On October 27, 2022, an Administrative Judge issued an initial agency decision (Decision) denying Mr. Brien Williams' complaint (Complaint) against Consolidated Nuclear Security, LLC (CNS) under the Department of Energy's Contractor Employee Protection Program and its governing regulations set forth at Part 708 of Title 10 of the Code of Federal Regulations (Part 708). The Complaint alleged that Mr. Williams had engaged in protected activity under Part 708 when he: (1) refused to comply with CNS's COVID-19 mask mandate, which he asserted was in violation of a statute (the Act) governing the FDA's Emergency Use Authorization for face masks in connection with the COVID -19 pandemic; (2) disclosed in a February 2, 2022, e-mail his belief that the mask mandate constituted a substantial violation of a law, rule, or regulation; and, (3) when he disclosed in the February 2, 2022, e-mail his belief that the mask mandate posed a substantial and specific danger to employees. Mr. Williams asserted that CNS subjected him to various forms of discipline, including suspending him without pay and requiring him to take leave until the mask mandate was discontinued, in retaliation for his alleged protected activity.
The Administrative Judge determined that a motion for summary judgment submitted by CNS should be granted because the Individual did not engage in protected activity under Part 708. The Administrative Judge concluded that the Individual's refusal to participate in masking was not protected under Part 708 because he did not ask CNS to correct any violation of Federal health and safety law or danger to employees before refusing to wear a mask. The Administrative Judge further concluded that Mr. Williams' belief that CNS violated the Act was unreasonable, and that he had not disclosed a substantial and specific danger to employees from masking. As Mr. Williams failed to establish that he engaged in protected activity under Part 708, the Administrative Judge denied the Complaint. (OHA Case No. WBH-22-0003, Harmonick)