Testimony continues in Whistleblower lawsuit against the University

Robert McGee, 54, is suing the regents under Michigan’s Whistleblower’s Protection Act for allegedly being terminated from his graduate research student assistant position after filing allegations of safety violations against the professor he was working for.

McGee testified Tuesday morning at the Washtenaw County Circuit Court, speaking to the seven-member jury about the grievances he suffered throughout the process.

McGee alleged in detail that Assistant Prof. Michael Hartman, who works in the nuclear engineering and radiological department, violated safety codes and put him at risk of exposure to Cesium 137 — a highly radioactive isotope.

On Feb. 16, 2008, Hartman asked McGee to assist him in installing a door in Nuclear Engineering Prof. Kimberlee Kearfott’s laboratory, located adjacent to his Neutron Science lab on North Campus.

Because it was a Saturday, Hartman and McGee were the only two people in the lab. McGee agreed to help, but was concerned about entering the lab because Kearfott had previously told him that her lab had restrictive access.

Before entering Kearfott’s lab, McGee asked Hartman if the University’s Radiation Safety Services and Kearfott knew they were going in the lab. According to McGee’s testimony, Hartman replied, “RSS, what a joke” and then stated RSS and Kearfott both knew about their entrance.

The two then entered without a survey meter or dosimeter — two safety devices that detect radiation.

The men found they could not install the door as planned, but Hartman walked further into the lab toward the area with the Cesium.

Prior to the incident, McGee said Kearfott had told him that she had concerns her safety equipment did not always function properly. With this mind, McGee said he had “no confidence in her safety systems” and became nervous about venturing deeper into the lab.

His fears were further heightened when Hartman asked him if he knew whether the machine containing the Cesium was on or off. Since Hartman didn’t know if it was emitting radiation, McGee’s first instinct was to get out of the area as quickly as possible, and he immediately vacated the premises.

McGee said he knew there was a 50-50 chance he had a received a dose of radiation because the machine was either on or off.

Turning to the jury, he started to choke up as he explained how he got in his car and called his wife to inform her of what had happened. He said he was scared because radiation can cause immediate effects or produce cancer 10 years down the road.

“I was upset,” McGee said. “I was mad. I was thinking about my safety.”

He added he was disappointed by Hartman’s actions.

“I trusted him,” he said. “Just a myriad of let downs were going through my head.”

McGee went home and tried finding a 24-hour radiation service. Unable to reach anyone and desperate to figure out if he had been exposed to radiation, he called Joseph Miklos, an Occupational Safety and Environmental Health coordinator for the University.

After hearing what happened, McGee said Miklos became upset and started to raise his voice and swear.

Miklos told McGee only four people were allowed in the area of the lab he and Hartman were in, and that the two of them were not part of the four.

In response to McGee’s inquiry into whether he had been exposed to radiation, Miklos said he didn’t know if the machine was on or off and that the only people who knew were Kearfott and her students.

Yesterday, University attorney David Masson called Miklos to the stand as a witness for the defense.

Miklos testified that McGee called him on Feb. 16 and expressed concern about possible exposure to Cesium 137. He said he assured McGee that radiation exposure was impossible because the Cesium 137 source had been inactive since the previous December.

Nevertheless, Miklos told McGee that he was free to call the Nuclear Regulatory Commission and speak to one of its specialists.

According to Miklos, McGee refused to call the NRC because he didn’t want to get Miklos in trouble.

“I told him, ‘There’s no trouble because you did not get a radiation dose,’” Miklos said.

McGee did not contact the NRC, but sent Miklos an e-mail reiterating his concerns. In response, Miklos met with McGee the following Tuesday and restated that radiation exposure was impossible.

“I once again said, ‘You have the right to notify the NRC,’ ” Miklos said. “To my knowledge he never did.”

Miklos talked about the safety system in Kearfott’s laboratory that protects against exposure to the Cesium 137 source. According to Miklos, warning lights and signs activate when the Cesium source is in use.

“If the source had been functional all the warning lights would have been working,” Miklos testified.

Miklos explained that he had approved Hartman to work in Kearfott’s laboratory on Feb. 16 because the radiation source was inactive at the time. Since the source wasn’t active, Hartman and McGee’s presence didn’t violate NRC regulations that require researchers to carry radiation detection devices in high-radiation areas.

Miklos said he would not have permitted access to the lab if the source was active.

On cross-examination by McGee’s attorney, Christine Green, Miklos said he hadn’t prepared an incident report about McGee’s phone call or e-mail because he felt the event didn’t warrant filing a report.

Miklos explained he didn’t consider McGee’s e-mail an official report because, according to Miklos, McGee did not get a radiation dose.

Green asked about McGee’s prior safety concerns, and Miklos responded he thought McGee had good ideas about safety measures — some of which were implemented in the design of the neutron cell lab.

In his testimony earlier this week, McGee said he called Kearfott the Monday following the incident to discuss the situation. He said she started swearing and told him she didn’t give Hartman permission to enter her lab, and they had “no right to be there.”

“She was so upset I thought she was going to have a stroke,” McGee said.

The two agreed to immediately meet each other at the lab to inspect the machine, which Kearfott found to be off.

Kearfott told McGee that he had not been exposed to radiation. However, he reported the incident to Radiation Safety Services through e-mail on Feb. 16.

In Kearfott’s testimony yesterday, she said the source was not functioning properly at the time McGee and Hartman entered her lab — which would have made it more difficult to be exposed. She explained a person was required to lift a rod, which would prop up the source and cause radiation exposure.

Kearfott said she hadn’t talked to Hartman about the problems with the source because she claimed he didn’t need to know.

“He doesn’t need to use the source in his work,” she said.

After hearing that Hartman and McGee had been in the lab, Kearfott asked Hartman to come to her office.

She said “(Hartman) either denied or dodged around it in some way,” when asked if he had been in her lab without following safety protocol.

“He did not answer my question,” she said.

Upon returning to the lab that week, McGee said in his testimony that his friendly relationship with Hartman changed “dramatically.”

The two did not speak to each other while working in the lab, and McGee said the atmosphere was very tense.

“This was such a 180-degree change from the complimentary relationship that we had,” he said.

However, Miklos said in his cross-examination that he observed “friction” between the two as early as October 2007.

McGee said he started to worry that Hartman suspected that he had reported the safety violations.

Hartman is scheduled to testify in court today.

On Feb. 20 McGee contacted Christine Gerdes, an assistant general counsel in the University’s Office of the Vice President and General Counsel, because he was afraid he might lose his job.

McGee said Gerdes assured him that he would not be fired and that the University doesn’t fire GSRAs unless they do something wrong — like take drugs at work or steal from the University.

Later that day, McGee received an e-mail from Hartman saying he was being terminated from his position, effective immediately.

McGee said the e-mail took him by surprise.

“I literally threw up,” he said. “Everything that I had feared and everything that I had tried to avoid just went up in smoke.”

McGee sent an appeal to William Martin, professor and chair of nuclear engineering and radiological sciences, who told McGee he would look into the situation.

Because he had spent three years working on his project before Hartman took charge of it and because Hartman dismissed him shortly before the project was finished, McGee proposed he be allowed to complete it.

“‘I have so much blood, sweat and tears with this,’” McGee said he told Martin. “‘Let me finish this.’”

Martin agreed he would talk with Hartman and get back to him, but McGee said Martin never did.

Hartman said he would pay McGee for the rest of the semester. When McGee contacted Gerdes after being fired she said she could not help him because the University was still paying him. If it was not, then she could get involved.

Since the incident, McGee has not finished his Ph.D. at the University or been able to obtain employment in the field — though he said he sent his résumé to more than 30 companies.

If he had been able to finish his degree, he said he would ideally be working in a laboratory and publishing papers. His ultimate goal was to become a professor at a university where he could continue research and do consulting work.

Now unemployed with a house and two kids, McGee began to cry during his testimony as he admitted he’s making zero income and his wife is working two jobs to pay the bills.

“I’m very upset and very nervous about my future,” he said.

— Daily Staff Reporter Mallory Jones contributed to this report.