October 24, 2018
Today a federal judge GRANTED Manager Aleta Busselman’s motion to exclude from the lawsuit a rushed and poorly prepared investigative report that was created by DOE/IG after this lawsuit was filed in federal court—after DOE/IG lost its authority to issue the report. Battelle/PNNL opposed the motion and argued that the late report should be admitted at trial. The judge disagreed.
In granting plaintiff’s motion to exclude the late-created report, the Honorable Salvador Mendoza, Jr. held:
Here, the Inspector General issued its adverse investigative report on July 5, 2018, which was (1) more than 210 days after receiving plaintiff’s administrative complaint on June 21, 2017; (2) more than thirty days after the March 28, 2018 extended deadline that plaintiff agreed to; (3) sixty-nine days after plaintiff was deemed to have exhausted administrative remedies; and (4) three days after plaintiff filed this de novo action in this Court on July 2, 2018. Therefore, the Inspector General report does not deny relief. . . . Consequently, the Inspector General report is not admissible in this de novo action under the NDAA (the contractor whistleblower law). The Court accordingly excludes the Inspector General report from evidence in this case.
Jack Sheridan said, “the Court’s ruling makes perfect sense. The DOE/IG did nothing for almost a year, and after Ms. Busselman filed in federal court and they lost jurisdiction, for reasons known only to them, they sent out a late, rushed, and incomplete report that reflected an incomplete investigation–one that simply took whatever PNNL managers said as true without further investigation and without seeking further evidence that would have contradicted those managers.”
On August 3, 2018,The DOE Office of Hearings and Appeals took the same position as Judge Mendoza finding that the DOE/IG report would not be considered by the Office because in other whistleblower cases brought under other whistleblower laws:
DOL’s Administrative Review Board has repeatedly dismissed complaints for lack of subject matter jurisdiction once the statutory deadline for agency action has run and a complainant files a de novo claim in U.S. district court on the basis of exhaustion of administrative remedies.
. . . .
The parties have identified no compelling rationale for departing from the sound practice of DOL under Sarbanes-Oxley, and we decline to do so here.
This amounts to two wins in a row for Ms. Busselman against Battelle/PNNL. Jack said, “we look forward to bringing this case in front of a jury so that PNNL and its managers can be held accountable for their actions.” No trial date has been set.
Whistleblower Aleta Busselman Wins First Round in federal lawsuit Against Battelle/PNNL for Whistleblower Retaliation
October 10, 2018
Today a federal judge denied Battelle/PNNL’s motion to dismiss PNNL Manager Aleta Busselman’s whistlelblower retaliation lawsuit. The Court found
Here, Plaintiff objected to Defendant changing or manipulating the root cause finding—the official determination of how and why Defendant lost over half a million dollars to a fraudulent entity—in a report that the energy department would rely upon in determining what to do in response. Plaintiff expressed her belief that Defendant’s actions were prohibited. She mentioned the internal policy, which Plaintiff designed and implemented to comply with Defendant’s contract and governing regulations. But it is not reasonable to infer her concerns were limited to the internal policy. After all, it was known even in the absence of a formal written policy that management was prohibited from changing a root cause finding. A disinterested observer with knowledge of the essential facts would reasonably conclude Defendant’s actions evidenced gross mismanagement of, or an abuse of authority relating to, a federal contract, as well as a violation of regulations governing that contract. By inference, Plaintiff held the requisite reasonable belief. The NDAA therefore protects her objection.