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WBU-14-0008 - In the Matter of Ed Boettcher

On April 28, 2014, the Office of Hearings and Appeals (OHA) issued a decision granting Mr. Ed Boettcher’s (Appellant) Appeal of the DOE’s Officer of River Protection’s (Manager) dismissal of his whistleblower complaint for lack of jurisdiction or good cause pursuant to 10 C.F.R. §§ 708.4 and 708.17.  The Appellant alleges that, while employed at Washington River Protection Solutions (WRPS) as an electrician, he made several protected disclosures concerning worker health and safety and, as a result of these disclosures, he was terminated from his position. The ORP Manager found that dismissal of the Appellant’s Complaint was appropriate under 10 C.F.R. § 708.4(b) because the Appellant’s termination allegedly resulted from his own willful misconduct in deliberately contaminating a co-worker. Additionally, the ORP Manager determined that 10 C.F.R. § 708.17(c)(3) prevented further consideration of the Appellant’s Complaint because the Appellant was simultaneously pursuing a union grievance procedure regarding his termination.  The Director of OHA found that Part 708’s Section 708.4 bars complaints that citing deliberate misconduct as a protected disclosure or activity and not complaints where the termination is alleged to be the result of deliberate misconduct. In the present case, the Appellant’s alleged protected disclosures concerned worker health and safety. Consequently the bar of Section 708.4 did not apply to the present case. As to the other cited ground for dismissal, Section 708.17(c)(2), which bars similar complaints in multiple forums, the Director of OHA found that over 150 days had elapsed from the date the Appellant filed his grievance and that no final decision had been made. Under Section 708.13, any grievance in which 150 days or more has elapsed without a final decision is considered to have ended. Thus, the Appellant’s grievance was no longer a bar to the processing of his Complaint under Section 708.17. Consequently, the Director of OHA granted the Appellant’s Appeal.