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3.PG&E (Zane Easley)
OSHA Case: PG&E Corp./Easley, et al./9-3290-10-041
Resident: Fortuna, California
Telephone: 1-707-726-0254/Email: crowfan@suddenlink.net
Senators: Dianne Feinstein (D), Kamala Harris (D)/Congressional District (CA-05): Congressman Jared Huffman (D)
Title: Director of Security – PG&E Corp.
Summary of Case: On 21 July 2010, Zane Easley, filed whistleblower complaints with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 9 Administrator San Francisco, California under the Energy Reorganization Act (49 U.S.C. § 585), alleging PG&E Corp terminated them in retaliation for reporting security issues to senior management and to the Nuclear Regulatory Commission (NRC).
The case was assigned to OSHA Whistleblower Protection Program (WBPP) Investigator Darrell L. Whitman, under the supervision of Joshua Paul Regional Supervising Investigator (RSI). In the response to the complaint, PG&E claimed Easley, the former HBPP senior Security Manager, and Thomas Sanders, the then HBPP Security Manager, were terminated in January 2010 by senior PG&E’s Humboldt Bay Power Plant (HBPP) for alleged misconduct.
In the course of his investigation, Whitman conducted nine interviews, including interviews with five PG&E managers, Easley, and three independent nuclear safety specialists, reviewed numerous relevant documents and three other investigations by: 1) the California Unemployment Appeals Board (CUAB), which rejected PG&E’s claim of Easley misconduct; 2) ANATA Solutions, an independent nuclear personnel placement company, which found PG&E failed to substantiate its claims of Easley misconduct; and 3) PG&E, which investigated claims misconduct made by a disgruntled employee against Easley in 2008, which was conducted in the context of a scheduled audit by the Nuclear Regulatory Commission, which had praised Easley’s professionalism.
Whitman then reported there was clear and convincing evidence supporting a merit recommendation in favor of Easley, based on: 1) animus by the PG&E plant managers against Easley, arising from a multi-year pattern of Easley reporting serious deficiencies in company safety protocols, including: poor hiring, training and supervision practices, contributing to lost nuclear fuel rods; gross mismanagement of security projects; misuse of decommissioning funds; drug use and insubordination by numerous security staff, which lead to Easley’s demotion by HBPP management in 2008 from his position as senior HBPP Security Manager in 2008; and 2), an established pattern of retaliation by HBPP plant managers against whistleblowers.
During the course of his investigation, Whitman consistently reported developments to his supervisor, OSHA Region 9 RSI Joshua Paul, who repeatedly demanded further investigation even after Whitman’s investigation had clearly satisfied the statutory standard required for issuing a merit finding. For example, on 07 January 2011, 170 days into an investigation mandated by law to be completed within 30 days, Whitman advised PG&E he was preparing to make a merit recommendation, asking if the company wanted to consider settling the complaint. However, rather than engaging in settlement discussions, the PG&E attorneys complained to RSI Joshua Paul that Whitman was “threatening” them and advising Paul PG&E “never settles”. In turn, RSI Joshua Paul reprimanded Whitman for informing the company of the progress of his investigation - an established protocol - and ordered Whitman to extend the investigation by interviewing all PG&E witnesses, even though they were not relevant to the investigation.
On 16 June 2011, 334 days after the complaints were filed, and 274 days after the investigation was statutorily mandated to conclude, Whitman delivered his Final Investigative Report (FIR) to RSI Joshua Paul. Paul then held up the review of the Whitman’s FIR for another 258 days to 13 February 2012. During this time, RSI Joshua Paul rewrote Whitman’s FIR without consulting with or notifying Whitman, falsely labelling the rewritten FIR as Whitman’s FIR, which Joshua Paul then submitted to James D. Wulff, OSHA Region 9 Assistant Regional Administrator, Enforcement Programs.
In rewriting Whitman’s FIR, RSI Paul 1) substituted claims and arguments from the company that were not provided to Whitman during the investigation, and omitted: 2) substantial evidence of PG&E animus toward Easley; 3) the findings of two independent investigations by the CUAB and ANATA Solutions which contradicted the PG&E’s claims of grounds to terminate Easley; 4) witness testimony PG&E retaliated against ANATA Solutions after it offered evidence supporting the wrongful termination of Easely; and 5) Investigator Whitman’s assessment that PG&E failed to provide clear and convincing evidence necessary to defeat a merit finding.
On 13 February 2012, the same day RSI Joshua Paul submitted his rewritten FIR to James D Wulff, Wulff issued a Secretary’s Finding officially dismissing Easley’s OSHA complaint. Thus, despite a statutory 30-day statutory Investigative process mandate[1], RSI Joshua Paul obstructed this investigation for 572 days, then falsified the official FIR in collaboration with PG&E to achieve the dismissal of Easley’s OSHA complaint.
This occurred in the context of similar actions by RSI Joshua Paul and James D. Wulff in another complaint Whitman had investigated and made a merit recommendation (Copper Basin Railroad/Lawson/Case No. 9-0370-11-007). In that case, RSI Joshua Paul rewrote the FIR to conceal his collusion with Solicitor of Labor Ian Eliasoph denying a qualified whistleblower his Constitutional due process right to damages and reinstatement, with James D. Wulff officially dismissing that OSHA complaint on 22 February 2012.
[1] 29 CFR 24.105.
4. Copper Basin Railroad (Billy Lawson)
OSHA Case: Copper Basin Railroad/Lawson/9-0370-10-030; Copper Basin Railroad/Lawson/9-0370-11-007
Senators: Kristen Sinema (D), Martha McSally (R)/Congressional District (AZ-01): Congressman Tom O’Halleran (D)
Title: Laborer
Summary of Case: On 03 June 2010, Billy Lawson filed a whistleblower complaint, with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 9 Administrator San Francisco, California under Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, alleging Copper Basin Railroad terminated him in retaliation for reporting the unsafe movement of rail.
The initial case (Copper Basin Railroad/Lawson/9-0370-10-030) was assigned to OSHA Whistleblower Protection Program (WBPP) Investigator Darrell L. Whitman, under the supervision of Joshua Paul Regional Supervising Investigator (RSI), and after an investigation in which investigator Whitman conducted interviews with Mr. Lawson and company management official, Investigator Whitman successfully negotiated a settlement between Mr. Lawson and the company, which included backpay and reinstatement to his position as a laborer, contained the following conditions:
Respondent will not in any manner interfere with, restrain, or coerce Complainant or any other employee because such employee has filed any complaint or has instituted or caused to be instituted any proceeding under the jurisdiction of the Occupational Safety and Health Administration, or has testified or is about to testify in any such proceedings or because of the exercise of such employee on behalf of himself or others of any rights afforded by any of these Acts. Respondent agrees to conduct a stand-up meeting December 1,2010, whereby a Respondent representative shall instruct Complainant's coworkers that such employees must refrain from any harassment or retaliatory action against Complainant with regard to Complainant's protected activity and filing of a complaint with the Occupational Safety and Health Administration.
Shortly after his reinstatement, Lawson called investigator Whitman to report that he had been assigned to work under the supervision of the manager against whom he had filed his complaint, and that the manager was telling employees to shun Lawson and that he would find a way to terminate Lawson. Investigator Whitman reported this violation of the OSHA managed settlement agreement to RSI Paul, who advised Whitman to “monitor the situation” rather than take steps to enforce the terms of the settlement, as required by law.1 Then on 12 January 2012, Lawson called Investigator Whitman to report he was had been terminated. When Whitman reported this outcome to RSI Paul, Paul ordered Whitman to open and investigate a second complaint, which once again denied Lawson his due process right to OSHA’s enforcement of his settlement agreement.
Whitman’s investigation of this second complaint (Copper Basin Railroad/Lawson/9-0370-11-007) was opened on 19 January 2011 and repeatedly delayed by RSI Paul who demanded the production of evidence that far exceeded the standard of evidence required by statute. Whitman completed his investigation and gave RSI Paul a Final Investigative Report (RSI) on 17 October 2011, recommending a merit finding and providing a detailed timeline of
the case, which began with the notation that it followed from the breach of an OSHA settlement agreement.
RSI Paul did not immediately respond to this FIR, holding the FIR until mid-January 2012 as he collaborated with Ian Eliasoph, the DoL Regional Solicitor of Labor (RSOL assigned to OSHA Region 09 to fabricate grounds to dismiss the complaint, which appeared as an “Analysis” that ignored his and RSI Paul’s failure to enforce the OSHA settlement agreement.
On 26 January 2012, RSI Paul ordered investigator Whitman to revise his FIR from one recommending a merit finding to one recommending a dismissal. When Whitman refused to make the revision, arguing it was unethical, RSI Paul responded, “I will draft the FIR here and keep your FIR as a draft in the file. However, in the future, I will be expecting you to redraft FIRS or ROIs as necessary.” Thereafter, on 22 February 2012, RSI Paul redrafted the Whitman’s FIR, citing the RSOL’s analysis, but leaving investigator Whitman as the author of this revised FIR, concealing his own authorship, and on that same day (22 February 2012), Paul Leary, OSHA Region 9 Acting Assistant Regional Administrator, Enforcement Programs, issued a Secretary’s Finding to Mr. Lawson, dismissing his complaint, based on RSI Paul’s revised FIR.
Billy Lawson, 07/15/2020
1 In any case that has settled under statutes other thanSection11(c) of the OSHAct, AHERA, or ISCA, if respondent fails to comply with the settlement, the RA or designee will refer the case to RSOL with a recommendation to file for enforcement of the order infederaldistrictcourtwherethestatuteauthorizestheSecretarytofilesuit.(OSHAWhistleblowerInvestigationsManual,Ch.6,XIV).
5. FedEx (Dan Forrand)
OSHA Case: FedEx Corporation/Forrand/9-3290-09-057
Senators: Dianne Feinstein (D), Kamala Harris (D)/Congressional District CA-25: Katie Hill (D)
Title: Senior Aircraft Maintenance Mechanic
Summary of Case: On 31 May 2009, Daniel Forrand filed a whistleblower complaint, with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 9 Administrator San Francisco, California under the Wendell H. Ford Aviation and Investment Reform Act for the 21st Century (AIR-21), alleging that FedEx Corporation subjected him to a hostile workplace, harassment, intimidation, and issued him a written reprimand, in retaliation for filing a report with the Federal Aviation Administration (FAA) on 11 February 2009, regarding regulatory violations he reasonably believed presented a substantial and specific danger to public health or safety.
Joshua Paul Regional Supervising Investigator (RSI) assigned the investigation (9-3290-09-057) to Lisa Trecartin working within the Region 9 Whistleblower Protection Program (WPP). On 15 February 2011, after numerous complaints by Mr. Forrand to Joshua Paul (RSI), over the fact, that 625-days had elapsed in a grossly supervised and mismanaged investigation, Joshua Paul reassigned the investigation to Investigator Darrell L. Whitman.
Investigator Whitman informed Joshua Paul that there were major problems with the conduct of the investigation, including statutory violation of the 60-day investigative time-limit for conducting OSHA whistleblower investigations, under the Wendell H. Ford Aviation and Investment Reform Act for the 21st Century (AIR-21)1 and the fact that the evidentiary base (witness statements and documentation) had been allowed to degrade without effective investigative action; RSI Joshua Paul ignored Investigator Whitman’s concerns and told Investigator Whitman to “not rock the boat.”
After completing the investigation, Investigator Whitman notified RSI Paul of a proposed “positive” merit recommendation and RSI Paul directed Investigator Whitman to open official settlement discussions with FedEx Corp.; however, after RSI Paul received a phone call from Robyn Paige Senior Counsel Labor & Employment FedEx Corporation, RSI Paul withdrew support for a “positive” merit finding against FedEx Corporation.
On 06 September 2011 Investigator Whitman submitted a Final Investigative Report to RSI Paul recommending “positive” merit finding, based on the preponderance of evidence presented and evaluated against the OSHA investigative standards.
On 19 November 2011, Paul Leary, Region 9 Assistant Regional Administrator, materially uninvolved in the whistleblower investigation, issued a Secretary’s Finding dismissing the Forrand whistleblower complaint (9-3290-09-057) claiming there was no evidence supporting the whistleblowers complaint.
On 12 September 2012, Administrative Law Judge (ALJ) William R. Dorsey, upon hearing the Forrand appeal, noted that Forrand met the evidentiary burden and that the whistleblower complaint (9-3290-09-057) had legal merit. In reviewing the case, William R. Dorsey specifically noted, “I cannot say the evidence Forrand offered is insufficient to support a hostile work environment retaliation claim under the applicable standard.”2
On 26 January 2016, Administrative Law Judge (ALJ) William R. Dorsey, issued an Order Approving a Settlement Agreement entered into between FedEx Corporation and Daniel Forrand dismissing the Whistleblower case (9-3290-09- 057) and establishing a Confidential Treatment of Whistleblower Settlement Agreement dated 28 March 2016.3
On 19 October 2018, in a follow-on whistleblower retaliation case, filed against FedEx Corporation, by FedEx aircraft mechanics who, like Daniel Forrand, notified corporate management of substandard conditions that the mechanics reasonably believed presented a substantial and specific danger to public health; the Los Angles Superior County panel rendered a guilty verdict and awarded the mechanics $8 million in damages.4
1 U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) Whistleblower Investigations Manual (DIS 0-0.9), 22 August 2003, 49 U.S. Code § 42121(b)(2)(A): “the Secretary will conduct an investigation within 60 days of receipt of a complaint, and then notify the complainant and named party of the Findings”.
2 Order Denying Motions to Strike Vague Allegations and for Summary Adjucation (Daniel Forrand -v-FedEx Corp.), case: 2012-TXT0022, 12
