts. He noted that his former building engineer position was eventually filled by a younger person.
The same lack of notice was seen as well in the case of one of the OSHP people, a chemist, who said that Carol Scott and OSHP head Ann Shirley had assumed that another chemist in OSHP could do his work, in particular certain types of analysis. I.e., they assumed that a chemist was a chemist was a chemist. But as the second chemist told an OSHP manager (I think Shirley), he had never done anything like the first chemist’s work and was not familiar with the protocols. With only three days between being told he was being laid off and his last day, the first chemist was not able to train the second one to take his place. This is not to mention the second chemist’s then having to do all his work and much of the first chemist’s as well. Since in both the building engineer and the chemist cases, the work was safety work rather than production work (although it supported production), there were definite safety implications in the layoffs.
Two layoffees who were in different divisions told us that the independent oversight (IO) person was laid off because he had put his eggs in the wrong basket: during the contract negotiation period, he had badmouthed Battelle. Two other layoffees (from yet another division) stated that the IO person was an okay guy, that when he had left ORNL the first time years before, he had resigned on principle due to an issue regarding the migration of Sr-90 into the Clinch River. Some flap arising from this migration had also resulted in the demotion of Jerry Swanks, who however eventually “rose from the dead” and, it will be recalled, became a very high manager under Lockheed Martin and UT-B. I had heard many years earlier about the demotion, although not about the reasons why, so I believe that this was all likely true. Another layoffee had sent an E-mail message to Scott months before the layoff, expressing concern about the harshness of Madia’s “swimmers will be shot” saying. Scott wrote him back to say that that was the policy and if he did not like it, he could find other employment. It was thus possible that he became a marked man as a result of this one thing.
Finally, there were some wholesale group layoffs. The Communications and Community Outreach group (which was not a PR organization, but set up courses for teachers, etc.) was completely eliminated as an ORNL entity. I was told later that this work was given to Oak Ridge Associated Universities in exchange for their participation in and support of UT-B’s bid to win the ORNL contract. One layoffee had it on good authority that all of the construction safety engineers had been laid off and all of the Plant & Equipment training people; I could not tell if it was true of the former, but certainly was of my acquaintances among the latter.
A fellow layoffee told me that his office had been in a building where a rad tech group leader and some of his minions had their offices. He had overheard them one day discussing the upcoming layoffs. He said that he heard them state specifically that I was one of the prospective layoffees; in fact, they appeared to know the names of all of those in rad protection who were to be laid off. Thus it was made clear to me that far from being a closely kept secret, many people other than the top managers, even people who had no need to know in advance, knew exactly who was to be laid off. Another fellow layoffee had, while still employed, been told that the movement of any individual upward in the ESH&Q organization under UT-B depended strongly on input by line managers regarding how happy they were (or weren’t) with the customer service provided by the individual. This layoffee was also told that several named individuals, including Mlekodaj, had been moved out of their positions because of a less than satisfactory customer service rating.
We looked at the ORNL Manager’s Guide for Reduction-In-Force Planning and Processing for Salaried Positions, which a couple of us had printed out from the Web before we left ORNL. (Underlinings below are mine.) It stated that the manager was to identify (by filling out a form) when unfunded positions existed and to identify the peer group, with the key peer concept being “interchangeability or the ability to assume job assignments”. He was to compare employees in the peer group, ranking them “based on relative value as determined by” possession of critical or unique skills; length of service with the company; performance; transferability of job skills; education and training relevant to the work to be performed; and time in the position. The annual performance reviews of the last three years were to be the basis of the performance criterion, while the “transferability” criterion referred to “demonstrated abilities to transfer new skills” (whatever that means) or to acquire additional skills the organization needed. In this guide, an “impacted employee” was defined as being in a job “family” or classification that had been targeted for reduction or elimination; an “impacted organization” was one with a need to reduce staff as a result of programmatic changes, budget reductions, change in skill mix needs, etc. The “peer group” was defined as “typically composed of employees within an organizational unit who perform the same or similar type of work” within the impacted organization, with the key concept again being “interchangeability, or the ability to assume job assignment”. Employees within the peer group were to be compared to one another for the purpose of determining which were to be laid off and which retained.
The RIF (reduction in force) review board was to review all layoff forms generated by the managers “to ensure fairness, consistency, and compliance with EEO [Equal Employment Opportunity] requirements”. Managers who had to distribute RIF notices were advised to explain the situation, “including the business reasons that lead to the present downsizing and/or restructuring activity….in such a way that they can be clearly remembered and understood by the employee”; they were to treat the employee with empathy and to respect the feelings and reactions of the employee. Finally, they were to discuss transition details with the employee, such as work assignments during the remaining time, time allowed to conduct job search and other Career Center services, etc. The guide stated that whenever ORNL was “in a layoff situation”, “management makes every effort to lessen the reduction impact by transferring and reassigning at-risk employees into other jobs and by reducing overtime; it stated that efforts were made to locate job opportunities for affected employees “through the company’s Career Center”.
We shook our heads over this guide and related statements by UT-B. Because we were told on a Tuesday afternoon that our last day was the following Friday, we did not have the usual two months or so to try to find a position in another division or at the other Oak Ridge area sites and companies. There was an internal Oak Ridge Reservation Web area where we could see the open jobs at all Oak Ridge sites while we were at ORNL, but our access to that had been cut off on our last day. Not only that, but those employed with a company on the reservation had first crack at jobs and if a job were filled without going outside, we would never hear of it or see it advertised. Thus our managers, who knew we were to be laid off, were in charge of trying to find us other places. But either they did not try at all because to do so might tip off the future layoffee that he was to be a layoffee, or their efforts, being limited, were in vain. One layoffee said that a person still at ORNL, but in another division than his, told him that they would have considered him for a position they had open, but they didn’t know he would be available. Another layoffee, during the layoff week, called an ORNL organization to ask about an open position. But she heard one of the people in the background say that they couldn’t hire her because she “was on the list”. This was credible because we had heard some other things to the effect that people who were on the layoff list were to be discarded completely. One layoffee (although not one of our support group) was supposedly turned down for a voluntary reduction in force (VRIF) departure on the grounds that his skills were essential, but was then laid off.
It is true that almost 300 people in all left ORNL (out of between 3500 and 4500 people). But the other 200-plus had VRIFed — that is, they took part in the Voluntary Reduction in Force that provided a nice payout if they would leave voluntarily. Many of these were within a few years of retirement anyway and the payout allowed them to retire a bit early. Others had jobs lined up to go to (such as one rad tech I knew who was leaving health physics for a completely different line of work), so that the payout was just gravy, above and beyond what they would be making. The rest of us, although we might be well into middle age, were not able or willing to retire, for various reasons. Hence UT-B had to force us to leave by laying us off. We got severance pay, which varied depending on how long the employee had been at ORNL, and 60 days’ pay in lieu of notice (with the three additional days we were at ORNL, i.e., November 30 through December 1, counting for three of the days). My severance pay for eleven years of service and the 60 days’ pay did not cover the time it took me to get my next permanent job, almost a year. This was true of most others as well.
We suspected that the reasons given for our layoffs were fishy. That is, undoubtedly money would be saved, but we questioned the need for so many of us to be laid off and for the ones laid off to be chosen in the first place. Within AEG, it had seemed fishy that both Geber and I had been laid off and Utrera retained, when he was the least senior and the least experienced of the three of us and when we were certified health physicists and he was not. But now we heard others’ stories of their puzzlement at being chosen, or of their suspicions that they had been chosen on the basis of age or senior status (which was more highly paid). It had been stated in the ORNL employee newsletter of October 2000 and in the newspapers that UT-B planned to save $20 million from laying off the 300 people in 2000, and a further $10 million in the subsequent fiscal year by making those “operational improvements” (which turned out, as I will discuss below, to include another round of layoffs). But the $20 million, divided by 300 people, amounted to only $67,000 per person. Granted that the first year some of the savings would go toward severance pay and related administrative expenses, the $67K still seemed like an underestimate. I was not the only one to wonder if UT-B was not actually saving much more than they were saying. The reasons given for UT-B to save money at all were that ORNL had lost some directly funded work in environmental management (although this appeared to have occurred in the years prior to 2000) and the overhead rate charged by ORNL needed to come down (this rate was about 40% and getting it down had been an aim of ORNL and DOE management for years). In the same newsletter, UT-B management talked about its new building program. I will defer discussion of the building program until later; suffice it to say that no connection was drawn in the newsletter between the building program and the layoffs.
A particular sore spot for older layoffees was the pension plan, which I will discuss further in a later chapter. For now, the reader should understand that the contractors had not had to contribute anything to the reservation-wide pension fund since 1984 (yes, you read that right), but with the market dipping in the late 1990’s, the contractors were worried that they might have to start contributing to the pension fund again. Thus there was a clear incentive to lay off older employees and thus force them to receive only reduced benefits. The contractors contended that they did not do this, but rumors circulated that it was indeed a topic of discussion in management circles. Also, the payout schedule was structured so that the fraction of the theoretical pension that a person might receive was not a linear function of years worked, but increased dramatically as time went on. Thus a person who worked 15 years of a theoretical 30 or 40 years would not get 15/40 of the theoretical maximum pension, but far less. This was a hardship for people who were laid off at ages when they would have difficulty finding another job: the pension was not enough to limp along on until Social Security kicked in, so they had to dip into their savings.
Some of our group tried to get copies of their personnel files. Since they had been employed by UT-B, it should therefore have been UT-B that provided them. However, they were told to go ask DOE instead. Some people did eventually get their files, but it was a circuitous process. One layoffee tried to get from UT-B a letter (i.e., something in writing) regarding the accident coverage conversion, as they had promised him they would. But then he was given confusing oral information about it. A Human Resources honchette became irritated with him because of his periodic nudging of her staff to respond and she insisted that he meet face to face with her. He put her off, but she kept calling him, even on a Saturday. I do not know if he ever got his letter.
Like most of my fellow support group members, I had a 3161 “preference”. That is, per Federal law and the (national) DOE Workforce Restructuring Plan, if you have worked at a DOE facility for a certain number of years during a given time period, you are considered to be a Cold War worker; if you are laid off and a suitable position opens up at any DOE site or operation for which you are qualified, you are supposed to be given preference in hiring. Or that’s the theory, anyway. Despite this, my fellow layoffees and I had trouble even getting interviewed for jobs we were obviously qualified for, much less getting hired for these jobs. I believe that it was as a result of our repeatedly bringing this to DOE’s attention that most Oak Ridge area contractors now put in their job ads that applicants having a 3161 qualification should provide a copy of the form with their applications. Still, that and a few quarters will get you a cup of coffee — it did not seem to get us any more interviews. Another feature of the 3161 issue was that new hires were not supposed to replace laid-off 3161 workers unless the latter were given first crack at the jobs. However, various BWXT people, as subcontractors to ORNL, took over many of the jobs vacated by the layoffees; since BWXT had a subcontract to ORNL, these “weren’t considered new hires”. It was not clear how hiring such subcontractors would save money, however. A prominent Oak Ridge activist — who seemed to have become an activist partly as the result of the treatment of herself and others during the “transitioning” from Bechtel Jacobs to various subcontractors — shared with us a letter from DOE to her in which DOE said that the contractors’ being able to give their own employees and their subcontractors preference over 3161 layoffees was in the contractors’ contracts with DOE. Since this appeared to contradict the intent of Congress with respect to the 3161 preference, we asked how this could be. Obviously, it happened because DOE allowed it.
Our support group collaborated on a letter to Zach Wamp, the Oak Ridge-Chattanooga area member of the US House of Representatives. He appears to have passed this on to DOE or to UT-B to provide an answer; in any case, in due time we received his reply, in which he simply passed along a reply letter from ORNL Director Madia, dated 22 March 2001. In this letter, Madia told Wamp that UT-B and DOE agreed that the “cost of doing business” at ORNL was too high and that the high costs impacted their ability to “compete and grow the research program at this laboratory”. He said that in local newspaper accounts of the layoff, there were “numerous, substantive misconceptions” about UT-B’s efforts to make ORNL more competitive by reducing overhead costs. He stated that the average age of the ORNL workforce “is 48 years” and that thus any reduction would unavoidably affect a large number of employees over age 40. He also stated that the reduction in force included “careful reviews at several critical steps designed to prevent unlawful discrimination” and a statistical analysis, using software approved by the Equal Opportunity Employment Commission, that demonstrated that no pattern of discrimination existed for employees over age 40. Madia said that the ORNL pension plan “credits all laid-off employees with two extra years of credited service and up to five additional years of age in order to help them qualify for full or reduced retirement benefits” (emphasis UT-B’s), a provision he claimed was more generous than any other DOE laboratory.
Madia defended the lack of notice to layoffees by saying that as early as June 2000 “the Director” (i.e., Madia himself) had made public statements about the “possibility” of a layoff and that notice of specific terminations (to individuals) could not be “announced” until DOE approval for the “restructuring plan” was granted in November. He also said that after notice of the layoffs, the layoffees had about the same amount of paid time as in the past (the severance pay and 60 days’ pay in lieu of notice), but this time they had “the freedom to use the time entirely to pursue other employment instead of being required to report to work”. He claimed that ORNL did not use a legal loophole to circumvent a requirement to provide vacation benefits, because “ORNL’s proposed plans for the reduction in force to occur in September included 60 days of pay at the time of termination rather than 60 additional days on the job” and State law did not “address vesting rights of vacation”. He added that the costs associated with the payment of “unearned” vacation benefits to layoffees would have resulted in “the need to expand the number of layoffs”. Madia reiterated that the layoff, planned for September 2000, had been delayed by “DOE’s review”; that employees were laid off solely because of insufficient funding in the FY 2001 budget; and that “any significant change in the design [sic] of the reduction in force, including delaying the layoffs, would have required the termination of more employees in order to balance the laboratory’s budget”.
Wamp and his staff did not appear to have investigated Madia’s claims at all, but simply to have taken them at face value. We were not surprised, because (as I will discuss later) Wamp and Madia were obviously pals. Regarding the average age, we were not sure whether that was the average age before or after the layoff; in a fair system, it would be about the same in both cases, but UT-B and DOE never stated this for sure. Regarding the statistical analysis, one of our number later did the same analysis with the same software and came to a different conclusion. (Although I believe she included the union people, I assert again that if the union people (who were laid off in reverse order of seniority and thus to some extent in reverse order of age) were included, they would skew the results; any such calculation ought to exclude unionized people because they were laid off at the discretion of management only as a worker type, not as individuals.) Regarding the pension plan statement, we were surprised; none of us had heard anything about crediting extra years of service and age. That is, some people were “bridged” one year or less to be vested (which required ten years), but we did not know of anybody being bridged two years in service and five years in age. This may have happened to the 200 people who left voluntarily, but not, as far as we could tell, to anyone laid off involuntarily.
Regarding the “not having to report to work” contention, we had pointed out to Wamp that in the past, people had about two months’ notice, during which time they did have to come to work — but they could also access the internal job availability system and “bid” as (internal) employees on open jobs at ORNL, Y-12, and K-25 before the positions were “advertised to the public”, so to speak. This would be a tremendous advantage in getting new jobs, especially since so many jobs were filled internally and never advertised to the public. Once an employee was out, he lost the access to the postings and the right to bid on jobs. The advantage to getting another job on the reservation was that the seniority was continued (even under another contractor) and the pension thus continued to accumulate until retirement. So Madia was being disingenuous in saying that a person would benefit by sitting at home and concentrating on his job search during the 60 paid days. As one of our number put it, it looked as if getting rid of us completely from the ORNL and reservation work force was the goal, not simply reducing costs at ORNL. This was reinforced by Madia’s statement about vacation: clearly, even if the layoff had taken place in September as planned, we would have received only a few days’ notice at most. It was also reinforced by our noting that some ORNL jobs were posted on the Battelle corporate Web site (based in Ohio) but not on the ORNL public Web site, when Battelle employees other than UT-B ones were supposed to be considered on the same basis as any other non-UT-B employee, not as insiders. Finally, it was reinforced by the experience of the layoffee noted earlier who had overheard someone she couldn’t be hired “because she is on the list”. One layoffee reported the following: another layoffee who interviewed at Y-12 prior to being notified about her layoff (and who had apparently been approached by the Y-12 people) was told by her interviewers that they had gotten her name “off the list” — clearly the list of layoffees. So it truly seemed that there had been a list floating around of people ORNL was getting rid of once and for all. Regarding the vacation, the statement about “vesting rights of vacation” made no sense to us and I would bet it didn’t to Wamp’s staff either; it sounded like a legal locution that Wamp et al. would buy because they didn’t want to question it.
One layoffee who had written a letter to DOE got a reply from Rufus Smith, DOE-ORO’s Diversity Programs and Employee Concerns manager. In brief, Smith said that DOE had checked into the layoff process and had decided that the lack of notice was okay, the layoff selection process was fair, etc. Well, this was actually put as, e.g., “We found that ORNL has in place a RIF process to ensure fairness” and “Your RIF action was performed in a thorough and impartial manner”. Many of the sentences and phrases appeared to be drawn from the UT-B script on the layoff or appeared simply to declare that something was true, without giving any substantive or specific reasons why it was true. Thus the layoffee who wrote the letter was essentially being told that UT-B said it was okay, so DOE thought it was okay, so it was okay. End of discussion. The reader should note that this layoffee was one of the older layoffees and that his old division gave him a contract to continue working for them almost immediately after the layoff, hence he was not truly “surplus”. Of interest in the Smith letter was the statement that, contrary to what he said the layoffee had told DOE, only one “impacted employee” had filed a safety concern. But besides me there was another layoffee who had told us about filing a safety concern with the ORNL Employee Concerns people and yet another who had spoken with them at length.
We realized from these letters that it was pretty much useless to ask Wamp or DOE to find out anything for us — anything that made sense in black and white, that is. Some people who lived in Knoxville wrote their Knoxville US representative, John Duncan, who was more sympathetic and who, I believe, was able to find out a little more for them. But with DOE backing them up, UT-B seems to have been persuaded that it was best just to keep repeating their story, to tough out any criticism, and to let the whole affair die down naturally. We were determined not to let that happen. We also saw from these letters and from the internal bulletin board (as reported by our still-employed allies) that UT-B was telling everyone that any delays, increased payments, etc., could result in more layoffees. This seemed to be a way of threatening DOE, ORNL employees, and the community with a greater impact if anybody caused them any trouble. This was particularly true of lawsuits, which UT-B explicitly told its employees could result in more layoffs. We heard that Madia had expected some lawsuits to result from our layoffs, but was willing to take the hit. Indications were that UT-B believed that the suits would either be dismissed or be settled only after years. As we heard in January 2001, the costs of the delay of the layoff were being given in ORNL high circles as $2.2 million so far, but it was not clear what the basis was for that. In March 2001, we got a copy of the slides for a talk given at an ORNL “Leadership Team” meeting. In these slides, the total impact of the “retro merit pay” increase and, it seemed, a potential vacation payout was $466,000.
We also heard from people who had been laid off earlier from sites other than ORNL. When Bechtel Jacobs (BJC) took over management of the cleanup work, they “transitioned” many employees in the cleanup program to their subcontractors, with predictably lower pay and benefits for the transitionees. We were told that when BJC took over, they had to decide how many engineers to transition to radwaste; their answer was 50. “Wrong answer”, said DOE; the right answer was 200. So 200 were transitioned, but eventually many of those were laid off.
News About ORNL
On about 23 December 2000, I ran into Mei at the credit union in Oak Ridge. She said she had seen an RP-310 Level 3 review done by a non-supervisory rad tech. This showed that my prophecy had come true that eventually Level 3 reviews would be done by rad techs (by delegation from complex leaders). Of course, I had made the point to Mei, Mlekodaj, Scott, DOE, and everybody else that the minimum qualifications for a reviewer would be those of the lowest-qualified member of the review pool, so that if rad tech supervisors were allowed into the pool (and allowed to delegate their reviews at their discretion), then eventually a Level 3 review would be done by a rad tech.
In February 2001, a fellow layoffee reported to us that ORNL was contracting out a lot of safety work, in particular the Building 3525 safety analysis report (SAR). The former nuclear safety division (ONS) head, Mark Kohring, now a group leader, reportedly stated that he did not have enough people to do all the regular work plus that on short notice, so a subcontractor had to be engaged to do it. Another layoffee told us that back when he was employed at ORNL, he had been made to change his report on the ventilation of Building 3019 (the Category II facility where the U-233 was stored) because the Defense Nuclear Facilities Safety Board (DNFSB) would be looking at it. (Apparently it didn’t matter if DOE saw it, only if DNFSB saw it.) The report should have stated that the penthouse would not hold up under a tornado and that thus public safety could not be guaranteed. DNFSB would surely have noticed this statement, so the report and presumably the associated safety analysis had to be “tweaked”. The reader may recall that when Geber was reviewing some aspects of the 3019 well operations, he asked me about the ventilation of the wells and I opined that the air flow seemed insufficient. Of course, we did not look at the ventilation of the entire building (as that was outside the scope of his review) and analysis of tornado effects to the public was not in our scope of expertise either. But still, if we saw an insufficiency through our little window of examination, it was credible that the wider situation was questionable as well.
Associated with this, yet another layoffee told us, a Request for Proposal to send to BWXT (which ran Y-12 and seemed to have a close association with UT-B) was being worked on “into the night”; if I recall correctly, this was for the 3019 safety analysis. DOE was said to be involved also. The layoffee noted too that the decision to put the U-233 conversion work into 4501 instead of 2026 (which had what seemed to be more appropriate hot cells than 4501) was a political one. A BWXT person working as a subcontractor on 3019 (the one who wrote Chem Tech’s reply to the inquiries of Paul Gubanc of DNFSB) had done subcontract work at HFIR, apparently on the safety documents, even though he had no reactor experience. We found it significant that before our layoff, a person from PNNL was given the job that Kohring had held and that an old buddy of Beierschmitt’s from Pantex was also given a job in the former ONS, tasked with working on 4501. Thus in many ways, we saw what appeared to be takeovers of the safety analysis work by people who arguably could be trusted to come up with the “right” answers.
One of my fellow layoffees, Q, told me about irregularities noted in the ORNL P-AAA program before our layoff. Q, who had been from a different division than mine, said that there was a manager whose job it was to evaluate each case referred for P-AAA evaluation; it was supposed to be signed off by him and dated. However, he had not been dealing with the cases. That is, while he might have been skim-reading them, he was putting them aside to deal with formally later. I believe that Q said that the manager got almost two years behind and certainly it was Q’s belief that the manager was not evaluating the cases in real time as he was supposed to. I asked how this had slipped past the auditors and Q said that that was not clear. However, the problem apparently came to the attention of somebody higher up and Q was detailed to assist this manager in catching up on the documentation. Q was supposed to establish when each case had come into the manager’s office, so that Q could tell the manager the correct (back)date to put on the case when he belatedly signed it. Q was indignant at being asked to do what amounted to falsification of records and insisted on being reassigned back to Q’s own division. This was done, but Q’s division director and the manager were not happy campers. This occurred before UT-B’s time, but I think that UT-B must have been briefed about it in early 2000. Of course, there was no occurrence report and no report of a violation of 10 CFR 835 or 10 CFR 830 by either Lockheed Martin or UT-B about this utter failure of the P-AAA program. But one thing that Q had found to be suspicious about the program apart from the manager’s documentation deficiencies was the handling of radioactive contamination events. Sorting through them, Q saw that there appeared to be identifiable trends and that the writeups of the events were deficient. (Q was qualified to judge this on the basis of previous experience.) Q tried to talk with the manager about this, but he did not want to hear it. We thought it was ironic that Q, who was amply qualified to do the P-AAA manager job, was laid off by UT-B while the manager who had exposed ORNL to so much potential trouble was retained, although in a different position.
In April 2001, Mei called to ask how I was doing. As I noted in the previous chapter, Mei had said that “they” had thought that they didn’t need AEG’s calculational capacities, so they didn’t need so many of us rad engineers. Now, Mei said, “they” (the higher-ups) had asked her to train someone else to do the MCNP and like calculations that I used to do, e.g., for other divisions. “They” had thought that Mei, Utrera, Linda Gilpin, and others could do them, but Mei and Gilpin did not have time (e.g., to get up to speed on the source term, per Mei), while Utrera had not really learned how to use MCNP and the Computational Physics and Engineering Division people were apparently considered to be too expensive.
In about August 2001, I saw an announcement from UT-B management to the ORNL staff, announcing the upcoming shrinkage of the 14 ORNL divisions and the elimination of a layer of management. While this reorganization may have been a good thing and while it is possible that in some divisions a layer needed to be removed, I found incredible Madia’s statement that “Folks have said time and time again, ‘Take out a level of management’ “. Some bottom-line types might have been saying that, but I would bet that the general run of ORNL folks were not. There were also to be unspecified changes in the business rules. Madia said that management wanted every staff member to read the upcoming memo detailing the resolution of issues by a task force and that “We need loud feedback”. (Cynical speculation was that they wanted loud positive feedback, that “swimmers” would be shot.)
Significantly, it was noted that about $7 million of the “$20 million progress” in reducing ORNL overhead by our layoff was “negated” by unexpected expenses, which were given as “most notably higher utility bills, the two-month delay in staff reductions, and a costly repair to a process waste line”. It seemed incredible that the utility bills and the waste line repair could have eaten up a significant amount of $7 million in only 9 months. In addition, UT-B had said that they couldn’t give more notice because DOE hadn’t approved the layoff plan until late in November 2000; however, the statement that there was a two-month “delay” again suggested that UT-B had not intended to give more than a few days’ notice of termination in any case. Madia went on to say that due to the negation of the $7 million, another layoff by the end of the fiscal year was inevitable. This time, 75-125 positions were to be cut and in fact 93 more people were laid off. UT-B had apparently learned one lesson from the last layoff: notices of termination were to go out in early September 2001, with the actual termination date in late September or early October. The ORNL Reporter (September 2001) said that the new organizational structure “reflects an effort to remove embedded support positions scattered throughout Lab organizations” and “group them into a single [unnamed] organization”, with Madia expressing the expectation that the research staff would be “[very] demanding customers” of that organization. If many of these embedded positions were safety coordinators and the like, then that would seem to represent yet another hit on safety, in that the ES&H organizations had already taken a hit and now would be expected to assume the work that the embedded people had been doing. This was not made clear. But no staff cuts were planned for 2002, because as Madia acknowledged, “most organizations are cut to the bone”. It was stated that ORNL planned to separate its pension and benefits program from the single Oak Ridge Reservation-wide organization run by Y-12; this was because while the program was one of the best among production facilities like Y-12, it was supposedly one of the poorest among national laboratories like ORNL and presumably was a deterrent to attracting new staff.
The ORNL Reporter (April 2002) reported on the new Concerns Program at ORNL, which was now part of the Standards-Based Management System. The concerns program was administered by the ORNL Diversity Programs Office, which would determine the appropriate process for resolving a concern. The concerns program was supposed to provide a response within 30 days. Madia was quoted as saying that ORNL was “committed to encouraging free and open reporting of concerns without fear of retribution or retaliation”; he himself, he said, was responsible for ensuring “an open and supportive work environment” at ORNL. What a crock, we all thought.
The February 2001 Health Physics Society Midyear Topical Meeting
As I said earlier, ORP management had given me permission to attend the Health Physics Society Midyear Topical Meeting to give a talk and a training course and to attend seminars and training courses. Of course, when I was laid off, their financial support was withdrawn. But it was only two months until the conference — short notice to tell the organizers that they had two slots to fill, especially since people had already signed up for my course. I felt that it would be a significant professional embarrassment to cancel. Besides, I needed the “points” that I would earn from these activities because my health physics certification would be up for renewal later in the year. Most of all, I wanted to give the talk and the course (which had been a dream of mine for several years). So I decided to pay my own way to the conference.
It was in Anaheim right next to Disneyland. The conference hotel price was $125 a night, but I was able to make reservations at a reasonably priced hotel nearby. However, I soon found out why it was so reasonable: although it was close to the conference hotel, a huge parking lot separated the two. The parking lot was fenced all around, with no through path, so I had to walk several to get to the nearest entrance to the conference hotel and then walk a long way through the huge building to the conference area. I had had a toenail removed just days earlier and was not supposed to be making long treks like this, especially hauling my heavy stack of handouts and overheads the day of my course.
My course, which was on practical radiological optimization, went well. One of the students was a person who has published frequently in the Health Physics journal; she told me “I’d give it a 10”. Another student came up to me and said that he had not understood how to apply optimization in practice until my course. It was great — this is the kind of day those who love to teach live for, of course.
My talk was on the results of a survey I had done in 1999-2000 regarding radiological engineering and DOE sites. I had initiated it in the fall of 1999 after trying to find out more about how Battelle handled rad protection, especially at PNNL. I thought it was important to find out what the norm was at other DOE site. I made it an E-mail survey and expanded it to NRC-regulated sites in early 2000, when I reflected that nuclear power plant health physics people invented rad engineering as a discipline, to a large extent. I had a good number of replies and I tabulated them. My talk went well, although there was not a great deal of interest in the topic; I knew that “who radiological engineers are and what they do” was not a burning issue at most places, simply because there was a pretty well accepted consensus about this. But I thought that my doing the survey and the talk established a reference point as to what that consensus was. This might be important some day to me or DOE if the question were to be raised as to what “generally accepted” practice in this area was — and why UT-B or any other contractor was or was not adhering to it.
For the benefit of health physics readers, I will summarize my findings below as I gave them in my talk. I must apologize now to the survey participants, whom I had told that I would communicate my findings to when the survey was over. I meant to do it after I got back from the conference, but I had problems with resurrecting the E-mail addresses of those who had communicated with me before I was laid off, which was most of the respondents. I had saved hard copies of their responses (printed out as an attachment or a cut-and-pasted segment) but my E-mail itself, with address headings, was all lost when I left ORNL. It would have been a huge and expensive effort to telephone each one, even if I could find their phone numbers. So reluctantly I had to forgo sending individual responses. My thanks now to all participants.
Summary of my talk at the February 2001 HPS Topical Meeting: “The Role of the Radiological Engineer: Different Sites, Different Scripts”
I formulated the following hypotheses regarding rad engineering at DOE sites.
1. It is a rad engineer, rather than rad techs or their supervisors, who performs certain functions.
2. A rad engineer (or analogue) is nearly always involved in nonroutine work planning and design activities.
3. A rad engineer has defined authorizing or approval power.
4. A rad engineer is required to have certain minimal qualifications and education.
Highlights Re DOE Sites
1. At 7 DOE sites, a B.S. in health physics or a related field was required. The others required a B.S. “or equivalent” in experience and training. Several respondents emphasized that at their sites a rad tech could become a rad engineer only when he had earned a four-year degree. Required experience ranged from 0 to 7 years, with 3-5 being the most common. Most of the rad engineers at each site had experience before taking the position.
2. At nearly all sites, rad engineers were matrixed to a particular project or group of facilities, where they were given assignments directly by the operations managers or set their own priorities as needed. But they reported to a rad protection manager instead of or in addition to the operations manager. At some sites, the rad engineers were divided into field rad engineers and analytical rad engineers, with the former handling the field work and the latter handling specialized work, such as Monte Carlo calculations and data tracking and trending.
3. There are defined levels or conditions at most sites that trigger rad engineering involvement, most often including dose, dose rate, and contamination level triggers. However, at a few sites, rad engineers screen every job, if only to label most of them “N/A” regarding a formal review.
4. The ratio of rad techs to rad engineers at a site varied from 3 to 15, with the average ratio being about 7; the ratio of total rad protection personnel to rad engineers reported varied from 7 to 27, with the average ratio being about 14-16. These numbers are soft, though, since it was not always possible to tell from the responses what was included in the reported rad tech and total numbers.
5. At most sites, a normal but not high degree of friction between rad engineers and rad techs was reported. One responder commented that the rad engineering and rad tech roles were clearly defined, which helped to minimize conflicts. A greater degree of friction between rad engineers and operational [O&R] groups was reported, although most respondents did not think this was a serious problem. Several respondents reported difficulties with getting managers to enforce protection measures if these conflicted with work rules.
Highlights Re Nuclear Power Plant Sites
1. Rad engineers at power plants were somewhat less likely to have a degree, while the experience required was often left to managers’ discretion. One site had well-defined trigger levels, while at another there were no such levels: the rad engineers were involved on an as-needed basis, but they seemed to be involved in a wide variety of things as a matter of course.
2. The ratio of rad techs to rad engineers ranged from 4 to 12, with the average being about being about 7. The ratio of total RP personnel to rad engineers was not determinable because some respondents omitted the information. But the two who did provide it gave figures of 9 and 11. These numbers too are “soft”.
3. All of the NPP sites reported good relations between rad techs and rad engineers and said that while problems were sometimes encountered with operating people, these were usually resolved satisfactorily. These respondents were more positive on both points than the DOE site respondents, apparently because power plant techs and rad engineers had to work together closely, especially during outages. Also, there were often technical assistant or coordinator positions that techs could rise to in the group that included rad engineers. And as two respondents noted, the RP manager has the authority to shut down operations and takes a strong hand in resolving any conflicts.
Highlights of Functions and of ALARA and Work Planning
1. Rad engineers are strongly involved in areas requiring skills in analysis, such as performing calculations and evaluating data; in specifying protective measures for work and in planning work; and in reading and writing technical documents. They usually do not do measurements as part of their normal work, i.e., they don’t work part time as rad techs. Thus professional-level skills appear to be important in the performance of the rad engineering role at both DOE sites and NPPs. Two DOE respondents volunteered that their sites intended to add one or more rad engineers in the future.
2. At most sites of either kind, the formal ALARA program is carried out by the technical support or similarly titled group in which the rad engineers are found. One NPP respondent observed that cooperation between rad engineers and others had been fairly good ever since the routine ALARA program had been incorporated into the work planning process. The same comment had been made to me by a DOE site person survey about his site. Thus it appears that rad engineers are well accepted where they are working closely with rad techs and where they are involved in most work planning.
Conclusion
My four hypotheses about rad engineers at DOE sites were shown to be true by my admittedly limited survey. That is, some functions are performed only by rad engineers and not by technicians; nonroutine work must generally involve or be reviewed by a rad engineer, who has defined authorizing or approval power for this; and a rad engineer is most often required to have certain minimal qualifications and education. Also, it seems that much of the site’s formal implementation of ALARA is done via the rad engineering group. From this and from the statements from the two surveys about adding rad engineers, it seems that the role of the rad engineer is well established and becoming increasingly more a part of modern rad protection at large facilities.
DOE Investigates My Concerns — Sort Of
In January 2001, I got a telephone call from Teresa Perry of DOE-ORO (the local DOE office). She told me that she had been assigned to head up a team to evaluate the rad protection program at ORNL and, or so I understood, to investigate the safety aspects of the written concern I had submitted to DOE. I agreed to meet with her and other members of her team. She also told me that she was a civil engineer serving as some sort of program or task leader in DOE while working on a PhD in environmental engineering. I rather wondered why the DOE-ORO powers-that-be had not chosen a rad protection professional or at least an operational safety specialist of some kind to head up the team.
On 2 February 2001, I met with Perry, then with three other members (Barry Parks, Edwin Deshong, and Teresa Robbins), and finally with the fifth member, Mike Henderson. Parks was from DOE-Washington (Office of Science), Deshong was from DOE-Savannah River, Robbins was from DOE-Y12, and Henderson was from DOE-ORO. I later saw their “qualification summaries” in their report, so I will summarize those here.
Perry had an MS in environmental engineering and an MS in civil engineering (structural design), both from the University of Tennessee; she had had OSHA HAZWOPER, Rad Worker II, Radioactive Waste Management, Lead Auditor, and ISMS training, along with a 40-hour “Radiological Risk Assessment and Dose Reconstruction” course. Although she didn’t look old enough for it, she was said to have had 13 years in “management and design” at TVA for nuclear power plants and 11 years in “leadership and environmental engineering” at DOE-ORO and Bechtel National. Deshong had a BS in Electrical Engineering Technology, and an MS degree in Computer Systems Management from the University of Maryland (2000); he had 8 years of work at Savannah River, six as a “General Engineer in the Radiation Protection Division” (of DOE). He had completed “93-3 DOE-SR Technical Qualification Program in Radiation Protection”, the “Facility Specific Qualifications for F/H Tank Farms”, and the Oak Ridge Institute for Science and Education Applied Health Physics Certificate program. His current work assignment included “providing radiological engineering technical support to the DOE-SR Assistant Manager for High Level Waste”; he had the “external” responsibilities of providing rad engineering support guidance to DOE HQ programs “through technical evaluations of projects and equipment” and of serving as the primary contact for programmatic rad issues for various Savannah River labs (e.g., the whole-body counter facility).
Parks had a BS in biology (Health Physics option) from Virginia Tech; he had 18 years of combined expertise in the EPA and DOE as a health physicist and was said to be a recognized expert in evaluating dose and risk from radionuclide emissions to air from DOE facilities. He had served for 8 years as the Science Radiological Control Program Advisor and as the Office of Science rep to the DOE Radiological Coordinating Committee. Robbins had a BS in nuclear engineering from UT (1991) and had 10 years of experience providing field oversight of conduct of operations implementation at DOE nuclear and nonnuclear facilities, including implementation of the Rad Con Manual and the Quality Assurance program at the Savannah River Site. She was a Qualified Facility Representative at Rocky Flats from 1995-1999, had 3 years of experience as a lead safety analysis reviewer for approval of PSARs, BIOs, OSRs, SARs, TSRs, etc., and had participated in authorization basis reviews for 10 years. She was said to have participated in “numerous” assessment teams throughout the DOE complex, including rad protection assessments, ISMS verification teams, and “activity oversight reviews”. Henderson had an MS in nuclear engineering from the University of Tennessee (Health Physics option), was the 10 CFR 835 review team leader for ORO contractors, and had “commercial nuclear experience in uranium processing”.
So, okay, Perry had taken Rad Worker II, but so had many rad workers, and her one-week course in “risk assessment and dose reconstruction” did not suggest coverage of operational topics. Deshong had an ORISE certificate and a DOE certificate course; it is hard to tell how long the courses lasted or how rigorous they were, but they may have been, e.g., a week each. Also, he appeared to have no operational health physics experience, either commercially or working in a contractor organization at a DOE site in rad protection or safety; he seemed to be familiar with practical rad problems at the Savannah River Site only on an oversight basis. So he seems to have been acting as a “rad engineer” and providing rad engineering “guidance” to DOE-HQ on the basis of some add-on training and some oversight experience. Parks obviously had a strong educational and technical background, but he had worked in the environmental area, not in operational rad protection, and his expertise seemed to be in emissions, not worker exposure. Robbins had a nuclear engineering degree and had overseen Rad Con Manual implementation, but her real experience appears to have been in conduct of operations and — most salient to me — in the sort of things that are covered in authorization basis reviews, i.e., what I call drastic accident analysis. Operational matters applicable to everyday operation and not-so-bad upset conditions are mentioned only in passing in DOE SARs, if at all, and will likely not appear at all in TSRs (technical safety requirements). For example, specifying how to do a dose estimate, who should review particular types of operations, and what should appear in the Rad Work Permit are not covered in SARs, etc., only in the site rad protection manual of procedures. But these would be vital to understanding my concerns.
Only one person, Henderson, seemed to have both an appropriate educational background and operational health physics experience outside and inside DOE. However, he had a conflict of interest problem. As another DOE person informed me during this period, Henderson had headed up or at least been part of the DOE-ORO team(s) that reviewed the 10 CFR 835 implementation and ISMS Phase II implementation at ORNL. Thus he had been one of those blessing ORNL’s rad protection program, in effect. As my DOE informant observed, it would be hard for Henderson, having blessed ORNL’s program, now to criticize it. Henderson himself remarked to me, during his interview of me for the review, that under ISMS, DOE gives its contractors wide leeway in formulating and interpreting their own safety procedures. When I asked if that included site management tolerance of procedure violations by line managers, he did not state that it did not. But later in the conversation, he reiterated that DOE gave line management wide latitude in getting the job done. I thought he might be sending me a message.
I was not hopeful after I met with these people. I already knew Henderson and he was pleasant to me and the others were nice people. Parks seemed to me to be pretty sharp and they were obviously all audit and review veterans. But except for Henderson, they didn’t seem to be aware of where they should start, if they were actually going to check out some of the details of the violations I reported.
Several weeks later, as I sat at my desk at my front window, I saw a car drive along my street and stop at my mailbox. The driver put something in the mailbox and then drove off. I did not recognize the driver or the car. I went out to the mailbox to retrieve the deposit and found that it was a draft copy of the team’s report. Apparently, it had been sent to the auditee, ORNL, to be fact-checked, as is usual in auditing practice nowadays. But they had not sent me, the complainant, a copy so that I too could fact-check it. Had I not been given this bootleg copy, I would not have seen the report until it was official.
The draft executive summary stated the following. The DOE-ORO Assistant Manager for Laboratories had asked the assessment team to “take an overall look at the Radiation Protection Program” at ORNL and to “review concerns about the program expressed by an employee concern filed with DOE ORO”. But it went on to say that the assessment “represents a sampling of functional areas related to” UT-B’s Radiation Protection Program, “i.e., primary review emphasis was on the [ALARA] program” at REDC and HFIR. The results and recommendations were said to be based on reviews of existing documents, interviews with “a cross section” of UT-B employees, and observations of several work activities, in order to identify “any potentially significant safety significant issues”. The review was said to show that from 1997-2000, ORNL was undergoing many changes: a sitewide re-engineering, a change in prime contractors, implementation of ISMS, and a downsizing of the workforce. During the “resulting culture change”, there were times when the Occupational Safety Services Division (OSSD) procedures “did not always accurately reflect the new way of doing business” and OSSD “did not have technical compliance with its procedures for reviewing radiological work”. But the assessment team “found no instances where worker safety was lessened due to procedural noncompliances”. “While changes have been made to correct the radiological review procedures, the OSSD safety culture change from “being in charge” to “being a service” has not been embraced by all OSSD members.” The assessment team found “a maturing self-assessment program” within UT-B and OSSD and said that “It is noted that the self-assessments performed over the last year have identified several good practices” as well as areas for improvement. The assessment team did not examine the status of each item identified in previous self-assessments, but the team “saw evidence” that OSSD might need a clear mechanism for responding to procedural noncompliances or discrepancies identified internally. “It is recommended that [UT-B] continue to follow through on implementation of the activities noted in its self-assessment reports as it deems appropriate.” Six “enhancements” for RP-310 [operational rad review] were recommended. The team concluded that the ORNL rad protection program was successful “in meeting ALARA principles” and that ORNL had “established radiation control levels and guidance far below regulatory limits”. Finally, the team found no evidence of reportable violations of 10 CFR 835.
I had to look back at the first page to see who the putative authors were — the summary and the text appeared to be taken straight from the UT-B playbook, right down to the exact words and phrases UT-B was prone to use (e.g., “new way of doing business”). Beyond that, I thought that it was appalling that DOE had bought the UT-B line about OSSD not being in “technical” compliance with procedures and had agreed that, in effect, “It’s okay to violate your procedures as long as you can claim that worker safety is not lessened”. I think that no reasonable person can fail to take it that that was DOE’s meaning, given its actual words in the report. This was completely counter to what DOE had fined other sites for, as I will discuss later.
In the report’s Section 1, “Purpose and Scope”, DOE said that it took as its assessment criteria 10 CFR 835, DOE directives applicable to UT-B, and UT-B’s Radiation Protection Plan and procedures. By this statement, it appeared that DOE was taking the Plan and procedures as a given, i.e., assuming that they were ipso facto okay. Thus DOE was thus not questioning the adequacy or appropriateness of any provision or procedure. Furthermore, DOE stated that “Employee Concern #00-015 is discussed in more detail in a separate report”. I have never seen this report, but from another source, I realized that it was my concern. I thought it odd that, if the team was supposed to be looking into my concerns, there was a separate secret report I might not ever (and did not in fact ever) get to see.
I found the title of Section 2, “Results and Discussion of the Radiological Support Services Program Review” to be significant. UT-B had insisted that the various safety entities have “service” in their titles, I thought to emphasize the entities’ subservient (servant) status. DOE had now (perhaps unconscientiously) aped this usage. So now it was not a Radiological Protection Program or even just a Radiological Support Program, but a Radiological Support Services Program. I think that semantics are important and that the words that a person or an entity uses can reveal a lot about his or its character. Clearly, DOE’s adoption of this term showed its acceptance of rad protection people’s lack of authority vis-à-vis the O&R people.
This section also said, with reference to RPP-310, that an April 1999 internal review of Radiation Work Permits (RWPs) showed that there were “some” instances in which the Level 3 reviews were not performed as per RPP-310 and instances where ORP complex leaders “and other qualified individuals” had been used instead of AEG members. (It is not clear what review is being referred to — see below for what it may have been.) The section went on to say that the DOE “assessment did not attempt to validate the accuracy of the discrepancies identified in the AEG internal review, yet the discrepancies do not appear to have had any adverse impacts to safety” (underlining mine). The team noted that the procedure had been revised to allow the reviews to be performed by “independent” ORP members. They concluded that “Based on the ALARA reviews performed since 1999 and the subsequent revision to RPP-310, it was revealed that technically adequate reviews are being performed”. They apparently based this in part on “an informal survey” they did by called Savannah River, Rocky Flats, and Y-12 and asking them about their trigger levels for requiring rad engineer involvement and how they set the qualification levels of rad techs and rad engineers. They concluded that there was “no direct correlation” between the types of hazards and the level of training at ORNL or the other sites; they also concluded that while other sites had lower trigger levels than ORNL and in particular had contamination trigger levels that required (triggered) rad engineering review and approval, this was nevertheless not significant because “the training and qualification of the radiological engineers and [rad techs] at ORNL are different {and in many cases higher) than those at other DOE sites, and this appears to support the different trigger levels”. They remarked that it was thoroughly documented that AEG had concerns about the revised trigger levels, etc., but they reviewed “historical exposure trends” and interviewed OSSD members and concluded that revision had “neither compromised nor degraded the level of radiological safety of ORNL workers”.
So as can be seen from this section, the DOE assessors used the words “qualified” and “independent” with respect to reviewers, but they did not define what they meant by them or give any indication that they had even asked UT-B what UT-B meant by them. DOE also said, in effect, that they hadn’t looked into any of the actual operational cases that were not reviewed — but they were nevertheless sure there hadn’t been any impact on safety. They did not explain why. This same sort of “Well, we didn’t really check it out, but we’re sure it’s okay” approach could be seen throughout the report. The reason that DOE thought everything was okay seemed to be because UT-B assured them that it was okay. Well, okay, DOE did do its own little survey of trigger levels and qualifications, but although the results contradicted the ORNL model, DOE decided that there was “no connection” between the level of hazards encountered and the level of training received (which would be news to DOE decision makers and trainers across the land) and that because the training and qualifications of the rad techs were “different” and sometimes “higher” at ORNL, it was okay for the complex and group leaders to be reviewers on (apparently) a par with ORNL rad engineers and presumably also with rad engineers at other DOE sites (which would be news to site rad engineers across the DOE complex). DOE made no reference at all to the 10 CFR 835 implementation guides on review of work or training and qualifications, as if they had never heard of them.
In this section also there was a discussion of internal reviews of RWPs and work reviews. The DOE assessors reviewed copies of two internal reviews “performed in April 1999 by AEG staff members”. I was confused about the second one, but I later learned that Utrera had done one (I think at Mei’s request) on the “Group II” RWPs, i.e., those that, according to RP-310, had to be signed by the independent ALARA reviewer. So I will refer to the two as the Geber report (the one Geber did at Mlekodaj’s request) and the Utrera report. DOE observed that the Geber report identified instances where Level 3 RPP-310 reviews should have been requested by the O&R organization but were not; in addition, there were some instances of individuals signing in under an expired RWP and of rad techs signing for a complex leader. Both Jerry Hunt and Gary Kelly (the REDC complex leader) were said to have acknowledged that there were “some factual elements” in the Geber report, but “they noted that most of the information in the reports was inaccurate, out of context, or misrepresented”. DOE also stated that the report “was not revised or issued and has been stamped “Draft — Not Reviewed for Factual Accuracy” and that some of the disagreements dealt with the interpretation of the term “campaign” versus “job” or “activity”. DOE concluded that while what it called the procedural “discrepancies” identified in the report “would not indicate a significant safety issue”, DOE thought that ORP management’s retrieving all the loose copies of the report and the lack of response by ORP management to the “discrepancies” “has the potential to discourage identification of safety and compliance issues by workers”. DOE said that UT-B should “look for ways” to identify, track, and correct “low-level deficiencies and procedural discrepancies”.
DOE appeared to accept at face value the rad tech organization’s contention that the Geber report was inaccurate. Mlekodaj, Mei, and certainly I did not find it so, but our opinion was not given at all in the assessment report, much less Geber’s. DOE did not appear to have asked why the report was still in draft and had still not been fact-checked almost two years later. There was no discussion of why one definition of a campaign or another should have prevailed (suggesting that perhaps the DOE reviewers did not understand the point); in any case, the reader should note that the determination of whether a series of connected operations was a campaign or not was, according to RPP-310, supposed to be made by the head of the Rad Controls Section, i.e., Mlekodaj, not the rad tech organization or the O&R people, and that the REDC rad techs and O&R people did not ask Mlekodaj about these cases back then anyway. A reader of the assessment report might be confused by the mention of the “retrieval”, because the assessors did not expend even one sentence explaining that Sims ordered Mlekodaj to collect all the copies of the first version and that the copies of the second version were limited as to whom they went to. Thus this action was not really documented in the report, although the assessors did indicate that they were somewhat troubled by the coverup aspects of the collection of extra copies and of ORP management’s not keeping track of the various violations….sorry, “discrepancies”. Nevertheless, DOE concluded that there was no safety issue here — that the “deficiencies” and “discrepancies” were only “low-level”.
DOE went on in this section to state that in May 1999, after the Geber report, a DOE ORNL site rep and “a member of ORP” reviewed the REDC RWPs and work processes, a review that did not, however, include the Level 3 review process. That pair — who by the reference list were DOE-ORO’s Mark Robinson and ORNL’s Steve Hamley — concluded that “improvements in work control and job planning can be made, but large or radical changes are not needed”, only “refinement and improvement in areas such as pre-job briefings and planning, postjob briefs, and structured critiques of problems and events”. The DOE team said that due to what it termed “resource constraints”, they had not reviewed the status of these recommended actions. The news that a DOE rep and somebody in ORP had reviewed the REDC RWPs, etc., back in 1999 came as a surprise to me; over the years, we in ORP always heard about official reviews and audits, large and small, especially when they affected us, but I had not heard about this and they never spoke to me. Because of this semi-secret handling of the issue and also the identity of the pair, it was troubling — but perhaps to be expected — that even with AEG’s repeatedly raising of the issue of work reviews, somehow the pair had not looked specifically at that. It seemed a conflict of interest for an ORP person to be participating with a DOE person in the review, especially since their conclusions let ORNL off the hook but said that only a few “refinements and improvements” were needed. But most of all, it was odd that the DOE assessment team — supposedly looking at the rad protection program — did not look into whether the pair’s recommended actions, such as they were, had been implemented or not.
The assessment team looked at the violation of RPP-110 by Sims when he changed some shalls to shoulds in the exemption for Chem Tech; this was the violation that Mlekodaj had brought to the attention of Sims, Milan, and Swanks (with Swanks never responding to him) and that I had brought to the attention of Scott (who had supported Sims’ position). The assessors decided that Sims had indeed violated RPP-110 and had thus modified the procedure illegally. But they decided that this was another “minor procedural discrepancy”, although “not consistent with good conduct of operations principles”, and that since UT-B had since then formally changed RPP-310, implementation of the exemption “did not appear to have had any adverse effect on the ALARA program” (ignoring the larger rad protection program under 835). They quoted a Chem Tech facility manager (presumably REDC’s) as telling them that more ALARA reviews were now being done, “even when not required by RP-310 and RP-128 [the design review procedure], since line managers now have flexibility in choosing the ALARA reviewer and have a larger pool of reviewers”. It was startling that DOE would say that as long as you changed your paperwork after the fact to correspond to what you did, they were okay with procedure violations. And I was highly skeptical of the Chem Tech manager’s claim of more reviews, because aside from the implausibility of his statement, after the exemption had been granted (when Geber and I were still there) there were still instances of avoidance.Besides, the facility manager did not appear to have provided any data to illustrate his contention.
The assessment team said that there were no unique qualifications defined for an employee to perform ALARA reviews or to be a member of AEG. Scott told them that selection of a qualified reviewer was based “on management’s knowledge of the person’s education and experience”. (The report didn’t say whether that was O&R management or rad protection management.) The team said that RSS — which now included Mei, Utrera, Don Gregory, and Hamley — had 23 employees with at least a bachelor’s degree, “including 4 Certified Health Physicists”. These four were apparently Hunt, Betty Slaten, Mei, and Gregory, not any of the complex or group leaders. The team stated that there were detailed checklists in RP-310 and RP-128 for performing ALARA reviews. I knew this to be true because I wrote them. But their statement that “most OSSD complex leaders are capable of doing these reviews using these checklists” was dead wrong, especially for the RP-128 one, because the checklists were intended to be a data capture tool and a mnemonic (memory-aiding) device, not something that an uninformed or untrained person could use and be sure of correctly interpreting. The checklists asked for a Yes, No, or N/A answer for each question, but the No answers were supposed to be explained, e.g., if a protection feature was not incorporated, the reason was supposed to be given. So the reviewer had to understand the rationale for each question. Had the team had a followup interview with me, I could have explained that.
Scott or Hunt told the team that an RP-310 reviewer was “recommended” to the line organization by OSSD, based on ability and experience. But that was not in the procedure, so the team should thus have viewed this as an informal practice at best. The team was also told that the thoroughness of the review was driven not only by the “collective dose trigger levels” (not mentioning the individual dose trigger levels) but also by the “professionalism of the reviewer”. Again, this seemed to be informal, subjective, and probably idiosyncratic — one reviewer’s Big Deal could thus be another’s Don’t Sweat It. Sims told the team that OSSD “has nothing to gain by sending unqualified people to do radiological reviews”. I think that this statement was spectacularly false, because from Sims’ own words to various people in 1999-2000, he was downgrading the level of reviewer competence so his division would keep its funding.
The team noted that UT-B was very big on line management responsibility and accountability for safety. But, they observed, through interviews with OSSD management (presumably Scott and Sims) and unnamed “health physics subject matter experts”, it seemed that it would be difficult to identify the specific qualifications needed by an ALARA reviewer. However, they thought that the recommendation by the RSS head, i.e., Hunt, of a candidate reviewer in each review case “appears to provide reasonable [rad protection] management judgment in the determination of the adequacy of the qualifications of the reviewer”. The team did not note that O&R management was entirely free to reject the nominee, or that Hunt was unlikely to nominate any person that O&R management did not want, however competent the person might be. The team said that they had considered the ALARA reviews that had been performed since RPP-310 had been revised to RP-310 and had discussed the issues with the AEG leader, and they had concluded that the adequacy and sufficiency of the reviews did not appear to have been degraded. I tended to doubt that Mei had said quite that, based on my talks with her before and after I was laid off, but in any case, they clearly had not compared the quality of the reviews before and after the change (as they could have done just by looking at the review documentation).
The team explained that AEG was viewed as “technically competent” but “lacking in field experience”, “which resulted in the AEG reviewer sometimes requiring measures beyond the scope of the radiological task being performed”; “in particular, the OSSD complex leaders indicated that they knew more about issues such as contamination control than the AEG”. This was the first time I had heard the statement about requiring measures beyond the scope of the task; that is, on MSRE I had been accused of looking at things outside my scope (notably the concrete spec for the cask), but not of prescribing any measures beyond what the task warranted. The team did not comment on these statements or indicate in any way that they had evaluated their validity at all — the assessors simply quoted them and left it that way. This was the most outrageous segment of the whole report to me because the assessors clearly did not know how to judge these statements and so they simply accepted them. No details were given.
In the same paragraph, the statements above were immediately followed by a segue into a discussion of chargeout, which seemed to have no relevance to field experience. This, I believe, indicated the fuzziness of the team’s understanding of the two issues. In speaking of chargeout, the team said that formerly AEG was paid out of overhead funds and was thus “free” to the line (O&R); they did not mention that reviews were avoided even when they were free. The team stated that when the line started to be charged for AEG support, “use of the AEG seemed to decline”, but they failed to note that the use of AEG declined well before that (i.e., in the form of avoided reviews and getting Sims to limit or eliminate AEG’s involvement in O&R affairs) and that the chargeout rate was the same for RSS and AEG. To conclude the paragraph, the team then burped up another non sequitur, saying that there appeared to be “pockets of effective working relationships” between RSS and the AEG “that continue today”. I have no idea what they meant by that. In light of how they were quoting or lightly paraphrasing UT-B management’s statements, I suspect that the three non sequitur topics were related thus: a UT-B person (probably Scott, Sims, or Hunt) stated these things in that order to persuade the team that O&R management discontinued using AEG because they realized that those muddle-headed AEG people just were not up on practical matters, such as contamination, so steps had to be taken, but RSS still really, really respected AEG.
The team addressed the issue of independence by again quoting the UT-B line. To help provide independence, OSSD “facility points of contact” [i.e., the complex leaders] “customarily choose an appropriate outside OSSD member to conduct the review”. This obviously contradicted the team’s earlier statement that it was Hunt who nominated the candidate and it contradicted the fact that O&R management, not OSSD, picked the reviewer. But even if it was the OSSD point of contact who did so, how would that ensure independence — why would this person not pick some pal or someone else he knew well in OSSD? Hunt, at least, was aware of the qualifications of all his people, but a complex leader or a member of line management would not. The team noted correctly that formerly the independence had been at the section level (RCS-AEG versus RSS), but now that the two sections had been combined, it was at the complex or group level. But the team failed to note that the problem here would be that in financially pinched times, the point of contact might choose to keep the business within his complex or group. The team noted that independence was not defined in RPP-310 and that it was not clear “what level of independence is desired for a Level 3 review”. They did not comment on this further — e.g., they did not make any comment about what level of independence might be desirable for a Level 3 review. As assessors, it would of course not be their job to make up rules, but they could make recommendations or discuss the situation with reference to some relevant DOE document. However, they did not.
The team thought that the ALARA Program was in good standing: since 1995, some 14 ALARA awards had been given! As I noted earlier, one could earn an ALARA award merely for submitting a suggestion, even if it was meaningless, and awards nominations were made by the division to whose people the award would go. It is not clear if the team was made aware of this or not. The team noted that the HFIR resin slurry job should have had an ALARA plan written before the work began rather than after the work had started; I do not know what the team was told, but I was there and there was never an ALARA plan written for that job. The team missed the real points, which were the use of a non-ALARA method of resin removal (box instead of HIC), the failure to have an RPP-310 review, and above all the failure to do a dose estimate. (Granted, having an ALARA plan would likely have dredged all this up….) The team shifted in the same paragraph to stating that the job occurred before UT-B became the prime contractor and that “Since there may be little potential for significant dose reduction in routine activities, elaborate radiological engineering changes may not be justified economically within the ALARA concept”. These were the new rad protection party lines, which were repeated at my layoff hearing later in 2000: “Those AEG people are here just for big stuff. Since nearly all of our stuff is routine and under the ALARA radar, we really don’t need for them to look at our stuff” and “It’s okay to cut corners here and there as long as nobody gets hurt”. This was true to a point — I myself had argued against reviewing really small stuff — but the “small stuff” and the “nobody got hurt” arguments had been used repeatedly to justify failures to plan and review the serious stuff, such as the resin job. Also, the team again seemed to be taking UT-B’s word that there was little potential for significant dose reduction in the resin job — but had they even looked at the box dose rates, the ones in R/hr?
The team found no evidence of P-AAA violations and stated that “no issues raised by OSSD have been stonewalled or not acted on by the ORNL P-AAA Board”. The team did not discuss any specific case or why any of the potential issues were or were not P-AAA violations. For example, they did not discuss why Sims’ RP-110 violation was not a violation of the Rad Protection Plan of which it was a part, or why a violation of the Rad Protection Plan was not a violation of 10 CFR 835, which required the Plan. I was not surprised that no issues raised by OSSD had been treated rudely by the ORNL P-AAA Board: OSSD was not likely to refer any troublesome issues to the Board, such as my concerns (which as far as I could tell were never referred to the Board and were never considered by it even though I urged that it be done more times than I can count). Also, there was the statement of Hamley, a P-AAA Board member, that the Board held a watching brief to see if adverse occurrences developed into trends and there were the hints in his other statements that operational convenience was an important factor in the thinking of the Board. This Board practice was not remarked on by the team.
I was surprised to see in the assessment report a whole paragraph on UT-B’s “Standards-Based Management System” (SBMS); again, this canned verbiage was taken verbatim from UT-B statements to the team, right down to the underlined words (e.g., “determine what a program area is supposed to accomplish”). The point of the SBMS was that while the UT-B top management determined what objectives a program area was supposed to accomplish, at the division level the managers had the flexibility to make changes in the procedures that determined how the objectives were to be met. The flexibility was based on “allowing each division the latitude to determine the best method to achieve the intended outcome of the procedure, while providing equal or better protection to the workers”. What the team meant by this was unclear (if they meant anything at all, since they were quoting UT-B): was it each individual O&R division that could determine the methods, or was it the author division, e.g., OSSD in the case of the rad protection procedures? I wondered if this was clear to the team or if they questioned this at all. They went on to state that most workers they interviewed said that they thought that the RP-310 procedural changes were better and did not lessen safety. This seemed very odd to me: in my experience, most non-rad-protection workers had nothing to do with RP-310 and in fact were either vague about it or were unaware of it. The team stated that some employees felt that there were gray areas that gave O&R management too much flexibility in operations, “but never in instances where employees could be harmed”. I found that to be an amazing statement, because how could you have “too much flexibility” if the employees could not be harmed? I.e., if there is no risk, no protective measures would be needed. I thought that this statement showed the fuzzy thinking and lack of understanding of this assessment team about work planning.
The team said that while it appeared that RP-310 had been “improved by the recent revisions to allow flexibility with regard to who performs ALARA reviews while still requiring ALARA reviews to be performed”, it could be enhanced by including a definition of “campaign” in the rad protection procedures. Well, there had been one in the glossary for years, but it had been taken out with some other definitions during the last revision; I had pointed out at the time that taking out definitions hurt the people who had to read and carry out the procedures, as they then had trouble in interpreting the requirements. But I was told that definitions that were too specific were “audit bait”. I believe that a collateral reason was that RSS was trying to increase the “wiggle room” for their customers in applying the procedures. For example, as we had seen, the HFIR manager had said that the reason he did not have a review of the coolant strainer flashing was that he did not interpret the procedure as requiring it. He said it with a straight face at the time, but with the revised procedure he could say it with even more conviction. The team also suggested that some training or internal guidance would be useful “to assist line managers and RSS employees in applying RP-310”, specifically in the area of “defining how “independence” is to be satisfied” and of determining when a formal ALARA plan was required. The trouble with these suggestions was that they were just suggestions; the team did not state categorically that these things were necessary to assure that everyone would be on the same page. Put another way, equal risks should be reviewed with equal rigor and comprehensiveness, but with a very informal and subjective program such as ORNL now had, that was not going to happen — and the team seemed to miss this.
The team thought that the training materials within OSSD met and exceeded the 10 CFR 835 criteria. This seemed odd because the 835 criteria are very limited; perhaps they meant the 835 implementation guide for training. Apparently there were copious materials available for them to review for rad tech training, but I wonder what they found for the rad engineers; they mentioned nothing but position descriptions. The team used a favorite DOE term to describe UT-B’s and OSSD’s self-assessment programs: “maturing”. They said that the UT-B ESH&Q director (Beierschmitt) “supported” self-assessments performed by managers from other Battelle sites. The reader should understand that “self-assessment” means assessments that your people do of your own operations or the assessments that outside people you hire directly do for you, as opposed to assessments done by DOE or by outside folks that DOE hires. Thus the team was pointing out that Beierschmitt hired outsiders to do assessments of his people’s work — but apparently only from other Battelle sites. This incestuous relationship was not commented on by the team. The team said that self-assessments of rad protection were also made by the RSS manager (Hunt) doing a walkthrough of a different rad area every week and by the complex leaders doing “routine” self-assessments. Checking yourself is very important and should certainly be stressed by DOE. However, to allow the self-assessment to replace any DOE assessment, as DOE has done at ORNL, is wrong, due to the conflict of interest. The team did not appear to have looked into the self-assessments beyond listening to OSSD people’s description of what they did, even though, by their resumes, some of the assessors should have been experienced at walkthroughs, etc. The team “did not examine the status of each item identified in previous assessments”, but seemed to have taken UT-B’s word that these items were being addressed.
The team stated clearly that UT-B’s linkage between the Integrated Safety Management System (ISMS) implementation and the safety organization’s providing “services” to the O&R managers was consistent with DOE’s policy on safety management. They qualified this by stating that it was consistent “as long as there was an effective mechanism by UT-B to ensure that line managers were held accountable for safety”. The team opined that the accountability could be ensured “through an independent assessment program or other equally effective tool”; however, they did not discuss the independent assessment program further, or even state that ORNL had one. They said that “worker input is sought after and used”. This was another statement that sounded like an echo of what a UT-B person, or any contractor, might have said — i.e., a motherhood statement. The union said it was happy; a senior rad tech said he was not aware of nor had he witnessed any workers being asked to do unsafe work. Since the interviewees were identified by title, not by name, I had no idea who that rad tech was and, more to the point, where he worked. That was very relevant because it would make a difference if he covered REDC or HFIR instead of the generally lower-hazard biological research labs.
The team identified no concerns or findings, but rather “opportunities for improvement”. They included this gem: “It is recommended that UT-Battelle continue to follow through on implementation of the activities noted in the self-assessment reports as it deems appropriate”. In other words, DOE was completely ceding to UT-B the judgments as to how much or how little to implement the self-assessment report findings. If anybody doubted that as a regulator, DOE was a joke, he would only have to read a statement like this to become a believer. What was that team thinking to let that sentence see the light of day? Their Nuclear Regulatory Commission counterparts must be having a good laugh at their expense. Well, in fairness, the team did say that DOE-ORO should re-examine the self-assessment program “in a future assessment”, but obviously the damage was done.
The team also recommended some “enhancements”, including defining “Campaign”; defining the minimum qualifications for performing an ALARA review; defining “independent OSSD representative”; defining the requirements for a “may” statement (which they did not discuss in the text); documenting the technical justification for raising the 1 rad/hr trigger to 5 rad/hr and for eliminating the trigger for contamination levels; and clarifying the minimum requirements for when an ALARA plan must be written, to help ensure consistency among ORNL’s facilities. The reader might think that I was gratified to see these recommendations, echoing as they did several of my expressed concerns. (I believe that in fact it was my writeup that brought them all to DOE’s notice in the first place.) But actually I was upset. The team were in effect signaling that there was something disturbing in how these things were handled, particularly the change in triggers, but they either soft-pedaled the discussion of them in the main text or did not mention them at all, and they proposed them only as recommendations. This let UT-B off the hook completely: these were only technicalities, needing only a little brushup to be perfectly presentable.
My writeup to DOE had clearly informed the audit process (as the team had told me when we met), but it was not listed among the reference documents at the back of the report. A document called “RSS Self-Assessment Observations 2000” was listed as “undated, unsigned”, a characteristic which I thought was typical of RSS documents and which was a point of concern for me with respect to RSS’ doing operational and, especially, design reviews. A printout of the ORP Suggestion Box was on the reference list, so they must have seen the derogatory comments RSS people had made about AEG, but they did not comment on this at all. The report by the PNNL person who had visited us before UT-B took over — and that even Sims, month after month, was not allowed to see — was in the reference list, yet they made no mention of it at all. Also in the references were a number of E-mail messages and meeting notes provided by Paul Gubanc, the Defense Nuclear Facilities Safety Board rep that I had talked to about Building 3019 and related matters, but I don’t think they quoted him at all in the report. Geber and I were listed as “ALARA Engineers (2), formerly with the ALARA Support Team”. We were never in any entity called “the ALARA Support Team” and of course the report did not mention that we were laid off. The team listed two “work activities” they observed, the replacement of a beam tube at HFIR and a californium-252 transfer from Building 7920 to Building 7930. (I felt rather envious: I had never gotten to see a beam tube transfer, although I had done beam tube reviews for AEG and RORC, because such changes were done at intervals of many years, and I had never gotten to see a Cf-252 transfer because I had been shut out of REDC when I was its rep.) No details of either of these observations were given.
The main text of the team’s draft report ran to about 8.5 pages; each assessor thus accounted for an average of less than two pages of text. Counting the executive summary and the document and person reference list, the report was 14 pages long. It seemed clear that the DOE team had not investigated the various incidents I had reported; they implied as much in the report. Instead, as they stated explicitly, they had merely looked at the rad protection program as it existed at the time of their visit. They seem to have looked mostly at “the paper”, i.e., they had looked at some of the procedures and rad work permits, and they had interviewed various members of the rad protection staff. Also tellingly, they interviewed supervisors and managers of the rad protection organization, but the only rad techs and rad workers from other divisions that they interviewed were those put forth by UT-B management (I only suspected this at first, but it was confirmed later by someone in a position to know.)
I Comment on the DOE Assessment Report
I had skimmed through the report rapidly at first and then called team leader Perry to express my dismay. I told her I believed that she and her fellow team members had not known where to “dig for the bones” and that they focussed on the rad protection program as it was at the time, and not on the events of the past and their impact on the present. As in our previous interactions, Perry was cordial and gracious. She told me that it was possible that they had not known where to dig, but they had all worked very hard and had tried to be fair. I replied that I was sure that they had, within the limitations under which they were working. Perry told me that with regard to the retaliatory acts, there was a report being prepared separately that was to be joined to the draft rad protection report.
So based on my talk with Perry, I attributed what I viewed as the deficiencies of the report to the team’s inexperience or lack of understanding of operational rad protection. But then I studied the report again in detail — and came to a different conclusion. As I told Perry in a 14 March 2001 letter, I thought that the report showed a possibly willful understanding of the facts of the matter. I based this conclusion on the careful wordsmithing that appeared to have been done and particularly the statements apparently quoted whole-hog from UT-B responses (and not identified as direct quotations). I also based it on the way that major statements that I had made were acknowledged in the report but then dismissed with little or nothing by way of discussion or explanation — sort of in a “We have to mention this to convince people we considered it, but we really don’t have a rebuttal for it”. In my letter, I pointed out to Perry that I had provided additional information to DOE orally or in writing after my layoff, including the information from my fellow layoffee about irregularities in the ORNL P-AAA program. I noted that no member of the team had gotten in touch with me with a single followup question, nor did they ask me for copies of any memos or other documents that supported my statements. I also noted that I had not had a chance to hear about and rebut any statements made by UT-B, while they certainly had such an opportunity to do so with regard to statements by me.
In particular, I pointed out to Perry that the team admitted that they had not attempted to validate the accuracy of the deficiencies found in the Geber report, yet they had concluded that the deficiencies did not appear to have had any adverse effects on safety. I said that a person familiar with work planning had to ask how the team could tell this. I noted that the report was not detailed enough to indicate how a basis was established for making a 10 CFR 835 compliance determination and that the team had blessed the ALARA program without any reference to DOE guidance documents or to specific program areas and how they met the 835 requirements — i.e., there was no analysis done in these two topical areas at all. I told her that while I understood that the DOE Office of Hearings and Appeals (OHA) was handling the formal investigation of the retaliation against me, I thought that it was relevant to the team’s evaluation of the ORNL rad protection program to examine how internal concerns were handled within ORNL, especially since the same ORP managers were in place. Besides, the OHA people were not technical people, so the assessment team’s take on the retaliatory acts might have informed the OHA investigation, especially in the context of how a rad protection program should be conducted. Perry had told me that the retaliatory acts were to be covered in a separate report to be joined to the main one, but the draft spoke of that other report as if it were completely separate. I thus concluded, I told Perry, that presumably any discussion of retaliatory acts was to be held separate from the discussion of the rad protection program, which I regarded as undesirable and unfair since the retaliatory acts — such as the personnel reassignments — could be hindered or facilitated by the structure and management of a rad protection program. I pointed out that the retaliation could also have a chilling effect on the candor of the workers and rad protection peons. I stated that I thought that the team should reopen and revisit its assessment and that it would be well worth the time it would take. I concluded, “I believe that you will be setting a bad precedent if you in effect condone the many violations of procedures and possibly of 10 CFR 835 and worse, of proper safety philosophy as espoused by DOE itself”.
I attached a set of specific comments on the assessment report, to inform the team as to exactly where I thought they had missed the boat. I will not repeat here those comments already given above, but my other comments are given in the paragraphs immediately below.
The assessment team had not been going to interview Mlekodaj (despite his important, long-term role in the ORNL rad protection organization and his involvement in the events I reported) until one of the team (Parks, I believe) remembered having met him years earlier and suggested it to the others. The near-failure of the team to speak with him suggested that the team was willing to examine the situation in terms of UT-B’s self-descriptions and on its conduct at present, rather than looking at how the unaddressed failures of the past might be setting up failures in the future. Calling the various violations of procedures “technical noncompliances” was inaccurate because that term usually denotes a minor and inadvertent failure to meet the requirements of a procedure and the violations were neither minor nor inadvertent. Also, the report stated that OSSD was noncompliant, not line management; while I thought that OSSD bore a lot of the blame, the responsibility — in the team’s and UT-B’s own words — was line management’s to have the reviews done.
If the team did not understand how work was done and how, e.g., sudden uptakes might occur, then they might indeed conclude (erroneously) that “there were no instances where worker safety was lessened due to procedural noncompliance”. At other sites, reviews were done as a matter of course (when triggered) and so not having the review done was taken seriously; at Hanford, there had been a P-AAA violation finding that even though a (bad) practice does not result in a high dose (over the period examined), it is of concern if the potential is there. An example of something the team could have checked (as an indicator) was whether a dose estimate had been done for all but routine low-dose jobs.
From the way the assessment team used the terms “flexible” and “field experience”, it was clear that the team did not understand what these terms implied in the way of work planning, especially as used (or misused) at ORNL. I quipped, “They can’t call you inflexible if they never call you”, but stated more seriously that for ORNL “flexible” should be read as “accommodating” or “permissive”. The implication that those who protested the move from “being in charge” to “being a service” were rigid people who just could not convert from being the “rad police” to being “servants of line management” was dismaying. We rad engineers had never had “police” powers anyway, but more to the point, we simply objected to the idea that line management had sole decision making power regarding what was “safe” and that an O&R manager was allowed to exercise his personal judgment as to interpretation of rad protection procedures — i.e., it was not a question of inflexible safety peons, but of an O&R management bent on achieving operational goals. The implication that the problem was inflexible personalities among the safety peons was a “blame the victim” technique — it implied that if the peons had been more cooperative, the violations would not have occurred, which of course was nonsense. Similarly, the implication that rad engineers were requiring “elaborate radiological engineering changes” was a canard — no examples were given and I disputed that any such overkill measures had ever been proposed; rather, this was a plausible-sounding but unsupportable aspersion cast on AEG.
I said that self-assessment was the biggest fraud to hit the regulatory world in years: human nature being what it is, unless there was a strong regulatory oversight, there would be widespread covering-up of even major problems until they were revealed to the regulator through significant incidents. The ORNL oversight group headed by Jan Preston did not appear to have even one rad protection specialist (the one person who had any such experience having been laid off). But anyway a retrospective look, as provided by the oversight group, was not an effective mechanism to ensure accountability or safety; it should be contrasted with the RP-310 review, a prospective look, which, however, would still not be effective if O&R management controlled the safety organization. DOE should be providing the primary oversight also; I even coined my own aphorism to go along with this: There is no true regulatory authority where there is no true regulatory oversight.
DOE provided UT-B with a copy of my concerns writeup to DOE on about 22 November 2000, while the RP-310 version cited as containing “enhancements” was dated 30 November 2000. Obviously, UT-B had had time to quick-fix the procedure. With the assessment team essentially focussing on that two-month-old version as being the “reigning” version of the procedure, the long periods of time when earlier versions were applicable were ignored. The only explanation given in the report for claiming that the ALARA program was successful was that ORNL had established “radiation control levels and guidance far below regulatory limits” (the report even attached a copy of the Rad Safety Bulletin announcing the levels) — but that was true of every site, even those at which major incidents had occurred. The assessment report indicated that ORNL’s keeping its individual doses below 1.5 rem when the statutory limit was 5 rem was not really the triumph that the report suggested, because DOE required that a site limit of under 2 rem be set, to be exceeded only with DOE-HQ’s permission; the 1.5 rem was thus about the highest it could be set and so was not challenging in the sense of being a choice. The report’s statement that there were no P-AAA implications was not credible, e.g., they did not ask to speak to my P-AAA informant about the irregularities of that program with respect to rad protection. It was unlikely that the OSSD P-AAA officer was going to rat on, e.g., Sims. Also, I had spoken to DOE’s Mark Robinson, who had brushed me and Mlekodaj off by saying that he could not look at the violations unless they were clearly 835 violations (i.e., in effect, unless somebody at ORNL declared them to be such). The team had averted its eyes from 835 and P-AAA issues.
Decisions had been driven down to the tech level. The report in effect blessed having the reviews done by rad techs — the implications of which I thought the assessment team might have lacked the (operational) experience to appreciate. I had been told by an informant still working at ORNL that after Geber and I were laid off, the complex leaders and Slaten were doing almost all of the operational reviews because Mei and Utrera were too busy. (I did not remark in my comments, but will remark to the reader, that in this way the complex leaders and Slaten were provided with financial support that formerly went to AEG.) There was evidence (again, I was told this by a reliable informant) that the complex leaders were not actually charging for their reviews since they started doing them; that is, if the HFIR complex leader did a review for REDC, his time would be paid for by the surcharge (overhead charges) on his HFIR rad techs (as usual), while if the REDC complex leader did a review for HFIR, his time would be paid for by the surcharge on the REDC techs. The net effect was that HFIR and REDC paid no more than if the reviews were not done at all. Thus the assessment team had erred by not examining whether the motive behind the expansion of the reviewer pool was to help the financial situation rather than to promote “flexibility”, etc.
Opening the reviewer pool to perhaps 15 additional people (more if rad techs were included) meant that each might do only one or two reviews a year, instead of the one or two a month done by an AEG reviewer previously. There was no explanation given in the report of how ORNL rad techs’ having allegedly higher qualifications than other sites’ rad techs supported ORNL’s having higher trigger levels than other sites — it was just asserted. The assessment report stated that the position descriptions were undated because these could be found on the Web and so should date from the last date the respective Web pages were revised. But my own copies, which dated from well before the exemption was issued, showed that the descriptions for the various rad tech, complex leader, and group leader positions included the ability to perform operational (RP-310) and design (RP-128) reviews; this suggested that long before the exemption, RSS intended to have rad techs and their supervisors be allowed to do these reviews. Nobody in ORP had been using the word “independent” until I did — it was a term familiar to me from my nuclear power plant design days and from my RORC work with HFIR — but the term was fuzzy as used in ORP.
The team was essentially saying in their report that the past tolerance by rad protection managers of the various violations had no bearing on DOE’s trust of the same managers to run the program in the future. The retaliation against Geber following the production of the Geber report was not mentioned in the report at all, even though this sort of thing would obviously have a chilling effect on people’s willingness to document deficiencies, even when their supervisors told them to. The team appeared to accept UT-B’s de facto position that it was okay for O&R management to make personnel assignments in rad protection — an amazing position for DOE to agree with if DOE actually subscribed to the notion that the safety organization should be independent and not unduly subject to O&R pressure. I thought that it would be distressing to many workers around the complex to hear that DOE was openly espousing this UT-B position. The team implied that the violations involving whether a series of operations should be reviewed as a campaign or not (at Level 3 or above) was due to confusion about the definition of a campaign, when in the resin job case the complex leader admitted that they knew it was a campaign but they had written RWPs so as to avert reviews and to exclude me and RRD’s (HFIR’s) rad control officer.
One reason DOE had given for picking UT-B to run ORNL was that Battelle had established a template at PNNL. So why should it take UT-B three years to implement a standards-based system — why should it take that long for UT-B directors to determine what a “program area” (such as rad protection) is supposed to accomplish and to allow managers to decide how to reach the objectives? (Besides, at the time UT-B took over ORNL, they said that ORNL wasn’t broken and didn’t need fixing.) If DOE bought off on the three-year grace period before any ORNL program could be regarded as completed, then DOE would likely find that it had allowed UT-B to use the “we are in the process of change” excuse for any and all procedure violations, incidents, etc. The impression that the team bought off on it was strengthened by their repeated use of the “maturing” and like “in-process” expressions.
I explained to Perry et al. that my understanding of SBMS (again, based on information from an informant) was that it was a highly procedure-based mode of operation. But it seemed to be an approach that allowed reduction of reliance on “experts” (for which read “professionals”) and increased reliance on persons with much less training and experience, which was accomplished by completely specifying all actions to be done and leaving little or nothing to the judgment of the person involved. Advocates of this approach tout the reduction in the possibility of error but often mention only in passing the labor cost reduction. The disadvantage that a seasoned safety person would see in this practice is that people who are trained only on a procedure, without any broader understanding from training or experience, tend to misinterpret or ignore anomalies, e.g., attributing unexplained monitor signals to false alarms. I had been told that this was the method used by the Navy, but while use of SBMS might be practical and effective for a mostly tried-and-true set of predetermined actions done as part of routine or at least well-tested activities, as is true of most worker-level naval activities, it was not advisable, on a comprehensive scale, for the type of research, operations, and D&D work done at ORNL because of the multiplicity and often unpredictability of many hazards. It was notable that the assessment team did not appear to understand or even care why other sites used rad engineers the way they did, had their trigger levels set as they did, and had their rad work reviews set up they way they did. The tendency of the team to take UT-B’s word for so much and to declare that there was no problem without examining any cases involved put me in mind of the ancient Chinese doctors, who were not allowed to examine high-born female patients to make a diagnosis; they could not even look on the face of a noble lady, but could only take her pulse as the lady put her arm out from behind a curtain. I thought that the team was making their diagnosis while the patient was behind a curtain.
As can be seen from my comment summary above, I was highly critical of the team’s efforts. I did not want to tick off the assessment team, but I felt that if I did not provide a strong and complete commentary, it would be easy to ignore my comments. To support my contention that the assessment report was mostly a whitewash for ORNL, I included the following. Sims himself told ORP people that he had granted Chem Tech the exemption because he was financially pressured by Chem Tech. Yet Scott, in her response to me, said that Sims told her that he had not experienced any such pressure. However, Sims told the assessment team that he had been pressured. Thus Scott had been caught in a lie (because Sims would surely have told her the truth about the matter). I noted that in our 21 February 2001 telephone call, I had told Perry that I had heard that Sims had told them this and that Perry did not deny that he had. So, I said in my comments on the report, it was clear that the team did know what the true reason behind the granting of the exemption was, yet the assessment report did not include any statement about the financial pressure, including that mendacious statement of Scott’s.
I sent an E-mail message to Perry on 2 April 2001, asking when the report would be made final. I also said that when Mei and I had talked a week earlier, Mei had told me that there was an error in the draft report. That is, she was quoted in the report as stating that having others besides the AEG group do the RP-310 reviews had no impact on the level of safety. She told me that what she had actually said was that she could not tell if it had an impact. This was because she was not informed as to who (besides AEG) was doing what reviews when and she did not get to see any reviews other than AEG’s. Thus, she said, she couldn’t evaluate the reviews that others did. I pointed out to Perry that Mei had said that she had made this clarification to the assessment team as a comment on the report, but in the second draft (note that I saw only one), it was still not changed. Mei hoped that it would make it into the final draft.
Of course I knew that DOE would not reopen the assessment, but I thought the team might strengthen some of their conclusions or talk to me again. No such luck. The final report, signed by Perry on 28 February 2001, was sent to me in the first week of April 2001. The wording of the final report was virtually the same as the draft, with a few significant exceptions. First, instead of six suggested “enhancements” there were only five: “Document the technical justification for [changing] the 1 rad/hr [and] removable contamination
[trigger]
levels to 5 rad/hr and with no trigger for contamination levels” had been taken out. Second, it was stated that Scott and Hunt said that they had not seen the Utrera report prior to this assessment (which I found incredible). Third, a sentence had been added to state that UT-B “now has in place an internal tracking mechanism (OSSD LIDS) that allows items from self-assessments to be entered…the assessment team did not evaluate the effectiveness of the OSSD LIDS system”. Fourth, one significant statement was changed: that based on reviews of the ALARA (RP-310) reviews that had been performed and on the statements of Mei, it was concluded that the adequacy and sufficiency of the reviews was not degraded by using non-AEG reviewers. Fifth, the sentence “Working relationships between the OSSD complex leaders and the AEG have been a factor affecting the level of AEG utilization” had been added after the existing “…areas of effective working relationships between the RSS complex leaders and the AEG that continue today”. Finally, some new references were added: about twenty more RWPs (plus the three or so already referenced), the list of comments on RP-310 and RP-128 during the revision of late 1999 to early 2000, and an E-mail message from Hunt to Beierschmitt on the subject of Building 3019 dated 30 October 2000 were now included.
Why had DOE thought that it was not appropriate to recommend that a technical justification be provided for trigger levels that were admittedly higher than anybody else’s? This was especially galling to me because as I stated earlier, I had written one for our original trigger levels years earlier and put into my ALARA program files against the day that it might be needed. Mei wrote a justification for her position down when she argued against the raising of the triggers to Sims. But no written technical justification for the raising of the trigger levels was ever generated, even though this was arguably a change that reduced the “margin of safety”. And when was the OSSD LIDS system added? It seems likely that it was added during or after the review, when OSSD realized that its exceedingly informal system of tracking changes was not going to pass muster. The team appears to have been too tactful to note or perhaps even ask when the LIDS system started. (I can’t tell you what LIDS stands for since it isn’t on the assessment report’s list of acronyms and it isn’t defined in the text.)
The statement about how reviews of ALARA reviews and a talk with Mei led to the conclusion that the level of safety was not degraded by using non-AEG reviewers was changed to “….interviews with OSSD members”. That is, since they could not truthfully quote Mei as having said that, they then cited “members” who were not named even by title; also they did not include what Mei’s actual opinion was. (The reader should understand that nobody is actually named in the report except the assessors; everybody is referred to by title. But it is clear who the management people are because their titles are unique.) This weasel-wording was very troubling because it suggested that there was a desired conclusion to be reached and if it could not be reached one way, it would be reached in another.
The statement about working relationships between complex leaders and AEG having been a “factor affecting the level of utilization” is interesting because the report gave no details of these relationships, whether they were good or bad or what or how they affected “utilization”. The reader is left to infer that the two groups did not get along. The reader would likely guess that poor inept AEG, with no people skills and no field experience, was the problem; this would be the logical conclusion based on the various delicately phrased dirtballs cast at AEG in quotations or paraphrases of statements by the OSSD chain from the complex leaders up to Scott, while there were no such quotations about the interface from, e.g., Mei or Mlekodaj. Not only that, putting in the statement about the (bad) working relationships right before the one about the “areas of effective working relationships….today” implied that the bad AEG eggs — Geber and I — were gotten rid of and the more effective eggs — Mei and Utrera — were continuing their relatively good relationships. Perhaps the team did not consciously mean to imply that, but it nevertheless does not take much subtlety to infer that that was the point of the one-sided quoting.
The result of this so-called investigation of my concerns was that DOE blessed ORNL’s rad protection program without specifically addressing or refuting my concerns in any way and especially without discussing any of the cases of violations that I cited in any detail or any of the instances of retaliation or harassment. This provided UT-B with cover for all their past actions and it would allow UT-B to claim that my rad protection concerns had been investigated by DOE and were without merit. It also provided DOE with cover for their past blessing of ORNL’s ISMS program, 835 implementation, etc. I was distressed at DOE’s whitewashing UT-B’s conduct in this way and at DOE’s apparently allowing them to continue operating as they had been.
DOE Investigates, Part II: The NIC Report
Either the inadequacy of the DOE team’s work or my rebuttal had an effect, because DOE-ORO’s Rufus Smith hired a company called National Inspection and Consultants, Inc (NIC) to look into the specific issue of ORNL’s handling of safety concerns, as he informed me in a letter dated 5 April 2001. When I called him up to inquire about it further, one of his people told me the following. The investigative scope of the DOE team’s assessment had shifted from my concerns to a general rad protection program audit, which was not what Smith had asked for. So he hired NIC to do an independent audit. I inferred from statements Smith had made that he was concerned most particularly by ORNL’s ineffective Office of Employee Concerns; he was troubled by the way that weeks and months dragged on after I first went to ORNL’s Employee Concerns office and nothing was ever resolved. The two-person NIC team consisted of R. S. Benedict, who specialized in looking into employee concerns programs, and D. A. Nichols, a rad protection manager at a nuclear power plant. They had less than a week to look at ORNL (I believe that Nichols had only two days total, in fact). Benedict interviewed me on 29 May 2001. He stated that a principal focus of his investigation was how employee concerns were handled at ORNL and another was the issues of independence and retaliation that I had raised. I met with both of the NIC folks on 1 June 2001. They told me that they had just finished interviewing the ORNL people; they said that because of the very short schedule, their interviews with ORNL people were one right after another and the interviewees blurred together in their memories.
Smith sent me a copy of their final report. In it, they stated that they had interviews with “randomly selected” OSSD members and “customers” of OSSD, but they qualified this by noting that the “randomly selected” people were selected by UT-B. Curiously, in the investigation methodology there was no listing of any ORNL Employee Concerns documents, e.g., any tracking forms or resolution proposal memos originated by Employee Concerns. They identified three “weakness areas”: procedure guidance and application, UT-B management’s focus on satisfying the customer, and the creation of a chilled environment. They noted that they could not look at every example, anecdote, and inference I had made, but they thought that that was not necessary. They stated that I had agreed that the four main areas of concern were rad protection procedure violations, removal of reasonable requirements from the rad protection process, undermining of the independence of the safety organization, and retaliatory actions taken against safety people by operations people, which I had. But they said that I had made “no specific allegations” to them “directed at an individual, individuals, or work group as relates to this specific concern [sic]”. I thought that that was surprisingly off the mark based on what I had told them. They said that I said that the “big picture issues” drove my concerns and not the specifics or examples. I thought that this was off the mark as well: I had indeed said that the safety of the workers was my main concern (otherwise I could just have looked after myself, keeping my head down and keeping my job). However, I think they were referring to a statement I had made to Benedict that an individual violation of a procedure, in isolation, was not important, especially if inadvertent, and there was no need for anybody to be clobbered for it if the underlying cause was corrected. I thus felt that my point about the chronic violation of procedures seemed to have been missed insofar as considering specific examples that formed a pattern was concerned.
The NIC team was very emphatic about one thing that they thought had a significant impact on their investigation: “the presence, at all interviews, of UT-Battelle’s Associate General Counsel”. They said that through the many years that NIC had been involved in conducting Employee Concerns investigations, independent investigations, and program assessments, this was the only instance of a management or legal representative being present. UT-B sprang this on NIC on the last working day before the investigation was to start. Startled, NIC and DOE personnel had discussed this. While DOE agreed with NIC’s position that the presence of such a management/legal rep “was not a prudent decision, in that it could create a “chilling effect” on interviewees”, in the face of UT-B opposition, DOE gave in and let UT-B have its way, as the NIC people told me. Thus the NIC team concluded that “interviewees were not willing to venture into any area of controversy in the presence of management” and the team believed that “a Chilled Environment existed throughout the course of the interviews”. In their report, they quoted UT-B motherhood statements about how all individuals could raise concerns and make disclosures without fear of retribution, but the team said explicitly that the chilled environment did not support these statements.
I was disappointed that with respect to the rad protection program, the NIC team concluded that procedure violations had occurred and would undoubtedly continue to occur, but this was normal because UT-B “employs a number of personnel, working in an extremely wide range of activities”. They stated that they thought that UT-B rad protection personnel were “candid” in discussing the types and nature of violations and their actions in dealing with violations. They said that the rad techs were “consistent” in stating that they had stop-work authority and could remove workers from a job if necessary, could write Radiological Event Reports (RERs), etc. The rad protection organization could track and trend the RER information “and appears to have the organizational access to provide guidance and direction to the company to correct negative trends in radiation protection”. The team said that they saw no indications of deception or efforts to conceal information related to violations “by the rad techs interviewed”. (By the wording of the paragraph in which this last statement occurred, it appeared as if they were talking about violations by the rad techs themselves, but it could just have been faulty grammar.) I thought that the people they should be talking to were the complex leaders and group leaders, less so than the rad techs themselves. Also, by not looking at the examples I had put forward and asking the techs and complex leaders involved about those specific instances, the NIC team was missing a bet. (E.g., Roger Davis squirming when I taxed him about lying to me about the strainer job.)
The NIC team looked at five randomly selected occurrence reports: one from REDC, one from another Chem Tech facility, one from HFIR, etc. They noticed that in two of the five reports, the actions taken to preclude recurrence did not closely match the root cause. In addition, the level of detail was in most instances minimal, which they said would lead an outside reviewer to question the adequacy of the assessment of the occurrence. There was also no indication of lessons learned information being provided to personnel or incorporated in future work in the same area. With regard to “new, temporary craft personnel”, this was one area that the rad protection personnel agreed on: they noted increased (but unspecified) problems with them, apparently related to lack of training. The team pointed out that the rad worker training was not administered by the rad protection organization, but the rad protection staff should be providing input and examples. As I noted earlier, rad worker training had not been part of ORNL ESH&Q for years before UT-B took over.
The NIC team performed only “a cursory review, as time allowed” of the rad protection procedures. They noted no instance where the rad protection procedures did not meet the minimum requirements of the applicable regulatory guidance, no instance where regulatory requirements had been removed from the procedures. The ORNL rad protection people told the team that when in doubt, “they err on the side of conservatism”. I thought that the rad protection people, whoever they were, were not being candid; it seemed clear to me that if the O&R people wanted a job to keep going, it would keep going. Also, while the tech could stop work, it was procedurally the O&R people who determined when that it was ready to start again, a point the NIC team appears to have missed. The NIC team concluded that since the “standards” (regulatory requirements) were very conservative, even meeting the minimum standards assured “the greatest margin of safety”. This seemed very vague to me and I wondered if the NIC people were thinking that 10 CFR 835 and its ignored guidance were equivalent to e.g., 10 CFR 20 and the associated Reg Guides. Also, they did not seem to be aware of the difference that would be made between having DOE oversight and NRC oversight (i.e., the licensee was more likely to conform to guidance as best practice than were sites in the more minimalist and informal DOE world). However, the team said, they found some problems in the procedural area that if not addressed, could contribute to “a significant and unacceptable weakening of the program”.
One problem they cited was that no guidance appeared to exist to date on how to conduct an RP-310 review, which left it up to the individual to decide how detailed the review should be. Without clear guidelines, some people could simply check yes or no on the checklist and others might provide information on each and every item; “this could have lead, and probably did lead to problems associated with the idea that some people put too much information into reviews”. I think that the NIC people saw the checklist at the back of RP-310 and did not realize that this was not always in the procedure and in fact was not usually used (because the AEG reviewers would know what to look at as a matter of course) until the non-AEG folks started doing reviews. Thus they jumped to the conclusion that the “too much information” issue was due to over-documentation using the checklist. I would bet that their informants were not specific as to what “too much information” meant — this was another one of those “AEG people live in an ivory tower, not the real world” accusations that could have been resolved by sitting down with a real documented review and asking the accuser just where the excess information was. I thought the NIC people, not being provided with specifics, were trying helpfully to come up with an explanation for the “too much documentation” allegation, instead of pressing the interviewee to explain it; nevertheless, I found their efforts to analyze and make sense of what they saw and heard, rather than simply to quote what they were told by the auditee (as the DOE team seemed to have done), to be commendable.
Another problem they identified was the use of should statements. As they noted, while the should statements provided guidance to the user, they also allowed latitude by the user and implied that the user had “appropriate knowledge to make an informed decision”. Since the planning and review of rad work could be performed by a significant number of people at ORNL, they questioned how UT-B made sure that all the reviewers were trained or qualified to make the proper review decisions. UT-B management told them that the issue was being discussed, but the NIC team found no definition of qualifications required, no list of qualified individuals, and no documentation regarding training of such individuals. They recommended that UT-B expedite the production of guidance as to how to conduct a review and the training of all reviewers and all levels of their managers. All this would “provide for consistent product”.
The NIC team also noted that prior to 17 April 2000, RPP-110 (the overall governing procedure) provided specific definitions of “shall” and “should”, with the definition of “should” including the requirement that if a facility did not follow the should guidance it had to demonstrate technical equivalence by an alternative method. When the revision of this procedure was put into place as of 17 April 2000, the definition of “should” was changed to say that while “should” designated a preferred method or measure, it was not considered mandatory. The team recommended that UT-B review all applicable work projects prior to 17 April 2000 to ensure that if the “should” provisions were not met, the alternative method was documented. They also recommended that active projects be reviewed for current degree of safety and completed projects be reviewed for program compliance.
The NIC team stated that DOE had shifted to requiring that the line organization be responsible for safety. They said that “of major concern” to me was the shifting over time of the responsibility for ensuring the performance of rad reviews and related rad protection activities from AEG to the larger rad protection organization and management; further, they said that I saw the shift as an undermining of the review process, in that the responsibility might no longer be wholly independent of other considerations. So the team said that the issue was one of differing professional opinions: that I saw AEG as the “the only logical place for all reviews”, based predominantly on education and work experience. They concluded that while “we cannot disagree with [Westbrook’s] position”, they could not find fault either with “the current method of doing business” because regardless of where responsibilities were assigned, UT-B retained ultimate responsibility for the rad protection program. Thus “within the broad guidelines allowed [by DOE?], a range of approaches could be equally successful”. I did not think that the NIC team (unlike the DOE team) ducked any issues but this one. I think that I was misquoted, in that I had not said that only AEG could do any and all reviews; rather, I emphasized that these reviews had been the province of AEG for good reason and so to change this should have required more than the mere stroke of a pen on paper. Also, I had not disputed that O&R management was responsible for ensuring that the reviews were done (or why would I have faulted them for ducking reviews?); rather, I had disputed that O&R management should be deciding for themselves whether they needed to have reviews done and whether they should be picking their own reviewers. But beyond that, the NIC team did not connect the dots in their summation of this issue, i.e., they did not connect having O&R management be responsible for safety to ensuring that reviews were done to deciding when reviews would be done and deciding who should do the reviews. They did not mention the issue of O&R management picking their own reviewers at all (except as noted below). It was thus not clear why they “could not disagree” with my position but yet not find fault with the current method of doing business.
The NIC team noted that qualifications for performing rad reviews were not specifically identified; they said that they were told that the responsible line manager or rad protection management knew the personnel and would assign the review to a person qualified to perform it. They thought that this allowed for the possibility of that “an unqualified or insufficiently knowledgeable person might be called upon” to perform a review. They also found no screening guidance, beyond a general statement in RP-310, to aid line managers in determining whether a rad protection review was needed for a particular job. (I think here they overlooked the trigger table and some vague but applicable statements in the text, unless these were removed from the procedure after I was laid off.) So the NIC team recommended that UT-B establish qualification guidelines, a list of individuals qualified to perform reviews, and screening guidance to line managers. (The reader will recall that the procedure had been progressively revised to open up the reviewer pool and eliminate as many specific requirements as possible — explicitly in order to accommodate the line managers’ need for flexibility and operational expedience.)
Regarding retaliation, the NIC team stated that in their interviews with Hunt and Sims, these two stated that “they would not hesitate to remove an employee” from a position if the customer was not happy with the service being provided by that employee. The team said that they had to question Sims further before he allowed that he “might” look into the issue, but he stated that he would probably remove the person anyway. Scott told the team that her management philosophy was providing the best service to ORNL and “responding to the needs of the labs [Lab]”. The team noted that this focus on satisfying the customer and providing him with the best possible service was a recurring theme they heard throughout the interviews. While these themes were “a reality in today’s business environment”, they noted, groups that provided “oversight and protective support”, such as Safety, Rad Protection, and Quality Control were placed in a “particularly difficult” position in this kind of work environment: they had to balance holding the line on safety and protection while still reasonably meeting the needs of their customers. This was not an easy task, the NIC team noted. They concluded that the focus of the rad tech they interviewed was maintaining the safety of the workers, while the focus of rad protection management was on satisfying the customer.
The NIC team said that determining whether or not the rad protection people I cited as having been retaliated against for simply doing their jobs would require an in-depth investigation of each example, plus a detailed assessment of any similar occurrences; this was beyond what NIC had contractually agreed to and so the team was not able to do this. However, the team concluded that rad protection management had created “a situation where the perception of satisfying the customer is their number one priority” (underlining NIC’s). This perception, they continued, could and might already have had a very negative impact on the rad protection organization: “Gone unchecked, staff personnel could relax standards to keep their jobs, and unscrupulous customers could simply have RP personnel removed who did not bend to their wishes” (underlining mine). Thus the team stated that UT-B rad protection management needed to take immediate steps to redefine to their personnel and their customers “the priorities relating to rad protection, personnel safety, and customer satisfaction. Further, the team said, “it is expected that processes be put into place to thoroughly investigate “dissatisfied customer” situations before OSSD personnel are removed from existing positions”.
The team reiterated that they thought that the presence of a management/legal representative during interviews had a chilling effect on interviewees. Based on the “apparent disregard for chilling effect impact on interviews” that UT-B exhibited, the team was very concerned about the likelihood of a chilled environment on a larger scale within UT-B. They added that the belief in a need to have the management/legal rep present conveyed to an outside assessor a sense that UT-B might have things to hide. Hence they recommended that UT-B immediately undertake an independently performed assessment of the work environment that focussed on the chilling effect, with subsequent corrective measures as necessary. They also recommended that UT-B discontinue having a management/legal rep present during employee interviews.
The team thought that the rad techs and rad protection staff they met were knowledgeable and dedicated to maintaining safe work environments and that the rad tech training program was strong. Everybody expressed a willingness to use the chain of command to resolve problems. However, the team thought that awareness of other methods of issue resolution besides going to DOE was not strong. Some people said that they guessed they could go to the Ethics Officer or Employee Concerns or the Ombudsmen if they had an issue. But every person had to be pressed for responses and none expressed an understanding of which avenue to use to resolve which issues. So the team recommended that UT-B revisit its methods of conveying this type of information to employees and consider alternative approaches of increasing employee awareness. Discussion with Scott indicated to the team that only minimal training had occurred at the management level related to process and procedure system changes. So they recommended that UT-B seriously consider providing training at all levels on the what and why of the changes.
Unlike the DOE team, the NIC team thought that RPP-110 granted Sims the authority to make exemptions. But they did not go into the question of the then-limitation on his authority to make exemptions on “shalls”; they thought that the exemption memo written by Chem Tech contained the information required by RPP-110, i.e., a written justification. They also noted, however, that the procedure stated that the division director requesting the exemption was supposed to make sure that the alternative was documented in the facility procedures and the justification was kept on file in the division offices. They recommended that UT-B conduct a further review as to whether this was done and whether it was incorporated into training as necessary.
As can be seen from the summary above of the NIC report observations and conclusions, the NIC team did not agree with my position in every particular. Still, in instance after instance they noted the same weaknesses that I had and they recommended measures to track and correct them. Of particular note were weaknesses in the occurrence report writing; lack of guidance as to how to conduct RP-310 reviews and what the qualifications should be to perform them; lack of specificity in the shoulds; and the near-obsessive focus on customer satisfaction and lack of protection of safety personnel. I was particularly pleased that they seemed to zero in on the “Stepford wife” behavior of the safety managers and the control-freak behavior of UT-B management. Even so, I was surprised to hear that UT-B had their lawyer at the interviews. UT-B had come to seem very reckless and arrogant to me, a company that was not careful about hiding its tracks or even seeing the need to put a spin on much of what it was doing. Still, insisting on having your lawyer present at interviews that were part of an independent assessment seemed bizarre. I was appalled that DOE allowed it — it flew in the face of all of DOE’s fine words about protecting people who raised concerns or who were even asked to be frank about problems. At my whistleblower retaliation hearing (described below), UT-B’s lawyer claimed that each interviewee was told that the lawyer need not be present during the NIC interviews if the interviewee requested that he not be and that the interviewee could have a separate talk later without the lawyer’s being present. The UT-B lawyer claimed that the report did not reflect this UT-B offer. However, the NIC team did not appear to have been told this, despite the UT-B lawyer’s claiming they had been; even if that were so, as Rufus Smith and others later remarked, that still would result in a chilling effect, since an interviewee could fear that he would be regarded with suspicion and as not a team player if he asked to talk without the lawyer. This observation appears to have been borne out by UT-B’s own admission that nobody requested to speak with NIC without the UT-B lawyer present.
I do not believe that anything ever came of this report. That is, I don’t know of any corrective actions that DOE required of ORNL in terms of improving their safety concerns reporting program or of “recalibrating” the Employee Concerns/Ombudspeople like Buttram and Stow. At the time of this writing, I believe that Buttram and Stow and of course Scott, Sims, and Hunt are all still working for UT-B.
DOE Investigates, Part Three: DOE’s Review of ORNL’s P-AAA Program
In late June 2001, the DOE Office of Price-Anderson Enforcement (OE) reviewed ORNL’s P-AAA program. The 24 July 2001 letter from the DOE-OE director, R. Keith Christopher, to Madia reporting the results of the review did not indicate whether or not this was an ordinary periodic assessment or whether it was occasioned by specific concerns. So I don’t think that it was prompted by my complaint, but one never knows. In any case, it appears to have been only a pro forma or “just for practice” review since Christopher stated that no reply from ORNL was required and he did not say that any followup visit would be scheduled. This seemed surprising in light of what was said in the letter and its report.
Christopher said that while ORNL’s P-AAA program had written procedures, training of the various people involved in P-AAA activities, etc., there were some “areas for improvement”. “Of particular concern” was the checklist used in screening potential P-AAA noncompliances: if the checklist was strictly adhered to, then potential noncompliances involving support services or activities would limit the scope of the quality assurance (QA) rule [i.e., 19 CFR 830] and so would be contrary to the guidance provided by DOE-OE. The continued use of the checklist “undermines the credibility of your P-AAA-related self-identification and reporting processes”. Other areas of concern were the timeliness of evaluating the Noncompliance Tracking System (NTS) reportability of some potential noncompliances and the “lack of maturity” associated with the trending of non-NTS non-compliances for repetitive or programmatic deficiencies”. (The NTS category included the more serious noncompliances and the non-NTS category the minor ones.) Christopher also noted that the effectiveness of the P-AAA program staff appeared to be limited by the information they received from the line organizations, although he professed to be encouraged by the performance of independent assessments of the ORNL line organization P-AAA screening and reporting process by the central ORNL P-AAA staff..
In detailing these concerns, DOE-OE said that it looked at the P-AAA program, the independent assessment program, and (for reasons that were not clear) the bioassay program. DOE-OE said that ORNL’s trending of NTS and non-NTS noncompliances was done by line organizations, but “functional cross-cutting organizations” (such as “radiation services” and QA) and the P-AAA organization also had responsibility for trending and identifying repetitive or programmatic noncompliances. But the whole thing was at “a very immature phase” of development, heavily relying on an “expert-based approach” (which DOE-OE explained meant “mentally reviewing past data for trends”), rather than on a formalized approach to developing and trending useful performance indicators. No progress had been made in trending since the problem was first identified in February 2000. While ORNL distinguished between noncompliances that required trending and those that were only internally reportable, the distinction was not proceduralized and no criteria had been set up to aid in the determination. The program had three full-time staffers, but, DOE-OE noted, when ORNL had fully implemented its “P-AAA Program Officer” (PPO) program (which apparently meant that each division had its own officer), the staff of three would obviously be overwhelmed with the task of evaluating “the influx of potential noncompliances from the PPOs. Not only that, but line management’s “expectation with regard to PPO resources may not be in line with that needed to meet the ORNL P-AAA Program expectations”.
DOE-OE stated that “At ORNL, line management is responsible and held accountable for the identification of P-AAA noncompliances” — an approach that DOE-OE thought relied heavily on PPOs from the line and support divisions to assure that appropriate documentation was fed to the P-AAA staff, that root cause and corrective actions were identified, and that identified issues were tracked and trended to uncover any repetitive or programmatic deficiencies. Although procedures and training were in place, DOE-OE judged that actual performance varied considerably between line organizations and it fell short of DOE expectations. This observation was supported by a DOE-OE review of the extent to which Radiological Event Reports were being screened and reported as potential P-AAA noncompliances; numerous examples were seen of line PPOs’ failing to review or report RER-related potential noncompliances to the P-AAA staff. Also, the level of detail and documentation varied significantly among the PPOs. DOE-OE explained more about the dubious checklist noted above: using the checklist, PPOs could screen out all potential noncompliances unless they involved (unspecified) nuclear material or impacted the facility authorization basis. Again, this narrowed the scope of the QA rule in a way that was contrary to the intent of the rule and to specific guidance by DOE-OE.
Another checklist used by the ORNL P-AAA review board was found not to be complete either, in that it did not capture the relevant DOE criteria, notably in the area of loss of control of radioactive material. The procedure governing referral of items to the review board did not include any criteria by which the P-AAA program coordinator (of the P-AAA staff) determined which potential noncompliances were referred. The P-AAA coordinator told DOE-OE that these decisions were based on his (personal) expertise and experience and no specific criteria existed (even informally). As DOE-OE noted, reporting consistency could be compromised if he left the program or was on an extended absence. Some of the reported noncompliances had been open in the P-AAA data base for over a year, waiting for additional information to be provided; sometimes the information had been provided although the data base had not been updated, but in other cases, the information was still not in. DOE-OE noted that corrective action validation and verification was performed by the line organization responsible for implementation of the correction actions. But the corrective actions identified by a line entity addressed only those actions associated with its organizations and not, e.g., associated with support groups or other line entities. This could hinder the ability to identify corrective actions that should arise from causal factors with sitewide implications. Many line organizations had their own tracking systems, due to the difficulty of using the sitewide one, which made it confusing to track many issues and left the sitewide one not current.
In the review of the ORNL independent assessment program, DOE-OE noted that although the responsibility for independent assessment was shared by both the QA people and the independent oversight (IO) people, the QA people’s assessment activities “were noted to be largely driven in response to customer (line management) request”. DOE-OE thus concluded that the IO organization fulfilled “a needed function in providing a more independent focus/role”. (DOE-OE actually thought that this was a plus of the program.) But the QA assessment program included requirements for auditor qualification and certification and standard terminology was used. Several deficiencies in the assessment programs were noted that “would be considered potential noncompliances of [sic] 10 CFR 830.122 requirements”. These included the lack of formal documentation describing the ORNL assessment programs, including in the ORNL QA plan; the draft status of various implementing procedures; and the use of a variety of undefined terms in ORNL assessment reports (apparently the IO reports) to designate a quality problem or issue, making it difficult to determine which issues were of greater significance. Another included deficiency was the practice in several ORNL systems that functioned to identify quality problems (such as the IO assessments and the RERs) of leaving it to the discretion of the “issue recipient/owner” to evaluate the issue, determine whether it required formal tracking, and make a disposition of the issue; DOE-OE noted that no drivers were in place to ensure a response to or tracking of the issue independent of the owner. Finally, another included deficiency was the focus of the Radiological Support Services (Section) (RSSS, Hunt’s organization) self assessment program: it was limited to performance by RSS rather than line management implementation of the rad safety program. RSSS trending of identified issues was seen to be focussed on specific details of the issue, rather than on more generalized concerns; a specific example given was that “a general trend of radiological noncompliance was not recognized as such since each individual radiological procedure was only violated once or twice”.
In the review of the bioassay program, it was found that for the case of special bioassay monitoring, RSSS (here, the rad tech groups) was supposed to consult with the internal dosimetrist on a case-by-case basis to determine when special monitoring was required. For times when the internal dosimetrist was unavailable, personnel contamination criteria were given to trigger special monitoring. DOE-OE picked four RERs describing personnel contamination events that should have triggered special monitoring: they found that one individual received a special bioassay 17 days after his event, one received a special bioassay a month after his event, and the other two did not receive special monitoring. There was no documentation to verify that the dosimetrist was consulted about the two who did not receive monitoring and the dosimetrist did not recall being consulted about them.
In the DOE-OE report above, one could see many of the features of ORNL compliance and compliance checking programs that I had called out in my ORP and RORC work: lack of inclusiveness of review (assessment) coverage, lack of definition of important terms, informality of determination (e.g., by not setting any criteria and by using procedures in draft form), lack of consistency and documentation, an almost casual approach to implementation of corrective actions, RSSS’ failure to comply with procedures requiring involvement of other rad protection sections, arbitrary and site-specific limitation of screening to mostly high-level stuff, and most of all, control of occurrence reporting and P-AAA evaluation by line organizations. The fellow layoffee who had been assigned to the P-AAA program had told us about the informality of the program, especially the lack of documentation and the failure to identify clusters of events that might indicate programmatic deficiencies; this person’s comments were completely borne out by the DOE-OE’s study. Yet DOE-OE required no reply from ORNL on this and no mandatory corrective actions were specified. It seemed that ORNL could do whatever it chose about P-AAA.
Job Search Efforts
Soon after I was laid off, I updated my resume and sent it to every company in the Oak Ridge area that I could find that hired health physicists. It was important to me to stay in the area because my daughter was in high school. She had had a difficult transition into adolescence and now seemed to have stabilized; I didn’t want to rock her emotional boat by uprooting her. Also, my husband had been at his job for 11 years, at a company that did little or no work for DOE facilities. I did not want to ask him to move.
Within a few weeks, I was scheduled for two interviews, one at a prominent local subcontractor and one at another prime contractor. The next month, January 2001, I interviewed for a radiological safety officer position at another prominent local contractor organization. I was not hired for any of these positions. I got a nice letter from the third company, but waited in vain to hear from the other two. I called them, but only one ever got back to me — a message left with my husband, without a number to call back. I have a very low opinion of the totally nonresponding company because although they and I took a lot of time for the interview, I could not get anyone there to get back in touch with me even to turn me down. I also thought it was notable that two companies did not give me a turndown in writing, which I think is unprofessional. This happened to me again much later when I interviewed at the contractor company for one of ORNL’s sister sites, Y-12. It may be that there are legal issues nowadays associated with giving a written turndown, but I can’t think that they would override the need for the courtesy of a letter.
I definitely thought that after the first two interviews, the two companies had talked to UT-B, which of course was shown as my last employer on my resume. They probably talked with ORNL Human Resources, which one would assume would be too litigation-wise to talk about the reasons for my being laid off. But I believe they likely also spoke with somebody they knew at ORNL, most likely people they knew in rad protection management — the health physics community in the Oak Ridge-Knoxville area is small and nearly everybody knows everybody or knows of everybody. I became certain, based on things people said to me at local Health Physics Society meetings and other gatherings around town, that it had soon become known all over the Oak Ridge Reservation that I was a whistleblower.
I am a worker bee, so as month after month passed with no more interviews after the first three, I sought temporary work. I tried to get on the tutors’ list at the high school, but after four calls and four unkept promises that the one(!) person who maintained the list would call me back, I gave up. I did find a student to tutor in Spanish by putting an ad in the newspaper; I earned $10 an hour. I signed on at Kelly Services and two other temporary agencies. From that I got about one job a month, typically involving driving at least half an hour for less than four hours of clerical work. My unemployment compensation, which had not started until February because of our two months’ pay in lieu of notice from UT-B, was running out.
In June of 2001, my husband was laid off from his job. Except for his unemployment compensation and the odd job I had, we were living off our savings. Of course, the economy had taken a dive by then, so the investments we had to cash out did not render very much. I bit the bullet and decided to apply for out-of-state permanent jobs. I applied for posted rad engineering jobs at Savannah River and a western DOE sites, but neither acknowledged the cover letter and resume that I sent. The Savannah River job in particular sounded just like my ORNL work, so I was puzzled when they didn’t even nibble. Late that summer, I was called by someone at Oak Ridge Associated Universities about a temporary job in dose reconstruction. They told me that they were interviewing me and another person and that although she had direct experience in this area and I had not, she probably would not want the job. We had a very nice interview. But soon they told me that the other woman had decided she did want the job. That was that.
Over the next year and a half, I sent out resume after resume. With two exceptions, the only inquiries I ever got were from people who wanted bodies to go to temporary jobs at distant sites and from people who wanted names to put on proposals — i.e., no actual positions were available yet and there were no guarantees that these people would give me a job even if they got the contract. The first exception was a subcontractor-headhunter company whose representative wanted me for a Savannah River job and kept trying to schedule me for a phone interview with his boss, who kept not calling me as scheduled. Then the client company couldn’t make up its mind. Then they decided not to hire. Then they decided to hire. Etc., etc. After being strung along like this, I finally took another job that was offered to me. When the client company finally made up its mind to hire me, I had to tell the nice rep that I was already taken. The second exception, the job I took, turned out the be The Job From Hell, described later.
Pursuit of My Complaint with DOE: I Get a Lawyer and Prepare for the Hearing
When I visited Rufus Smith of DOE-ORO in November 2000, I had been focussed on expressing my concerns and getting DOE to pay attention to the significant issues, not on the process of filing a “complaint”. I had not yet been laid off and so was not thinking in terms of legal action in court; I thought that if I persuaded DOE that I and others had been retaliated against, DOE would step in and stop it. I did not realize that while DOE might do that, if the retaliatee wanted any remedy, e.g., reinstatement in a job position, DOE made the retaliatee engage in a legal case against the retaliating contractor. Also, I did not realize that there was no legal process of any kind that I could use to force DOE to consider any of my safety concerns. Smith told me to put my issues in writing — this was my writeup or “complaint” — and he mentioned to me the law that applied to the filing of complaints in the DOE system, which I said I would look up. However, I did not understand him to say specifically that my complaint had to be filed exactly as per that law — that it had to satisfy certain requirements and say certain things. That is, he may have said something to that effect, but possibly because of all the things we talked about, I missed it if so. Thus because I was trying to get the written statement to him as soon as possible (and also because I was swamped with work at ORNL), I deferred looking up the law until after I had given him my written statement. But even after I looked it up, I didn’t think that the writeup I had given him was inconsistent with any requirement of the law since my writeup clearly stated what the concerns were and what the retaliatory acts had been. Thus it was clearly the required written complaint. Besides, Smith accepted it without asking for anything else.
In February, however, after I got back from the Health Physics conference, I received a phone call from Helen Mancke, an attorney in DOE’s Office of Hearings and Appeals (DOE-OHA) in Washington. She said that I needed to provide some information to make my submission complete. In particular, I had to state in writing that I had not filed a complaint under State or other applicable law. I had understood from 708 that I should not also be pursuing a complaint in State court, but I did not think (and still don’t) that 708 says that you have to state explicitly in your complaint that you are not pursuing a parallel State complaint. Mancke also said that any retaliation prior to 90 days before I submitted my writeup would not be considered — the whistleblower statute limited events to within 90 days before the complaint — and that I should specify more clearly which were the disclosures and which the subsequent retaliatory acts. This was distressing because it meant that the pattern of retaliation that extended over several years was not relevant, only what had occurred recently. (It also meant that that fact that people might have stuck it out in the face of harassment and tried to be good soldiers for years was totally irrelevant to DOE.)
Mancke also pointed out that, legally speaking, there had to be a time nexus between the disclosures (the expression of my safety concerns) and the retaliatory acts. That is, there had to be some reasonable connection in time so that it would be possible to infer cause and effect. Once I had demonstrated that I had raised safety concerns, that negative things had then happened to me, and that the negative things had likely resulted from the raising of concerns, then the preliminary hearing officer (Mancke) could conclude that I had “established by a preponderance of the evidence that I had made a disclosure that was a contributing factor in one or more alleged acts of retaliation against the employee by the employer” (to paraphrase 10 CFR 708 only slightly). Once I had done that, then the burden of proof would shift to UT-B to prove that they would have laid me off even if I had not made disclosures. Until I demonstrated to DOE’s satisfaction that there were relevant acts occurring within the 90 days and that there was a nexus between my disclosures and the retaliation, I would not get my day in court (a hearing). It is very important that the reader understand the points made in this paragraph, as they are the core of the DOE whistleblower protection process. The reader should understand too that although I submitted my main written complaint to DOE in early November 2000, it was the disclosures that I reported to Employee Concerns, DNFSB, etc., earlier that resulted in the consequent layoff on 28 November; also, the 708 “clock” did not start ticking for the layoff part of the retaliation until I “discovered” the retaliation, i.e., until I was laid off on 28 November 2000. (It is also important that the reader note that I am not a lawyer and that I cannot be sure that I have stated the above completely accurately — 708 is hard to parse even though it is supposedly written in a “friendly” dialect of legalese.)
Mancke told me that UT-B was arguing to her that my complaint was not really a formal whistleblower complaint. Their contention, as I heard later, was that I had not intended for my writeup to be a complaint as such and that it did not qualify as one anyway because it had other things in it besides just the facts of my disclosures and the retaliation. But as I hope the reader can appreciate, obviously I had intended for my writeup to be a documentation of the various concerns, disclosures, and retaliatory actions even though the main retaliatory action, the layoff, had not occurred at the time I gave my writeup to Rufus Smith; obviously I expected DOE to look into the matter and do something about it. DOE (in my view correctly) allowed me to add a statement that I had been laid off, when that occurred, and as I noted above, Mancke had me provide the “I am not simultaneously suing in State court” statement also. Of the attempts UT-B made at this time, at the hearing, and subsequently in its briefs, to have my writeup kicked out as “not really a complaint”, one of my fellow layoffees remarked about that it showed how deeply in denial UT-B was that “they could not even accept a 70-page letter full of unresolved safety issues as a complaint”.
DOE calls its handling of whistleblower complaints its “whistleblower protection process”, but as should be clear to all readers, the whistleblower is not really protected in the DOE system except retroactively, if at all. That is, although I had made disclosures to DOE before my layoff and to my management for years before my layoff — which nobody disputed — I was not given the benefit of the doubt; DOE would not make UT-B take me back into their employment until the matter was sorted out by the legal process. Nor did DOE help me at all in preparing my case, except for Mancke’s clarifying to me what DOE interpreted the statute to require. I had to bear all the costs myself; my lawyer and I had to figure out how to navigate through all the legal reefs; and I waited for what turned out to be two years before the matter was finally resolved (sort of — it wasn’t completely resolved even three years later, as I will relate later). I certainly understand why it is that in the legal system, the burden of proof is initially on the plaintiff, but one would think that once the burden had shifted to the defendant (UT-B), DOE would have made some provision for relief for me, especially in view of my extended joblessness and my need to pay my lawyer a retainer. This seems to me to be a fundamental fairness flaw in the legal system. This is particularly true since, as I will discuss later, DOE-ORO (and perhaps other DOE regional offices) is heavily “invested in” the major contractors and in any case DOE as an entity is not really a neutral party in the litigation. DOE’s being neutral amounts to DOE’s saying “Let’s you and him fight”, with DOE being the referee, but since DOE fronts the legal fees to the contractor up until the point where the contractor loses — supposedly — DOE is not really providing a level playing field for the plaintiff.
It was now clear to me, as it had not been when I first made my complaint, that there were two aspects to my expression of safety concerns. One was the safety concerns themselves, which, as Mancke explained, were not in DOE-OHA’s scope. The other was the retaliatory actions that had taken place in response to my expression of concerns; these were in fact DOE-OHA’s whole scope. It floored me that the two things were divorced in DOE’s view, but I now saw that I would have to be carrying on two campaigns for change and vindication, not one. A further complication was, as I related above, that it was a locally-led DOE team that investigated the safety concerns — or rather, was said to have done so in the course of performing a superficial inspection of ORNL’s rad protection program — but it was DOE-Washington that would be passing judgment on my claims of retaliation.
I understood from 708 that I could pursue the retaliatory firing issues in State court instead of in the DOE system, but not both. I chose the DOE route for three reasons. First, I thought that if DOE was really serious about safety, it was incumbent on DOE to make things right. Second, since the whistleblower protection process was relatively new to DOE, I thought that it was important to test the process. Third, I thought that DOE people would understand the context of the safety issues, as perhaps a State court judge or jury would not. It was obvious to me now, as it had not been before, that I needed a lawyer. I did provide Mancke the written clarifications she asked for, but I informed her that I needed to find an attorney to represent me, which could take a few weeks. She did not remind me about the time limitations that might apply, but since she did have some discretion in the matter, this was not after all a problem.
I began to call around to try to find a lawyer. I left four messages with the lawyer representing a prominent DOE whistleblower, who had told me I could mention his name. The lawyer never called back, despite repeated promises from his staff that he would. Another lawyer said she was too busy to see me at present, but implied that she would work me in in two or three weeks — if I paid for her time in telling her about my case. (Other lawyers never seemed to charge for the first interview because it helped them to decide whether or not to take a case.) Several of the firms told me they had “conflicts of interest” — friends told me this undoubtedly meant that they did work for UT or UT-B or both, or just didn’t want to get into any DOE issues. Finally, I called the state bar association and asked for a referral. For $25, they said, they would give me the names of two lawyers in the appropriate field, who would give me a free half-hour or so to hear what my case was about and decide if they wanted to take it or not. I forked over the $25 and got the names of two lawyers in Knoxville.
The first lawyer had an impressive office, but although he was apparently a hotshot in employment cases, he was completely unfamiliar with the DOE (or indeed any) whistleblower legal process. I had given some particulars of my case to his secretary when I made the appointment over the phone, but he seemed not to be aware of them; in person, he become glum as he heard what my case was about. He said he would call me with his decision as to whether to take my case, but he never did. I was just as glad.
The second lawyer was Margaret Held. She was a young woman who shared office space with another lawyer but practiced alone. She had at least one other DOE case, a person who alleged that she had been injured by radiation at ORNL. Held was enthusiastic and although I would have liked someone with more cases under her belt, I thought that she would do. I paid her a $2000 retainer and signed an agreement to give her one-third plus certain expenses if we won. She said explicitly that the $2000 would be charged against her share, i.e., she would keep $2000 less than what the agreement entitled her to if we won. The agreement appeared to be standard (although I have to say the only notions I had of what was “standard” in tort-type agreements were based on articles I had read). I had only one stipulation: that in the event we won, I would not agree to a confidentiality clause in any settlement we might make.
From the time that I engaged Held, my life was in litigation mode. There were long periods of maddening inactivity, waiting for something to happen, followed by “Gotta have it by 5:00 pm!” demands for information or a form to be signed and sent off. I had felt since my layoff that I had to be circumspect in my behavior and communications, not only to protect my support group friends but to ensure that I was regarded as employable. Now, it seemed doubly necessary to avoid any hint of confrontation and any indiscretion in my dealings with others. But all my life I had been a “Speak the truth and shame the devil” sort of person; I felt it was manipulative and deceitful to pretend to be sweet and agreeable to the point of yielding when the least pressure was applied, for fear of being regarded as “not a team player”. Of course this was a problem at a place like ORNL, where going along to get along had been raised to an art form, but there I had tried to be persuasive while not backing down, to be persistent but actually not too pushy. In litigation mode, though, I had to compromise and try not to be outspoken or militant at all in public. I had to choose between, e.g., speaking to the press and keeping an ultra-low profile. For a long time, I didn’t write any letters to the editor of the local newspaper, even on subjects unrelated to DOE activities or my case, in order not to alienate anybody. Even in the band, I tried to be extra nice, because some of my fellow bandsmen worked at ORNL.
Held got in touch with Mancke right away and introduced herself as my lawyer. Thenceforth most communications about my case were between Held and DOE-OHA, which expected her to keep me informed. This made sense to me at first because of course it would be easier on DOE and UT-B to have to deal directly with only one person. But this left me at the mercy of Held’s reliability in communicating; if she was too busy to tell me something, I might not find out about it for days, even weeks. This, others tell me, is a usual experience with lawyers. But as will be seen later, this was a major problem in my case.
With the additional information we had provided Mancke (including a “more definite statement” written by Held to clarify the litigable part of my writeup), Mancke determined that the first hurdle was cleared: I had met the requirements for the complaint as stated in the law. She also determined that the second hurdle was cleared, that is, that the information I had provided had shown that it was possible for me to prove that I had in fact been retaliated against, in particular that there was a nexus in time between my disclosures and my layoff. Mancke issued her “report of investigation” saying so on 20 March 2001. (The reader could think of this as equivalent to stating that “probable cause” had been established for the case to proceed although guilt or innocence was not yet established.) This meant that the burden was now on UT-B to show that they would have laid me off even if I had not made the disclosures.
There were various filings. The lawyer for UT-B, Jeff Guilford, again protested Mancke’s acceptance of my writeup as a formal complaint: he claimed that it was not meant to be a complaint and that I had decided to make it one only after I was laid off. I pointed out to Held, as I had to Mancke, that I had intended it to be both a set of disclosures and a report of retaliation up to that point; I viewed the retaliation as part of the whole deformed safety management system at ORNL. Held made the case to Mancke and Mancke sided with us. In a letter to both sides, Mancke asked UT-B to set forth its position as to whether the disclosures of June 2000 (the meetings I had with Scott) were disclosures as defined by 708; Guilford replied that UT-B should not be required to take a position on these disclosures unless and until UT-B received assurances that those would be the only disclosures at issue at the upcoming hearing. Mancke told him to forget it, that such assurances would not be forthcoming. She told both sides that for efficiency purposes she had chosen to focus first on the disclosures that seemed most “meritorious”, but she could choose to investigate other disclosures as she deemed necessary. She reminded UT-B again that they should set forth their position as to whether they would have discharged me regardless of whether I made protected disclosures. Finally, she pointed out that as to Guilford’s contention that UT-B should not be required to respond to an alleged retaliation of which it had not been made aware (!), i.e., my layoff, Guilford was aware of the allegation since she had discussed it with him already.
In another letter, Mancke referred to UT-B’s “continued stalling and effective refusal to cooperate” in her investigation and she stated that she could regard as admitted into evidence any material factual or legal issues raised by her but left unaddressed by UT-B. However, at one point in March 2001, she called me with a followup question and I asked her if she had spoken with the various people I had given her the names of who had knowledge of the issues discussed in my complaint, including Mlekodaj, Mei, and Geber. She said she had talked with Mlekodaj twice — both times with Guilford also on the line. She said she had “chosen not” to speak with Mei and Geber. I hoped it was because she hadn’t needed to.
The matter then passed to the hearing judge in DOE-OHA. UT-B filed various motions for discovery, including one for summary dismissal and one on the “separate report” that the DOE assessment team was supposed to issue about how my safety concerns were investigated by UT-B (the one I never saw); I don’t know if they got any more documents from DOE, but the motion for summary dismissal was denied. As per 708, a hearing date was supposed to be set for no later than 90 days after the issuance of Mancke’s report and in due time a hearing date was set for 26-27 June 2001. But as is usual in legal cases, it was reset, in part at both lawyers’ requests, to 24-25 July 2001 and then to 15-16 August 2001. I asked several times if my friends could come (mostly people from my support group, who had an interest in coming to what would seem to be a public forum). I got ambiguous responses from Held, based on what I assumed were ambiguous responses from the DOE judge (hearing officer) who would preside over the hearing.
I provided a lot of information as documents and E-mail messages to Held. In addition with providing her with a copy of my writeup, I told her quite a bit about Sims, Mlekodaj, Mei, etc., and about who did what when. I gave her with the names of various people who had worked with me at ORNL and would testify in my behalf if asked in good time (two were now out of state). I assembled a thick binder of documents, organized into tabs, for her to work with. We finally met again at her new law firm, which she had joined, she said, because they were going to provide secretarial and other support. Then more weeks went by with no word. I kept thinking that we should get together and discuss some of the documents and events, but she assured me that we would do this close to the hearing. Finally, with the hearing set for 15-16 August 2001, a Wednesday and a Thursday, she and I agreed on about Wednesday, 8 August, to get together on Monday, 13 August. I fretted that this did not leave much time to prepare, but she assured me that it was all in order.
On the Monday, we went over a list of questions she was going to ask me and we worked on how I would phrase my answers. She was quite sharp with me at times, which I found hard to understand — I didn’t have ESP, after all, so unless she told me what was wrong with a particular answer I gave, how would I know what the problem was? I took notes and tried to stay on top of what she said I should do. She appeared to have a bunch of documents she had obtained as part of the discovery process. I wanted to go through them myself so that I could see if any were in error or needed interpretation by me. But there was not time, she said — I could do that later. (There was never an opportunity to do so and to this day I never got to see all the documents that UT-B supplied. I believe that I would have found out even more troubling things about UT-B than I now know of.)
We had talked for almost an hour before she told me that the hearing had been moved up a day: it would start tomorrow, Tuesday, 14 August! I was shocked and asked her why she hadn’t told me. She said (with what I thought was feigned innocence) that she had only just now realized that I hadn’t known that the date had been moved; she had “forgotten” to tell me. Since this change had apparently been made less than a week before, I thought it was unbelievable that she had not thought to tell me. A little while later, I asked her if any of my suggested witnesses were coming. “Oh, didn’t you call anybody?” she asked. I was aghast: long before, she had asked me for their E-mail addresses and phone numbers, which I had supplied after checking with the people; she said she was going to get in touch with any she thought could bolster my case. Now she was acting as though it had been up to me to ask them to come (this despite the fact that I would have ended up telling them the wrong days to come, not knowing myself that the hearing had been reset). I had had some doubts about her concentration on my case before, but I had mostly swallowed them because I knew that no two people are on the same page all the time. But it was a blow to realize that I had to be ready on one day’s notice, that my friends might not be able to come, and that there would be no witnesses in my behalf except me.
Held tried to smooth over the situation. She said it didn’t matter: the case was strong enough without anybody else, and besides, she had what she termed “the smoking gun”. This was a page of notes made by Sims after a July 2000 meeting with Scott, which Held had obtained during the discovery process. In the notes, Sims stated that Scott told him that Geber and I were to be laid off: Geber as first choice and I the next choice. Since I had talked to Scott about my concerns in our three meetings less than a month before that, it was clear that this decision was made in the immediate aftermath of my disclosures to her. The set of notes thus showed the time nexus that was so important to making a retaliation case. I tried to be calm about the hearing date change. I went home and told my husband the news; he had to tell his boss that he was taking the very next day off (Tuesday), instead of the Wednesday. I sent an E-mail message to all my friends and hoped that they would see it. I studied Held’s question-and-answer list. Then I tried to sleep.
My Whistleblower Retaliation Case Hearing
The hearing took place at one of the old “guardhouse” buildings in Oak Ridge. These buildings, located at the edges of Oak Ridge, were actual former guardhouses that had been converted to meeting rooms that the public could use; this was a way of keeping them as “historic sites” and justifying the money spent on their renovation and upkeep by DOE. When Held told me, several weeks before the hearing, that one of these buildings was the proposed venue, I protested that that this was inappropriate: the hearing should have been held in DOE-ORO headquarters in the Oak Ridge Federal Building, where there were multiple phones, xerox and fax machines, secretarial support for the judge, etc. (Not to mention modern bathrooms and a roomy parking lot.) It seemed very suspicious to me that a legal proceeding was held in one of the guardhouses, as though DOE wanted to emphasize the unimportance of the hearing by shunting it into an old and under-equipped building that many people would have trouble finding. Held told me that DOE had set the hearing location and she didn’t want to rock the boat by making a fuss. When we got there, we found that while there was a telephone there, it had no number listed on it. Therefore while we could call out, it was impossible for us to give people the number where we could be reached. And of course with no secretaries, there was no one to take a message while the hearing was going on. Neither Held nor I had a cellular phone. So while the hearing was going on, we were totally unreachable.
The hearing officer (judge) was Roger Klurfeld of DOE-OHA in Washington. The lawyer for UT-B was Jeff Guilford and my lawyer was of course Held. The proceedings were recorded on tape and a court reporter from, I believe, Atlanta tended them and would be transcribing the tape later. Some of my support group friends arrived, bless their hearts. Guilford demanded to know who one of them was and because Klurfeld looked rather dubiously at my friend, I said the friend’s name quietly to Klurfeld. My friends were allowed to stay after Klurfeld determined that they were not going to be called as witnesses.
At the beginning of the hearing, Guilford again brought up the issue of my complaint and alleged that it was not a true complaint in the legal (708) sense, that DOE should not have allowed me to send the statement Mancke had requested, etc. Klurfeld said firmly that that issue had already been resolved. Guilford then asked that the “NIC Report” (see above) not be allowed to be entered into evidence as Held had requested. He said that, contrary to what the report said, interviewees were not required to have a UT-B lawyer present but could request to speak to the NIC people privately, etc. Klurfeld replied that the NIC report “is what it is”; this was the first time I had ever heard this curious expression, whose meaning here was certainly ambiguous. He allowed the report to be entered by Held, but no further reference seems to have been made to this report and it was apparently not considered or referred to by the judge.
I was the leadoff witness. Under questioning by Held, I testified to essentially what I have said earlier in this book — the violations, the reports by me and others of the violations, and the retaliations. At one point the judge asked me if I had ever asked for a legal opinion on the issue of violations of 10 CFR 835 from UT-B counsel. I was surprised by the question — obviously he did not understand that the stated process for reporting concerns and violations did not include approaching your company’s legal department.
To accommodate the schedule of some of UT-B’s witnesses, the judge, with Held’s permission, allowed my testimony to be interrupted so that they could testify. The first UT-B witness was Ron Honeycutt, the Human Resources representative to OSSD. He said that there had been a layoff “program” in 1998, 1999, and 2000 and one was proposed for 2001. Thus ORNL was continually decreasing the number of staff members. Where possible, subcontract (temporary) workers were laid off rather than permanent staff. He noted that no AEG person had ever been laid off prior to 2000 (my layoff). Sims had made the layoff decisions until UT-B took over, after which Scott made them. Honeycutt sounded the note that was repeated by virtually every UT-B witness: the ES&H organization was trying to do the same work with less money and there was newly increased pressure and control by line management. I believe that he explicitly mentioned the need to satisfy the “customer”. He stated that the OSSD reduction-in-force (RIF) board, which reviewed all the RIF decisions, included Scott, Mylissa Buttram, Faye Frederick, Beierschmitt, and Honeycutt himself. OSSD management identified the peer group for the potential layoffee and the Board reviewed and affirmed it. (The reader will note that the Board did not include anyone who was closely familiar with the employee’s type of work, such as a supervisor or section head.)
Questioned about the layoff evaluation sheet that showed Geber, Utrera, and me as a “peer group” for layoff purposes, Honeycutt testified that all three of us had the same educational levels (i.e., we all had master’s degrees), while Geber and I had longer service and Utrera had a better performance record. He was not asked about, nor did the form include any space for, the health physics certification that Geber and I had (and Utrera did not) and the registered professional engineer qualification that I had. Honeycutt said that the Board looked at critical skills, performance, job knowledge, and specific skills in performing the work, with the focus on “adaptability and flexibility to do other assignments”. Asked whether all the factors were of equal weight (length of service, etc.), Honeycutt stated that they were not; he was not asked nor he did he state anything regarding the actual weighting, but he said, “We clearly have to look at performance”. He also said that when (budget) reductions result in “work no longer being funded, no longer being performed”, “a key thing is possessions of skills that we can use in future assignments and the ability to transition to different work”. (The reader should remember this testimony since a later judge used it to reject UT-B’s claim of consistency and fairness in applying the layoff criteria.)
The judge asked a question about customer satisfaction; might an employee get a “medium retention” rating if he was compliant to customers but a “low retention” rating if he refused to accept what a customer said? Honeycutt did not answer the question directly, but replied that “we” worked in a “customer-driven environment” in which customer satisfaction was “key”. He stated that “the ability to work with and communicate to the customer” was “key”, mentioning flexibility in this connection (thus implying that “flexibility” meant getting along with customers). The judge said, “So if someone is a thorn in the side….of line management, they might get low retention on this form”, to which Honeycutt replied that he would disagree with that. His explanation was garbled, in that he mixed the oversight role with the advisory role, but the gist of it was that the line organization would have to “consider” the safety employee’s “advice”. He opined that complaisance to customers was not the primary consideration in rating safety employees. Held asked him who AEG’s customers were, but he could not say specifically. He said, “The safety reviews, there is more of a……as low as reasonably achievable having to do with nuclear more than just the safety” [dots sic transcript, meaning that the transcriber could not make out some of the words]. This garbled response was followed by a statement that customer service was only one of the factors looked at.
In reference to the evaluation sheets, Honeycutt was asked who had done the scoring in my case. He said that Scott was responsible for scoring, while Mei and Mlekodaj assigned the performance ratings. Held asked Honeycutt if it was proper for Scott to participate in assigning my rating; Honeycutt said it was if Scott had knowledge of the employee’s performance. He stated that he did not think she assigned any ratings to people at my level; she only approved such ratings. Held asked if it would be proper for Scott to tell Mei and Mlekodaj that I should have gotten a rating of 3 (i.e., to dictate a specific number as she had done initially in the course of my last performance review) and Honeycutt replied that it would not. The judge asked if it would be proper for Scott to tell her managers that their scores (as a whole) were out of line and they needed to go up or down, and Honeycutt said yes. He said that it was the employee’s organization (in this case OSSD) who determined which of their groups needed to be cut to reach a budget reduction, not higher ORNL management and not the Human Resources or finance departments.
Held asked why Mei had not been targeted for layoff. Honeycutt replied that as AEG leader, she was not in the AEG peer group — she was a manager, with other roles. Held asked why the ability to run complex shielding codes had not been evaluated in the scoring and Honeycutt stated that the remarks (on the evaluation sheet) prepared by OSSD management indicated that it was not a “core competency” for rad engineers (and so had not been assigned any points). He agreed that he did not know who wrote the remarks and that he himself had no idea how often it was necessary for AEG to use these codes. He made it clear that he, as a RIF Review Board member, relied on and accepted what OSSD said about the work. Held asked him what an OSSD-written remark meant that stated that Westbrook “refuses to accept position purpose as counsel [advisor] rather than as policy enforcement”; he replied that it meant what it said. She asked if he knew for a fact that I had refused in any such way; he replied that he did not know anything about it but what was written on the evaluation sheet. Asked about the work of AEG engineers, he again garbled the oversight versus advisor question, stating that they did perform oversight. (He seemed to have memorized his answer but, because he didn’t understand it, mangled it each time.) Held pinned him down, asking him in succession if he knew if an AEG person was supposed to counsel, if he had any independent knowledge of whether I was flexible or not, if he knew whether I could adapt to the changing needs and requirements of ORNL; to each he answered that he did not know. He then conceded that, outside of the evaluation sheet(s), he had no independent knowledge of why I was an appropriate candidate to lay off. After he said that he believed that my disclosures played no part in my selection for layoff, she asked on what he based that belief and he said that it was on the evaluation documents.
Guilford asked him if there was anything on the evaluation (scoring) sheets that reflected a “customer service score”; Honeycutt said that there was not. However, Held pointed out to Honeycutt that on the AEG scoring form, where the three entries were Geber, Utrera, and Westbrook, comments were typed in that said that Utrera was “flexible” while Westbrook was not; she noted that one sheet said transferability of skills included flexibility and esteem and demand by customers. Honeycutt replied that he did not know what that statement was based on and he took it at face value. He also stated that he had not looked at any of the actual performance reviews (i.e., that Mei wrote and Mlekodaj approved).
When we broke for lunch, Held told my husband to find someone else to lunch with: she needed to confer with me. We discussed matters over lunch, Held simultaneously coaching me and asking for further information. After lunch, I testified further. At one point the judge asked this question: “Suppose DOE looked into it [a violation] and said, there’s nothing to it. Would you accept that?” I replied that it depended on the grounds on which they said it and the degree to which they looked into it. The judge tried to press me for a yes or no answer, but I insisted that it depended on the circumstances. Held rephrased his question, asking whether I would accept it if DOE explained to me, with specific references to requirements, qualifications, etc.; I then replied yes.
After Held had questioned me, I was cross-examined by Guilford. He was a petulant sort whose chief weapon was sarcasm. Held told me later she thought that the judge did not like it. Guilford again raised the question of whether my writeup to DOE had really been a “complaint” or not. Although this question had already been adjudicated, as the judge had pointed out at the beginning of the hearing, the judge allowed him to go through a series of queries on this subject, over Held’s protest. (This goes on for 13 pages in the hearing transcript.) Then he made fun of me for sending a 72-page writeup to DOE. When he turned to the real issues, it was evident that he had been prepped by someone in rad protection, probably Sims. He asked me various questions about ALARA and the low doses at ORNL; the point that he seemed to be trying to make was that there were no real safety concerns at ORNL as was proved by the low doses of the past, so I was just a malcontent who would not accept that things were okay.
One exchange with Guilford was particularly distressing to me. He tried to get me to say “what level of exposure gives rise to a substantial danger from radiation”. I told him what the LD50/30 was, but he continued to press me. I told him I didn’t understand the question, that we needed to define the terms. The judge admonished me, saying that if I didn’t know the answer to the question, I should say that I didn’t know, “not get into an argument about what the question means”. I said that if Guilford would state a danger (radiation effect), I could give him a dose that would likely produce it. The judge admonished me, saying that if Guilford wanted that information, he would ask me. So I said, “Okay, I’ll say I don’t know”. (I trust that all of my professional peers would realize what the implications would be for a certified health physicist to state flatly under oath that she did not know what level of exposure gives rise to a substantial danger from radiation, with no qualification of the statement whatsoever. Lay readers should understand that Guilford’s question, as he phrased it, was impossible to answer, in the same sense as the classic question “Are you still beating your wife?” is impossible to answer.) Finally, Guilford had to break from cover and get to the point, which was that since 708 (the whistleblower rule) prohibits the retaliation for engagement in protected activity and since protected activity involves the disclosure of information the whistleblower reasonably believes involves a substantial danger to health, he wanted me to state what level of exposure created a substantial danger to health. (Clearly, he was trying to get me to give a high number and then argue that I had made no such disclosure since no such dose had been received as a result of any ORNL activities.) But I refused to be drawn further and answered that as a rad protection professional, consistent with the best advice of my professional society, I had to decline to answer a question like that, on the grounds that it was too open-ended and undefined.
Guilford then began to ask me about the statutory limits. He then tried to imply that unless a worker got 5 rem per year, there was no danger to his health. I said that he had to specify what danger (effect) he was talking about and what level of risk. Guilford introduced graphs showing the dose data at ORNL for the past several years. He called man-rem “millirem”. We established that the highest individual dose for 1999 was 1320 millirem, which was the highest dose in the decade 1990-1999 — only 1/3 of the statutory limit of 5000 millirem, he pointed out. So with these numbers, he asked, was I suggesting that the concerns I raised at ORNL involved a reasonable belief that there was a substantial danger to human health? I replied that there was a substantial danger to health when procedures were not followed, because when conditions were uncertain, you could not project what the dose would be, particularly if there was a potential for a release (to the air) — this could result in a high dose received over a short time. Guilford said sarcastically, “And the only thing preventing that from happening is an AEG engineer reviewing [it]”. I replied that that was a strong contribution to prevention, but not the only thing. He asked which of my specific disclosures “revealed a credible risk of exposure exceeding 5000 millirem”. I cited the MSRE project, the HFIR facility, the Bulk Shielding Reactor project, and the REDC facility and added that the potential is always there when work is not planned carefully or design is not done carefully.
Guilford questioned me about a variety of other issues, obviously trying to trip me up in my recollections or my understanding of events. When he finished, Held had some further questions on redirect, as was her right. But the judge told her she could take only five minutes. At one point, he interrupted her, saying her line of questioning was not getting us anywhere; I was puzzled because these seemed to be questions arising out of what Guilford had asked me about. It felt like a double standard. But at least she got to ask me about other DOE sites (as I stated I had told DOE’s Mark Robinson about): that they were fined even if no one was hurt. I stated that DOE’s rationale was that while DOE was willing to overlook the random, inadvertent, relatively minor violation, they do not want to overlook a willful or repeated violation or one that shows evidence of a programmatic breakdown, because sooner or later such violations could lead to major dose or injury.
I thought that I stood up to Guildford pretty well and so did my friends, as they assured me later. I believe that Held reserved the right to recall me later. This would be necessary in order to rebut the case that UT-B would be putting on, since we had no witnesses but me.
The next UT-B witness was Mlekodaj. He told the story of the Geber report and his concern about the Chem Tech exemption. He said that the Geber report was the result of “our looking at the Lab to see where RPP-310 was being violated” and that as a result of Hunt’s or a minion’s passing along the report to REDC, the REDC facility manager became “very, very angry that we were in there snooping around”. (Note that nobody was literally in the facility snooping — the snooping was in the records accessible to all ORP on the Web.) The REDC facility manager and the head of Chem Tech called Sims to express “their extreme displeasure” and they made it clear to Sims that he needed to do something about this. It was at this time, Mlekodaj said, that the idea of the RPP-310 exemption came up. He testified explicitly that it was clear that Sims felt pressured to grant the exemption. He also said explicitly that Sims signed the exemption three days before he, Mlekodaj, found out. (Note that this means that AEG’s section head leader (Mlekodaj and Mei) were not told of the reduction of functions by AEG at the time it occurred.) He said he was shocked and disappointed and “basically stomped out of [Sims’] office”. Although Mlekodaj cooled down and tried to accept it, when he talked to Sims later, he told Sims that he really thought it was wrong and he couldn’t just leave it at that, that he was going to take it upstairs. Mlekodaj testified that when he talked with Milan (deputy ES&H head and Sims’s boss), he told him that when people were caught violating rad protection procedures, it was the messengers who were shot. He also told Milan that operating groups were able to put such pressure on Sims that Sims, in Mlekodaj’s opinion, violated procedures. He learned later from Sims that Sims had had Swanks’ buyoff before signing the exemption (Swanks was Milan’s boss]. Mlekodaj said that after he talked to Swanks, Swanks never got back to him.
Mlekodaj discussed incidents regarding me, including the time I had resisted signing a new proprietary document. (I was amazed that UT-B even brought this up: it had occurred under Lockheed Martin, and other people — including various researchers, who had more at stake — also had resisted it. The reader should understand that I had done so only because I wanted assurances that things that I brought with me when I came to ORNL and had put into, e.g., ORNL training documents would not be claimed by ORNL as their intellectual property. It was clearly a question not of personal profit to me, but of an entity’s potentially claiming title to something not originated under its aegis. I had been allowed to annotate an almost exactly similar agreement years earlier before I signed it, but not this time; another person told me that she too had annotated her copy of the earlier agreement. Like everybody else, when it was made clear to me that it was sign or lose my job, I signed, despite my misgivings. Now at the hearing, this was being brought up as an “example” of, I suppose, hairsplitting and not being a team player. It seemed as if they were scraping the bottom of the barrel to find things to say against me.)
When asked if he had been retaliated against, Mlekodaj replied no; however, he had hesitated before answering and had said something to the effect of “Mmmmmm…..no”. Although the transcript shows only the “No”, it was clear to every observer that Mlekodaj was tempted to answer differently. (The reader should recall that under the reorganization, he lost his section head position and was made a group leader and his new group contained computer and procedures people, not anyone who was an operational rad protection person in the direct sense.) He said that Sims, in discussing the FY 2001 budget with him, said that UT-B senior management seemed to want to make AEG a 100% chargeout function, which worried them both. Mlekodaj said that he suggested that Sims argue for a 50% chargeout, which he thought was the best that could be achieved (and quite possibly not that much). He claimed (contrary to what he had told me at the time) that it was his decision to take me off the MSRE project; he now said that he had met with MSRE facility manager Faulkner (although he had told me he had only spoken to Faulkner on the phone) and had a lengthy discussion. He said that Faulkner’s complaints of me included the claim that I asked lots of questions at meetings on matters that Faulkner thought I did not need to know about. At this point, Held objected, saying that Mlekodaj’s recital of Faulkner’s objections was hearsay. When asked if he agreed with Faulkner or me, Mlekodaj said “in at least several of those instances” he had to agree with the manager; he also said that he thought that some, but not all, of the manager’s complaints were legitimate. He said that he would have liked for me to stay at ORNL, but given the circumstances the OSSD managers were in (i.e., the pressure by line management), most such managers would have chosen to lay me off. He denied that there had been any retaliation in my layoff.
Held asked him if violating RPP-310 was a 10 CFR 835 violation; he answered that it was not necessarily an 835 violation, but it was a violation of 10 CFR 830 (the quality or “Thou shalt follow thy procedures” rule). He said that he believed that Sims’ violation of RPP-110 was a violation of 10 CFR 835 and that “a reasonable person” with his or my training and experience could believe that it was a substantial violation. He admitted that he had not been present at the meeting with Sims at which I finally signed the proprietary document — he had only heard about it from Sims. (So his testimony about this was hearsay.) He agreed that he had never witnessed any inappropriate or aggressive behavior by me, such as using bad language or shouting at people. He admitted that he had not investigated the concern Faulkner raised about my work at MSRE; he “just decided that it was best for everybody involved to make a change”. He added that he asked Faulkner if “there was any way that we could turn this around and try to make her a valuable member of that working group and [Faulkner] said no, he didn’t even want to try”. Held asked if he did this to accommodate Faulkner and Mlekodaj replied, “Yes, he is our customer”. Held asked if this disagreement meant that one side (I) might actually have done nothing wrong, and Mlekodaj agreed.
Mlekodaj agreed that he would describe me as technically proficient, conscientious, thorough, sincere, professional, and honest. He said that I was not always what he would call courteous, although he could not recall an example of my being discourteous; he added that sometimes within our section, we had heated debates. He said that the “typical” rad engineer might write a two-page report, rather than the ten-pager that I would write, but he noted that some customers did prefer the ten-pager. He stated that when someone disagreed with me, I was like “a little bulldog” and would not give in; although he said this was sometimes a good trait, he thought it sometimes went too far for relatively minor issues. Asked if I backed up my statements regarding violations and had a foundation for saying so, he said yes. He agreed that I was not prone to make those kinds of statements just to be argumentative or a pain in the neck and I was committed to worker safety.
He said that I would insist on doing it my way and wouldn’t hear of doing it differently. He claimed that I looked at a procedure and said something had to be done a certain way although the procedure did not say so. However, he seemed to mean my interactions with project people and others outside my division, because his example and some of his references pointed that way. He gave as an example the evaluation of the streaming out the penetrations of the MSRE cask (the one that hadn’t had the concrete density included in the spec); he said that I was “persistent” in saying that it should be analyzed. (The lay reader should note that this was a proper judgment for a rad engineer to make, especially since none of our procedures gave any requirements or guidelines for when cask shielding needed to be analyzed.) Mlekodaj said that Faulkner told him that he would shield the cask “with a lead brick” if it was found to be necessary after the cask was built and installed. He said Faulkner thought my objections to this plan trivial; Mlekodaj testified that he agreed with Faulkner. But he said that he had not been present for the conversation with Faulkner in which I allegedly refused to compromise on this and he was simply stating what Faulkner told him. He said that after his talk with Faulkner, he did not talk to me about it “because [MSRE] management was so upset that it seemed obvious to me that the thing to do was to get her out of there and start fresh”. Asked if he decided to remove me because of a personality conflict or because MSRE management demanded it, he said, “Both”. Held pressed him regarding how he knew that it was not Faulkner who was being pigheaded and unreasonable. Mlekodaj said that although he had spoken only with Faulkner and not with me, he believed Faulkner because Faulkner claimed that he’d been trying to get me to do things his way for a long time.
(I was very upset to hear his example. I had not been allowed any opportunity to explain my side before I had been removed from MSRE; neither Mei nor Mlekodaj had talked with me about any problems prior to that. But afterward, I had a talk with Mlekodaj in which I explained that it was the neutrons that were more likely to be a problem, not gammas. When he said Faulkner had mentioned lead bricks, I pointed out that lead shielding would not have been appropriate for neutrons, which Mlekodaj could appreciate. In any case, as I told Mlekodaj, Faulkner had told me not that the shielding would be lead, but that it would be those very large (and slightly contaminated) concrete blocks already on hand; I had pointed out to Faulkner that since the ostensible project reason for not having more concrete in the cask was the loading on the floor, the concrete blocks were not likely to be allowable candidates as supplementary shielding. Being so large, they were not placeable in a modular fashion and would take up more room than necessary, as I had also pointed out to Faulkner. This may be why Faulkner’s “story” switched to lead bricks. Mlekodaj’s testimony did not make clear to the judge that Mlekodaj never looked at any layout drawing to see the geometric situation of the scattering problem. Thus Mlekodaj’s testimony was quite a bit different from what Faulkner said to me, from what Mlekodaj told me at the time, and from what he heard from me. When I talked to him, Mlekodaj had seemed to agree that there were two sides to this issue, yet this was not reflected at all in his testimony, in which Mlekodaj essentially said that at the time, on a technical basis, he had accepted Faulkner’s statements at face value. So he conveyed the impression that I was regarded as “persistent” and inflexible, even though in fact I pointed this out to Faulkner only once orally and once in writing, and of course I had no authority to alter the design of the cask anyway.)
Mlekodaj said that he, Mei, Geber, and I had fought the shift to the expanded RP-310 reviewer pool “to the bitter end”. He said explicitly that he thought that the reason for the shift was to reduce the number of reviews. “They” (line management) didn’t want to deal with AEG people as reviewers because they thought it slowed them down and they said we “didn’t have the right experience” and “added no value”, although he himself did not agree with those statements. He also said explicitly that he was worried about worker safety, not an 835 violation, because he felt the shift decreased the level of safety at ORNL. He asserted that rad tech reviews were not as in depth as rad engineer reviews and pointed out that the old system — where a Level 3 (the former Level 2) review was done by a complex leader (for RSS) and by a rad engineer (for RCS-AEG) was better than the new system where the review was done by two complex leaders, because the former included both the rad tech and the rad engineering viewpoints. He did not think that rad techs were as qualified as rad engineers to do the RPP-310 reviews. He agreed that reviews were avoided and that this was a violation of procedure, “which does get you into P-AAA trouble”.
The judge asked Mlekodaj if he really thought that the exemption threatened worker safety. Mlekodaj replied that the danger was that less rigor would result in a reduction of the margin of safety. The judge asked if this would be a substantial reduction (an important qualification in 708); Mlekodaj replied no, but that improving the rigor would reduce the probability of incidents. The judge asked if he thought that raising the trigger levels would result in substantial danger to workers; he replied no. The judge then said that “we” had agreed that 5000 rem exposure per year (he meant millirem) presented a minimal health threat and Mlekodaj agreed. However, Mlekodaj pointed out that there were accidents that had a very high dose consequence but a low probability and that there was no way to factor that into the exemption question (i.e., by looking just at received doses versus the 5000 millirem limit). Mlekodaj also qualified several of his statements by saying that it was possible for high dose to occur and that it was reasonable for someone like me to believe that substantial danger might result, even though Mlekodaj himself judged that it did not. When the judge asked if the same accidents could have occurred regardless of who conducted the reviews, Mlekodaj stated that improved reviews (by more qualified people) would reduce the probability that such accidents would happen. The judge asked about my major disclosures, one by one, asking if a reasonable person would think the problem created a substantial danger to life and health. (This seemed to be the judge doing Guilford’s job for him.) Sometimes Mlekodaj answered yes and sometimes no. Guilford then asked if a rad engineer was more expensive than a rad tech to a project if the rad engineers were on overhead, and Mlekodaj explained that the rad tech might cost more if he had to be “brought in” from outside the project’s rad tech complex area. In response to a Held question, Mlekodaj agreed that it would be reasonable for me to believe that granting the RPP-310 exemption was a substantial violation of a regulation or procedure. He agreed similarly regarding the trigger level change (“I protested [that] myself”) and the RSS-AEG schism. Guilford was then allowed to ask a question again, but when Held tried to, the judge cut her off.
I was surprised to see the next UT-B witness: it was Linda Gilpin, the criticality safety specialist in the nuclear safety organization (the former ONS), who had worked with me on MSRE. However, the initial focus of the questions asked of her was Building 3019. (The reader will recall that Mei and I had spoken with her about the need for design and operations reviews on this project. As I said earlier, this seemed to be a politically sensitive facility, probably because the Defense Nuclear Facilities Safety Board was involved in its oversight.) Gilpin said that she was on a line management review team for 3019 to look at the inspection and repackaging project (of packages from the isotope storage wells); as the criticality safety member, she was tasked to look at rad protection issues. (She did not note that Chem Tech was already paying for her time and that she was not specifically trained in rad protection, except for criticality.) She said that line management had concluded that an RPP-128 (design) review for the Building 3019 project was not needed and that after talking with AEG, she had raised the question as a member of the team. (She used the name “Richard”, apparently Faulkner, although she stated later that he was not on the 3019 project.) Remarkably, she said that the team had “lots of problems, so we were stood down and never issued a final report”. The RPP-128 review question was dropped.
But, Gilpin noted, then DNFSB started asking questions and line management agreed to do a review. She said that she ended up doing the review. However, for some reason she did not specify, another one was done: Geber started it before his layoff and Mei issued the final version in the spring of 2001. DNFSB reviewed and commented on it and then the project did another one in June 2001. She said that line management, under Jim Rushton (the project manager) investigated the issue of why a design review had not been done; they assigned the rad protection organization to do a root cause analysis “to understand why we’d gotten to this point on the project and did not have a design review”. Gilpin admitted that her testimony on the root cause report was based only on her readings of the report, because she was not involved (hence her information on this was based only on the “official” version of what happened). She said that the report concluded that the procedure was not clear on defining what a “modification” was and the Chem Tech section running the building operated under their own procedures, “so they don’t use the plant[ORNL]-level engineering procedures” and “it wasn’t a mandatory procedure in their internal procedures that they had to use that one”. (Note that there had been a definition of “modification” in the RPP or the glossary, but it had been removed in the interest of not making things too specific; also, the “not called out in our operating procedures” excuse had also been used at HFIR and the avoidance of a review similarly followed AEG’s informing line management or its representative of the need for a design review. Gilpin was also implying that Chem Tech could opt out of using plantwide safety procedures, which was not the case.) Gilpin said that the design review procedure was not in the “Work Smart” standards that were applicable to the project because the requirement to review was not driven by Work Smart standards. (Note her lack of understanding of this issue: it was a 10 CFR 835 requirement to review new designs and modifications and 835 was in all such standards sets.) She did state that the Chem Tech rad control officer (Shoun) pointed out that they needed a design review and that he was apparently overruled, but by her description of the corrective actions it was clear that only procedural changes were made, i.e., they regarded this as merely a paper problem. In later questioning by Held, she said the design review had been redone in June 2001 because Rushton was not pleased with the product. (However, it may have been DNFSB who didn’t like it. Gubanc had told me that Geber’s initial effort was far too skimpy and having been shown a draft of it by Geber, I agreed, based on my knowledge of what a design report should contain. I explained to Gubanc that it was skimpy not because Geber didn’t know what to do, but because that was the way line management wanted it, almost a bulletized effort. Mei was able to flesh it out on, I believe, somewhat short notice, but that was apparently still not enough.)
Gilpin testified that when she dealt with me one on one, we had no problems. She was asked if I was sincere in my efforts to call attention to what I regarded as rad protection issues or if I was just trying to make trouble; she replied that I believed in what I was doing. But she thought that I was more direct and tended to be more “in your face” than other people; she implied that I was not a team player and did not make myself part of the MSRE family. (I wished that I could have interjected at that point that unlike Gilpin, I never was given an office or even a desk at MSRE. Hence I didn’t use their lunchroom, attend the project birthday parties, etc., as Gilpin did.) She opined that the relationship between me and MSRE management had become “ineffective”. When asked if she played any role in trying to resolve the matter, she said that she and I would work together and then she would interface more with the operations people. (I thought this was misleading. When I reviewed her work, it was natural that she would present it to them; she never presented any of my (separate) review work, nor would I have allowed it.) She said that she, Gilpin, never saw anything that she would call a safety concern and never saw anything that she would term a “life or death matter”. She thought that there was no room for reasonable people to disagree on violations of the law, i.e., she did not think it was reasonable for me to think there were violations.
At one point, Held objected to Guilford’s line of questioning. He replied that “It has to go with the reasons why Ms. Westbrook was having difficulty with managers. Why she has been taken off projects. Why she has not been able to find herself funded in a chargeout situation. And how well she can work in the new model, of a purchaser’s model”. (I thought that this was very telling. First, the phrase “find herself funded in a chargeout situation” revealed the “you have to scavenge and schmooze for business” mindset that the safety organization was now supposed to have. Second, this was a very explicit statement about the “new business model” that UT-B had begun to say I could not adjust to: “purchaser’s model” was clearly a euphemism for “please the customer”, i.e., a funding model based on customer satisfaction and repeat business and not, e.g., on technical competence and adherence to compliance requirements.)
I was very unhappy with Gilpin’s testimony. First, she did not seem to be the most appropriate person to ask about my work and attitudes since she was not a member of line management on the one hand or in rad protection (other than criticality) on the other hand. Thus she could not speak from a management point of view or from an informed rad protection point of view, as she admitted. She understood shielding and criticality issues, but not, e.g., contamination issues; she did what she was asked, such as the bulk shielding calculation for the cask, but apparently she did not even bring up the penetration streaming issue. She said defensively at one point, about her assessment of the importance of the rad protection issues I brought up in meetings, that she was “a trained rad worker and a nuclear engineer”. (Well, so was I.) She agreed that she had not been familiar with RPP-128 until well into 1999, yet she was the one asked about it with respect to 3019; she admitted that “mainly Janet was who I went to when I had [rad protection] questions”. She did not understand the term “substantial health concern” — she defined it as “a life and death matter”, implying immediacy or urgency — and she stated that she did not feel that trained professionals could disagree as to what was a substantial threat. (The lay reader should realize that criticality issues generally involve the danger of a sudden big dose, hence Gilpin’s views were likely colored by her training in this specialty area.) Second, she seemed to be asked to comment more on my personality and style than on substantive issues, such as the cask shielding business. There were many people I had worked with much more recently or more extensively, yet UT-B chose her as their non-ORP witness on my work. Another layoffee present at the hearing had known Gilpin but not me before our layoff; this person was incensed at Gilpin’s testimony because it smacked of saying what management wanted her to say and of emphasizing the negative in order to curry favor. The person thought so because of the exaggerated nature of Gilpin’s testimony and her relatively peripheral connection to my work or to rad protection work.
Up next was Kelly Beierschmitt, the head of ESH&Q. He was hard to understand at times because he used so much jargon (e.g., “We were the long pole in the Science Lab tent”, “We could buy down the retrofit of this lab this year”). He initially gave a speech about how great UT-B was, how high their aims were, what was involved in high safety management, etc. Then he was asked if line managers had the “right to decide whether to create risks for workers”. He replied that “we” (ESH&Q) established the “what” that is required, while line management established the “how”, and he claimed that compliance with procedures was “not negotiable”. He said that DOE’s evaluation of UT-B as ORNL manager was “extremely positive”. In the past 18 months or so, ORNL had moved from 30% purchased services to nearly 60% purchased services. Therefore, he asserted, “People [in line management] were no longer hiring additional staff to protect themselves from the [central safety organization]”. ESH&Q was “placing people in the field that roll up their sleeves and say, this is not the right way to do it, and I’m going to help you fix the problem”. He claimed that line management was “getting better support because they’re actually going to a group of professionals instead of hiding issues”; this occurred because “when you get out of that policing role and put them into that service role, the line organizations will buy the service”. “And when they’re buying services from my staff”, he continued, “I have some level of confidence about the capabilities and competence of those staff. If they are not buying my services, then I’m reliant on them [telling] me what’s going on and be forced to trust that a bit”; “we have [now] people on the inside helping solve the problems”. Beierschmitt stated that the trend of health and safety performance was upward when an organization shifted in this way to charging out: Pacific Northwest National Laboratory (PNNL, where he had worked until Battelle won the ORNL contract) had shucked off a huge central safety organization that did audits and “wrote speeding tickets” and also had decreased the number of shadow people “hired to protect [line organizations] from the central organization” (some of the latter, he said, “lacked competence” or were researchers “not trained in any of the ES&H disciplines classically”). He said that once PNNL went to a purchased services model, there was ES&H performance improvement. (The reader will note that he was allowed to go on and on in this fashion about PNNL and then Brookhaven, alleging wonderful results, with no documentation or quantitative citations whatsoever.)
Beierschmitt testified that when he was put in charge of ES&H at ORNL, he had decided to move to a purchased services organization, but he claimed that he himself had not made that decision about AEG (contrary to what Sims later testified and contrary to Scott’s later testimony that she had made the decision on the basis of Beierschmitt’s expressed preference). Beierschmitt expounded on the “Goldman metric” that indicated the cost of doing research at national laboratories and showed ORNL having the highest overhead costs for research. He said UT-B believed that ORNL could be moved back into a competitive range if they took $20 million out of the overhead in Year One (i.e., October 2000-September 2001) and $10 million in Year Two. This was, in fact, part of their 1999 proposal to DOE. He told his managers that he wanted any impacts on staffing (layoffs) to occur in Year One and that he did not want the layoffs to be based only on “badge number”, i.e., on low seniority. Of the RIF board review of AEG candidates for layoff, Beierschmitt said, “there was some level of concern that Janet had engaged in protective [sic] activity. So we spent considerable time reviewing that particular decision”. But he denied that I was chosen for layoff based on my disclosures. He said that at the time of this board meeting he had been debriefed by Scott and others on the investigation he had asked Scott to do with regard to my concerns (e.g., her meeting with me in June 2000). But he didn’t remember the details. Held reminded him that he had told DOE’s Mancke that my layoff was not specifically reviewed to assure that it was not discriminatory. He then said that he specifically remembered that this aspect of my layoff was reviewed. He stated that it was his “guess” that the immediate supervisor made the initial recommendation as to whom to lay off and that the recommendation then went up the chain to Scott. Pressed by Held, he repeated that by the time the recommendation got to him, it had been approved by Scott and he assumed it came from her supervisors. He denied having any personal knowledge as to how the selection was made.
Beierschmitt said that the shadow organizations were people hired by line management to do, e.g., rad protection for them, instead of his ESH&Q organization. His example was the environmental protection officers: some were purchased out of his organization and some were hired independently by the organizations doing the work. (He did not note that such officers generally did not have to have any technical qualifications in the subject area, but were a sort of coordinator or division contact for that area, or that they could not perform functions that were, by ORNL procedure, required to be done by the central environmental organization, at least while I was there.) He said that if a safety person told line people they had to do something or else they would be violating a law, he would expect the customer buying the service to comply. He claimed to have a lot of cases “where staff have brought up issues to their customers and those customers have been very pleased to have had those staff bring up that issue and help them solve it before they ran off a cliff” “because when they do that it saves those customers from tremendous problems”. He said that if such a warning were not heeded, he “shifted to a “protect the asset” mode” and “Bill [Madia] expects me to do that”. (It was odd to hear a person being referred to as an “asset” in this way.) He said that some customers “really appreciate[d]” the “speeding ticket” they got. Held asked what the system was for protecting people who wrote the speeding tickets; he said it was the policy not to allow people to get retaliated against for bringing up a safety issue. To find out if retaliation had occurred, he said, one had to “talk to the right people….find out what the issue is….and make a judgment call”. He said that he had 300 people (in his organization) who wrote speeding tickets “for a living”. (He said this although he had denigrated the PNNL staff who used to “write speeding tickets”.)
Held pointed out that the AEG evaluation sheet showed me as having 10 years at ORNL and Utrera 8. But, she said, the fact that I had been a rad engineer for a total of 25 years and Utrera had been one for 8 did not appear on the sheet. Beierschmitt said he hadn’t known that. He said that the decision to lay me off was based on my “ability to serve the client”. The judge asked if in any discussions of the review board the issue of my interaction with customers came up; Beierschmitt replied that it did, that Scott had told the other members that customers did not want to work with me and that the customers said that “Janet is not helping solve the problems, she’s telling them what they can’t do instead of trying to walk them through and how they can get the problem resolved”. He said that this was “a different skill”. He admitted that before Scott told him all this, he had “very little” personal knowledge of any customer complaints about me. He had never participated in any discussion with anyone, Scott included, as to whether I had raised my concerns in good faith; he asserted that “We treat all disclosures as though they are in good faith” and that UT-B got lots of disclosures.
This testimony ended the first day of the hearing. At one point during this day, Held had remarked to me that she could tell that the judge had already made up his mind, but she couldn’t say which way. Apparently there was something in his body language or tone that told her. But I didn’t think the hearing was going well because she seemed irritated. At one point she lashed out at me, telling me that I had done so much damage in my testimony that she had everything she could do to try to fix it in her questioning of other witnesses. She did not explain what she meant and I had no idea what she was referring to: I thought that I had said things the way she had told me to say them, where we had anticipated the questions, and had done my best to answer calmly and professionally where the questions were unexpected. Since my friends and my husband told me that I had handled myself well — in particular, not losing my temper even at the needlings of Guilford — this seemed weird to me.
I felt desperate because there were all these statements against me and my position (with the exception of Mlekodaj’s testimony, bless his heart) and no witnesses of mine to counter them. I felt that it was obvious that we needed some rebuttal witnesses, although Held was dismissive of this. So I called and left messages for two people I thought would be considered objective enough with respect to rad safety (because they were outside the rad protection organization) and yet knowledgeable enough about me and at least one ORNL project to be able to give some context to the issues and events being discussed. These were Don Mueller, who like Gilpin was a criticality specialist in the former ONS, and Gubanc, the DNFSB rep with whom I had talked about the Building 3019 project and its lack of review. The former had interacted with me in the course of benchmarking MCNP calculations and more important, had also been removed from MSRE work; the latter had asked questions about avoided radiological reviews at Building 3019 after receiving information from me. I was able to speak with Mueller, who talked with his supervisor and agreed to come and testify. I did not hear from Gubanc, but for most of the next day I was unreachable in the guardhouse.
Day 2 started with UT-B’s R. Michael Gallaher, the rad protection finance officer for OSSD, who talked about OSSD finances. Guilford, getting in his licks, editorially remarked that it was not quite the case that I was laid off just because I was difficult to work with; he went on to say that there were financial reasons that I had to be laid off, asking Gallaher what the chargeout rate was that I had “accomplished” (as though I controlled my own assignments and thus my own chargeout rate). Gallaher reported that the chargeout rates for Geber and me for June-July 2000 were 11.8% and 10.7% respectively. That is, prior to institution of the full chargeout system, we charged out 11-12% and had to be supported at 88-89% on overhead. He said that in June-July 2000, the equivalent of barely one of the four AEG rad engineering people (including Mei) was being supported on our total chargeout. Gallaher could not remember what Utrera’s chargeout rate was and he had brought no documentation with him that he could refer to. He stated specifically, however, that he could not speak to the question of AEG’s finances and chargeouts, that is, how the money and time were allotted within AEG. In particular, he could not say if there was a need for four full-time equivalent people to do all the safety reviews that needed to be done. He could say only that given the current chargeout rates, only two could be supported (i.e., by the future budget allotted to AEG). The judge asked about one entry, apparently for Utrera, that said he had a 37% chargeout rate; he noted that this employee seemed to be assigned to a special project, but that was not indicated in the table. If it was a special project, then the high chargeout rate might be an anomaly. Gallaher said he did not know about the actual work done, so he could not put any such explanations in the table.
Jerry Hunt was next. He stated that on 1 October 2000, he had acquired the AEG and the “Radiological Engineering Group”. (I think that there was no such group as the latter and that either he meant the radiological engineering subgroup of AEG or this was a made-up title for Don Gregory, Steve Hamley, and perhaps Betty Slaten.) Hunt said he had had no role in the decision to lay me off or in determining the budget for AEG for FY 2001. Guilford then showed Hunt a letter from some Tennessee Valley Authority quality people (not rad protection people) who had done some testing work at HFIR and who were praising the work of the HFIR people, including the ALARA practices. This was totally irrelevant to anything Hunt had said or would be asked (e.g., it wasn’t about Hunt’s organization specifically or about any specific decision or practice) and Held objected to any more discussion of it. (I mention this as an example of a lot of irrelevant stuff that the judge let UT-B get in, while he sharply curbed any tendency to stray on Held’s part.) Getting back to the subject, Hunt said that he was aware of friction between the rad tech organization and AEG and that the friction involved me. He looked into it and from what his people told him, concluded that AEG was “not adding much value to the process, and was irritating customers and the people in the [field]”. The reason for the irritation was that the AEG people “were not experienced in operational health physics”. He said that one O&R (line) person told him that AEG was “trying to go to school on the customer’s dollar”. He explained that the O&R people expected someone to come in and review their facility who “was aware of their facility and the operational concerns of that facility and what needed to be done. And what they got was somebody who did not know anything about it, and asked a lot of questions that really were not germane to the project they were working on”.
Guilford asked Hunt about Sims’ manner of dealing with dissent. Held objected, saying that Sims’ character was not at issue and such character evidence was not admissible anyway. But the judge allowed it. Hunt stated that Sims’ modus operandi was generally to pull both sides in and listen to both sides before making a decision; then he would generally explain to the parties why he made the decision. Hunt opined that Sims was probably the fairest supervisor he had ever had. Hunt said that he had occasion to discuss my layoff with Scott, who told him the names of the people on the layoff list. He thought that my layoff was not related to my having raised concerns.
Held asked if the “learning on the customer’s dollar” assignments were new for the rad engineers; Hunt replied that some of them were “not particularly new”. He said that actually the “dollar” comment was made about one of the other rad engineers, not about me. Asked if the assignments the rad engineers were getting into were new, Hunt shifted and said that they did not usually get involved on existing projects, so they would be new projects. He agreed that whenever somebody started a new project, the person would have to ask a lot of questions, but he expected that a person “doing a project in an existing business where most of the people have been out there for fifty years, that you will know something about the way those buildings operate”. Held asked if he was testifying that the rad engineers knew nothing, or just that they asked a lot of questions. Hunt said he was testifying about what “they” complained about to him, “which was that they [customers] felt like they [rad engineers] did not have the knowledge necessary — the operational experience — to perform the functions that they felt like they should have”. Asked if he had followed up on this with the rad engineers, Hunt implied that he had not, saying that most of the complaints had occurred before the rad engineers worked for him since this had been going on “since I first got here in ’94”. Held asked how Sims responded to all this — if he ever said that on new projects, people had to ask questions; Hunt replied (the transcript is missing some words here) that that really never came out, that the rad engineers were asking a lot of questions and were not of much value even after they asked the questions.
Scott testified next. She was her usual earnest, attentive self, but she did not come off well, my friends and I agreed. She was not a good “tap dancer” — she could not sidestep Held’s questions very well or think of plausible answers on the fly. She was not as slick as she would have needed to be to handle her principal witness role, and she faltered several times. She took responsibility for the decision to lay me off, but she was not wholly credible in the way she said it, I thought. In describing her background, she stated that prior to becoming the head of OSSD, she had been a group leader for ES&H activities in the Robotics Division. (I was surprised to hear that — why, I wondered, would an O&R division, especially one as small as Robotics, have an ES&H coordinator occupying a group leader position?) Later in her testimony, she said she had been in the “field of safety” since 1991 — i.e., at the time she was chosen to be division director in early 2000 she had been in the field for nine years. She said she had been the rad protection officer, the environmental protection officer, and the industrial hygiene officer for Robotics and had performed many functions for her division that other divisions had OSSD do. She said that Robotics’ ES&H program was among the top three divisional ones at the ORNL.
Scott stated that many of the things I told her about were events of the past, which she could do nothing about, so she looked at “real concerns”, i.e., “current” concerns only. Although she said she agreed with some of my concerns and took some corrective actions, she did not specify what the concerns or corrective actions were or elaborate on the basis for her conclusions about any of the issues. She said that she had taken some [unspecified] corrective action when she reorganized the division in October 2000.
Scott stated that 31 out of 200 people in OSSD had either left voluntarily (VRIF’d) or had been laid off, with 20 of those laid off involuntarily. (The reader will note that this was a total reduction of 15.5%; however, Sims later stated that 225-230 people had been reduced to 200, so this would be a reduction of 13-14%.) She said that the decision to lay people off was due to UT-B’s having realized in June 2000 that there was a need to reduce the budget and that the decision regarding whom to lay off came later. She stated that she could not possibly know the characteristics of all the people in OSSD, so she had relied on information from the heads of the three safety suborganizations (Sims, Kohring, and Shirley). However, she said that she had not “rubber stamped” their recommendations; OSSD had used the layoff evaluation sheets to rank employees. She said that she herself had not prepared these sheets; the office directors had. Asked if she had made any changes in the sheets, she replied that she had: she had questioned some wording and rankings on the sheets and after some discussion, these were changed. But, she said, there was no need to change the one for me and the others. She claimed that she had no other knowledge than what Sims had presented to her and that she had coordinated extensively with Sims.
Scott stated that a problem she faced upon taking charge of the safety organization was that the suborganizations were “stovepiped” (she did not define this term). She “did not have the organization efficiencies and one way to get the budget reductions was to get some organizational efficiencies. Also, I did not see the interaction
[of]
organizations from the safety perspective or a teaming perspective that would enhance safety services to the Laboratory”. (Not for the first time, I wondered if she actually understood the jargon she used.) That was why she had eliminated a management level in her division and had only sections (no more “Offices”). (Note that she said this was her decision, while other information said that it was decided by Beierschmitt.) Her division had been overspent by $500,000 even before Beierschmitt directed her to reduce her budget by some 20%. She claimed to have made the decision to have AEG be a purchased service rather than an overhead service because AEG was not a Labwide service; she said that only 500-600 people worked in organizations that might use AEG services [i.e., the rad-work-performing organizations], while 4000-5000 people worked at ORNL. But she said that Sims told her that in February 2000 that Beierschmitt had told him that AEG services should be purchased.
Scott said that rad techs were fully charged out. She did not address the question of rad tech supervisors (complex and group leaders) and in this part of her testimony she seemed to confuse groups and sections. She said that “we” had looked at the potential for work for AEG, including commitments from other organizations for the next year. (Examples she gave that the reader may find relevant were that Utrera was to be supported at 50% for the HFIR outage planning and then at almost 100% for the actual outage and Mei had her DOELAP audits to supplement her chargeouts.) Scott said that her discussions with Sims indicated that two people would be enough to do the projected amount of AEG work, hence two would have to be laid off. She stated that she told Sims that Geber was to be the first to go, then I; I would have been retained only if Mei or Utrera left voluntarily (VRIF’d). My disclosures did not influence this choice, she claimed, only the layoff criteria set by UT-B. She did say that she had received a complaint from a division director about an AEG member. (I believe she meant the Robotics Division director’s complaint about Geber.) One of the “critical skills” identified for AEG was the ability to communicate and to have good interpersonal skills with line management; Utrera, she said, was the best, while I had problems. She “did not see any evidence” that I could make the switch to the “purchased service model” of doing business. Scott asserted that what Guilford termed “the essential layoff” of me was not in any way a motivation for retaliation for my having raised concerns to her or to others; she said that “it was an expectation. When you work in the safety and health field or the rad protection field or any of those support fields with the organization, that is your job — to advise. That is what people need to do”.
Scott said she talked with staff members in early April regarding her expectations; she met with Mlekodaj, Mei, and me (except that in my notes, it was in May that we met) to talk about professional responsibility and customer service (except that in my notes, we talked mostly about RP-310, the rad tech organization’s doing reviews, etc.). Held asked her a series of questions about the concerns I had raised to her, asking Scott in each instance if it was “reasonable” of me to raise the concern. Asked if it was reasonable of me to raise the concern about RP-110, Scott replied that it was appropriate because I “had a question in [my] mind”. My “interpretation” of RP-110 was different from Sims’s interpretation, however; she concluded that my concern about this was not a matter of a substantial violation of the law “because there is no law that says you cannot issue a waiver”. She conceded that Mlekodaj and Mei shared some of my opinions; in her talks about the various violations with Mlekodaj and Mei, they both told her that there were violations of procedures, but they did not tell her that there were violations of the law. However, in response to a direct question from Held, she conceded that she had not asked them if they saw any violation of the law in these procedure violations. After speaking with Sims, Milan, and DOE’s Robinson and informally with Swanks, Scott said, she had determined that there had not been a violation of the law. This was a matter of “differing professional opinion”, she concluded. (Note that it is not clear that Milan and Robinson ever studied the procedure before giving their opinions.) She said that she had also talked with Hunt. Held asked if Scott was saying that she sided with the three non-AEG people (Milan, Robinson, and Hunt) over the three RCS/AEG people (Mlekodaj, Mei, and I); Scott said she was.
Regarding my concern about Chem Tech’s and RRD’s pressuring Sims to condone their violation of procedures, Scott said that Sims told her had had not experienced any pressure; Scott could not remember Mlekodaj’s reply to her question as to whether he had observed any. Regarding what she said was my contention that “only AEG could perform reviews”, she did not reply to Held’s question about whether it was reasonable for me to raise this concern. She opined that there was no law or regulation on that, but she did say that it was not a substantial concern. She noted that she assumed that I was sincere in my concerns, but that that was an assumption that she made for everyone. Asked by the judge if she didn’t think that it would be reasonable to assume that if one had a medical problem, a doctor might be better for one than a medical technician, Scott replied that it depended on the extent of one’s medical problem and that “a nurse can suture as well as a doctor and in some cases better”. Regarding the raising of the review trigger level for dose rate from 1 R/hr to 5 R/hr, she stated that based on her interviews with others, she judged that raising the triggers was okay — “Raising [sic] that trigger level is not mandated by any law”. She didn’t really discuss this with Mlekodaj, she said, while she found that Mei “preferred” the 1 R/hr. She claimed that Mei did not indicate any safety concern to her about this, “other than in more complex-level type areas”, and that Mei said that “it was not an impact of safety”. She thought it was reasonable for me to bring up this concern because AEG had expertise in this area, but then, she said, so had Sims (who blessed the increase); it was not her area of expertise. About the schism between the rad tech organization and AEG, she thought it was reasonable for me to be concerned that it might lead to risks to health and safety. About my concern regarding the compromising of reviewer independence, she said it was reasonable for me both to raise the concern and to fear that this phenomenon might lead to violation of the regulatory regime. So while she agreed that it was reasonable for me to raise all these concerns, she decided that none was after all a problem except possibly for the schism.
Scott reiterated that it was Sims who had actually prepared the layoff forms (presumably including assigning the points), with the help of the in-division human resources person. (Note that she allowed Sims to prepare the form involving me even though I had complained of Sims’ actions to the Employee Concerns people and others, and Scott and presumably Sims knew this.) Scott said that she did not talk at all to Mei about me. Held asked her why the immediate supervisor would not be the one preparing the layoff forms; Scott said she chose to have the office directors do it since the impact would be large and she didn’t want to “stir up” people. Held then asked her a series of questions about me, e.g., who was more familiar with my work, who had observed me at meetings, Mei or Sims? Scott had to answer in each case “Mei”. But to whom had line management complained? Scott had to answer “Sims”. Asked why line management would not have gone to Mei, Scott replied that Held would have to ask them. She claimed to have seen documentation of conversations between Sims and line management people about me. Who would line management or others speak to if they wanted to praise me? Scott paused a long time, then answered, “Either Sims or Mei”. She claimed again that I was terminated because there was no funding for me — it was a “business necessity”. Held reminded her that in terms of selecting me personally, Scott said that I had been selected for layoff because she thought that I would be less “successful” than Utrera, as Scott said I had “demonstrated in the past”. Held remarked that it would seem that Scott would have talked to the person (Mei) who saw Utrera and Westbrook every day; Scott reiterated that she relied on Sims’ information.
Held asked how the layoff process worked. Scott replied, “You do an initial thought process as you go through the process to lay it out. You think of names, then you have to justify it in words, so you have to think of it first before you put it on paper”. This was so stunning a statement (Scott apparently did not realize how it struck her listeners) that Held had Scott confirm that she did not mean that people were picked to be laid off before the evaluation sheet was generated, but that it was generated and discussed and then a decision was made. Held also asked if she meant that the discussions were not of the “Janet Westbrook needs to go, we have to make her look bad on paper” ilk; Scott replied no. Held asked when the layoff discussions had taken place; Scott said that it had been over July and August.
Held asked why no rad techs were laid off, but two-thirds of the peon rad engineers were. Scott replied that it was because the rad techs were already a purchased service and “their area is supplemented or augmented by subcontractors”. Thus if funding was lost for them, the subcontractors could be let go. But Scott agreed that a rad tech could not do everything that a rad engineer could do. Held asked if there were fewer safety reviews that needed to be performed by AEG. (Scott’s answer is garbled in the transcript.) Held asked what functions AEG performed with the overhead money it was paid; Scott replied that there were procedure writing and “services to the division” — and that Held would have to ask Sims for more specific information than that. (The reader will note that Scott, although she decided which groups were to suffer personnel losses and which individuals were to be laid off, could not state even half the things AEG did on the overhead money, lumping them into vague “services”. Also, the rad tech complex and group leaders did reviews supposedly on a chargeout basis after 1 April 2000, as AEG too had been directed to do.) Held asked if that AEG work had gone away and if not, how it was to be paid for. Scott said that it hadn’t, but that Held would have to ask Sims how it would be paid for. (Note that when Sims was asked this question later, he said Held would have to ask Beierschmitt.)
Held pointed out that I was selected to be laid off before Scott issued her September reply memo to me about my concerns, indeed prior to Scott’s completing her investigation of the concerns; Scott agreed that that was correct. Scott stated that Geber was her first pick to lay off because he was “ineffective”, “nitpicking, demanding, unnecessary activities, not looking at the whole picture, demanding that he approve everything when it was not a requirement, slowing down the work, not adding value”. (Note that this litany contained almost the exact words and phrases as had been used in the complaints made by Chem Tech — and also in the complaints allegedly made about me.) Held asked if she based this on the complaint of him she had received (from Robotics) and how Scott knew that he was nitpicking; Scott answered that she had been told that he was asking for drawings rather than doing what the line division wanted him to do. (Note that this comment was apparently with respect to the Robotics job that the complex leader thought Geber should be involved with. If Geber had been able to identify from the drawings which of these old lines were likely contaminated because they had carried radioactive material, then the planners would not have to assume by default that all the lines were contaminated internally, which would be a savings in time and effort, and on the other hand they would not be able to, e.g., sample one line and declare it to be representative of all the others. Scott was unaware of this because she never talked with Geber himself about why he wanted the drawings.)
Scott cited only the one complaint, but then stated that Geber “continued to demonstrate that he didn’t have the critical skills” needed to serve customers well. Held asked how Scott knew that Geber’s safety concerns were not justified. Scott replied that she didn’t think he was raising safety concerns; she said that from the complaining phone call she had received, he was asking for drawings “rather than [doing] what the Division wanted to do, which was just assume that all lines were contaminated and handle it that way”. Held asked if the complaint was about the level of thoroughness that he wanted from the line organization; Scott replied that “they complained about his excessive demands”. Held asked if that was why Scott laid him off, and Scott denied it. Held pointed out that Scott had said that discussions with Sims plus the complaint had lead her to decide to lay Geber off and Scott replied, “He continued to demonstrate that he did not have what we consider to be the critical skills for communication and interpersonal skills”. Held asked what Scott thought were other critical skills for success in the chargeout system besides communication and good interpersonal skills; Scott said technical skills and agreed that I had good technical skills. In response to another Held question, Scott stated that there was a culture at ORNL that one took one’s issue up through supervision; one could also use the Employee Concerns office or DOE. Held asked her if she had ever heard that I cursed anyone, was late to meetings or in producing reports, failed to provide explanations or justifications of my positions, etc. Held asked how, specifically, it was that I had failed to communicate with line management. Scott said that I communicated, as she understood it (i.e., as she had been told), that there was only one way to do things and I did not “offer options”. She conceded that she had no personal experience with my acting that way, saying, “Dr. Sims is who I got my information from”.
Sims was the next witness. He did not appear to be his usual amiable, candid self, but looked tired and spoke in what seemed to me to be a manner simultaneously guarded and resigned. Questioned by Guilford, he said that there had been difficulties between me and others at ORNL from 1993 on. (I was surprised by his choice of that year and I still do not understand it.) He said the complainers included Chem Tech director Eugene McNeese; former MSRE project manager and then Building 3019 project manager James Rushton of Chem Tech; REDC manager Brad Patton; Chem Tech’s Dan Ramey; procedures honcho Susan Bly; ORP secretaries Karen Galloway and Barbara Miller; RRD managers J. Ed Lee and Walt Brown; the head of the Office of Quality and also Health Division audit head Pete Hoke; and Health Division director Dr. James Phillips. (He did not state their titles, for the most part, but I include them here to inform the reader.) He claimed to have most of these comments in the form of E-mail messages from these people or notes of their phone conversations with him, but he did not have any of these documents with him. The theme from all these people was, allegedly, that I was focussed on minor issues and that I was tenacious and would not give up. He said that I “seemed to waste folks’ time and energy”. He gave as an example the time I tried to get AEG money back from the craft division when they overcharged us for assembling a table; he claimed that there were memos and meetings over a period of 14 months for “one hour” of overcharged time. (I related this incident in a previous chapter. This incident did not extend over 14 months at all, so it is unclear why he said that. The craft division charged 3 hours of time for 15 minutes of work. While there were various memos, they were basically duplicates and the craft division ignored most of them; there was only one meeting. All this had nothing whatsoever to do with my rad protection work, which was where the complaining “customers” were involved.)
Sims also cited the proprietary agreement incident, but did not mention that various others also had questions. He claimed — which was news to me — that when UT-B took over and we all had to sign a new proprietary agreement, UT-B head lawyer Stephen Porter had called him up and asked about a person “who was refusing to sign the agreement”, i.e., me. (I was shocked at this allegation. When we got the UT-B proprietary agreement, I had sent in a question by E-mail, as the cover note on the agreement said to do if we had questions. I got a nice reply back eventually from the agreement honcho in the personnel department, but he could not answer the question and I gathered that he had had to refer it to the legal department for an answer. I suppose this took a few days and in my case, delayed the quick turnaround on signing that UT-B wanted. Still, I believe I got it in by the deadline and certainly others were even later than I. So I was completely floored by the allegation that I had “refused” to sign. Perhaps Sims was confusing this with the prior re-signing of the proprietary agreement back in the Lockheed Martin days, mentioned by Mlekodaj in his testimony, when many others were also delaying signing until clarifications were provided.) Sims said that Susan Bly claimed that my comments were extremely long and burdensome, that Bly was not satisfied with the results of the reviews and resolution of the comments on those procedures, and that Bly did not complain about anybody else in ORP. (This was also news to me. She certainly had never spoken to me about this, nor did my supervisor Mei or anybody else in my management; I believe that my supervisor Mei and possibly Mlekodaj were in fact unaware of Bly’s complaint. I recall that Bly and I had one conversation about how the system she presided over handled comments (she provided information to me), but it did not deal with resolution of any specific comment.)
Sims said that Dr. Phillips had complained to him that he could not work with me; Sims asked Mei to talk with Phillips “and the problem was resolved in 15 minutes”. (Again, I had no idea that Phillips had said that and Mei did not tell me about the 15-minute resolution business, which I think she would have done had it occurred as Sims said. I think that it is possible that this was about the fetal protection procedure comments, on which, as I described earlier, I spent time coaching Phillips’ person about how to input comments as per Bly et al.’s system and reassuring her that we would consider Medical’s comments even if they were late.) Sims said that Hoke asked him to remove me from the Health Division audit because of what Sims said Hoke called “some sort of yelling match” between Dr. Phillips and me. (I described this in an earlier chapter. I assure the reader that nobody yelled. I remind the reader that I told Sims about this at the time and he expressed a resigned exasperation with Dr. Phillips’ prima donna attitude toward, e.g., radiological emergency response. Also, as Hoke was not present during my conversation with Dr. Phillips, he was only repeating what Dr. Phillips claimed had happened. Sims was thus testifying about hearsay of hearsay.) Sims did not specify what the secretaries complained of (and he implied that theirs were separate complaints) or what the RRD people had said. (I especially have no idea what RRD’s Brown might have said, since our interactions were minimal and limited to RORC-RRD interfaces; I don’t believe we ever had a one-on-one conversation.)
I will digress here to ask the reader to note that as in the case of the informal coaching and counseling session I discussed earlier, people who had never complained directly to me or to Mei (which they were supposed to do since she was my direct supervisor) or, apparently, in most cases even to Mlekodaj had gone straight to Sims and complained. As in that session, some things were sprung on me that I had never heard of and that Mei and even Mlekodaj might not have heard of. The reader should also recall that I told Mlekodaj after the session that I had spoken with one allegedly complaining secretary, Galloway, and she had denied that she and Miller had complained about me at all; I thought that that had taken care of it, because if the alleged complainers way back when denied that they were complainers, surely a note to that effect would have been put into whatever file Sims was keeping. But here their names were put forth, lengthening Sims’ list. They were not identified as secretaries and what they said was not related by Sims, hence the judge would not know from what Sims said that they were not, e.g., line managers and that one of them had asserted that they hadn’t complained about me. This was dirty pool, as Sims certainly knew, but he nevertheless dragged this in as though it were fact, to fatten his list.
Sims was asked if he was aware that I had concerns regarding the exemption. He replied that he had not known this directly, that Mlekodaj had told him that Mei and I had had concerns about it. He stated that the provisions of the waiver were formally incorporated into the procedure in April 2000 (but he did not state that it had been extended to all divisions, not just Chem Tech, and that it further allowed the divisions to choose their own reviewers, which the exemption had not). Sims claimed that the exemption did not allow for any review steps to be skipped; they only changed who did the reviews. Asked why he had granted the exemption, he said that “It seemed like a reasonable thing to do, would not degrade the safety situation, and would defuse the situation which I felt like would jeopardize jobs in the [rad protection] organization”. He explained that the “situation” to be defused was that “people were not wanting to work with Ms. Westbrook”. (Note the Sims was thus attributing the exemption request entirely to personality clashes between me and Chem Tech.)
Sims said that under his leadership of ORP (prior to Scott’s taking over), no ORP people had been involuntarily terminated and he was proud of that. He stated that he had become “deeply concerned” about ORP jobs in 1996, when the ES&H Re-engineering review took place. What eventually changed was that UT-B said that 2000 was the last year that AEG was to be funded out of overhead; they were to go to chargeout status. Prompted by Guilford, Sims said that a few years ago, the people who worked for him nominated him as manager of the year at ORNL, and he won. About customer service, Sims said that it was important to meet the needs of the customer, but safely perform work within the law; he did not see an inherent conflict there. The judge and Guilford asked if Sims had seen any line manager taking shortcuts that might jeopardize safety and health. He replied no, adding, “But I’m not out there”. He opined that one could pick “any business in the city” and find a manager taking a shortcut. Sims then claimed that line managers had “no incentive” to take shortcuts because if they did not operate safely, they would pay a price. (I was not looking at the judge at this moment, but Held told me later that the judge rolled his eyes at Sim’s statement.) Asked what the consequences would be, Sims replied that a line manager would have to take time “to explain that to a variety of folks”, which would “translate into money as it slowed down the process that he was trying to perform”.
Sims said that Beierschmitt made the decision to convert AEG into a chargeout organization and told Sims this in February. (Note that this contradicted Scott’s statement that it was her decision, after Beierschmitt had said it to Sims in February 2000 and Sims had subsequently told Scott.) Sims stated that he had resisted making AEG a chargeout group back in 1996, because “[line] people would not support that [paying for AEG work] at that particular time” and AEG would thus lose their jobs. Sims said that he “helped prepare” a layoff form “in consultation with Dr. Mei and with our Administrative Assistant”. He was shown another sheet (which I think was the layoff evaluation sheet ranking AEG members), which he said that he had not seen: “it all went out [to Scott] and left her office”. (Thus he implied that Scott had prepared the final form.) Sims said that it was he who had recommended to Scott that Geber and I should be the ones laid off. He put me as the #1 choice to be laid off, but new information from Scott (presumably about Geber’s angering of the Robotics Division head) made him change Geber to #1. Scott was “ultimately responsible”. Sims chose two to be laid off because he thought that only one or two AEG people could actually be supported through purchased services. Held asked why Mei was not in the layoff evaluation sheet (with Geber, Utrera, and me); he said that he did not consider her to be in the peer group because of her supervisory role. Thus with Mei given a bye, only one of the three peon AEG people could be retained. Held asked Sims why I was chosen to be laid off and not Utrera; he replied that he could not “force [line] people to buy the services of an individual”. He then claimed that he had tried to push ORP into charging out “from the very beginning” (i.e., when he took over in 1992), when ORP was 30% charged out and 70% on overhead. He claimed that he was successful because by 1999, the percentages were reversed. He said that when UT-B came in, they set that as a goal for the other organizations to match. He stated that Utrera’s chargeout rate was 33%, Mei’s 12%, Geber’s 10%, and mine 11%, so that Utrera looked like the strongest to retain; RRD had “asked for his time”.
Sims stated that he “later” learned that I had gone to the Employee Concerns office — e.g., “the Ethics Officer [Stow] came by one day, just happened to drop in, and asked kind of weird questions”. (The reader should note that this contradicted Stow’s statement to me that until late in my concerns process, he had not heard of me or my concern from Buttram.) Milan and Buttram also mentioned things to him, so he knew “something was going on associated with [RPP-]310, the waiver [exemption], Janet, and me”, but he did not know what. (The reader should recall that the list of differing professional panel members nominated by Milan was said to have been prepared by Sims.) Sims said he had learned the specifics only in late November (apparently just before the layoff or during the layoff week), when DOE’s Robinson called him to ask if he had seen my writeup; Sims claimed not to have seen a copy of it until weeks later. He denied that my raising of concerns was in any way a motivating factor in the decision to lay me off.
Held said that she had counted 11 people whom Sims had said complained about me; Sims said there were more, but he could not recall who they were. Held asked if these people had said that I behaved in an professional manner, e.g., had cursed them, was late on the job, dressed inappropriately, or similar. Sims replied that “some” said that I “behaved inappropriately”, e.g., that I had been “disruptive in meetings”; regarding this, he recalled that Hunt had told him that I was “disruptive” in a meeting. (This was presumably the ALARA Working Committee meeting where Hunt thought a statement I made about a complex leader was inappropriately critical, even though Mlekodaj and Mei did not and even though I also complimented the complex leader; the reader will recall that Hunt told Mlekodaj that he thought about asking that I be banned from such meetings. There was no “disruption”, however.) Held asked if this was a complaint about my being tenacious, not letting matters go, arguing over issues, or wasting time and energy. Sims said no, that it was a case of being “mean-spirited”. He admitted that he was not at the meeting, had not talked to me about it, and had just accepted Hunt’s word for it. Held asked Sims if he had any personal knowledge of my behaving in an appropriate manner with anyone he had mentioned. He agreed that he had not seen it himself and he hadn’t spoken with me about it — it was all to be “addressed by her supervision during performance appraisals and sessions for coaching and counseling and mid-year performance reviews”. (Note that he had directed Mlekodaj and Mei to do the (one) coaching and counseling session — they told me it wasn’t their idea.) Held pointed out that he had been the one, however, to pull me off jobs, not Mei and Mlekodaj. He agreed and said that he took me off the MSRE project “at the request of the folks she was doing the work for”; he noted that although Mlekodaj claimed to have made the decision to take me off the MSRE project, his own recollection was that it was his own decision. He said that he took me off “a project at HFIR” also (presumably the beryllium outage job — it now became clear that it wasn’t Mei’s and Mlekodaj’s decision to assign Utrera instead of me, but Sims’).
Asked by Held about the reasonableness of my concern about the exemption, he stated that it was “unreasonable” of me to question it because I “should have known that the effect of it would have been so small that it would be a waste of time to bring up something like that”. He stated that “as you well know through the DOE reports and all that”, others had different opinions (from mine) about it. But he conceded that Mlekodaj disagreed with him about it too. Held asked him what functions I did as part of my overhead funding; he replied that he did not know — Mei would know. Held persisted, asking him if the work I was doing on overhead would just go away. Sims said stiffly that he “didn’t know what Beierschmitt assumed about that” and that since he, Sims, did not know the details of the work, he could not very well know whether the work was just going to go away. (Note that Sims’ statements above suggested that Beierschmitt dictated a financial result without considering what the consequences would be.) All he could say was that two people had to go and that he, Scott, and (he now said) Mlekodaj had decided who. Held said that it seemed to her that he would need to know how much work there was to do, to determine how many people he needed to do it. Sims said that Held was missing the fact that an Associate Lab Director (Beierschmitt) had told him that AEG was to be a chargeout function and that only three-quarters of a full-time equivalent AEG person was being charged out at the time. He said “we” chose to try to keep two people (which would be “a stretch”) and “to go on and make that attempt to perform the work that way”. Held asked again who would do the overhead-funded work that was previously done. Sims said that he didn’t know that if work was totally necessary, since he didn’t know what the work was. He asked if he could add something: that all of the safety organization “was being squeezed tremendously at the laboratory…..an organization like ours that together had in the neighborhood of 225 or 230 people in it and squeeze[d] it down to just over 200, and it has been tough”.
The judge posited a hypothetical example: suppose that the safety engineer says that something needs to be shielded a certain way and line management is not happy about it — was Sims not concerned that the safety person, an engineer who pushes the issue a little, would not be rehired by the client for the next job? Sims did not reply directly, but angled his reply in a different direction. He said that having been head of rad protection, he was not concerned about the amount of dose received during his tenure. Most of the radiation work was low risk and “if there is going to be anybody getting any dose, we are going to try and do something about that”. He opined that “it [concern regarding dose] is overblown in a lot of cases and maybe we, as a nuclear industry, have perpetuated that ourselves”. He said that the record (i.e., nobody at ORNL getting more than 30% of the Federal limit) spoke for itself. The judge shifted gears, giving the analogous example of a lawyer who finds a doctor who agrees to testify as the lawyer wants or else the lawyer gets another doctor to testify. He then asked Sims if this would not be the sort of problem one saw in a chargeback system, that if a rad engineer held someone’s feet to the fire over procedures, they would not hire that engineer the next time but would ask for someone else. Sims said that this came down to the professional integrity of “the folks on that and who is responsible for safety”. He commented that what he personally thought about a chargeback system was irrelevant; ORNL had been “pushed this way from the Department of Energy” as a result of the adoption by DOE of ISMS, “which would suggest that the line managers have responsibility for safety”. He asserted that the safety people were “partners” with line management; “they buy services from us and their expectation is that we….make sure that they are aware of the safety concerns, that we work together to circumvent problems along these lines”. He said that this was a “change in the way we have done business since the time that Ms. Westbrook and myself hired into the laboratory, when it was more what I call an oversight and enforcement type of organization”; the safety organization had been transformed “more into an advisory capacity to the line”. He added that that was a question for “people whose pay rate is a lot above mine”. At this point, the judge seemed to give up trying to pin Sims down. (This sort of evasiveness and sidestepping was not characteristic of Sims, so it seemed obvious that he was doing it deliberately and was not just rambling.)
Held pointed out to Sims that Utrera had a better chargeout rate, with the promise of more from RRD in the next fiscal year. She asked if Utrera had had any reactor experience at the time he was assigned to the HFIR project; Sims replied that he did not know what Utrera’s background was on that. Held asked if it was Mei who assigned the rad engineers to the various jobs and if some jobs were on overhead and some charged out; Sims agreed with both statements. Held said that if Mei had assigned me to a chargeout project, my chargeout rate would have been higher. Sims said it would have, “if the customer would accept that” but “that was the problem we were having”. Held asked if it had always been true that the customer could pick its own reviewer; Sims replied that it had not. Held showed Sims two documents (one of them apparently the layoff evaluation sheet), dated 14 and 23 August 2000 respectively, which Sims stated were prepared after discussions between him and Scott. He agreed that they were a brief summary of their discussions. He said that the first discussion he had with Scott in which the names of the two AEG people proposed for layoff were mentioned was 21 July 2000. Held showed Sims another document, from which she read the following note that Sims agreed he had made: “7/21/00, Carol [Scott] says I must lose 1-2 people from ALARA Engineering. She said Geber #1, Westbrook #2. Ron Mlekodaj says fifty percent to all the chargeout could do it in one, therefore lose two. And Herndon [Robotics Division director and Scott’s former boss] said something to Carol about Kurt’s [Geber’s] input”. (I took this from the transcript, which was transcribed from the tape of the hearing; thus the statement about Mlekodaj could have read “….to all the chargeout. Could do it in one….”) Held asked Sims if this referred to the complaint (by Herndon) about Geber’s “hold[ing] their feet to the fire too much for being too demanding” and he agreed that it was.
Held elicited from Sims a statement that Scott and Sims had their discussion of whom to lay off and then generated the layoff evaluation sheet. Held said that to her, it looked as if they first chose Geber and me to lay off and then generated a document to justify it. Sims did not take umbrage at this, but stated that Geber and I were chosen as a result of the entire process, which he himself had never been through. He asserted that there were checks and balances in the system and that Scott had had to defend her choices. He admitted that he and Scott did not have a copy of the layoff evaluation sheet or even a copy of the layoff criteria when they had this discussion. Sims said that he and Scott talked specifically about people’s performance in terms of their future chargeout potential and customer service — that it was specifically “a performance issue”. Guilford asked if the complaints about me were unusual; Sims replied that they were unusual in that they were extremely high (in number). He acknowledged that he had received complaints about Geber also, although not as many. He said he received no complaints about Utrera. Held noted that Sims had said that doses were low over the last so many years and asked if this was the same time frame in which AEG was doing reviews. Sims replied that he was “not aware that the ALARA Engineering Group has ceased to do reviews”. Held asked how Sims knew what happened with the dose when reviews were not done. The judge cut her off, stating that her question was not relevant to the proceeding. I was surprised — why was this not at the heart of the matter? The judge asked Sims if he had talked with me personally to tell me what the nature of the complaint was and whether I would have to change my behavior; Sims said he did not recall any such conversation. (Of course — because there never was one.) The judge asked if he thought my supervisors had spoken with me; Sims said he did. The judge asked how he knew; Sims replied that on one occasion (the coaching and counseling session), he had directed Mei and Mlekodaj to do it. The judge said, “So this (layoff??) would not have come as a surprise to Ms. Westbrook?” Sims replied that he didn’t think so.
The final UT-B witness was Mei. She stated that she had been AEG leader and thus my immediate supervisor since 1994. She stated that I was very knowledgeable about many areas of health physics, that I was quite familiar with 10 CFR 835, and that in general I did my job well. She thought that the customer service issues began in 1996 or 1997; she said that she and I discussed problems pertaining to worker safety a lot. She opined that the violations of procedures were clear but whether these were violations of 835 was a little “indirect”. She said that she and I didn’t always agree, but she herself was sometimes concerned about the way things were going. In particular, she had been concerned about the RPP-310 exemption. She stated that AEG did not know anything about the exemption until Mlekodaj told us (i.e., after it was a done deal). All of AEG had “a little bit of concern” regarding the exemption and AEG was told that the reason was “because of customer’s requirements”. About the HFIR strainer flashing (concerning which she and I had met with Lee et al.), she said my concerns were reasonable. She herself had talked with me and others and she herself was concerned about it. She related that we had gone to meet with Lee regarding our RPP-310 avoided review concerns and she had emphasized that these reviews needed to be done. Asked if it was too late for us to do our job after the work was done and exposure had occurred, she agreed that that was too late. But she professed not to remember any details of this meeting; in particular, when asked if she was concerned that this particular violation of RPP-310 was a violation of the law (835), she said she could not remember the details. Asked if it was reasonable for me to be concerned that the rad techs were performing RP-310 reviews, she replied that it was.
Mei said that I had always come to her first with my concerns and we would talk about them. Asked if I was ever removed after raising safety concerns, she replied that that had occurred when I worked on MSRE, but she opined that that involved more than safety concerns. Asked about having my role limited in HFIR work, she replied that that was due to customer request. (Note that this refers to the October 2000 limitation, when Hunt suggested this to RRD first and RRD then asked for Utrera to be assigned as the RPP-310 reviewer.) Asked the nature of the customer concerns or request, Mei (misunderstanding the question) said that it (the removal/limitations) was “because customers pay us to do the work”. Asked if this was a chargeout issue, Mei replied that it was not so much that at the time, but they were preparing for full chargeout in fiscal year 2001: she said that in 2000, “whenever we got a chance, we ask for charge number. So first customer, they have money, they have work, so we have to work with them”.
Mei said that on MSRE, the MSRE customers said that I was highly competent, but it was sometimes difficult to work with me, “so what they don’t know is we are spending the time to have her involved with the work” (i.e., they couldn’t see why their time was being wasted by my being assigned to their project). She reiterated that the basic complaint was that I was “difficult”. Asked if she thought I should be pulled off the project for that, Mei replied that at the time, she thought it might be better for me and for AEG to pull me off. But she added that she had had no choice in the matter, that the only choice was either for AEG was to keep the project work or to fight for funding (the transcript has dashes at this point, i.e., the transcriber could not understand what Mei said after “fight for”, but I believe that this is what she meant.) She said that it was Faulkner who told ORP to take me off the job, but the complaint came from both Faulkner and Rushton. She said that she talked the matter over with me and that my response was that I thought I was “doing the right job” and “help them protect workers, comply with procedures, laws”; she said I did not think I was being difficult. She said that I was very professional and very competent but “sometimes maybe not very easy to deal with”. But, she added, one of those two managers (presumably Rushton) “was not one of those very patient customers”, so he and I did not really “mesh”.
Asked to be more specific in what ways I was not easy to deal with, she said that I was “sometimes not the best team player”, but I was very good in my technical work. She agreed that I had strong beliefs about worker safety, that I expressed myself directly. Asked whether I gave my opinion and said “It is this way because I say so” or tried to back up my opinion with references to procedures and law, Mei said it was the latter. She stated that not just I, but she herself also, focussed on our area, whereas project managers looked at the whole picture and sometimes they disagreed with us. Mei said I never screamed or otherwise expressed myself in an inappropriate way; she added that once or twice after we had disagreed, I had apologized to her for something I said (that was tactless). She did not recall my making any personal (derogatory) remarks, never said a person was “stupid”; she said that I would say “This is a stupid problem” or “Oh, this [situation] is stupid”, etc. She thought a lot of people said things like that, not just I.
Mei said that she had done my performance reviews since 1994. Supervisors were not told to evaluate supervisees on relations with line management before 1997 or 1998. There had been a cultural change in 1995 or 1996; prior to that, ORP had been an oversight organization, but from then on, ORP had been considered a service organization and needed to study how to please customers. She began to do a customer satisfaction survey after that. Mei was asked if my customer service score would have brought down my overall score; she replied that through 1997, probably not. That is, there were some positive and some negative evaluations from customers, so that it likely did not affect the overall rating. This did not change through 2000. She noted that at the senior level, where I was, a person performs well, but compared to the junior people, the performance is good but not excellent (i.e., the expectations are much higher for senior-level people). She said that one criticism she heard about me was “picky”; MSRE management said that working with me was “painful”. Asked how she could tell someone was being too picky about safety, Mei replied that it was relative; when one advised a project manager who did not then follow the advice, one had to advise again. She said it was the safety people’s duty to “remind” the manager — “in fact, we don’t really push again and again, because of their priority” (i.e., if the manager chose not to do it, one assumed that his other priorities were more important). Held asked if it would the line manager’s specialty to determine safety, saying that she thought that that was the safety people’s job. Mei replied, “We are in this professional field to help them, but nowadays on the project, they also have their own resources. They can get an opinion from other places”. Asked if it was AEG’s job to determine safety, Mei replied again that AEG was to “advise”, but organizations had “their own resources” from which they could also get advice. These were not necessarily rad techs. (She said what else they could be, but the transcript is garbled.) She didn’t know if these other people would have the qualifications that I had; she said that “they” (the other people) could not get a subcontract without an experienced person. (Note that this implied that O&R divisions were free to subcontract out their safety work if they chose.)
Regarding my final rating (for the October 1999 through September 2000 fiscal year), Mei said that she had proposed a rating of 6, but Mlekodaj told her that Scott told him to lower my rating. She had not discussed this with Scott herself and she denied that she was told to lower it to a 3 (although she said she could not remember). However, she said that “we” (presumably Mei and Mlekodaj) finally settled on a 4, although “they” (presumably Scott and perhaps Sims) “suggested” lower. Guilford interrupted at this point to question Mei’s use of the word “suggested” and Mei replied that I might have gotten an even lower rating (per the suggestion). (The judge rebuked Guilford for breaking into Held’s questioning.) Neither Geber’s rating of 5 nor Utrera’s rating of 5 was lowered. Asked if there was any discussion of lowering the rating, Mei replied that there was none; Mlekodaj simply told her to. If she had not made the change, higher management would have, so she did it. Mei said that Mlekodaj had already approved the 6 for me and later came to her and said it had to be changed. Mei stated that she had not selected me to be laid off and did not know who had.
Mei said that she had not known who was to be laid off until the day of the layoff , as we came back one by one from Scott’s office. Held asked if, as Geber’s and my supervisor, she would be the person most familiar with our work; she said yes. She stated that from time to time she discussed her people’s merits with Mlekodaj, but, she reiterated, this time she was not consulted at all. Held asked Mei why Utrera was assigned to HFIR (for the beryllium changeout), if he had no reactor experience. Mei replied, “HFIR, basically they want a lot of support”. She said that they would need electronic personnel dosimeters, which Utrera had been working on, but also general support, such as dose and shielding calculations, which Utrera could “handle to some extent”. But she said that in her opinion he would not have been the best person for the job because I had so much experience working with RRD reactors. She stated that she had not assigned Utrera to the HFIR review work (i.e., replacing me as reviewer in 2000) and that it was a question of being able to charge out in late 2000. Held asked if the chargeout was to be for work previously done on overhead. Mei said that some was, such as the reviews. But, she said, general support was difficult to charge, e.g., if answering a question took 10-20 minutes, “that’s not a chargeout, it is more like professional support”. She agreed that I did not get to pick my assignments and that I thus did not control my level of charging out. Held showed Mei eight pages of “attaboy” memos about me, people expressing appreciation of my work to Mei; Mei agreed that various people did like to work with me.
Guilford asked Mei who had taken over the MSRE work after I was removed and she said she had. She agreed that the managers were reasonable to her and that she had no difficulty working with them. He asked if she insisted that they comply with safety requirements and she said she had. Guilford also established by questioning Mei that the HFIR people had asked for Utrera and that because of the electronic personnel dosimeters, Utrera had “specialized knowledge” that I did not have. Guilford asked if the HFIR people might have reasonably thought that Utrera was better able to meet their priorities, and she agreed. The judge interrupted to ask her if that was speculation about what the HFIR people thought, or they had actually said that. Mei replied that the HFIR people had not specifically mentioned the priorities; rather, the project manager told her they liked Utrera “because he is easy to work with and he provides timely support and he can do the tracking of the dosimeters”. (The reader should recall that the project manager did not know Utrera at the time he asked for him to be assigned and that Mei had tried repeatedly to get Utrera to show Geber, Mei, and me how to set and record these dosimeters and he had put it off repeatedly over a period of almost a year — in effect, Geber and I were shut out of this function.)
Guilford asked if Mei had any documentation of the fact that I should receive a rating of 6, e.g., because of having done exemplary work on any specific project. Mei said yes, citing the specific example of my high productivity on the procedures revision. Guilford asked if she knew Sims’ opinion of my performance on the procedures revision; she replied that he had talked to her once and she had defended me. She said Sims pointed out that some people had complained about my procedures and my comments on theirs. (Note that all AEG members except perhaps Utrera received scathing comments on their procedures from the rad tech organization, whereas Mei’s and my comments and most of Geber’s were polite and professional — if not, Mei would have reproached us.) But Mei said she might not have been aware of all the complaints to Sims about my procedures work because the complainers would have E-mailed Sims and not copied her on the message. Questioned by Guilford about the performance rating change, Mei again said she was unclear as to who had “suggested” the 3 rating, but here she said that if she remembered correctly, a 3 was mentioned. Guilford pressed her as to who might have directed the change, but she resisted speculating on this, firmly saying that Mlekodaj told her to make the change, after he had approved the 6. Guilford asked her if she had ever said that it was “Westbrook’s turn to get a higher rating”, but she adamantly denied having said that; she asserted that she had desired to give me a 6 because I had made the biggest contribution in 2000.
We should have broken for lunch at 12:00, but Held whispered to me just before noon that the judge wanted to continue into the afternoon until we were finished. I thought that it was pretty cavalier of him to delay everybody else’s lunch this way, but Held said she did not want to irritate him by protesting. But the judge’s desire to finish may explain why, when Mueller arrived in the late morning, the judge did not seem to want him to testify and agreed to it only grudgingly. Mueller testified about his satisfactory interactions with me and about his own removal from MSRE. He noted that on MSRE, everything he did was reporting safety concerns — that was the essence of his job — and that since everything he told them they needed to do cost them time and money, there was some resistance. At times they would minimize his concerns, but they were following his advice when it mattered. However, he said, there came a time when he was removed from the MSRE project; he did not know who had made the decision and he was not informed why he was removed. His removal coincided with the desire of MSRE management to perform an operation that was against their then-current safety basis. He told them they needed to modify the safety basis (formally). They did not want to do that, so, he testified, he talked to his boss and to his independent reviewer (both also criticality specialists) and they concurred with him. He reiterated to MSRE management that they needed to change the safety basis.
So MSRE management went over his head, over his independent review’s head, and his supervisor’s head to his division director (Kohring), who was not a criticality safety expert; the division director worked out a deal or alternative arrangement with MSRE to allow them to proceed with the operation. In the spirit of scrupulous and complete disclosure, Mueller explained that his former independent reviewer on his criticality work at MSRE had died and so only one other person could verify his story that his reviewer had agreed with him and not with MSRE management. Guilford asked Mueller if this was a safety concern or “a procedural matter”. Mueller replied that it was a procedural matter, but MSRE did not want to allow him the hour or so it would take to fill out the forms. Again being scrupulous, he agreed that he was aware of the alternative approach adopted and that he did not think this approach raised a safety concern. When asked if he had suffered any adverse job actions because of this affair, he said no, “other than being reassigned”.
Held asked if he had ever worked with me and he described the benchmark work I had done for ONS. He said that it was a good experience and that he enjoyed working with me and respected me; he remarked that we were kindred spirits in the sense that we were detail-oriented. Asked by the judge if he had ever noticed anybody else at meetings (the early MSRE meetings, before he was removed) being disturbed at what I said, Mueller replied, “Not more so than anyone else was saying about anybody else….[nothing] out of the ordinary”. He noted that people who are not detail-oriented make comments about people like that, e.g., they say they are “anal”. But he emphasized that it was not out of the norm: “To me, it just sounded like normal conversations”. Mueller’s testimony was all relevant, in that it showed that another safety person than Gilpin had thought that I was okay to work with and it supported my contention of a pattern of removal and retaliation at ORNL. But the judge seemed to be annoyed with Mueller and spoke to him impatiently in what seemed to be a totally uncalled for and hostile manner, even though Mueller had been articulate and had kept to the point. I cannot explain it, except to think that perhaps the judge had made up his mind to rule against me and Mueller’s testimony thus made that more difficult.
I had thought that approaching the end, at about 1:00, Held would call me as a rebuttal witness, as she had the right to do. Then I could make my various points about, e.g., Mlekodaj’s agreeing with Faulkner without hearing my side about the technical facts of the matter. She told me that she did not intend to do so because the judge wanted to get out of there. I told her I at least wanted to make a brief rebuttal statement (I had it written down and in my hand and had practiced it over the breaks, so that it would have taken me three minutes at most to read). But Held did not want to irritate the judge by even asking, she said. I insisted, because I thought that it was crucial: so many adverse things had been said and there was no testimony on the record to counter them. (The reader is reminded that I went first and Held did not expect to call any witnesses but me — thus Guilford saw our hand before questioning his witnesses, so to speak, but we hadn’t seen his.) Held then told me I should ask the judge myself. I was astounded at her saying that, but I did ask him. But the judge would not allow me to read my rebuttal statement. The tape recorder was off at that moment and I told the judge that I would like it on the record that he refused to allow me any rebuttal. He agreed that it would be put into the record. He said that my lawyer could deal with my rebuttal statement in her summation. She tried to stick in some of my points, but she was skim-reading it for the first time as she was speaking and it did not come out very coherently.
I think this denial was a legal faux pas on the part of the judge. He not only denied me the opportunity to rebut the witnesses who had testified after me, but he also denied me the opportunity to put my testimony in the record — I believe that it is true that what one’s lawyer says in summation, if not supported by testimony or documents introduced into evidence, can be ignored or treated as simply speculation. My rebuttal would have been new information, not information I had provided earlier in my testimony. Klurfeld’s cutting short the hearing in this manner indicated to me that he had indeed already made up his mind, or at least was considering his own comfort to be more important than a fair hearing for me. Another legal problem was that at one point in the hearing, the judge and lawyers went off the record and Held pointed out that Guilford had not provided copies of the alleged complaining E-mail messages to Sims for the record. Thus Sims’ claim that he had received all of those complaints in writing was entirely unsupported by any actual documents. Guilford asked the judge’s permission to add such copies to the record after the hearing; Held protested, saying that she would then not be able to cross-examine on them. The judge said he would consider the matter. I thought that it was outrageously unfair that he would even consider allowing UT-B to add such documents after the evidentiary proceeding, although 10 CFR 708 apparently gives him the discretion to do so under certain circumstances. At the end, the judge said that Guilford would be allowed to submit later an affidavit from Sims regarding his testimony on conversations regarding my performance evaluation. Held objected, but the judge allowed it anyway.
To sum up the main points of the hearing, it was clear that my supervisor and section head were not involved in the decision as to which of their people was to be laid off; this was essentially decided by Scott and to a lesser extent by Sims, who both testified that they were not familiar with the functions I performed. It seemed to me that the most telling thing besides the 21 July 2000 “smoking gun” notes by Sims was the clear testimony that my performance rating had been manipulated — and by someone high up. No explanation was ever given for this change, a point that would prove to be crucial later on. It was clear that the RIF review board had rubberstamped what OSSD management told them. This was especially true of the personality-based criteria: most of the people were not familiar with how the individual safety people interacted with “customers” and so had to take Scott’s word for it. And again, Sims provided no documentation of the alleged complaints — no copies of the E-mail messages and notes of telephone conversations that he claimed to have — and not one of the alleged complainers and in particular no line management person appeared to testify. Thus except for a few conversations that Mlekodaj and Mei had with people, almost always after the people had first talked with Sims, the testimony regarding the nature and sources of the complaints all rested on the word of one person: Sims.
It was highly significant that UT-B did not offer direct testimony by any member of line management. I thought that that was because Held would then have been able to ask questions about the avoided reviews and their responses would have been a matter of record. I was troubled that most of the criticism seemed to be entirely oral and that there were no specific facility-related or project-related criticisms that I could have addressed in rebuttal (had I been allowed to) except for the shielding example offered by Mlekodaj. Sims claimed to have a wealth of documentary evidence of complaints, but again, did not have to produce any of it. One has to wonder why UT-B did not want any of it entered into evidence, unless the complaints were expressed in terms that would be viewed unfavorably by the judge or DOE or non-ORNL safety people; possibly the complaints included explicit statements that would show that normal safety procedures were being subordinated to operational expediency, or perhaps they included the sort of statements that could be interpreted as line management threatening the safety people.
It was very hard to hear the various negative things said about me. I knew that some of the criticisms were correct up to a point, e.g., I tended to be very “comprehensive” in writing up review reports or sets of comments. However, I felt that the criticisms were so uniformly phrased by the various UT-B witnesses as to indicate that those stating them had been coached as to the language to use. I had been accused of being “picky” before (as had Geber and indeed the entire AEG at one time or another) but the “her way or no way” criticism seemed to be new. I thought that that was a crock, because almost the only negative thing that happened between me and MSRE or HFIR was that I pointed out that they needed or had missed a review as required by procedure, not my specifying any particular control measure or operational requirement. Even though there was specific or implicit testimony by Mei and Mlekodaj and even Sims as to missed reviews, nobody testified as to what happened to a line manager who was responsible for going ahead without the review (i.e., nothing). UT-B attributed all the removals of me and Geber to personality clashes, and the virtual removal of AEG from RP-310 reviews to the need for “operational flexibility” and field knowledge. But Utrera’s lack of knowledge of reactors and hot cells did not prevent RRD from asking for him to be assigned to HFIR and REDC. I thought that the testimony indicated that the real problem was the line managers’ correct perception that Sims (and later Scott) was a pushover; this was given away, as Held pointed out, by the fact that the complainers would not meet with me or even Mei about problems, but would go to the top at once and Sims would not call me in to hear my defense — which was irrelevant to him.
I believe that it is indisputable that the testimony of every one of the managers and supervisors supported my contention that the line managers called the safety shots. As testimony showed, UT-B glossed over various issues and also dragged in the red herrings of ISMS, standards-based management, etc. But stripped of all the “new business model” verbiage, the bottom line was that line management wanted to be accommodated as a customer and not as an auditee or entity subject to oversight, and they had taken the steps necessary to gain complete control of the safety organizations — including ridding themselves of any naysayers and those who did not understand body language, e.g., the nod and the wink that gave the safety person his cue as to what the expected conclusion was that he should draw. Sims’ statement that line management “had no reason” not to work safely was, as the judge’s eyeroll showed, simply incredible — they had literally millions of reasons to cut corners and to eliminate the participation and oversight of anybody they viewed as a bottleneck. The financial control of the safety organization was not gone into in detail in testimony, but surely this issue was at the heart of the whole hearing. One point not made clearly was that both the overhead money and the direct chargeout money came from the same source, the money that the O&R and to some extent the safety divisions got from DOE and other entities to do work. In a sense, the money would simply be changing pots. Although the rad techs were already charging out and their supervisors’ support was part of their internal overhead, nobody asked if it was really necessary to reduce the internal overhead by allowing the rad tech supervisors to charge out directly, e.g., by taking over most of the AEG reviews. Also, if over half of the AEG work was to be done by people other than AEG people, who would they be? The answer to this was only hinted at, but the answer for RP-310 reviews, of course, was these same rad tech supervisors. How would they have time to do all these reviews if they were already fully occupied in supervising the rad techs? These were questions that would have had be answered in order to establish completely the need (or non-need) to lay off 2 out of 3.5 AEG rad engineers, but they were not answered.
Finally, I was comforted by the testimony of Mlekodaj, Mei, and Mueller. While not minimizing my shortcomings, Mlekodaj and Mei had stuck their necks out to testify as truthfully as they could. UT-B would of course have wanted them to say some weakly nice things about me because otherwise their testimony would look as if they had been directed only to slam me. But the positive things they did say about me and the honest things they said about the situation in ORP were not likely to have endeared them to Scott, Sims, or UT-B higher management. I believe that they did it because they were sincerely concerned about what had happened and wanted to tell the truth as they saw it in order to keep their self-respect. But it was Mueller who stuck his neck out the farthest of all: he had no reason to come except to uphold the interests of safety, and he had everything to lose. I am so grateful to him for his courage.
The Judge Renders His Decision
According to the DOE whistleblower statute, Klurfeld had 60 days to render a decision. However, this is interpreted by DOE to mean 60 days after the close of the record, not after the end of the hearing. Since Klurfeld gave Held and Guilford some time to provide their final briefs, the 60-day clock did not start ticking until two months later, on October 15. Even then, Guilford claimed that because of the events of September 11, 2001, and the consequent delays in postal service to Washington, D.C., he could not get his document in until 16 October and then only by E-mail. (Held pointed out that his 24-page (!) brief asked various rhetorical questions — not usually an effective technique in legal writing — and again attacked what he presented as the deficiencies of OHA’s investigative office (i.e., Mancke’s group).) So Klurfeld then had until about 16 December, a full four months after the hearing, to render his decision.
On 21 December 2001, Klurfeld rendered a decision in favor of UT-B. I heard this first from a friend who saw it posted on the DOE Office of Hearings and Appeals Web site. (Readers can read his decision for themselves there, unless for some reason DOE removes it; the case number is VBA-0059.) Klurfeld stated that UT-B had demonstrated that it would have laid me off even in the absence of my “protected disclosures”, i.e., my expressions of concerns to my management, the Employee Concerns people, DOE, etc. He said that UT-B (he said ORNL, but I will say UT-B) took the position that “no reasonable person, especially a radiological engineer like Westbrook, could have reasonably believed that the problems that Westbrook noted revealed a substantial violation of a law, rule, or regulation, or a substantial and specific danger to employees or to the public health and safety” [sic decision, including bolding]; this was certainly what UT-B claimed. But as Klurfeld pointed out, the fact that a concern does not turn out to be substantiated does not mean that a person can be terminated for expressing it; as long as the person expresses it in good faith and through appropriate channels, the person is protected.
The judge rejected UT-B’s logic that because the radiation exposures at ORNL in the past ten years had been substantially lower than permitted, concerns about the health effects of changing individual exposure limits were insubstantial; as he noted, this was like saying that we do not have to be very concerned about safety because we have not had an accident in the past ten years. Also, he found the testimony at the hearing supported a finding that substantial issues were involved. He pointed out that Mei had told Scott of her own concerns about raising the rad triggers and that Scott also testified that it was reasonable for these questions to be raised. Mlekodaj’s testimony also corroborated the reasonableness of such concerns. Thus, the judge said, it was hard for him to understand how UT-B could deem a professional discussion about the effects of a change like the raising of the dose rate trigger from 1 to 5 R/hr to be raising insubstantial issues. Klurfeld incorrectly stated that Scott had said that the rad techs were “Certified Health Physicists”, but he was correct in assuming that she meant that they were qualified to do operational rad reviews. So he quoted the exchange in the hearing in which Scott was asked if she didn’t think it reasonable to assume that if a person had a medical problem, a doctor would be better to consult than a medical technician; Scott’s reply was that it would depend on “the extent of your medical problem”. He concluded that Scott showed by that answer that she knew that a fully trained doctor “may best do the diagnosis”. He pointed out that management could review the situation and decide that it was willing to accept the risks associated with technicians doing all the rad safety reviews and he stated that he voiced no opinion as to the appropriateness of the change. But for purposes of whistleblower protection, he found that my concern here did raise health and safety issues. He also agreed that I had met my burden of proof with regard to the time nexus, i.e., the disclosures and the retaliation occurred closely in time.
But he concluded that testimony showed that I would have been laid off even if I had not made any protected disclosures. He did not seem to understand the implications of the testimony about the finances. He cited the testimony of Honeycutt that under Sims, no individual in the ALARA group had ever been laid off in any prior layoff. This seemed to be a non sequitur in the context of the opinion, as he drew no direct conclusion from this, but his point in quoting it seemed to be that if ALARA people had never been laid off before but were now, then it must have been necessary. He accepted UT-B’s claim that two people in AEG had to be laid off for financial reasons, that AEG’s moving to a chargeout status somehow led to the conclusion that only two people in AEG could be supported. He concluded that the decision to move to a chargeout basis had been made before my disclosures, i.e., in February 2000, when Beierschmitt talked to Sims — and thus even before UT-B took over ORNL — while my protected disclosures to Scott took place in June 2000. (This ignored the fact of my continuing interaction with Employee Concerns from October 1999 on and my disclosures to others, of course, and also ignored the fact that the choice of which AEG people to lay off had supposedly not been made until July 2000.) The judge said that this had occurred in February 2000 even though, as he conceded, Beierschmitt had denied making the decision to require that ALARA services be charged out.
The judge accepted that Geber and I were chosen because we were given a “low retention” rating in the evaluation sheets, while Utrera was given a “medium retention” rating. He said that Scott’s and Sims’ only consideration was who among the three peon rad engineers would be able to charge out his cost. Utrera had charged out one-third of his time and the “office” (RRD) using his services had indicated that they would agree to pay for half of his time in the coming year; “no office had expressed a similar willingness to pay for Westbrook’s time”. He emphasized by reiteration that Sims had testified that line officials had commented negatively to him regarding their “difficulties in dealing with Westbrook”. He concluded, “Thus it was easy for Scott and Sims to focus on the one engineer [Utrera] for whom they already had a commitment from a project office” — “that, in a nutshell, is the reason why Westbrook was discharged”. Even though Sims’ claims to have received many negative comments were not supported by either written documentation or by testimony from anyone making such a comment — and even though it was clear that the context of such comments was that the supposed complainers were usually making the claims in the wake of being detected violating procedures and Sims never investigated these violations — the judge accepted them without question.
On this basis, the judge declared himself convinced that my discharge would have happened even if I had made no protected disclosures. A thoughtful friend of mine who knew ORNL well (and had left ORNL a year or two before the layoff) told me that he was struck by how little actual analysis the judge employed in accepting UT-B’s “we had to lay off two people and they had to be these two people” argument; it seemed to him, as it did to me, that the judge had accepted at face value UT-B’s assertions that budgetary considerations required the layoff of two AEG rad engineers and that the layoff selection process was fair and justified. The judge discussed and questioned UT-B’s arguments about the reasonableness of concerns and UT-B’s attempts to hand-wave away the events that prompted the concerns; he zeroed in on the fact that Mlekodaj and Mei shared many of my concerns, even quoting Mlekodaj’s testimony that he and Mei had fought the increase from 1 to 5 R/hr “to the bitter end”. But he appeared to ignore the many conflicts of interest that affected the decision that the budget cuts should be directed to AEG. He ignored the fact that four people who had worked in the ALARA and rad engineering specialty area for many years (Geber, Mei, Mlekodaj, and me) had opposed some changes affecting rad safety that were overruled by Sims on the basis of financial considerations, that Sims and others were never held accountable for the procedure violations, etc. — all of which might have suggested to him that the claims of financial necessity were fishy. Also, even though the necessity of cutting two people from AEG was supposedly stated on the basis of OSSD’s budget, in fact it was the line organizations’ budgets that were to provide the actual chargeout money; this sort of thing, which went to the issue of whether line manager should be able to dictate the terms by which safety services were to be delivered, was not addressed by the judge, even though it bore directly on the financial question and on the incentives for line management to retaliate against a safety person. The judge ignored the fact that UT-B kept only the most junior and inexperienced person. Most of all, he ignored the unrebutted testimony that Scott had reached down to change my performance rating, which factored into my ranking on the AEG evaluation sheet.
Held seemed surprised at the decision, I think because the fact of Scott’s having dictated my performance rating stuck out like a sore thumb. Held consulted other lawyers and told me she thought we had a good chance to have it reversed on appeal. So with my concurrence, she filed the appeal. But I was not optimistic about the outcome. About two months before this, I had finally found a full-time job, but it was a very low-paid one of marginal professional status at the University of Tennessee in Knoxville, not in the DOE world in the Oak Ridge area (see below). With my defeat in the DOE legal arena and my being sidelined into a junior-level job outside the DOE world, I felt completely beaten down. I had stuck my neck out and gotten my head lopped off. I thought to myself that I “would never work in this town again”.
The Job from Hell
Although this chapter nominally ends with the events of December 2001, I will relate this story here in its entirety. I include it for two reasons. First, it shows the type of job that one may be reduced to taking when one has been blacklisted in one’s profession. Second, it shows the type of fishiness that went on in hiring at the University of Tennessee — which is the “UT” in UT-Battelle, although it is the Battelle part that actually runs ORNL. I will further address the relevance of this connection later. Suffice it to say that I believe that I was hired at UT because the Rad Safety Officer was ignorant of my history.
In 2001, Geber had sent me a message, forwarded to him by someone else, that appeared to be a cut-and-pasted posting for the position of Radiation Safety Officer (RSO) at the University of Tennessee at Knoxville. The near edge of Knoxville is only about 20 minutes away from Oak Ridge, so this position was attractive to me and I sent off my resume. Several weeks later, I happened to talk to a professor who, because of his position at UT, knew about the politics of the RSO search. He told me that the acting RSO, who had recently gotten his PhD from UT, was favored by the UT administration for the position because his wife was a prized researcher and they wanted to keep her. Thus, he implied, the fix was in to provide a job to the acting RSO/husband. Some time later, I and all the other applicants received a letter stating that the RSO job search was being redone and enclosing a new position statement — we all had to reapply. In doing so, I noticed that some new and specific things had been added to the position statement, such as being able to run the computer code MCNP. I realized later that this was done to slant the requirements to match the acting RSO’s qualifications so that he would look even stronger as a candidate.
I waited for weeks to hear about the position. In the meantime I noticed another position in the UT Rad Safety Department, that of “radiation specialist”: it required a bachelor’s degree and other professional qualifications and seemed to call for some professional-level duties. But it paid only $29,000 per year, a far cry from the $78,000 a year I had been earning at the end of my tenure at ORNL (after the belated salary adjustment) and far below the median level for my qualifications and experience as indicated on the last annual survey of certified health physicists. But with my husband laid off also, we needed the money, so I sent in my resume for that job also.
I was called for an interview for the rad specialist position with the acting RSO, Dr. X. He seemed a nice enough guy. He was from the Middle East and had been an army captain in his country of origin. His master’s degree was from the University of Lowell in Massachusetts (which is, lay readers should understand, a good place to go for a health physics degree). He had gotten his PhD from UT in nuclear engineering in the last year and had coauthored papers with some health physics research types at ORNL. He had plans for the Rad Safety Office — he had some PowerPoint slides on his computer that showed all the things that needed to be done by the Rad Safety Office and the several personnel positions that needed to be filled (but were not likely to be filled, due to university budget problems).
There was a big backlog of work in the RSO office, but I was eager to work. The RSO offices were pretty ratty — I would have to share an office with Dr. X and the techs — but I didn’t care about that. There were, however, two things that gave me pause. First, Dr. X at first could not find my application, which had been sent over to him from the Human Resources Department with my resume and other papers. He spent about 20 minutes looking for it with the secretary, but they couldn’t find it even though he had apparently had it in hand just before I arrived. He told me it was his secretary’s fault and asked me if I could come back another day. I was nonplussed at this request. Furthermore, the RSO office was not on the main UT campus but further beyond it, so I had already invested a considerable amount of time in the trip. I said I didn’t think I could come back any time soon and asked if he couldn’t have the Human Resources people fax him another application that I could fill out on the spot. He demurred and went back to searching for the application, this time enlisting the rad tech’s help. After perhaps ten more minutes, they finally found it on the counting room bench and we proceeded with the interview.
A second reservation I had was that if I took the job, I would not want to have to quit within a few months because I found a better job — I would hate to leave them in the lurch like that. But due to my husband’s being out of work, I would have to quit if I got a better job because this one paid so little. I explained this to Dr. X. A week or two later, he called to offer me the job. He asked me if I would commit in writing to staying a set period of time, I believe 18 months. I thought it showed a lot of chutzpah for him to ask me to commit for such a long time for such a low-paying job, so I refused. But I got the job anyway.
When I interviewed, Dr. X told me that the previous RSO of 15 years had quit in disgust when he was accused by someone of doing outside hospital X-ray machine inspections on university time. (I was told later by my professor acquaintance that those were not the reasons for the previous RSO’s departure at all.) I was also told by a State inspector (Tennessee being an Agreement State) and by Dr. X that for several days there was no designated RSO when the old one departed, because Dr. X was off on vacation and had not yet officially been appointed acting RSO. (Lay readers should understand that not having a named and qualified person as RSO, officially in charge and reachable, is a big regulatory no-no.)
After I started work in November 2001, Dr. X told me repeatedly and at great length about the old RSO’s many failings. One of the two rad techs, a graduate student, had been there for years, working half-time; he and Dr. X had been graduate students together at UT and were supposedly friends, but Dr. X frequently complained that he wasn’t doing enough work and derogated him both behind his back and to his face. The second tech, a full-time “temporary” worker, had been there about 4 months and had been completely untrained when she was hired. Dr. X complained about her all the time too, especially about her ignorance and her failure to keep the waste sheets correctly (which I found unfair because his system for keeping them seemed to be rather arbitrary). There was a secretary who had been there less than a year; she came in for the most complaints of all because she was stuck in her office all the time and he frequently had occasion to have her do things for him that other people did for themselves, such as dialing their own telephone numbers. She told me bitterly shortly after I came to work that it had not been she who had misplaced my application; after all, she hadn’t been in the counting room at all that day, but Dr. X had and he had been carrying my application around from room to room, reading it.
Within a couple of months, the secretary and the rad tech were fired on the same day for alleged computer misuse. After a few days, we got a new temp rad tech, who again had no rad protection experience or training at all. He and I had to do a lot of the secretarial work (especially with regard to keeping track of professors’ ordering and use of their mostly biological research isotopes) while we had a series of temporary secretaries who didn’t stay. Finally we got a male temporary secretary who did stay and who (bonus!) was very handy with a computer. We three tried to support and help each other in getting the office to run smoothly, especially since Dr. X was apt to dole out work in scattershot fashion, often giving the same assignment to two different people. His catchphrase was “You can get me on my cell phone” — he usually refused to tell any of us where he was going or when he would be back, ostensibly because he could always be reached by cell phone. But then when people called, even a university vice president, we could not say when he might get back to them.
I was relieved when we finally got a steady secretary because I had a heavy load of my own work — calibrating instruments, doing lab inspections (including dose rate and contamination surveys), turning out the annual EPA report, and putting together a master Excel list of RSO and professor source holdings, X-ray machines, and research radionuclides. I was trying to automate this master list to show totals versus our authorization limits and the professors’ individual authorization limits, so that at any instant we could demonstrate that we were within our license limits, which we could not do at the time except by extensive hand computations. I also prepared and gave a presentation to X-ray machine users and their staffs. I loved all this, especially the lab inspections, where I met the lab people and got to know what kinds of stuff they were working on. Many of the nonprofessorial and nonstudent staff at UT had been there for years despite the low pay — I could see why. Peoplewise, it was a good place to work.
My favorite place of all was the School of Veterinary Medicine, where I once found a green feather while checking a nuclear medicine area. The woman who presided over the area nonchalantly remarked that they had done a diagnostic test on a parrot the previous week. They had such good attitudes toward rad protection over there too — which they needed, given the difficulty of controlling radioactivity in a living animal as opposed to, say, a test tube of cells. (E.g., a dog and two cats who were in isolation following nuclear medicine procedures: the dog read 20 mR/hr at the nose and the cats about 7 mR/hr.)
I seldom saw anybody goofing off in the university areas I went to — undergraduate, graduate, tech, and professor alike, they all seemed to be actively engaged in work when I dropped in unannounced. They were nearly all nice to me. Not so with Dr. X: when I was out with him visiting a lab, I often had the impression that people were wary of him and were choosing their words carefully. When I was visiting a lab or X-ray area alone, I was told emphatically how much the people had liked his predecessor; some were candid in saying they didn’t like Dr. X at all. Two professors who were married to one another and were of Chinese ancestry had had a run-in with Dr. X, which he told me about gloatingly because he had won the battle. He portrayed them as arrogant and conceited. Yet when I later met the woman professor, I found her to be a sweet, shy, and polite person. Her husband was a dignified and aloof sort, but professional. I felt that I knew who had really been arrogant to whom in their encounter with Dr. X. When I had finished inspecting the woman’s lab and pointed out the two or three minor corrections that needed to be made, including the unblocking of a safety shower nobody had noticed, she thanked me in a heartfelt way and told me I was “kind”. I think she expected to be treated by me the way she had been treated by Dr. X and so was overwhelmed to be treated with respect and consideration.
It was thus very stressful to work for Dr. X not only because he constantly “ragged on” his own staff, but because we had to smooth over his constant tiffs with others so that we could gain their cooperation. I was told on good authority that an experienced full-time rad tech and the previous RSO’s secretary had quit at the time the previous RSO resigned, rather than work for Dr. X. But besides that, as time went on I began to have more and more concerns about our office’s radiological practices. I will give some examples below so that rad protection professionals will understand that these were not “professional difference of opinion” disagreements.
Dr. X seemed very casual about contamination control practices in our office, while stressing them to the researchers. When the techs or Dr. X got out of the truck, once in a while the blue rubber gloves that they had used to check liquid radwaste or potentially contaminated objects would fall out the door — I knew they were used gloves because the fingers were filled out. These lay around the parking lot until one day when I got tired of it and went out and collected them for disposal. Dr. X would wear gloves while testing sealed sources or wipe-checking in the back bay of our office, but then he would walk around the entire office with the same gloves on, touching doorknobs, papers, his keyboard, etc.
Also, we had not been bagging people’s “meters” (detectors) as we collected them to be calibrated. But as an experienced rad protection person, I knew that these could get contaminated when people used them. So I always checked the researchers’ lab meters with my own meter when I was surveying their labs and I “smeared” their meters (wiped them with a special piece of paper) and rad-counted the smears when I went back to the office. Dr. X was certainly aware of this practice (since I did point it out to him at least once) and he did not express any disapproval of it. One day during an inspection in a lab where they used phosphorus-32, I discovered a meter that was “reading hot” on my meter, i.e., my meter was showing that the other meter was contaminated. Non-rad protection readers should realize that in such a case, the contamination could come off on people’s hands and clothing without their knowing it. Besides the health issue, the contaminated meter might contaminate other research equipment and samples and thus distort the research results. I alerted the lab personnel to the contaminated meter (and to the extensively contaminated bare work surface and equipment in one area) and then bagged and took the meter off to our offices to decontaminate it. I had to soak the detector grill cap in “Radiac” wash to get it clean.
After this experience, I adopted the practice of bagging every detector separately as I collected it for calibration and then, before calibrating it, smearing it thoroughly and counting the smears. Only when it was shown to be clean did I calibrate it, handling it with bare hands instead of gloves because I also had to manipulate the (sealed) source shields, the calibration screwdrivers, etc. I instructed the rad techs to bag the detectors separately when they collected instruments for me, to avoid having a contaminated meter contaminate the clean ones. Dr. X criticized this practice, although he did not initially forbid it. But eventually he exploded in a rant about it. He said, “I can’t afford it
[the taking and counting of meter smears]
“. I was struck by this. First, he was saying that a sensible precautionary practice — one that by this time had discovered two meters with removable contamination and another with fixed contamination — should not be used because of the expense. Second, he used the word “I” — not “we” or “the university” or “the RSO office”, as if this practice should be viewed only in the light of how it affected him personally. He dumbfounded me by telling the techs that henceforth they were not to bag the detectors. They did not do so any more, but they at least bundled the detectors into a box as they collected them, instead of just setting them down in the bed of the truck or the van as they used to.
One day the temp tech and the temp secretary were discussing the latter’s dose as shown on the report that had come back from our radiation badge-reading company. The secretary had gotten a higher dose than the tech, which did not make sense since the tech was working in the waste storage area every day. I believed I knew why the secretary’s dose was higher: our calibration source. Our building was old and the cinder block wall between the secretary’s office and the calibration room was cracked. Although the crack had tape over part of it, it was clear that you could “see” right through the crack into the instrument calibration room, where the Cs-137 source was kept. When the source was open (unshielded), the dose rate in the secretary’s office would go up. The secretary had received, if memory serves, 17 mrem in one month, which meant that his dose would be exceeding the non-rad worker limit of 100 mrem per year if things kept up this way. When we spoke to Dr. X about this, he at first pooh-poohed it. But I proposed that we tape spare TLDs (badges) on the wall on both sides to measure the dose, and he accepted that. I taped up the TLDs and recorded the date and the badge numbers. I also recorded the secretary’s dose and the projected annual dose calculation I had done for him.
After a few months in the rad safety office, I found out some more information from a professor who had been on the rad safety committee for years. He said that at the time Dr. X was appointed to be acting RSO, the professor was told by the high UT official who was the RSO’s boss that UT needed to hire Dr. X in order to keep Dr. X’s researcher wife at UT. Many of the committee members were familiar with Dr. X because he had worked in the rad safety office as a tech during his recent graduate student years and they had serious doubts about his people skills. So the rad safety committee resisted hiring him without seriously considering other applicants and they told the high UT official that a true search needed to take place, with an advertisement in the newspaper, in the Health Physics Society newsletter, etc. At this, the high official dissolved the rad safety committee and appointed a whole new set of people to it, including a new chairman. This was confirmed by yet another professor to whom I happened to be talking on another subject and who also had been on the rad safety committee for many years, until it was completely recomposed. He knew who I was (from my first application, which the first rad safety committee had seen) and he spontaneously volunteered information about the dissolution of the original rad safety committee. He was obviously bitter and outraged about the whole situation.
It was when the committee was dissolved that the high UT official had had the revised position description put together and made every applicant reapply. Eventually I got a letter stating that I was not going to be interviewed for the RSO position. Dr. X told me that he and three other people were being considered, with the other three all being from outside Tennessee. I thought that was a red flag right there, considering the wealth of rad protection expertise there is in the East Tennessee area. Later, Dr. X told me that the two other male candidates had decided that the salary was too low and had declined to be considered further and that the female candidate was scheduled for an interview but then did not show up. He seemed relieved: prior to the interviews, the high UT official who had championed his candidacy had had to resign in disgrace for misuse of computer resources (viewing pornography), so it wasn’t certain that Dr. X would be made the permanent RSO after all. Soon afterward, I saw an announcement in the UT newsletter about Dr. X’s being appointed to the RSO position and that same day we got a call, in Dr. X’s absence, from a UT official requesting that Dr. X speak with him regarding information to put into the announcement of his new appointment to the press. When Dr. X came in, we congratulated him and gave him the message from the UT official, but he acted irritated that we knew and he treated us dismissively. He got over it a day or so later, boasting to me that he and the administration had come to an agreement as to his salary. He told me at some point around this time that “they” told him that the rad safety office budget was fixed, so that the more they paid him, the less there was for paying the rest of the staff and running the office. This comment was meaningful in light of Dr. X’s penchant for hiring temporary workers who were paid only slightly more than minimum wage and had no benefits. It was also meaningful in light of his statement that “he” could not afford to smear the meters being calibrated.
When my six months’ probationary period was up, Dr. X gave me my performance review form and told me to put down how I thought I was doing. I thought that that was odd and I told him I didn’t feel comfortable with that. He filled it out himself and eventually went over it with me. I thought I was doing a good job — he admitted that I had gotten a lot done (including the overdue calculations to satisfy EPA requirements) and that he didn’t have to tell me things twice. However, he gave me the performance equivalent of all B’s and C’s. He explained that he never gave A’s: he said that for him to determine if a person “always or usually” did something, he would have to watch the person like a hawk to see if the person really did do it routinely — and he didn’t have time for that. So he logically could not give anything above a B. I was stunned at his ignorance of proper business practice and especially of the potential legal liability he was exposing the university to with such statements. I spoke with a Human Resources office representative, who told me that I could either appeal my performance review to the acting vice president or I could send the rep a response memo that would go into my personnel file and nothing more would be done. This seemed to be typical UT administration “we can’t do anything” stuff, so I sent the response memo and let the matter lie.
Some time later, I was at another meeting of the local Health Physics Society chapter and happened to run into the professor whom I mentioned previously that I already knew from chapter meetings. He told me the name of one of the other local applicants for the RSO position — let’s call him John Doe — a health physicist who worked at ORNL but not in ORP. The professor said that the (second) UT search committee would not even consider interviewing Doe. He said it with indignation (“John Doe! They just threw his application away!”) and I agreed that it was outrageous. I knew Doe too from my ORNL work and I thought that he would have made a great RSO. His credentials were excellent and he was a nice and energetic guy. But expediency dictated the choice of not the best person for the position, but the most advantageous on political grounds. This seemed very UT-ish, as I will explain later.
For months we were supposed to move to a new building, due to structural problems with our old one. It was not actually “new”, being a remodeled old house that UT owned. It was not very functional as an administrative office building, which it was before we were assigned it, but it was even less functional as an RSO office. First, the entry from the parking area was through the back door into the tech office. To get to every other room in the building, one had to go through the kitchen, which we used every day as an actual food storage and preparation area. This meant that all packages and other items being taken from the RSO truck to the counting room passed through the kitchen. Dr. X didn’t see anything wrong with that. Second, as I had always done at ORNL before a move, I had measured the furniture we would be taking with us and made a plan of how to fit it into the new space. I had consulted the rad techs and the secretary to make sure everyone’s needs and wants were taken into account, such as the tech’s preferring not to sit right under the air conditioner vent. Dr. X disdained to plan ahead, however, and he pooh-poohed my efforts to assure that all our old furniture — some of it very long lab-type benches — would fit. Third, the Cs-137 calibration source was to be put in the basement of the new house; however, the top few feet of the basement were above ground and had windows. The houses on this block were extremely close together and the one next door was a private home. It gave me pause to think that people passing a few feet from the window could look down and “see” the source when it was out. I wondered what the dose rate would be on the walkway between the houses.
We got one day’s notice that we were to move. The UT safety coordinator had urged Dr. X and us to start packing well before that, but he didn’t allow us to, for reasons he never disclosed to us. So we were faced with moving everything, including the big scintillation counter, with only a few hours to pack it up. But in order to maintain the certification or guarantee for this counter under the service agreement, the counter company’s rep was required to be called to assist in any move because of the potential for damaging the internal shielding. Dr. X had not consulted in advance with the scintillation counter company, but called the rep on the day of the move. With only an hour or two’s notice, the rep graciously agreed to postpone other work he had scheduled for that day to come and help. But when he got there, Dr. X treated him like dirt, speaking to him brusquely and making him wait while Dr. X dealt with other things. The rep was there for well over two hours. Dr. X also seems to have tried to get him to waive the very reasonable service charge for the visit. During one of the extended periods of standing around while Dr. X dealt with everything else, the rep asked our temp rad tech disgustedly how he could stand to work for Dr. X.
As the movers were unloading the furniture and equipment and I was trying to get us peons’ furniture put in according to the plan I had worked out, Dr. X reduced me almost to tears by ordering the placement of the furniture in completely different and arbitrary ways, ways that were inappropriate given the air flow directions or ways in which, as I could have told him, the furniture would not fit. On no notice, Dr. X got the craftspeople to come and saw off part of the counting room bench, leaving a gap in it. Dr. X was happy because he was getting all new furniture and his own office, but we had to make do with less functionally placed old furniture and less space.
Once we and the calibration source had moved in, Dr. X did not do a survey in and around the house with the source open to see what the dose rates were. I took it upon myself to do that. I found that there were elevated dose rates outside (above background) but they were not sufficiently high to be of concern. But the highest dose rate on the floor above the source was again near the secretary’s desk, which I thought could still produce an annual dose at a level to challenge the limit. I tried to talk to Dr. X about this, but he did not want to hear it.
I was taken aback just before we moved to find that Dr. X expected all of the meters at the university to be calibrated in the space of about three weeks. This meant collecting five or six a day from their professor-owners, doing the actual calibrations, turning out the paperwork, and returning the meters to their owners. It would be difficult to keep up the pace even if I did nothing else. Yet Dr. X made it clear that he expected me to keep up at that rate even though we had lost most of at least two days to the move. I asked Dr. X to draw out the calibration cycle; after all, quite a few of the instruments had had their annual calibration within the last two to four months and so did not need to be recalibrated so soon. Besides, we didn’t have enough “loaner” meters to be able to lend all the professors a meter while we had theirs. But he insisted — for reasons only he understood — on having the calibration dates all be within the same month, i.e., to do a marathon calibration of all UT meters every year. As the mentor of the temp tech and temp secretary, I explained that this was not best practice, that at facilities I was familiar with, the calibrations were staggered over the year so as to minimize the impact.
With so few people on staff in the rad safety office, it seemed important to “work smarter”. But my efforts to streamline our work ran afoul of Dr. X’s tendency to reject any ideas that did not come from him. When he went to calibrate an instrument, he would take the nominal dose rate at one meter, correct it for decay to the current date, and then calculate the dose rates with the various shield thicknesses and at the various distances. He would do all this with a hand calculator, churning out each number each and every time. I thought that was nuts. I put the nominal information into an Excel spreadsheet so as to have Excel do the decay and shielding calculations automatically; all I had to do then was print it out for the day when I had calibrations to do. But instead of being able to print the numbers out directly from Excel, I still had to copy the information (the expected dose rates) by hand onto the calibration forms, which were in Microsoft Word, because Dr. X had created them and insisted that we use them in that way. After the calibration, the handwritten data was copied into the computer and the new typed-up calibration forms then replaced the old ones — one calibration sheet to a computer file. Obviously, there were getting to be an awful lot of files. Also, since the data was captured only in Word, not in, e.g., Excel, there was no easy way to analyze a set of calibration data mathematically. I suggested that we change how we did the documentation, but Dr. X dismissed it out of hand.
Things had been stressful for those in Dr. X’s orbit even before the move, but afterward it was worse. When Dr. X came into the office, we all cringed or stiffened with tension, and when he left, we visibly sagged in relief. He rode the rad techs relentlessly. This was as true of the graduate student tech — who was in his thirties, had five children, and was desperately trying to finish his PhD thesis — as of the temp tech. The poor grad student began to get clumsy and nervous when Dr. X was around, with reason because Dr. X continually laid the three B’s on him: belittling, berating, and blaming. I thought the grad student was putting in 110%, but Dr. X said he was “lazy”. In trying to hasten to do almost a whole day’s tech work in just the 4 hours per day he was supposed to work, the grad student dented the RSO truck against a signpost. He left early rather than face Dr. X the day that that happened. But Dr. X seemed to have a special fondness for digging into me — the rad techs weren’t much of an intellectual challenge. More and more, Dr. X held each of us responsible for the others’ shortcomings. If one of us failed to do the work Dr. X told him to do, we were all responsible: during Dr. X’s frequent absences, the rest of us were supposed to have held the miscreant’s nose to the grindstone while still doing all our own work.
One day Dr. X announced to the temp tech that the tech’s last day was that very day. This was a shock not only because of its suddenness, but because the tech’s wife, who also worked for the university, had had a baby a few weeks earlier. The tech knew that as a temp, he could be let go without notice, but it was unusual that it would be done in this way. The next business day, a new temp tech arrived, obviously lined up in advance by Dr. X. He was a nice guy, but had as usual no rad protection training or experience whatsoever. He had another advantage: he was from the same part of the world as Dr. X and the graduate student tech, so they chattered away in Arabic as they explained to him what to do. One day after he started, he was already put to counting smear samples in the scintillation counter all by himself.
The last straw for me came on a day when Dr. X directed the new temp tech to hang up the lab coat rack in the kitchen. I thought that the temp tech had just misunderstood Dr. X, but when I spoke with Dr. X about it, he confirmed that it was his idea. He scoffed at my concerns about hanging clothing potentially contaminated with tritium, carbon-14, and like non-meter-detectable isotopes in the same room where our bottled water, cups, napkins, and microwave were kept. He laughingly asked me, “What, do you think they [the coats] are contaminated?” Because of the seriousness of the situation and because I was on firm ground, I tried to insist and we got into a brief argument. It ended quickly the same way his arguments with everybody else ended: he swished one hand against the other in a brushing-off gesture while uttering his last few words at breakneck speed, punctuated it by saying “Point!”, and stalked off so as not to allow any reply. (“Point” meant that he had made his point and that was the end of the discussion.)
I was emotionally stressed out as I had never been at any other job, even at ORNL. I loved my UT work, but I could not continue to work for that abusive, arbitrary, and even irrational man any more. My husband, who had found another job a few months before, urged me to quit. I prepared my resignation. The next day I commented to the secretary that I had slept on it and if I didn’t feel any different by the end of lunch, I was going to hand the resignation in to Dr. X. I don’t know if the secretary told Dr. X about my prospective resignation or not, but just before lunch Dr. X had the secretary hand me a memo stating that I was guilty of “insubordination” for our argument in the kitchen. I knew he had given a similar “you are not okay” memo to the first secretary we had had: he blamed her for not reminding him to do her end-of-probationary-period review. Although he conceded that he had not told her to remind him, he spitefully arranged for her probationary period to be extended. But although I was aware of his tendency to lash out, I thought that giving me such a memo for one disagreement, a technical one at that, was too much. I handed him my resignation that afternoon. I offered to stay two more weeks to ease the transition, but Dr. X disdainfully told me I didn’t need to stay past the next day or two.
I was at a crossroads. Dr. X’s bad practices and negligence were exposing the university to sanctions and fines by the State and further, were creating the possibility that the research people and the rad protection staff would receive unnecessary intakes. Most of them were safe workers, but still, there needs to be an approachable and conscientious RSO to make the whole enterprise work. Dr. X fell lamentably short there. I should tell someone before I go, I thought. But no, I had fallen on my sword at ORNL and I wasn’t about to do it again. So I compromised. I wouldn’t call the State folks, reasonable guys though they had always seemed to me to be; I would talk to the UT people who were supposed to oversee the RSO. I called up both Dr. X’s new boss and the chairman of the (new) UT Rad Safety Committee, explaining that I was resigning and needed to talk to them. The chairman remarked to me that she was thinking of giving up her chairmanship because Dr. X was so hard to work with. Dr. X’s new boss referred me to the safety coordinator ( her subordinate) who knew Dr. X well, but I insisted that I had to speak to the boss herself. The boss did not have time to meet with me during the two weeks, so we set a date several weeks later. I added that I was willing to stay two more weeks to ease the transition, but Dr. X had declined. Somebody must have said something to Dr. X, because he told me “you can stay the two weeks if you want”.
When the two weeks was over in August 2002, I was sorry to leave the temp secretary, a nice, industrious guy who has, I hope, gone on to better things. I was sorry to say goodbye to the poor grad student tech, a hard worker who by now was quivering with nervousness when Dr. X was around. I was sorry to leave the university that I had come to be fond of; I regretted leaving all the people who had been kind to me and appreciative of my efforts. I was even sorry to leave the plants I had put in the yard of the new office. But I was so relieved to be able to get away from Dr. X’s constant abuse that I sang all the way home.
A week later, I met with Dr. X’s boss, the safety coordinator, and the Rad Safety Committee chairman. As is my usual practice when I have something serious to say, I had prepared a handout to leave with them as documentation of what I had said; this would save them from having to take extensive notes and it would serve as a memory aid later. (Let me point out here that when you put something in writing, you are leaving yourself vulnerable: if you say something orally and you change your mind later, you can always say people misheard you, but you have no such defense if you write it down. You can be hanged with your own words. But I think you have to be willing to risk that.) The three ladies heard me out and asked questions. Once the meeting was over, I never heard from any of them again. That doesn’t mean that they didn’t do anything, I know. Still, it would have been nice to know that I had made a difference by speaking to them. I was later asked for information by a State inspector in advance of UT’s license renewal inspection. I sent him the writeup I had given the three UT honchettes. He said it was interesting and promised to let me know the outcome of the inspection, after the inspection report had been reviewed, etc. That was in 2003. So far I still haven’t heard anything.
I am an advocate of getting everything you can out of an experience, even an unpleasant one. From this job, I learned how a university RSO program works — or should work. I got some more experience mentoring young people. I got up to speed on some Microsoft Excel and Word features that came in very handy later on. Most of all, I learned what it’s like to work for a truly difficult boss, which I had never had before. This lousy job experience is yet another thing that can be laid at UT-B’s door because they had fired me unjustly and, as I believe, contributed to my being blacklisted from more suitable jobs in this area. But in the spirit of growing from every experience, however disagreeable or stressful, I can see that I have grown even from this. And to my detractors, I add that whatever my sins have been, I surely paid for them with this job.
