San Francisco Examiner, May 5, 2016
By Michael Barba
San Francisco State University is embroiled in a whistleblower lawsuit after it fired the employee who exposed potentially illegal activity and hazardous materials in the campus Science Building, leading to its $3.6 million closure and remediation in 2014.
The case is expected to head to trial after San Francisco Superior Court Judge Harold Kahn allowed the lawsuit to move forward Friday.
Brendan Brownfield, an attorney for SFSU, sought to have the case thrown out by arguing that SFSU’s former Director of Environmental Health and Safety Aaron Nevatt was not protected under whistleblower laws when he repeatedly told university administrators about the contaminated state of the Science Building. Brownfield declined to comment for this story.
In November 2013, Nevatt discovered “unsafe levels” of airborne mercury, lead and asbestos while investigating a sealed room in the basement of the Science Building where pesticide-laden Native American artifacts were previously stored, according to the complaint. During testing, Nevatt found the health hazards were not isolated to the single room.
SFSU President Leslie Wong came under fire from faculty and students when he decided at the start of the 2014 spring semester to shut down the building for almost four months, citing the “potential environmental hazards” which Nevatt revealed.
The closure and remediation cost the university almost $3.6 million, according to Jonathan Morales, a spokesperson for SFSU.
In July 2014, Cal/OSHA cited the university $4,765 for various health and safety violations in the Science Building, which included SFSU failing to locate asbestos in the building and warn employees about the hazards of mercury.
“Suddenly,” Nevatt’s attorney wrote in the complaint against SFSU, “Nevatt encountered a dramatic shift in his relations with the SFSU’s executive leadership and his continued attempts to remediate contamination in the Science building.”
About four months after the discovery, while the building was closed for further testing and remediation, SFSU fired Nevatt for his “poor job performance,” according to court records.
In November 2013, Nevatt first told then-Interim Associate Vice President of Human Resources and Enterprise Risk Management Michael Martin about the contamination and SFSU allegedly violating state and federal law by not having an operations and maintenance program for lead or asbestos.
SFSU previously ran into trouble with its EH&S program when the director before Nevatt, Robert Shearer, was accused of taking bribes with from a waste disposal firm in exchange for at least $4 million in university funds.
In court records attributed to Martin, attorneys for the university wrote that Nevatt was fired because he proved himself to be incompetent.
While Nevatt’s initial assessment of the Science Building — and the testing of an independent contractor called Air and Water Sciences, which he hired while EH&S director — found there were unsafe levels of the chemicals in the building, university officials later hired another contractor who found otherwise.
“Once completed the additional testing revealed that the issues in the building were not as severe as the original data suggested,” SFSU said in a statement. “However, the building remained closed to continue that evaluation and to complete the cleaning process that had already begun.”
According to the complaint, Vice President of Administration and Finance Ron Cortez hired consultants Technical Safety Services several weeks into remediation “purportedly to validate the study findings.”
“Instead, the TSS consultants directly and aggressively challenged the credibility and testing and reports obtained during Mr. Nevatt’s management, stated that Mr. Nevatt was wrong for testing the building, and criticized Mr. Nevatt’s management of the remediation project,” the complaint reads.
In court filings attributed to Martin, SFSU attorneys said “there was no evidence found of toxic levels of contamination. [Nevatt’s] recommendation that the Science Building be closed was erroneous and reflected inadequate professional judgement.”
“The Cal-OSHA team report indicated that there were no exposure levels which would impact employee health in any meaningful way,” the record continues.
Yet a declaration from Chip Prokop, who heads Air and Water Sciences and performed the December 2013 testing before the remediation, paints the state of the Science Building in a different light.
“The condition of the room was alarming,” Prokop said of a chemistry storage space. “I have a picture of a jar of chemicals that was from the 1970s.”
Prokop continued, “Nevatt was essentially attempting to bring the University into compliance for public health and safety reasons, and because if OSHA had found that room in the condition that it was in, the University would have been cited for numerous violations.”
While SFSU appeared to downplay the level of contamination in the Science Building in court filings — an apparent attempt to discredit Nevatt’s work —Wong has pointed to the age of the building when calling for the university to build a new structure for contemporary science.
“The old science building, constructed in 1953, is one of the oldest in the CSU system,” Wong said in a statement. “Even after the building was reopened in 2014, six laboratories and one stockroom remained closed at the direction of our campus building official [until this semester].”
Nevatt is also alleging that he became sick in the months following the testing and remediation, resulting in his administrative leave, and was forced to take a mental evaluation three days before he was fired.
Nevatt is seeking an undisclosed amount in damages, attorneys’ fees and backpay, among other penalties.
The trial was moved from next month to Feb. 27, 2017, after Nevatt’s attorney argued that he needed more time to gather evidence.
SFSU has declined to hand over thousands of emails about Nevatt and the Science Building citing attorney-client privilege, since school officials copied an attorney to their emails about the issue, according to Bryan Schwartz, Nevatt’s attorney.