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Summary of Decisions - July 29, 2013 - August 2, 2013

August 2, 2013 - 8:26am


Personnel Security Hearing (10 CFR Part 710)

On July 31, 2013, an OHA Hearing Officer issued a decision in which he concluded that a security clearance should not be granted to an individual.  The individual disclosed during his background investigation that in 2005-06 he had been charged for battery as a result of a dispute with a neighbor, domestic violence as a result of an altercation with his then-wife, and driving under the influence of alcohol. Beginning in 2007, the individual had separately attended court-mandated domestic violence counseling and alcohol treatment programs. Following the abstinence required by his court-mandated treatment, the individual has consumed alcohol on an occasional basis. The individual was evaluated by a DOE consulting psychologist in October 2012 who diagnosed the individual with Alcohol Abuse, noting that the individual had become intoxicated on at least one (and possibly on two) occasions in the 12 months prior to the psychological evaluation. The DOE psychologist opined that the individual would need to completely abstain from alcohol for two years and attend counseling for stress accompanying personal relationships in order to demonstrate adequate rehabilitation or reformation of his alcohol issues.  As of the date of the hearing, the individual had no period of abstinence subsequent to the psychological evaluation and had consumed alcohol at a business function the prior month. At the hearing the DOE psychologist affirmed her diagnosis (with a reduced period of abstinence to evidence rehabilitation or reformation). With respect to the individual’s pattern of criminal activity, the Hearing Officer noted that four incidents were directly or indirectly alcohol related and, notwithstanding the individual’s counseling with respect to domestic violence and alcohol issues, those concerns could not be mitigated absent mitigation of the alcohol concerns.  OHA Case No. PSH-13-0033 (Wade M. Boswell, H.O.)

“Whistleblower” Complaint (10 CFR Part 708)

On July, 29, 2013, A Hearing Officer issued an Initial Agency Decision denying a complaint of retaliation filed by Jeffrey S. Derrick (Derrick) against Shaw AREVA MOX Services, LLC (MOX Services) under the DOE’s Contractor Employee Protection Program, 10 CFR Part 708.  In his complaint, Derrick alleged that he was terminated in retaliation for making disclosures protected under Part 708. Derrick alleged that he made protected disclosures in four e-mails regarding the installation of pipe supports and pipes in the MOX Facility at the DOE’s Savannah River site. The Hearing Officer found that Derrick had not proven by a preponderance of the evidence that any of his disclosures could reasonably be believed to reveal a gross waste of funds or gross mismanagement and thus, none of the e-mails were protected pursuant under Part 708. Further, even if the e-mails could be construed to disclose a gross waste of funds, the Hearing Office found that MOX Services had proven by clear and convincing evidence that it would have fired Derrick notwithstanding his disclosures, based upon his involvement in a number of workplace incidents including failure to report an injury, apparently faking the severity of an injury and insubordination.  Consequently, the Hearing Officer denied the complaint. OHA Case No. WBH-12-0005