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6. M3 Transport (Benjamin Heckman)
OSHA Case: M3 Transport LLC-SLT Expressway, Inc./Heckman/9-0370-10-029
Representatives: Senators: Patrick Leahy; Bernie Sanders; Congressman: Peter Welch
Title: Truck Driver (explosives qualified) – M3 Transport
Summary of Case: On 21 June 2010, Benjamin Heckman filed a whistleblower complaint, with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 9 Administrator San Francisco, California under the Surface Transportation Assistance Act (STAA), alleging M3 Transport LLC-SLT Expressway, Inc. constructively discharged Heckman in retaliation for making complaints to management about motor vehicle safety, including: 1) reporting a breach of security wherein a truck carrying missiles sped away from the trailing security truck and traveled a route that was not approved for hazardous cargo; 2) reporting defective air brakes on a truck he was scheduled to drive; 3), reporting an incorrect interpretation of a Department of Transportation regulations; and 4) refusing to drive a truck loaded with explosive with a co-driver who smoked. In response, M3 Transport claimed Heckman voluntarily left his job with the company, that he did not engage in protected activity, and that company didn’t take any unfavorable personnel action against Heckman, based on any alleged protected activity.
After a delay of 60 days, on or about 20 August 2010 the case was assigned to OSHA Whistleblower Protection Program (WBPP) Investigator Darrell L. Whitman, under the supervision of Joshua Paul, OSHA Region 9 Regional Supervising Investigator (RSI) to conduct a 90-day investigation. Whitman interviewed Heckman, three similarly situated employees, and the company’s Vice-President for Safety, as well as reviewing testimony from the State of Nebraska’s Unemployment Appeals Board, which found in favor of Heckman that he was terminated by M3 Transport.
On or about 20 November 2010, Investigator Whitman reported to RSI Paul he had made a preliminary determination of merit, based on information gathered during the investigation. However, rather than directing Whitman to draft a Final Report of Investigation (FIR) with a merit determination, RSI Paul directed Whitman to engage in settlement discussions with the company.
On 03 December 2010, investigator Whitman met with the company’s attorney advising him of the proposed merit finding and inviting the company to consider settlement. The company, however, declined to participate in settlement discussion, after which RSI Paul directed Whitman to continue his investigation by interviewing managers who Whitman had determined could offer no relevant testimony.
On 29 June 2011, after conducting five additional witness interviews, Whitman submitted a FIR with a merit recommendation, based on evidence collected prior to RSI Paul’s direction to conduct further investigation. That FIR, however, languished without a review and approval by RSI Paul for 411 days as RSI Paul continued to unsuccessfully pursue a settlement agreement with the company, which by that time had reorganized itself as a new legal entity.
On 13 August 2012, 783-days after Heckman filed his complaint, RA Atha issued a Secretary’s Finding that included a legally mandated Order that M3 Transport immediately reinstate and pay damages to Heckman. However, no action was taken to enforce the Order, which was effective immediately on receipt by the company.
On 1 October 2012, after enduring gross mismanagement of his case that had delayed a statutory 90-day investigation for 800 days, Heckman wrote a letter to RA Atha complaining about the systemic problems that had infected his case, including releasing his address to the company, which he had good cause to fear.
On 12 October 2012, 60 days after the Order was issued, the company filed an objection with the DoL Administrative Law Judge. Rather than defending the Order and asking the ALJ to reject the objection, which by law was then not subject to judicial review [49 USC §31105 (b)(2)(B)], Rose Daring, the DoL Solicitor assigned by statute to represent Heckman, made no objection, depriving Heckman once again of his due process rights.
On October 2012, Atha responded to Heckman’s concerns raised in Heckman’s 1 October 2012 letter, rejecting without investigation Heckman’s claims of gross mismanagement and bias, misstating facts and law, but acknowledging that Heckman’s case had merit.
Then, on 26 October 2012, DoL Regional Solicitor Janet Herold notified Heckman the DoL Office of Solicitor would not act as his legal representative, claiming it was an exercise of the DoL’s “prosecutorial discretion”.
The timing, context, and language of the responses from RA Kenneth N. Atha and Regional Solicitor Janet Herold evidence a retaliatory motive, based on Heckman’s reporting gross mismanagement of his case by OSHA Region 9, and an abuse of discretion by Regional Solicitor Janet Herold.
After DoL’s rejected its statutory mandate to represent Heckman, Heckman was forced to provide for his own legal defense in the DoL Administrative Law Courts. The stress of this task led Heckman to suffer a series of strokes, substantially limiting his ability to defend himself, which became ever more difficult as the administrative law process continued for more than 6 years with his case being passed from one Administrative Law Judge to another.
On 05 May 2020, 10 years and 4 months after first filing his OSHA complaint of retaliation following his reporting a specific and substantial threat to public safety to his employers, and after 9 years and 6 months of fighting for his Constitutional right to an objective and independent investigation of his complaint, the DoL Administrative Review Board (ARB) members Acting Appeals Chief Judge Thomas H. Burrell, and Appeals Judge Heather C. Leslie affirmed Administrative Law Judge (ALJ) William Dorsey’s dismissal of Heckman’s appeal from the closing of his OSHA complaint as within ALJ Dorsey’s discretion. However, ARB Board Member Appeals Judge James A. Haynes, dissented, noting: “It appears to me the ALJ has moved into a dangerous realm of subjective judgment where consistent rules are impossible. . . The parties are entitled to a decision on the merits and a close to this matter [and] . . . make findings of fact and judgments of credibility.”
The clear and convincing evidence in this case reflects not only a pattern of abuse of authority by responsible federal management officials to deny Heckman’s Constitutional right to due process equal justice under law, but also effectively allowed a Department of Defense contract carrier of explosives to escape accountability for exposing its employees and the public from serious and substantial threats to their safety and health.
7. Morango Casino Resort & Spa (Andres Reyna)
(Available in pdf on request to site manager)
8. Sage Memorial Hospital (Julia Rodela)
Witness Julia Rodela (OSC 12)
Senators: Kristen Sinema (D), Martha McSally (R); Congressional District (AZ-08); Debbie Lesko (R)
Title: Inhalation Therapist
Summary of Case: On 03 May 2010, Julie Rodela filed whistleblower complaint (9-0370-10-27) with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 9 Regional Administrator, San Francisco, California against Sage Memorial Hospital. under Occupational Safety and Health Act, Sec.
11(c). In her complaint, Rodela alleged she was terminated when senior hospital responsible management officials created a hostile workplace in response to her report that she was physically assaulted by another Hospital employee and filed a police report resulting in the other employee’s arrest and conviction for assault.
On or about 01 February 2011, Joshua Paul, Region 9 Regional Supervising Investigator (RSI) assigned the case for investigation to Dr. Darrell Whitman, OSHA Region 9 Regional Investigator. Prior to this assignment, the complaint was unassigned by RSI Paul for approximately 9 months. Whitman began his investigation by reviewing the relevant documents, including the police report, which indicated the assault had been investigated and reported to the Hospital, and by conducting interviews with the Rodela and her Hospital supervisor, who strongly supported Rodela’s complaint, confirming she had been targeted for retaliation by Hospital responsible management officials. Based on the substantial evidence supporting protected activity, knowledge by the Hospital, retaliation, and nexus, Investigator Whitman submitted a proposed merit Report of Investigation (ROI) to RSI Paul on or about 01 November 2011.
On 29 March 2012, in the context of Investigator Whitman refusing falsify a ROI in another case, RSI Paul rejected Whitman’s draft merit ROI for Rodela, ordering Whitman to conduct an extended investigation and interview multiple Hospital administrators, including re-interviewing Rodela’s supervisor.
On 14 May 2013, Investigator Whitman submitted a second ROI with a merit recommendation to Paul Leary, an OSHA Region 9 Assistant Regional Administrator (ARA), who had been appointed temporarily to serve as OSHA Region 9 RSI. However, neither Leary nor Paul reviewed the ROI for eight months.
On 29 January 2014, RSI Paul contacted Investigator Whitman asking he attend a conference with Paul and James Wulff, an OSHA Region 9 ARA who acted as a supervisor for both Leary and Paul, to discuss Ms. Rodela’s investigation. However, rather than discussing the facts, law and analysis in my ROI, Wulff and Paul wanted only to justify a dismissal of the complaint, claiming, “no one wants to work with her [Rodela].
On 26 March 2014, RSI Paul submitted his own version of a ROI, which dismissed Ms. Rodela’s complaint by misrepresenting and omitting facts developed during the investigation and drawing inferences which had no factual basis. That same day, RSI Paul submitted and ARA Wulff signed a Secretary’s Findings which justified the dismissal, based on RSI Paul’s revised ROI.
The actions of RSI Paul and ARA Wulff on 26 March 2014, evidence not only an abuse of authority in dismissing a merit complaint, but also frame four serious violations of Ms. Rodela’s Due Process rights:
· Failing to conduct a timely (90-day), independent and objective investigation of Ms. Rodela’s
whistleblower complaint, which at that time had been delayed 1,421 days;
· Failing to follow statutory guidance in investigating a whistleblower complaint under OSHA 11(c);
· Failing to advise Ms. Rodela of her right to submit additional evidence before dismissing her complaint;
· Failing to advise Ms. Rodela of her right and the process for appealing the dismissal of her case; and,
When on or about 01 April 2014, Ms. Rodela subsequently learned of her rights and the process to appeal from the dismissal of her case, RSI Paul refused to provide her with documents from the investigation necessary to make an appeal, which by law Ms. Rodela was entitled to as a “non-public disclosure”.
The gross mismanagement and abuse of authority in investigating Ms. Rodela’s whistleblower complaint infected most of the process, delaying, and thus denying, an investigation which undermined, if not destroyed the evidentiary base. But this mismanagement and abuse of authority then was compounded by a systematic disregard for statutory mandates and Ms. Rodela’s Due Process rights.
9. JP Morgan-Chase & Co. (Johnny Burris)
OSHA Case: JP Morgan Securities/ Burris/ 9-0370-13-017
Senators: Kristen Sinema (D), Martha McSally (R)/Congressional District AZ-08: Congresswoman Debbie Lesko (D)
Title: Vice President, Chase Private Client Advisor for JP Morgan Chase & Co and/or their subsidiaries
Summary of Case: On 30 April 2013, Johnny Burris filed whistleblower complaint (9-0370-13-017) with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 9 Regional Administrator (RA), San Francisco, California against JP Morgan Chase & Co. under Sarbanes-Oxley (SOX). Mr. Burris alleged he was terminated after objecting to the corporate practice of pushing in-house JP Morgan Private Bank Managed Accounts, proprietary Chase Strategic Portfolio Managed Accounts, and selected mutual funds to all customers, which Burris believed were not appropriate for his retired clients. Burris additionally alleged JP Morgan-Chase blacklisted him and drafted three false customer complaints which were sent to the brokerage industry self-regulator, Financial Industry Regulatory Authority (FINRA).
The case was assigned to OSHA Whistleblower Protection Program (WBPP) Investigator Dr. Darrell L. Whitman, under the supervision of Joshua Paul, OSHA Region 9 Regional Supervising Investigator (RSI). After completing an OSHA Whistleblower investigation and prescribed by SOX, Investigator Whitman was satisfied Mr. Burris met the whistleblower standard and presented a merit-based finding to RSI Paul, which if approved would have resulted in Mr. Burris preliminary reinstatement and an award of back pay and benefits.
On 17 May 2014, Investigator Dr. Whitman filed a whistleblower complaint with Thomas E. Perez, Department of Labor Secretary, advising Perez of a culture of corruption within OSHA Region 9, which then was under the leadership of Kenneth Nishiyama Atha, OSHA Region 9 RA. According to Mr. Whitman, in May/June 2014, when he told RSI Paul he had made a preliminary finding of merit, RSI Paul took the case away from Dr. Whitman and never assigned another case for Dr. Whitman to invest igat e." This occurred in 1-2 months before Mr. Burris' scheduled FINRA arbitration hearing in July 2014.
On 10 January 2017, RSI Paul finally issued a merit finding for Mr. Burris' case, 45 months after it was fi led. As a direct result of RSI Paul's gross mismanagement in delaying the Whistleblower investigative process, Mr. Burris was unable to provide the positive merit finding during his FINRA arbitration, causing substantial damage to Mr. Burris.
In addition to rejecting Dr. Whitman's initial finding of merit, based on a "reasonable belief '1 evidence developed by Dr. Whitman reflected JP Morgan-Chase blacklisting Mr. Burris, RSI Paul issued an OSHA Secretary's Findings which denied Mr. Burris a full recovery of damages. That denial of a "make-whole remedy" was based on RSI Paul's inappropriate, arbitrary and capricious conclusion the company had presented clear and convincing evidence supporting its dismissal of Mr. Burris. In fact, as Dr. Whitman's investigation demonstrated Mr. Burris had substantial evidence contradicting the company's claim, which should have defeated RSI Paul's finding.
Despite RSI Paul's obstruction, the original findings of OSHA Investigator Whitman were re-affirmed by follow-on U.S. Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) investigations into JP Morgan-Chase fraudulent account management resulting in fines and disgorgements totaling over $367,000,000.
Following those SEC and CFTC actions, Burris' whistleblower complaint was featured on multiple occasions in the New York Times on 02 March 20132, 03 December 20153, 11 December 2015,4 and 11 January 2017. 5
1 U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) Whist/eb/ower Investigations Manual {CPL 02-03-003), 20 Sept 2011, Sarbanes-Oxley {SO X) Reasonable Belief Standard, p. 14-4.
Senators: Kristen Sinema (D), Martha McSally (R)/Congressional District (AZ-05): Congressman Andy Biggs (R)
Title: Flight Service Specialist – Lockheed Martin
Summary of Case: On 03 December 2010, Aaron Stookey 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 Lockheed-Martin terminated him for refusing to follow protocols concerning time-sensitive weather briefings to pilots, operating out designated service areas, which Stookey, as a flight service specialist, reasonably believed presented a substantial and specific danger to public health or safety.
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, Lockheed-Martin admitted he was terminated for refusing to follow corporate protocols while also disputing the claim that there was a substantial and specific danger to public health or safety.
Investigator Whitman interviewed four similarly situated Lockheed-Martin employees, former employees of the National Weather Service (NWS) and rated aircraft pilots, who previously offered the same time-sensitive weather briefing service prior to being employed by Lockheed-Martin.
The Lockheed-Martin employees testified that they believed corporate protocols presented a substantial and specific danger to public health or safety; and, that employees followed protocols to avoid managerial retaliation. After completing the investigation, Investigator Whitman was satisfied that Mr. Stookey met the substantial and specific danger to public health or safety standard; and, in May of 2012, Investigator Whitman presented a merit based finding to Joshua Paul Regional Supervising Investigator (RSI).
Despite a statutory 60-day OSHA Investigative process completion mandate1, Joshua Paul Regional Supervising Investigator (RSI) delayed release of the merit finding over 1,252 days before ordering Investigator Whitman to issue Lockheed-Martin a Due Process Letter informing the company of OSHA’s proposed merit finding on 09 May 2014.
On 17 May 2014, Investigator Darrel L. Whitman filed a whistleblower complaint with Thomas E. Perez Department of Labor Secretary Thomas E. Perez on the culture of corruption with-in OSHA Region 9 under the leadership of Kenneth Nishiyama Atha OSHA Region 9 Administrator.
After DOL Secretary Thomas E. Perez received Investigator Darrell L. Whitman’s whistleblower complaint, RSI Joshua Paul contacted two of the witnesses (Mike Milan/Darin Smith) and asked them to retract their testimony concerning substantial and specific danger to public health or safety; which the two Lockheed-Martin witnesses refused to do.
On 08 July 2014, Stookey wrote to OSHA Region 9 RSI Joshua Paul questioning Paul’s interference with his complaint. Thereafter, on 11 August 2014, James Wulff OSHA Region 9 Assistant Area Director, Paul Leary Region 9 Deputy Assistant Area Director and Joshua Paul Regional Supervising Investigator (RSI) conducted a follow-on private conference with Lockheed-Martin company officials, after which Regional Supervising Investigator (RSI) Joshua Paul dismissed the Whistleblower complaint (9-0370-11-005).
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”.
