GAO Report Confirms DOE has Failed to Protect Whistleblowers

“They will make an example of anyone who challenges them.”

This chilling comment from a contractor employee quoted in a recent Government Accountability Office (GAO) report illustrates how Department of Energy (DOE) contractors have developed a culture of fear and intimidation that threatens to subvert legitimate safety concerns raised by whistleblowers.

At a press conference for the GAO report, Sandra Black, a former Employee Concerns Program (ECP) manager at contractor Savannah River Nuclear Solutions (SRNS), stood trembling behind a podium as she struggled to recount the retaliation she allegedly faced for cooperating with GAO auditors. Black claims she had witnessed multiple instances of intimidation, including one where a manager allegedly pressured an investigator in her office to re-categorize a substantiated whistleblower complaint as groundless. Another manager allegedly demanded to know the name of a whistleblower during an investigation.

Also present at the press conference was Walter Tamosaitis, a whistleblower who claims the contractor he worked for retaliated against him after he informed the DOE of serious safety concerns at the Hanford nuclear weapons complex. In 2011, Tamosaitis led a group of scientists who worked to convert nuclear waste into glass so that it could be safely stored underground. Worrying that a flawed design would cause hydrogen gas buildup and a spontaneous nuclear reaction, Tamosaitis brought his findings to company management and federal investigators. While his findings were disputed by Hanford officials, federal investigators took the concerns seriously and determined the plant’s structure to be inadequate.

So how was Tamosaitis rewarded for his courage and discernment? He was demoted and placed in a basement office, in which cardboard and plywood lined the walls. Dr. Tamosaitis did receive a $4.1 million settlement after a protracted court battle with URS Corporation (now owned by AECOM), a Hanford site subcontractor. Senators Ron Wyden (D-OR) and Edward Markey (D-MA) have written letters to Energy Secretary Ernest Moniz, citing Tamosaitis as one of many examples, cautioning that retaliatory action against whistleblowers undermines DOE’s commitment to a culture of safety. Although Walter Tamosaitis received justice, albeit a day late, many DOE whistleblowers are harassed rather than supported, humiliated rather than lionized.

Also present at the press conference were the three Senators who had requested the GAO report in 2014, Senators Wyden, Markey, and Claire McCaskill (D-MO).

Speaking at the press conference, Senator Markey stated, “This new Government Accountability Office report makes clear that the Department of Energy has utterly and completely failed to protect whistleblowers from retaliation… The currency of whistleblowers is the truth. But at the Department of Energy, whistleblowers are paid with harassment and retaliation.”

The GAO found that DOE had not sufficiently implemented a pilot program Senator McCaskill had introduced to improve whistleblower protections for contractor employers and grantees. Senator McCaskill stated, “I don’t know what kind of power these contractors have, but it’s amazing to me that we aren’t willing to step up and give these employees who are working in nuclear facilities the same kind of protections as federal employees.”

The GAO also found that the reporting and disclosure mechanisms of the Employee Concerns Program (ECP) have had limited success due to contractor organizational practices, which ultimately limit the program’s independence. Senator McCaskill’s pilot program, originally passed by Congress in 2013, sought to mitigate this problem, but unfortunately DOE has not been able to assess the extent to which the pilot program has been effective.

Among a slew of disconcerting findings, the GAO discovered that, over the last 20 years, DOE has used its enforcement authority only three times—twice taking enforcement action against contractors for employee retaliation and once issuing an enforcement letter against a contractor for whistleblower reprisal. While GAO is unable to assess the success of several DOE whistleblower protection programs, it is notable that when DOE had the opportunity to stand with contractor whistleblowers, it turned a blind eye in order to streamline the contracting process.

Most disturbing, however, is DOE’s negligence in addressing the chilled work environments that contractors have created. ECP managers expressed concern to GAO auditors that DOE management lacks dedication in addressing employee concerns. Often, contracting officers will not respond appropriately to issues disclosed by ECP managers, and concerns will be fielded back to the contractor, severely undermining the intent of the ECP program.

On several accounts, there have also been instances of contractors intimidating employees who seek to utilize DOE’s ECP system. The report recounts how one employee’s interactions with a DOE ECP manager were obtained by the site contractor using the Freedom of Information Act. Subsequently, at a site staff meeting, the contractor’s managers cautioned employees not to raise concerns with DOE’s ECP; a significant drop in reported concerns followed.

What is revealed in the GAO report signifies more than the development of a hostile workplace or the impotence of the DOE to force contractor compliance—it is testament to the gagging of safety-concerned employees so that contractors can cash in without delay. At the press conference, Senator McCaskill stated, “This is all about everything going smoothly so [contractors] get the plus-ups that are baked into the contracts.” Without a truly independent reporting process, one that allows contractor employees to raise concerns without fear of retaliation, there can be no way forward for energy whistleblowers.