The “whistle blower” suit of former Chemical Activity employee Donald Van Winkle was dismissed Friday by a U.S. Dept. of Labor administrative law judge.
He had operated mobile chemical agent monitors and sought $200,000 in damages.
Van Winkle claimed Army officials disqualified him from working in the depot’s restricted chemical weapons area in retaliation for bringing to light misalignment of a nerve-agent detection system and questioning the competence of the supervisor who had authorized the configuration.
Van Winkle also alleged a pattern of adverse action by chemical activity officials, creating a hostile environment, assigning him defective equipment, plus denying him training and overtime amounted to a “constructive discharge” from his job.
In his ruling, Judge Thomas F. Phalen, who conducted four days of hearings in late November and early December 2007, wrote that legal precedent allowed him only to review whether an agency had followed its own procedures, and not its reasons, in revoking a security clearance.
Under Department of Defense regulations, “any display of poor attitude ... as evidenced by aberrant attitude (arrogance, inflexibility or suspiciousness ...) is a a disqualifying factor,” Phalen wrote.
“I find that the reasons given — ‘lack of trust,’ ‘signs of behavior of a disgruntled employee,’ and ‘lack of a positive attitude’ — were sufficient” to remove Van Winkle from his better-paying job in the restricted area, the judge wrote.
In denying his clearance to work in the restricted area, Thomas Bilyeu, the chemical activity’s civilian manager, cited Van Winkle’s “contemptuous and arrogant behavior” plus his overture to 17 fellow employees, seeking their support of his claim against the Army and threatening to subpoena them if they did not.
Bilyeu’s action, supported by the chemical activity’s military commander, Lt. Col. George Shuplinkov, did not violate Van Winkle’s right, Phalen wrote.
Van Winkle voluntarily left his depot job in October 2006 after he filed to run for state senate and was told by the U.S. Office of Special Counsel that his candidacy violated the Hatch Act, which limits the political activities of federal employees.
Unless he withdrew from the senate race, he would face disciplinary action, he was told.
At about that time, Van Winkle qualified for government disability, based on injuries suffered in an accident at home.
His whistle-blower claim, first rejected by federal Occupational Safety and Health Administration, was filed in Sept. 2005.
Attorneys from Public Employees for Environmental Responsibility (PEER) represented Van Winkle at the hearing before Phalen, conducted at the University of Kentucky College of Law.
The PEER attorneys tried to demonstrate a pattern of unsafe procedures in the chemical activity authorized by unqualified supervisors. Employee concerns were ignored and supervisors failed to inform them of their protection under federal “whistle blower” statutes, said attorney Paula Dinerstine.
The threat of demotion or dismissal hung over the head of anyone who questioned safety procedures or hesitated to accept assignments, according to two other former chemical activity employees who testified.
Former depot laboratory technician James Jackson said he left his job to become an instructional laboratory chemist at the U.S. Military Academy because he was “fed up” with chemical activity management.
He and laboratory supervisor Bonnie McCoy “were always at odds over safe ventilation of the laboratory,” he testified. Also, seeing physical scientist Kim Schaefermeyer be dismissed and Van Winkle lose his clearance to work in the restricted area led him to believe safety concerns would not be properly addressed.
Schaefermeyer, who also filed a whistle-blower complaint that was dismissed by Phalen, had his appeal denied by the labor department’s administrative review board in October.
At Van Winkle’s hearing, Schaefermeyer testified that he had demonstrated that calibration settings which McCoy had prescribed for VX nerve-agent monitors rendered them useless.
Van Winkle’s case also can be appealed within 10 days to the labor department’s administrative review board.
Bill Robinson can be reached at brobinson@richmondregister.com or at 623-1669, Ext. 267.
Local News
‘Whistle blower’ loses case
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Friday at library : Lecturer to portray founder of Berea
John G. Fee, abolitionist and founder of both Berea and Berea College, will be portrayed Friday night by performer Obadiah Ewing-Roush as part of Kentucky Humanities Council Chautauqua performance series at the Madison County Public Library. There is no charge to attend the 7 p.m. event.
As the son of a slave-holding father, Fee witnessed firsthand the benefits of having slaves and the profits that could be made from their labor. When he graduated from college and enrolled in Lane Theological Seminary, he began to understand the inherent wrong and destructiveness of slavery. -
Berea woman dies Tuesday in Laurel County crash
A Berea woman, Tommie Johnson, 60, died Tuesday evening in a Laurel County crash, according to the the Laurel Sheriff’s Office.
The accident took place about 7 p.m. at the junction of Maple Grove Road and KY 363 south of London, as Johnson was attempting to turn onto the state highway.
Laurel County Chief Deputy Eddy Sizemore said Johnson’s Chevrolet Cavalier pulled out in front of a Dodge Durango driven by Charles Joseph, 19, that was traveling south on KY 363.
After being extricated from her vehicle, Johnson was transported to St. Joseph-London hospital, where she was pronounced dead.
Joseph also was transported to the hospital, where he was treated for minor injuries, according to the accident report. -
Finally February
Ian Rosser, an Eastern Kentucky University student from Lexington, clears snow from his car parked on campus Wednesday
morning after about an inch of snow fell in Richmond. Temperatures are forcast to be in the upper 40s today. Kentucky has seen a lot of rain in the past few months, as was predicted by the Farmer's Almanac, but very little snow has fallen. -
Volunteers needed for equine therapy
The Appalachian Foothills Therapeutic Equestrian Center will be hosting two, one-day volunteer training workshops for those interested in helping others with special needs.
The volunteer orientation days will be Friday and Saturday from 10 a.m. to 3 p.m., but only one day of training is required, according to Mark Martin who co-owns Appalachian Foothills Therapeutic Equestrian Center (AFTEC) with his wife Cheryl.
The all-volunteer organization, which is based in Jackson County, uses horses to help humans deal with physical and emotional challenges. -
Man accused of holding samurai sword to girlfriend’s throat
A Madison grand jury will hear the case of a man accused of threatening to cut his girlfriend’s head off, and attacking her father with a samurai sword.
Russell M. Masters, 42, of Richmond, is charged with two counts of first-degree wanton endangerment, which is a Class D felony, and fourth-degree assault (domestic violence with minor injury) and resisting arrest, which both are Class A misdemeanors. Masters could receive one to five years in prison on each wanton endangerment charge, and the misdemeanors both carry a maximum sentence of one year in jail. -
Arrest made in connection with stolen jewelry, computer
Richmond police have made an arrest in connection with property stolen from two homes last fall.
A woman reported to police Monday that she had discovered several items that were missing from her home on South Killarney Drive and her grandmother’s home on Raintree Drive, according to Richmond Police Chief Larry Brock. The items were a set of gold hoop earrings, a white Sony Vaio laptop, a yellow gold heart pendant, a gold tennis bracelet and a ladies’ wedding band with a diamond setting.
The complainant said the belongings had gone missing sometime between August and October. -
US 25 business owners scared of five-lane plan
Voices of Berea business owners upset about upcoming construction on US 25 will be taken to the state level, according to city administrator Randy Stone.
Several people operating businesses along a section of US 25 gave comments Tuesday to the Berea City Council, asking them reconsider plans to widen the road to five lanes.
The design is a five-lane highway with a center turn lane and a 10-foot shared use path on one side and a 5-foot sidewalk on the other side. -
Grand jury to hear copper theft case
The attorney for a man accused of stealing copper from a handful of electric poles questioned his identification as the same person who took copper from 32 poles two days earlier.
Public defender Meena Mohanty questioned Richmond police officer Nicholas Duvall during a preliminary hearing Wednesday in Madison District Court. Her client, Jeffrey W. Nester, 46, of Fourth Street, was arrested in connection with a Jan. 23 copper theft. He is charged with second-degree criminal mischief, theft by unlawful taking, possession of burglary tools and failure to notify address change to the Department of Transportation. These charges are all misdemeanors that, at most, carry a sentence of one year in prison. -
Judge weighs constitutionality of legislative redistricting
Kentucky’s deadline for filing to run for legislative seats was in flux on Monday because a judge did not immediately rule on a lawsuit challenging the constitutionality of newly redrawn district boundaries.
Franklin County Circuit Judge Phillip Shepherd said he expects to enter a ruling in the case by mid-week.
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Couple recovering from injuries suffered in weekend house fire
A couple was hospitalized after their home was set ablaze Sunday by a spark from a cigar, according to a county fire official.
County Fire Chief Jim Cox said the city and county fire departments were called to the home at 111 Concord Road in the early afternoon. Waco Volunteer Fire Department and the Richmond Fire Department also responded.
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