Published: May 22, 2007 08:29 am

Depot case dismissed

By Ronica Shannon
Register News Writer

The case of a former depot worker claiming to have been wrongfully fired was dismissed Friday by a U.S. Department of Labor administrative law judge in Cincinnati.

A hearing set for July 10 is now canceled, according to the recommendation of Administrative Law Judge Thomas F. Phalen Jr., because the complainant, Kim Schafermeyer, did not submit the documentation within a mandated 30-day time period.

Schafermeyer, who served as an analytical chemist and industrial hygienist for the Blue Grass Army Depot, was terminated via letter on July 12, 2006, and he filed the appeal on Aug. 17, 2006, which was just outside the 30-day time period.

Schafermeyer's affidavit was released April 6. Some of Schafermeyer's safety and pollution concerns included: direct venting of chemical warfare agent expelled from testing equipment directly into laboratory areas occupied by workers and visitors; improper handling of air and waste water samples; and flawed monitoring data protocols, including apparent creation of figures when data gaps occurred.

Schafermeyer's case will be sent back to the federal civil service authorities for processing under the Whistleblower Protection Act rather than under federal environmental laws, according to Jeff Ruch, executive director of PEER (Public Employees for Environmental Responsibility), which is the organization offering legal counsel to Schafermeyer.

He claimed that he should not have been terminated because the facility failed to"’Äúprovide adequate resources allowing the required, successful performance of professional duties in a rigidly controlled, secure area, or any area," and failed to provide a safe work environment.

His complaint, however, was directed in the wrong direction, Phalen said.

"He asserts he made diligent efforts to have this same complaint redressed through other avenues, not knowing at the time that a Department of Labor whistleblower complaint was the correct avenue," he said.

No matter what route Schafermeyer would have chosen, the fact that the complaint was not filed during the specified time period does not change.

"There is no evidence the signed statement was signed or sworn to in the presence of an individual authorized to administer oaths under law," Phalen wrote in his recommended decision. "Therefore, I find these statements do not hold the weight of sworn testimony -- but take them for what they are: unsworn statements."

Schafermeyer had many chances to learn about the 30-day deadline, Phalen said.

"His research of statutes as demonstrated through citation is impressive," Phalen wrote. "This shows an aptitude to conduct research on his own behalf. This demonstrates that had he truly believed he was retaliated against for reporting environmental concerns -- despite the fact he knew, or should have known, of ample resources available to assist him -- he possessed the capacity to discover these outlets for himself."

In his complaint, Schafermeyer admitted that he was aware that his filing was too late.

"He did not submit any whistleblower claims until Sept. 22, 2006," Phalen wrote. "Nearly two-and-a-half months after he received notice of termination."

Schafermeyer and his PEER attorney have until June 1 to file a petition to the Administrative Review Board. If no petition is timely filed, the administrative law judge's recommended decision becomes the final order of the Secretary of Labor.

Ruch said that PEER is not giving up based on the outcome of the first filings.

"This is only a speed bump," he said. "It's not the end."

Ronica Shannon can be reached at rshannon@richmondregister.com or 623-1669, Ext. 234.