A U.S. judge on Thursday refused Battelle’s request to dismiss a whistleblower lawsuit brought by one of its employees at Pacific Northwest National Laboratory in Richland.
U.S. District Court Judge Sal Mendoza said what he heard in arguments Thursday sounded almost like the “fox guarding the hen house.”
He also stressed the importance of whistleblower laws to protect individuals and the public as he denied Battelle’s motion to end the lawsuit.
The ruling means the lawsuit brought by Aleta Busselman against Battelle, which operates the national lab for the Department of Energy, will move forward toward the Dec. 9 trial in federal court.
The case stems from December 2016 when the lab was tricked into sending a $530,000 payment owed to Fowler General Construction of Richland to a fraudulent bank account.
Employees fell for an email saying there was a new bank account for Fowler payments. The company was being paid in periodic installments for building the $9.8 million Discovery Hall at PNNL.
Busselman said in court filings that as the lab’s enforcement coordinator, she was responsible for investigating why PNNL had been vulnerable to the theft.
PNNL managers changed report
The lawsuit claims that some laboratory officials found the conclusions reached by Busselman’s team too critical of management and watered it down over her objections.
She said she was told the report made management seem “asleep at the wheel,” according to court documents.
Busselman notified a lab director “that we do not just let concerned stakeholders manipulate root causes at the end of the process to make us sound better.”
Days later she was removed from her position, according to her attorney, Jack Sheridan of Seattle.
She sent a message to PNNL Director Steven Ashby a couple of months later saying she was retaliated against for standing up for laboratory-approved processes and for the team she led to prevent management from improperly changing “root-cause” findings.
She called the behavior unethical and said that she wanted her team protected from future improper pressure by managers.
Mark Bartlett of Seattle, the attorney for Battelle, told the judge Thursday that there was no substantial change to the conclusion of the root cause analysis by management.
Battelle defends involvement
Battelle has defended the involvement of managers in the investigation into its vulnerabilities.
“It is common and unexceptional during the cause analysis process for PNNL management to engage in a back-and-forth with the cause analysis team,” Battelle said in court documents. “Because of these inherent tensions, the cause analysis process is occasionally stressful for the cause analysis team.”
If management and cause analysts cannot reach consensus on a draft report, disagreements are elevated to the next level of managers, Battelle said.
Shortly before she was removed from her position, Busselman said in an email that changing root causes and results “at the 11th hour” was the old way of doing business, rather than current procedure.
She was reassigned to a nonmanagement position after the analysis was final.
Battelle’s attorney said that Busselman often said she was unhappy in her position and had, at one point, requested a reassignment. Changes were already underway before the she argued over the analysis, he said.
He argued getting reassigned was embarrassing for Busselman, but there is a difference between reassigning her and firing her.
“Whistleblowing is about gross abuse,” Bartlett argued. “This is just what happens at work.”
He claimed cases like Busselman’s “trivialize” whistleblowing.
She currently is working on a project at the lab that is a top priority for DOE, and “makes a boatload of money,” Bartlett said.
But her attorney countered, DOE contractors typically don’t retaliate by firing people. Instead, they reassign them to windowless offices, he said.
Busselman, who needs to support her family, was threatened with being laid off, he said.
She took it upon herself to find her current project management position in the National Security Directorate at PNNL, where her skills are highly valued, he said.
Facts in question
Judge Mendoza said the arguments he heard Thursday were helpful and that too many facts remain in question to dismiss the case before trial.
This is the second time Mendoza has refused to dismiss Busselman’s case. Battelle initially arguing that the case did not qualify as a whistleblower action under the National Defense Authorization Act.
Mendoza ruled in October 2018 that if allegations made by Busselman are true, Battelle’s violation of the policy could be considered a violation of Battelle’s contract.
Battelle’s contract with DOE requires it to develop procedures to combat fraud and ensure they are effective.
Busselman initially filed a complaint with the Department of Energy Office of Inspector General in 2017. Under the federal whistleblower law, the filing could clear the way for her to pursue a case in federal court.
The Office of Inspector General report found that Busselman would have been removed from her position regardless of events surrounding the fraud investigation.
However, the dispute over the conclusions of Battelle’s investigation amounted to a whistleblower action and could have contributed to her removal from her position, said the Office of Inspector General.