CUI//PRIIG/PRVCY
Report of Investigation:
Whistleblower Reprisal
Investigation
September 17, 2024 | Report No. 24-N-0061
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Abbreviations
CBI Confidential Business Information
C.F.R. Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FY Fiscal Year
LAN Local Area Network
OIG Office of Inspector General
OPPT Office of Pollution Prevention and Toxics
RAD Risk Assessment Division
U.S.C. United States Code
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Table of Contents
Introduction and Summary 1
Findings of Fact 3
Analytic and Legal Framework 16
Analysis 18
Conclusions 27
Recommendation 28
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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Report of Investigation
Introduction and Summary
On June 28, 2021, and August 3, 2021, the U.S. Environmental Protection Agency Office of Inspector
General received OIG Hotline complaints filed by the nonprofit organization Public Employees for
Environmental Responsibility on behalf of four scientists who worked in the former Risk Assessment
Division, or RAD, of the Office of Pollution Prevention and Toxics, or OPPT, in the EPA Office of Chemical
Safety and Pollution Prevention. The complaints and subsequent interviews of the scientists raised
multiple allegations of misconduct, including that the Agency took seven personnel actions against
four in 2019 and 2020 afterj expressed differing scientific opinions and raised
allegations of harassment and three in 2022 after the filing of the June and August 2021 hotline
complaints by Public Employees for Environmental Responsibility. We opened an investigation to
determine whether the alleged actions in 2019 and 2020 were in retaliation for^^^J differing
scientific opinions, in violation of the EPA's Scientific Integrity Policy (2012) or in retaliation forj
allegation of harassment, in violation of the Whistleblower Protection Act. We also investigated whether
the 2022 action was in retaliation for^^^J complaints made to the OIG, in violation of the
Whistleblower Protection Act.
Our investigation first sought to determine whether^^B expressed differing scientific opinions, made
protected disclosures, or engaged in other activities that were protected under the Whistleblower
Protection Act and whether any of these were a contributing factor in any personnel actions taken
against^H. We determined that I
expressed differing scientific opinions in 2019 and 2020,
engaged in protected activity in 2019, 2020, and 2021 and made a protected disclosure in 2021. We
determined that two of I
alleged retaliatory actions did not constitute personnel actions. We
found that management knew ofl
differing scientific opinions, protected activities, and protected
disclosures when it took five personnel actions against^J (1) issued a performance evaluation in
fiscal year 2020 with a lower rating for critical element one than the previous year, (2) reassigned to
a different division, (3) failed to select^| for a
position, (4) failed to select^|
for a detail,1 and (5) failed to select^|
for al
position. Of these five
personnel actions, we determined that
differing scientific opinions, protected activities, and
protected disclosures were not contributing factors in two actions. Three personnel actions occurred
within a period of time such that a reasonable person could conclude that J differing scientific
opinions or protected activities were contributing factors. Our investigation identified that these three
actions were taken by
who issued
FY 2020
performance evaluation;
who reassigned
and
who failed to select
for a detail position
1 A detail is a temporary assignment made available to current federal employees.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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Next, we assessed whether the EPA could establish that it would have taken the same three personnel
actions even if^^f had not expressed differing scientific opinions, engaged in protected activities, or
made protected disclosures. After reviewing the EPA's evidentiary support for the three personnel
actions, any evidence of retaliatory motive on the part of officials involved in the decision, and any
evidence that the Agency took similar actions against similarly situated employees who were not
whistleblowers, we substantiated retaliation allegations with respect to the critical element in J
FY 2020 performance evaluation, in violation of the EPA's Scientific Integrity Policy and the
Whistleblower Protection Act. We also substantiated J retaliation allegations with respect toj
reassignment, in violation of the EPA's Scientific Integrity Policy. We did not substantiate
retaliation allegations with respect toj nonselection for the detail. We recommend that the EPA
administrator take appropriate corrective action considering these findings.
On August 28, 2024, we providedwith a tentative conclusions letter containing our preliminary
report of investigation and gave^^ an opportunity to review and comment before we finalized our
report. In^^ response, dated September 9, 2024,disagreed with our conclusions.asserted
that there was no retaliatory motive on^^ part with regards to^^^J reassignment.^! stated that
did not work directly with^^^ and met with^^ once in April 2020.assertedwas unaware
of protected activities and that^^ did not personally engage in resolving differences of scientific
opinions, as^^ did not have the technical knowledge required.stated that^^^ was included
in the new chemicals branch in the May 13, 2020 organizational chart because that chart reflected
existing staff in the unit. As^^ was new in^^ role and had no basis to judge where^^^ should be
placed,^! considered the OPPT Senior Science Advisor's feedback when revising the chart.wrote
that the final decision on placements of staff was made by managers above in the organization.
On August 29, 2024, we providedwith a tentative conclusions letter containing our
preliminary report of investigation and gave^^ an opportunity to review and comment before we
finalized our report. In^^ response, dated September 6, 2024,disagreed with our
conclusions.^! stated that^^ did not penalize^^^ for J disagreements, but instead assessed^
overall performance against various metrics, including J ability to meet programmatic deadlines for
new-chemical assessments. stated that management had the responsibility to ensure that program
goals are met and that the EPA's FY2018-2022 Strategic Plan emphasized the importance of adhering to
statutory deadlines. pointed out that performance ratings are not static and that
employees are not entitled to the same rating they received in a previous year.^^ highlighted that^^
considered rebuttal of J rating, and that^J adjustment of J rating demonstrated
commitment to fairness in the evaluation process. Finally,^! noted that the agency's Approaches for
Expressing and Resolving Differing Scientific Opinions guidance was not available to^^ at the time of
rating, as it was published in October 2020.
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the Freedom of Information Act.
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After carefully consideringand|
the report but did not alter our original conclusions.2
Findings of Fact
responses, we amended some sections of
within the
in the|
OPPT.^^| began J EPA career in |
began a andj
position later became permanent. While in RAD,^^| worked primarily on human health assessments
of new chemicals3. In October 2020, during the reorganization of the OPPT, | was moved
Background
Prior to the OPPT reorganization in October 2020, RAD was responsible for assessing the hazards of new
chemicals before they entered U.S. commerce to determine whether they posed an unreasonable risk to
human health and the environment. RAD's hazard assessments were sent to the Chemical Control
Division in the OPPT, which conducted risk management assessments. These assessments were made
under the Toxic Substances Control Act, which requires a final regulatory determination within 90 days
of submission.4 After the two divisions completed their assessments, the OPPT deputy director would
review their work and approve a final regulatory determination regarding the risks posed by each new
chemical. As a result of the OPPT reorganization in October 2020, the risk assessments and regulatory
determinations were assigned to the New Chemicals Division and were subject to the same statutory
90-day deadline.
Pre-Reorganization
OCSPP
1 1
1
1 1
| OPPT I
¦ 1
Post-Reorganization
OCSPP
OPPT
ifr
Notes: NCD = New Chemicals Division; OCSPP = Office of Chemical Safety and Pollution Prevention.
Source: OIG analysis of OPPT reorganization. (EPAOIG image)
2 While we included what we believe is a reasonable synopsis of both responses, we provide a copy of the full responses with
this report.
3 As a human health assessor,worked on assessments of how new chemicals would impact the human health of
consumers, workers, and the general population. In addition to human health assessors, RAD had assessors from four other
disciplines: engineering, exposure science, fate, and ecological toxicity.
4 Toxic Substances Control Act § 5(a)(3)(A)-(C), 15 U.S.C. § 2604(a)(3)(A)-(C).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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The EPA's assessments of new chemicals constitute scientific products. The hazards in new-chemicals
assessments are identified by assessing and interpreting scientific data, such as testing on the new-
chemical substance or on analogue chemicals. These hazards, as well as data from the other disciplines,
such as exposure and engineering data, are used to inform the EPA's final regulatory determinations.
In 2016, the Toxic Substances Control Act was amended by the Frank R. Lautenberg Chemical Safety for
the 21st Century Act.5 RAD staff testified that prior to the 2016 amendment, the division conducted a
full assessment of about 20 percent of the new chemical submissions. As a result of the 2016
amendment, the EPA was required to conduct a full assessment for every chemical within the same
statutory 90-day deadline. Despite the increased workload, the division did not receive an increase in
staff or contractor resources.
Agency staff testified that the division was not prepared or equipped to satisfy the new requirements.
Management consistently testified that 90 days was not enough time to complete the new-chemicals
assessment process and that the division lacked the resources to meet this deadline.
described the statutory deadline as "ridiculous" and stated that everyone knew it could not be
met. A human health assessor described completing the new requirements within 90 days as
"somewhat impossible." If new-chemicals assessments are not completed within the statutory 90-day
deadline, they become a part of the "backlog." The backlog existed before the 2016 amendment, but it
grew as a result of the increased workload created by the new requirements. While management
testified that there had always been pressure to clear the backlog, as the backlog grew, so did the
political pressure to eliminate it.
Management called the pressure from Agency leadership to eliminate the backlog "intense."
who were
testified that Agency leadership was constantly contacting them.6 One of
described the pressure as "pushing us like animals in a farm."^^^^^
testified that^| was afraid
that if it was not reduced, there would be repercussions in^J performance evaluation. Witnesses from
RAD and the New Chemicals Division explained that because the human health assessment took the
most time and had the most potential for disagreement, pressure to reduce the backlog was
disproportionally applied to the human health assessors.called the
human health assessment "the hardest part of the risk assessment." testified that a
political appointee complained about specific human health assessors as being "slow" and asked their
5 Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. No. 114-182, § 5,130 Stat. 448 (2016).
6 In March 2020, the assessors who worked on new chemicals were split into two groups: a backlog team and an
incoming-submissions team.
notH supervisor of record.
was assigned tol
served as the
manager. Although the
|
manager oversaw
day-to-day work,^|
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management to be more involved in their work. Agency leadership also characterized these assessors as
too "conservative" in their approach.
However, witness testimony indicated that the assessment completion timeline and the backlog size
were not entirely in the assessors' control. Companies that submit new chemicals for assessment play a
large role in the new-chemicals assessment process. RAD and New Chemicals Division management
testified that since 2016, the EPA regulates new chemicals via consent orders. Before a final regulatory
decision is made, chemical submitters are told the EPA's tentative conclusion and have an opportunity
to dispute the EPA's assessment or provide additional information. According to
the division is required to consider anything the chemical submitter supplies, no
matter when it is received. As a result, assessors often must review and respond to new information
submitted in rebuttal to the initial assessment, a process referred to as "rework.". If chemical submitters
do not agree with the initial assessment, then they can continue to submit more information for the EPA
to consider until an agreement between the submitter and the EPA is reached. This process often
extends the timeline beyond the statutory 90-day deadline.
testified that chemical submitters' desire for a regulatory determination that their chemicals are not
likely to present risk to human health or the environment causes "heavy" rework and emphasized that
an average case goes through two or three back-and-forth cycles.
and one of explained that assessments that submitters disagree with
end up more delayed than assessments that they agree with. also
testified that identifying fewer hazards or determining that a chemical was less hazardous led to quicker
assessment completion.
Delays are also caused by internal scientific disagreements that are inherent to the new-chemicals
review and approval process. Staff from RAD and the New Chemicals Division testified that human
health assessors often have little-to-no test data regarding the new chemicals when writing their
reports. Instead, hazards in new-chemicals assessments are identified by finding existing chemicals that
are structurally similar to the new chemicals to use as analogues.
testified the have
written guidance regarding how to select the best analogue chemical, but that instead the decision was
based in part on professional judgment and a review of the scientific data. According
the New Chemicals Division is working on creating objective measures for analogue selection. The data
gap and resulting need for extrapolation leave room for scientific disagreements.
Differing Scientific Opinions
Once a human health assessor completed their initial assessment, the OPPT deputy director and the
OPPT senior science advisor would conduct an extensive technical review and provide edits back to the
assessor. According the OPPT deputy director and the OPPT senior science advisor
believed that the^^J human health assessors who including
took an overly conservative approach in their assessments, particularly with regard to hazard
identification. As noted above, hazards in new-chemicals assessments are identified by assessing and
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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interpreting scientific data. OPPT managers' disagreements regarding hazard identification would be
included in their edits back to the human health assessors. These disagreements were also raised at
weekly disposition meetings, where management and the human health assessors would discuss
scientific issues that arose in the new-chemicals assessments. The OPPT senior science advisor testified
that he and the OPPT deputy director were more likely to have scientific disagreements with^^J and
the other^^^^^^^^^^^^^^J human health assessors than with other assessors.
testified that from 2018 through 2020^ expressed differing scientific opinions regarding hazard
identification in new-chemicals assessments and thatj disagreements increased in frequency over
time.^^J testified that by 2020| disagreed with the scientific opinions the
OPPT deputy director, and the OPPT senior science advisor a few times a month. that
was involved with^^^J work during this time and that attended the disposition meetings where these
disagreements took place testified that^^^J disagreements were about hazard identification and
analysis in assessments of new chemicals.
OPPT management disagreed with^^^J analogue and point of departure selection in certain
assessments.7 For example, completed the first draft of a new-chemical
assessment in which| assessed the new chemical as a reproductive toxicant based on a study of a
metabolite. In the assessment, noted thatj did not assess the new chemical using an identified
analogue because the analogue was an ester and the study was conducted using an ester vehicle,
arachis oil. testified that dosing test subjects with a vehicle of the same chemical class as the test
article could create competition for the same enzymes of metabolism, resulting in an under-
presentation of the full toxic effects of the chemical in the study. On January 31, 2020, the OPPT deputy
director sent an email with an edited draft of the assessment, noting that^^^J draft was
"disappointing" because a "critical review" was not performed. Specifically, she asked why the
metabolite was used to assess the new chemical instead of the analogue tested in arachis oil. She
hypothesized in her email that the metabolite was chosen because it resulted in a very "extreme
conservative" point of departure. In February 2020 the EPA communicated with the chemical submitter,
which objected to the classification of its chemical as a reproductive toxicant and disagreed with^^^J
opinions regarding the test conducted in arachis oil. The official notes from a Julyj, 2020 call with the
chemical submitter reflect that there was a discussion of vehicle considerations and enzyme
competition, in which the OPPT senior science advisor said the submitter was "raising valid points." In a
second call with the submitter, held on August| 2020, the OPPT senior science advisor told the
chemical submitter that the EPA would remove reproductive toxicity from the hazard communication
due to analogue data. The OPPT senior science advisor testified that he disagreed with^^J regarding
the applicability of the tests conducted in arachis oil and whether that could mask the toxicity of the test
7 Points of departure are values taken from scientific studies that reflect the lowest dose at which test subjects experienced
observable adverse effects from exposure to the analogue chemical, also known as the lowest observable adverse effect level
or if no effects are observed in the study, the highest tested dose at which there was no adverse effect, also known as the no
observed adverse effect level.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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article. The assessment was finalized on February J, 2021, and used the analogue that was tested in
arachis oil.
At the time, there was no process in place for addressing and documenting these scientific
disagreements. Neither the OPPT deputy director nor the OPPT senior science advisor was officially in
the assessors' chain of command. Although they would edit the assessors' work and express any
disagreements, neither they nor the assessors' supervisors directed the assessors to make the changes.
and human health assessors would respond to OPPT
management's edits because they disagreed with them and thought that the edits were not protective
of human health. There was no mechanism to end the back-and-forth edits and responses. Thus, when
the human health assessors expressed their scientific disagreements with the OPPT deputy director and
OPPT senior science advisor's edits, the review process for the given chemical would be delayed, as the
two sides would go through multiple rounds of discussions and edits to arrive at a final assessment.
and human health assessors were perceived by management
as more likely to express scientific disagreements than other assessors.
testified that all assessors had delays, and one noted that assessors who did not express
scientific disagreements processed cases faster.
and the^
human health assessors received negative attention from
political appointees, OPPT management, and RAD management for expressing scientific disagreements.
described how political appointees pressured OPPT and RAD
management to move new-chemicals assessments more quickly. For example, the Office of Chemical
Safety and Pollution Prevention
would
require the
manager to "defend the outputs from our data systems every
week" in weekly meetings about delayed assessments, which became a "never-ending status update."
recalled a meeting in which the Office of Chemical Safety and
"barked" at
and the OPPT senior science advisor and asked why the|
team was not completing assessments more quickly.
recalled
the Safety Prevention
communicating that RAD supervisors needed to have a "firm hand" and push timelines.|
testified that the Office of Chemical Safety and Pollution Prevention
"constantly" contacted pressured^J and
focused on the divison completing assessments.
OPPT management complained to RAD management about^^J and^^^^^^^f
human health assessors. For example, the OPPT senior science advisor flagged
when the assessors disagreed with or "resist[ed]" their edits and notified RAD management. On April 30,
2020, the OPPT deputy director messaged manager and|
calling^^^^^^^^^^^^^^^^^J human assessors the
'conservationist[s]'"and complaining that they were "trying to indict every chemical."!
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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described how the OPPT deputy director and the OPPT senior science advisor began to
characterize thel
human health assessors' scientific disagreements as
insubordination in 2019 and 2020. In early 2020, the OPPT deputy director stated in an email that the
human health assessors' failure to use her approach to assessments "could be
considered insubordination." On May 29, 2020, in a message to the OPPT deputy director, the OPPT
human health assessors the "tox[ic]
perceived and the other^^^^^^f
human health assessors as
closely aligned with one another. The
emailedwhen^^
human health assessors talking together and mentioned more than
once that^| assumed they would "join forces" to file a complaint.called the|
human health assessors passive-aggressive and described them as "piranhas" because
feared that they would make scientific integrity allegations about^J. Other assessors noticed how
those who disagreed with management were perceived. testified that disagreeing or
delaying the resolution of backlogged assessments could get an employee labeled as "problematic" by
management.]
"done."
testified that, once management labeled an employee as problematic, they were
Protected Activities and Protected Disclosures
While working in RAD,
reported
in 2019 and 2020, and filed a complaint with the
Labor and Employee Relations Division within the EPA Office of Human Resources in 2019. On February
26, 2020,
sent an email to I
and tol
I, raising
differing scientific opinions and disclosing that the OPPT deputy director had been making "sharp
comments," which the assessors took as "personal insults" in disposition meetings. J noted that the
meetings lowered staff morale and requested that a RAD manager attend the disposition meetings to
responded tol
and cc'd^^ manager, |
concerns about finding a path forward regarding differing scientific
| email to the subject of | complaint, the OPPT deputy director.
, noting that management should
I was "not performing." She also
allegations about her "sharp" comments by noting that, if they were sharp, it was
because she was having to make the same comments to assessors about their work repeatedly and, if
assessors did not incorporate her comments, that "could be considered insubordination."^^! also
"keep them civilized."
who responded to
opinions and then forwarded
The OPPT deputy director responded to the
engage the Labor and Employee Relations Division because
responded tol
raised allegations of harassment both directly to her via email in 2019 and
in In response tc
email,
emailed a labor and employee relations specialist that^^^
was "unhinged."
|.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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On June 28, 2021, was one of four EPA employees to file an OIG Hotline complaint with the help of
Public Employees for Environmental Responsibility. The OIG Hotline complaint included allegations of
harassment, retaliation, and violations of the EPA's Records Management Policy. That same day, Public
Employees for Environmental Responsibility emailed the Office of Chemical Safety and Pollution
Prevention's assistant administrator a copy of the complaint, which identified the four complainants by
name and indicated that it was sent to the OIG. Immediately after receiving the complaint, the assistant
administrator forwarded it to OPPT senior leaders, including the OPPT deputy director. The next day, at
the OPPT deputy director's request, the Office of Chemical Safety and Pollution Prevention's deputy
scientific integrity official, who also served as the associate assistant administrator for the Office of
Chemical Safety and Pollution Prevention, sent the complaint to every individual mentioned in it,
including^^^J RAD supervisor, many of^^^J coworkers from RAD, and at least one of
coworkers In^J email, the deputy scientific integrity official mentioned the
whistleblower protections under the Whistleblower Protection Act, stating, "I believe these allegations
qualify as protected disclosures, thus entitling the four complainants to whistleblower protections."
Despite recognizing that the complainants should be protected from retaliation, she did not redact their
names prior to distributing the complaint. On August 3, 2021, Public Employees for Environmental
Responsibility filed an additional OIG Hotline complaint on behalf of and other human health
assessors. The OIG Hotline complaint included allegations that assessors were verbally attacked in
meetings for their disagreements and that their scientific disagreements were referenced in their
performance evaluations as support for a lower rating.
Allegations of Retaliation
alleged that EPA management took seven actions against^f in retaliation for| differing
scientific opinions, protected activities, and protected disclosures: (1) issueda lower rating for one
critical element inH performance evaluation for FY 2020 than the previous year, (2) denied
compensatory time in July 2020, (3) reassigned!
in October 2020, (4) failed to select
for a
position in June and July 2022, (5) failed to select^J for a
position in June 2022, (6) failed to select^|
for a
detail in July 2022,8 and (7) subjectedto harassment in 2019 and 2020.
1. Critical Element in FY 2020 Performance Evaluation
supervisor ratedas
of the four critical elements withinl
evaluation,
| FY 2019 performance evaluation.9 Out
received one rating of and^^|
8 "GS" refers to the classification and pay level on the General Schedule system, which is used for civilian federal employees in
professional, technical, administrative, and clerical positions.
9 For the FY 2019 and FY 2020 performance periods, the EPA used a five-level performance rating system. The highest level of
performance was "outstanding," followed in decreasing order by "exceeds expectations," "fully successful," "minimally
successful," and "unacceptable."
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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described
;;
reported to the same supervisor in FY 2019 and FY 2020, who
as
and a
//
In March 2020, the RAD new chemicals assessors were split into two teams: a backlog team and an
incoming-submissions team.
was assigned to the
, whereas
¦
supervisor was assigned to the
. While on the
day-to-
day work was managed by the
manager. described
as 'j
As noted above, scientific disagreements between assessors and OPPT management led to delays.
According to the testimony of management, however, such disagreements were one of several reasons
that new-chemicals assessments frequently missed the statutory 90-day deadline. Assessments were
often delayed even in the absence of scientific disagreements. testified that all
assessors, regardless of whether they expressed scientific disagreements, had cases that were delayed
for various reasons.
The OPPT deputy director and the OPPT senior science advisor commented to
manager and the RAD supervisors that human health assessors'
scientific disagreements were a performance issue. The OPPT deputy director stated in an email that the
human health assessors' failure to use her approach to assessments could be
considered insubordination.10 Management that attended the disposition meetings confirmed, however,
that the assessors were not given direct orders to make changes in their assessments, and it is not clear
that actual insubordination occurred.
In November 2020,supervisor issuedperformance evaluation for FY 2020. Although
J received the same overall rating as the previous year, FY 2020 rating for critical element one,
"Project Management and Technical Support to New Chemicals," notably decreased by^^^^^|, from
a rating of an^^^^H" in FY 2019 to in FY 2020.
testified that^J FY 2020 evaluation of^^J reflected feedback that I
received from the OPPT deputy director, the OPPT senior science advisor, and I
explained that the OPPT deputy director and the OPPT senior science advisor were
frustrated with human health assessors' scientific disagreements because
they caused delays. Specifically, ^^^^^^fsupervisor received input that^^^J risk assessments were
in a "never-ending rework cycle." explained that part of the rework cycle was due to disagreements
with the OPPT deputy director and the OPPT senior science advisor. When^^^J work was not moving
due to rework,^^^^supervisor would sometimes complete^ assessments. The supervisory
comments accompanying^^^| rating for critical element one specifically stated that the supervisor's
intervention was due to delays caused by "differences of opinion."
10 The OPPT deputy director declined the OIG's request for an interview.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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(supervisor's comments regarding critical element one stated in part, that
was
" and that
7 The supervisor testified that^| expectedstaff to solve disagreements, including
differing scientific opinions, and that they were expected to make compromises to complete the new-
chemicals assessments.
supervisor explained that, at the time of FY 2020 performance evaluation, the
division did not have "the sensitivity about having ... differing scientific opinions like we have right now,"
so^| did not distinguish between delays caused by scientific disagreements or those caused by other
aspects of the workflow. testified, at the time, thought^J could take "scientific differences"
into consideration but that if someone had explicitly told^J to not consider differing scientific opinions
in^^^J performance evaluation, J rating for critical element one might have been different. In^J
response to our tentative conclusions,supervisor confirmed that timeliness and ability to
meet programmatic deadlines were considered in^^^J performance evaluation.
2. Denied Compensatory Time
On Thursday, July 23, 2020, emailed supervisor to request to use six hours of
compensatory time over the weekend. By the end of the day, the^H supervisor had not responded to
email, so| called the next day to follow up. Aftercalled^^^^supervisor,^|
approved^ compensatory time for July 25 and 26, 2020.
The following week, on Thursday July 30, 2020, emailedsupervisor requesting to work
eight hours of compensatory time the next day.^^J believes thatj went to^^^J supervisor's
office to ask whether^] saw J email, and^| said that^| would look at it.^| did not respond to
email.did not inquire further because^ did not want to annoy^J^^J worked on
July 31, 2020, but did not enter the hours into the Agency's payroll and timekeeping system.
testified that sometimes^^^J supervisor responded promptly to requests regarding earning or
using compensatory time but sometimeswould take days to respond. J gave an example in which
J submitted J request to use two hours of compensatory time three days in advance and did not hear
from^| until the day of the requested leave.
3. Reassignment to
In April 2020, the OPPT immediate office began to consider a reorganization and staffing decisions for
the new divisions.
On May 13, 2020,sent a proposed organizational chart to the OPPT director, the
OPPT senior science advisor, and the director of the OPPT Information Management Division. The chart
included separate divisions to assess new and existing chemicals and noted which staff members should
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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be in each. The chart placedin the New Chemicals Division, not^^^^H
testified that^| placed in the New Chemicals Division because at that timej was
working on assessments of new chemicals. chart also listedas
and the other staff inj proposed branch as human health assessors.
explained that^^^^^^^J are higher-compensated staff who do more complex work and that such
positions are offered as an advancement opportunity to help retain staff.
The next day, May 14, 2020, the OPPT senior science advisor emailed his "concern[s]" regarding the^H
chart. Specifically, he wrote thatplacement gave him "concern," adding that
was not because J assessments always required extensive revisions. The OPPT
senior science advisor testified that the division wanted to place a "senior person" in the^^^^^^f
position who would review others' work and that^^J was not right for that role because^ work
lacked explanations and required extensive revisions. testified that^| believed
the OPPT senior science advisor's email was referring to^^^J "risk hunting" and engaging in "back and
forth on the science." The OPPT senior science advisor's email added, "[t]here are^^Jpeople who
should not be in the same branch or on the same project," and mentioned the^^J
human health assessors by name. The OPPT senior science advisor testified that
he believed those assessors needed to be separated because they were not collaborative and engaged
in "group think."testified that^| heard from others that the^^J of them
were "pot stirrers" and would "convene and ... talk too much," which would lead to new-chemicals
assessments taking longer to complete. Also in his May 14, 2020 email, the OPPT senior science advisor
noted that he would placein one of the existing-chemicals divisions. He testified that he thought
that^^J was better suited for existing chemicals work because existing chemicals assessments are
completed on a "slower" timeline.
testified that, as a direct result of the OPPT senior science advisor's email,
movedfrom the New Chemicals Division to the^^^J and changedfrom to a
human health assessor. In June 2020, told RAD management that^^J needed
to be in the^^^|. On July 16, 2020, the OPPT deputy director altered an organizational chart to move
from the New Chemicals Division to the^^^|, and she noted that the edited organizational chart
was based upon RAD's latest input. In October 2020, was moved to the^^^J as part of the OPPT
reorganization.
4. Nonselection for a
Position
On May 4, 2022,applied for a position as ain the OPPT via USAJobs, which
is the federal government's official employment website. On June 8, 2022, a certificate of eligible
candidates was issued by EPA human resources. Due to the lack of candidates who qualified for the
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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highest qualification category, a second certificate of eligible candidates was issued on July 11, 2022.
was not included on either certificate.11
A human resources specialist reviewed application materials to ensure thatj application was
complete and thatj met the eligibility and qualification requirements. The human resources specialist
testified that she had never interacted with or heard of^^J prior to reviewing^ application
materials. Upon her review, she determined that^^^J application materials did not reflect the
required qualifications for the position. The USAJobs vacancy announcement for the position listed four
technical qualifications that applicants needed to demonstrate to qualify.12 The human resources
specialist testified that^^^J application materials addressed slightly different technical qualifications
from a vacancy announcement for a different position. Specifically, the human resources specialist
determined that^^^J submitted materials did not address the posting's third technical qualification.
While^^^J narratives for the first and second technical qualifications contained information related to
the third technical qualification, the human resources specialist could not consider that information
when assessing the third technical qualification. This is because EPA human resources requires that
applicants address and submit narratives for each technical qualification separately. Because^^^J
application materials did not separately address the third technical qualification, the human resources
specialist did not putH name on either certificate of eligible applicants.
5. Nonselection for a
Position
On June 3, 2022, a position as ain the Office of Research and
Development, Office of Science Advisor, Policy, and Engagement, Science Policy Division was posted on
USAJobs. applied, and a human resources staffing specialist reviewed J application to determine
whether it was complete and whether^ met the eligibility and qualification requirements for the
position. The human resources staffing specialist testified that she had never interacted with or heard of
prior to reviewing J application materials. She determined that^^^J application was
incomplete. The vacancy announcement stated that applicants must submit their most recent
performance appraisal, which had to be either signed and dated within the last 18 months or
accompanied by an explanation of why it was not.^^^| performance appraisal was not signed within
11 Initially,application was marked as "not submitted" on USAJobs, due to a technical issue that caused applications
marked as "incomplete" to appear to the applicant as "not submitted." This technical issue was ultimately fixed, and^^J
application was marked as "incomplete."
12 The four technical qualifications listed in the vacancy announcement were (1) "demonstrated experience managing,
directing, developing and providing guidance and policy direction for human health and/or ecological risk assessment policies
and initiatives related to the development and use of traditional and advanced toxicology testing techniques, including new
approach methodologies, chemical exposure estimation methods, species and dose-response extrapolation, and probabilistic
risk estimation;" (2) "demonstrated experience applying advanced risk assessment methodologies to current domestic and
international risk assessment issues related to chemical regulation;" (3) "demonstrated experience directing and providing
guidance to teams on policy development and analysis, and activities related to risk-assessment strategies;" and
(4) "demonstrated experience communicating complex and politically sensitive environmental policy issues to higher
management and externally."
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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18 months of J application, and J did not upload an explanation. Another applicant was also
determined to be ineligible because their performance appraisal was not signed.
6. Nonselection for
Detail in July 2022
On May 24, 2022, the New Chemicals Division posted two I
details on an internal
EPA job board. I
was one of six applicants, all of whom were interviewed by a three-person panel
consisting of the twol
1 supervisors and
1. The final selection was made by thel
In their interview notes, all three members of the panel remarked that^^J possessed strong technical
skills. However, they also discussed concerns regarding J interpersonal skills. The panel observed that
J was the only interviewee who did not turn onj camera, despite being asked to do so. A panel
member noted that^| does not recommend selecting individuals who do not turn on their camera.
Another panel member expressed that turning the camera on was an essential part of connecting with
the team, a requisite for a leader such as The panel members also discussed their
concern that^^J does not always get along with J colleagues. One panelist noted thatj had
observedtalk down to other assessors, and another panelist shared that a former employee came
to them crying due to an interaction with^^J and cited as a primary reason for departing the
division.
Based on the interviews, thel
the three highest-scoring individuals, which included!
conducted a reference check for
As part of this reference check,
expressed high confidence in the quality of I
technical capabilities. However,!
work, ^ dependability, and J
I ability to get along with others.
noted mixed experiences with
explained that| is a good team player and has had success mentoring interns, but^| said that|
has had some interpersonal conflicts and that^| is careful when pairing^J with others.noted
thatH made it easy to put the "previous challenges" regarding scientific integrity behind^| and that
would recommend for the position of
, as long
asj had the right team.
Based on the reference check,
called
supervisor to
gather more information.
supervisor informed
that
would be a good addition to a "healthy, functioning team" but was working on high-priority
matters in thel
and that losing^| would be difficult.
Ultimately, selected the other two top candidates, based in large
part on their stronger mentoring and leadership abilities.believed these abilities were critical, as the
New Chemicals Division was in a period of growth and transition. In a memorandum documenting^^
selection,gave three reasons for selecting^^U was needed
by th^^^J, the New Chemicals Division team was not yet healthy and fully functional, and^ was
already a^^| and thus did not need the detail opportunity for promotion. On July 26, 2022,|
informedthatH was not selected for the detail.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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7. Harassment
alleged that| was harassed in 2019 and 2020 the OPPT deputy director,
and the OPPT senior science advisor in retaliation forj scientific disagreements.13 Specifically, |
alleged that the three managers intimidated when they disagreed with and wanted to change
the hazard determinations inj assessments.
testified that J engaged in retaliatory harassment when^J wanted to
delete hazards from^ assessments. J explained that the manner in which^J told^J to make
changes, such as by shouting or raisingvoice, was intimidating.also alleged that, in addition to
pressuring to make changes, engaged in retaliatory harassment when^J
pushedto meet deadlines. J gave an example from October 2019, whenj was working on both a
quality review ofj colleague's new-chemicals assessment andj own new-chemicals assessments.
testified that J entered J cubicle holding^ colleague's assessment, whichj
had not yet had time to review, and waved it inches from| face. J said that J
screamed at^J asking when| would doj quality review.^^| testified thatj took a few seconds
to calm then replied thatj would need to request compensatory time to complete the work.
told^J to the request. Afew days later, sent^^^^^^^^^J an
email, letting^| know thatj felt the interaction was unprofessional, andj filed a complaint with the
Labor and Employee Relations Division.
described that the OPPT deputy director harassedand others through "insulting" comments
via email, in work product, and in meetings. Specifically, the OPPT deputy director would send emails in
all capital letters and red font with such comments as "what are you, stupid?" or "why are you making
these conclusions?" In meetings, the OPPT deputy director would make similar comments, such as
"what are you thinking," whichnoted was "essentially" calling the recipient "stupid." Although
testified thatj received "lots and lots" of comments and criticisms from the OPPT deputy
director regarding J scientific work,| clarified that she was "fairly careful" and tried not to "directly
upset" because of J expertise; however, J said that| witnessed her insulting other staff.
described two specific instances in which the OPPT deputy director yelled at^J over the phone. In the
first example,recounted how the OPPT deputy director, when she became aware that the OPPT
senior science advisor had assigneda task, shouted at^J asking "what are you doing working on
and demanding that| "cease and desist." In the second example,said that the OPPT
deputy director, after finding out that a new coworker asked for^^^J help developing toxicity data for
a new-chemical assessment, was "furious" and yelled at^J to "stop working on this. I don't care who
told you to work on it."
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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testified that starting around 2019, the OPPT senior science advisor engaged in retaliatory
harassment via comments in work product and criticism in meetings, whichfound "insulting." J
discussed multiple instances in which the OPPT senior science advisor raised his voice at^^J when
discussing scientific disagreements. For example, recalled a meeting in March 2020 in which the
OPPT senior science advisor shouted at^^J that a chemical submitter was angry with^ new-
chemicals assessment and thatj would need to "delete these hazards." noted that, although he
would shout and use profanity, the OPPT senior science advisor never insultedpersonally. However,
observed him making personal insults about other assessors and said that one time he called
"quirky."
Analytic and Legal Framework
The Whistleblower Protection Act prohibits retaliation against most executive branch employees for
making protected disclosures or engaging in protected activity. 5 U.S.C. § 2302(b)(8)-(9). To allege a
reprisal violation under section 2302(b), complainants must allege that they made a protected
disclosure or engaged in protected activity and that the protected disclosure or activity was a
contributing factor in a covered action taken, threatened, or withheld from them. The EPA's Scientific
Integrity Policy extends the protections of the Whistleblower Protection Act to all EPA employees who
uncover or report allegations of scientific and research misconduct or who express a differing scientific
opinion.14
The first step in assessing these retaliation allegations is to determine whether the complainant
expressed a differing scientific opinion, engaged in protected activity, or made a protected disclosure.15
The EPA's Scientific Integrity Policy does not define the term differing scientific opinion. However, in
October 2020, the EPA's Scientific Integrity Program issued a guidance document, Approaches for
Expressing and Resolving Differing Scientific Opinions. This guidance document defines "differing
scientific opinion" as:
[A] differing opinion of an EPA employee who is substantively engaged in the science
that may inform an EPA decision. It generally contrasts with a prevailing staff opinion
included in a scientific product under development. The differing opinion must
concern scientific data, interpretations, or conclusions, not policy options or
decisions. These approaches do not address personal opinions about scientific issues
that are not accompanied by scientific arguments, are not part of a scientific product,
and are not made in the context of an EPA decision.
14 We did not assess the EPA's authority to extend the statutory protections of 5 U.S.C. § 2302 via Agency policy.
15 An individual who has not made a protected disclosure may still be entitled to protection under section 2302 if the individual
is perceived to be a whistleblower. See King v. Dep't of the Army, 116 M.S.P.B. 689, 694 (Sept. 14, 2011). In such cases, the
analysis focuses on the perceptions of the officials involved in the personnel actions at issue and whether those officials
believed that the complainant made or intended to make disclosures that evidenced the type of wrongdoing listed in the
statute. Id. at 694-95.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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Protected activities are defined as the exercise of any appeal, complaint, or grievance right granted by
any law, rule, or regulation; testifying for or otherwise lawfully assisting any individual in the exercise of
any appeal, complaint, or grievance right granted by any law, rule, or regulation; cooperating with or
disclosing information to the inspector general or the special counsel; or refusing to obey an order that
would require the individual to violate a law, rule, or regulation. 5 U.S.C. § 2302(b)(9).
A protected disclosure is defined as a communication about actual or suspected wrongful conduct that
the employee reasonably believes is evidence of a violation of any law, rule, or regulation; gross
mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8). Vague, conclusory, or facially insufficient allegations of
government wrongdoing are insufficient to state a claim under section 2302(b)(8).16 A reasonable belief
exists if a disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the government evidence
one of the categories of wrongdoing listed in the statute.17
Once it has been established that the complainant expressed a differing scientific opinion, engaged in
protected activity, or made a protected disclosure, the next step is to analyze whether a preponderance
of the evidence supports that one or more differing scientific opinions, protected activities, or protected
disclosures were a contributing factor in the decision to take, threaten, or withhold a personnel action
from the complainant.18 "Contributing factor" is defined as any factor which, alone or in connection with
other factors, tends to affect in any way the outcome of the decision.19 The whistleblower can establish
that a disclosure or activity was a contributing factor through circumstantial evidence showing that (1)
"the official taking the personnel action knew of the disclosure or protected activity" and (2) "the
personnel action occurred within a period of time such that a reasonable person could conclude that the
disclosure or protected activity was a contributing factor in the personnel action." 5 U.S.C.
§ 1221(e)(l)(A)-(B).20
16 Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008) (outlining the jurisdictional threshold for claims under the
Whistleblower Protection Act).
17 Lachance v. White, 174 F.3d 1378,1381 (Fed. Cir. 1999).
18 A preponderance of the evidence is defined as "[t]he degree of relevant evidence that a reasonable person, considering the
record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue." 5 C.F.R.
§ 1201.4(q). A personnel action is defined as "(i) an appointment; (ii) a promotion; (iii) an action under chapter 75 of this title or
other disciplinary or corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement; (vi) a restoration; (vii) a
reemployment; (viii) a performance evaluation under chapter 43 of this title or under title 38; (ix) a decision concerning pay,
benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an
appointment, promotion, performance evaluation, or other action described in this subparagraph; (x) a decision to order
psychiatric testing or examination; (xi) the implementation or enforcement of any nondisclosure policy, form, or agreement;
and (xii) any other significant change in duties, responsibilities, or working conditions." 5 U.S.C. § 2302(a)(2).
19 Marano v. Dep't of Justice, 2 F.3d 1137 (Fed. Cir. 1993).
20 Although the EPA's Scientific Integrity Policy notes that employees who uncover or report allegations of scientific and research
misconduct or express a differing scientific opinion are protected "from retaliation or other punitive actions," because it is
unclear what "other punitive actions" entails, we did not incorporate this into our analysis.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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Once a preponderance of the evidence establishes that one or more protected activities or disclosures
was a contributing factor in the personnel action, the retaliation allegation is substantiated unless clear
and convincing evidence establishes that the covered action would have been taken in the absence of
the protected activity or disclosure. 5 U.S.C. § 1221(e)(2).21 In other words, if the evidence shows that it
is highly probable that the employer would have taken the personnel actions against the employee
regardless of the protected activity or disclosure, the retaliation allegation is not supported. The
relevant factors to consider in this determination are (1) the strength of the evidence in support of the
Agency's decision, (2) the existence and strength of any retaliatory motive by the officials involved in the
decision, and (3) any evidence that the employer has taken similar actions against employees who are
not whistleblowers but are otherwise similarly situated.22
Analysis
is an EPA employee. J alleges that individuals with personnel authority took personnel actions
against^J in retaliation for expressing differing scientific opinions, engaging in protected activity, and
making a protected disclosure. As^^J has alleged a violation of 5 U.S.C. § 2302(b)(8), § 2302 (b)(9), and
a violation of the EPA's Scientific Integrity Policy, the OIG has jurisdiction over^ retaliation allegations.
Did^^M Express a Differing Scientific Opinion, Engage in Protected Activities, or
MaK^^rotected Disclosure?
disagreements with^^^^^^^^^|, the OPPT deputy director, and the OPPT senior science
advisor from 2018 through 2020 regarding hazard identification in new-chemicals assessments
constituted differing scientific opinions. We obtained testimony and documentary evidence confirming
that^^^J disagreements concerned interpretations of scientific data, such as the selection of analogue
chemicals that were to be used in the assessments. The EPA's assessments of new chemicals constitute
scientific products. Thus,^^^| scientific disagreements meet both the plain language meaning of a
differing scientific opinion and the formal definition of a differing scientific opinion that was issued by
the Scientific Integrity Program in October 2020.
In addition,was widely perceived by OPPT and RAD management to have made differing scientific
opinions. RAD management involved in new-chemicals assessments, including|^^^^^^^^|,
testified that^^J and the otherhuman health assessors were more likely
than other assessors to disagree about scientific decisions made in assessments. RAD management also
testified that OPPT management perceivedas making differing scientific opinions, in particular
that the OPPT deputy director and the OPPT senior science advisor complained about^^^J and the
otherhuman health assessors' differing scientific opinions.
21 Clear and convincing evidence is defined as "that measure or degree of proof that produces in the mind of the trier of fact a
firm belief as to the allegations sought to be established." It is a higher standard than preponderance of the evidence. 5 C.F.R.
§ 1209.4(e).
22 Carrv. Social Sec. Admin., 185 F.3d 1318,1323 (Fed. Cir. 1999).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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engaged activity when^ reported
and to the Labor and Employee Relations Division in 2019 and 2020.
Exercising a complaint or grievance right granted by law, rule, or regulation is a protected activity under
5 U.S.C. § 2302(b)(9)(A).constitutes an Agency rule.^^J further engaged in protected
activity whenj provided information to the OIG via OIG Hotline complaints filed by the Public
Employees for Environmental Responsibility in June and August 2021. Providing information to the OIG
is a protected activity specifically addressed in 5 U.S.C. § 2302(b)(9)(C).
also made at least one protected disclosure inj OIG hotline complaints. The August 2021
complaint included an allegation that assessors' scientific disagreements were referenced in their
performance evaluations as support for a lower rating. Retaliation for differing scientific opinions
violates the EPA's Scientific Integrity Policy. As such, it was reasonable for^^J to believe that
referencing differing scientific opinions in a performance evaluation is evidence of a violation of a rule.
Accordingly,made at least one protected disclosure.23
Was a Personnel Action Taken Against, Threatened, or Withheld from
alleged seven retaliatory actions in the information provided inj Hotline complaints to the OIG:
(1) a lower rating for critical element one inH performance evaluation for FY 2020 than the previous
year, (2) denied compensatory time in July 2020, (3) a reassignment to thel
in October 2020, (4) a
nonselection for a
position in June and July 2022, (5) a nonselection for a
position in June 2022, (6) a nonselection for a
detail in
July 2022, and (7) harassment in 2019 and 2020.
1. Critical Element in FY 2020 Performance Evaluation
In November 2020, received J performance evaluation for FY 2020, in which J received a
rating for critical element one. A performance evaluation is among the personnel actions
specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(viii).
2. Denied Compensatory Time
On July 30, 2020, requested to earn compensatory time. J supervisor did not respond toj
email and as such,| worked compensatory time but did not enter it into the Agency's timekeeping
system. The Whistleblower Protection Act prohibits the failure to take a personnel action. "Failure" is
defined as the "nonperformance of something that is due, required or expected."24^^B testified that
sometimessupervisor responded promptly to requests for compensatory time but sometimes
would take days to respond. The previous week,^^| requested compensatory time fromH
23 For the purposes of this analysis, we did not assess whether each allegation contained within the complaints constituted a
protected disclosure.
24 Special Counsel v. Brown, 61 M.S.P.R. 559, 568 (1994).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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supervisor two days in advance, and^J did not respond,
and the compensatory time was approved.
followed up onl request the next day,
submitted J July 30, 2020 compensatory time request the day before J intended to use it. After
supervisor told^^J that^J would look atj email, J did not follow up because^ did not
want to annoy^J Given that^^^^^J supervisor did not always respond to^^^J requests for
compensatory time without follow-up and that^^f did not follow up on this request, cannot
show by a preponderance of the evidence that the compensatory time was due, required, or expected.
As such,^^^| supervisor's failure to respond toj request does not constitute the failure to take a
personnel action.
In October 2020, was reassigned to the^^^J as a part of the OPPT reorganization.
A reassignment is among the personnel actions specifically enumerated in the statute. 5 U.S.C.
§ 2302(a)(2)(iv).
In May 2022,applied for aposition in OPPT.^^| was not included on the
certificate of eligible candidates and as such was not selected for or appointed to the position. An
appointment is among the personnel actions specifically enumerated in the statute. 5 U.S.C. §
2302(a)(2)(A)(i). Accordingly, a nonselection for a position is the failure to take a personnel action.
5. Nonselection for
Position
In June 2022,applied for aposition. J was included on the
certificate of eligibles and as such was not selected for or appointed to the position. An appointment is
among the personnel actions specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(A)(i).
Accordingly, a nonselection for a position is the failure to take a personnel action.
6. Nonselection for a
Detail
In May 2022, applied for detail. In July 2022, was informed that J
was not selected for or appointed to the position. An appointment is among the personnel actions
specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(A)(i). Accordingly, a nonselection for a
position is the failure to take a personnel action.
7. Harassment
alleged thatj was harassed in retaliation for expressing differing scientific opinions. While
harassment is not a personnel action enumerated in the statute, it can be considered a personnel action
when it constitutes a significant change in duties, responsibilities, or working conditions. 5 U.S.C.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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§ 2302(a)(2)(A)(xi).25^^| alleges that J was subjected to harsh disagreements with^ scientific
opinions, criticism of J scientific opinions, and yelling. Verbal criticism and rudeness are not usually
considered personnel actions.26 Whistleblower Protection Act case law discussing alleged constructive
discharge is also instructive here. The Merit Systems Protection Board has consistently held that a
feeling of being unfairly criticized or difficult or unpleasant working conditions are generally not so
intolerable as to compel a reasonable person to resign and thus are not personnel actions.27 These cases
contemplate that criticism and unpleasantness in the workplace alone are not actionable under the
Whistleblower Protection Act. Accordingly, the criticism and disagreements that^^J experienced do
not constitute a personnel action.
In summary,performance evaluation, J reassignment, andj three nonselections constitute
personnel actions under 5 U.S.C. § 2302(a)(2). denied compensatory time and the alleged
harassment do not constitute personnel actions under 5 U.S.C. § 2302(a)(2).
Were^^^M Differing Scientific Opinions, Protected Activities, or Protected
Disciosur^Zontributing Factors in the Personnel Actions Taken AgainstWH?
A differing scientific opinion, protected activity, or protected disclosure is a contributing factor in a
decision to take a personnel action if the official taking the personnel action knew of the differing
scientific opinion, protected activity, or protected disclosure and if the action occurred within a period
of time such that a reasonable person could conclude that it was a contributing factor in the personnel
action.28 After assessing these two factors, knowledge and timing, we determined that^^^J differing
scientific opinions, protected activities, and protected disclosure were contributing factors in three
personnel actions: the rating for critical element one in J FY 2020 performance evaluation, J
reassignment, and J nonselection for detail. After assessing the same two
factors, we determined that^^^J differing scientific opinions, protected activities, and protected
disclosure were not contributing factors in J nonselections for position and
position.
Critical Element in FY 2020 Performance Evaluation
expressed differing scientific opinions regarding hazard identification in new-chemicals
assessments from 2018 through 2020, andH expression ofH differing scientific opinions increased in
25 Covarrubias v. Social Sec. Admin., 113 M.S.P.R. 583, H 15 n.4 (2010) (finding harassment constituted a significant change in
working conditions when a supervisor monitored the employee's phone calls and whereabouts, including following her to the
restroom), overruled on other grounds by Colbert v. Dep't of Veterans Affairs, 121 M.S.P.R 677, H 12 n.5 (2014).
26 Greenspan v. Dep't of Veterans Affairs, 94 M.S.P.R. 247, H 22 (2003) rev'd and remanded on other grounds, 464 F.3d 1297
(Fed. Cir. 2006); Special Counsel v. Spears, 75 M.S.P.R. 639, 670 (1997) (holding that an oral counseling does not constitute
disciplinary or corrective action within the coverage of the Whistleblower Protection Act).
27 Millerv. Dep't of Def, 85 M.S.P.R. 310,11 32 (2000); Brown v. U.S. Postal Serv., 115 M.S.P.R. 60, 618-19 (2011), aff'd, 469 F.
App'x 852 (Fed. Cir. 2011) (holding that a pattern of poor treatment, including groundless criticism and allegedly throwing and
destroying a desk, did not compel the complainant's retirement and thus did not constitute a personnel action).
28 5 U.S.C. § 1221(e).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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frequency overtime. supervisor, who completed J performance evaluation, had direct
knowledge of^^^J differing scientific opinions. expressed many of J differing scientific
opinions during the disposition meetings, which^^^^supervisor attended.supervisor
testified that^| knew about^^^J differing scientific opinions, and^| explicitly mentioned them in
J performance evaluation, which^J verbally communicated to^J in September 2020 and provided
to^J in writing in November 2020. The timing between differing scientific opinions andj FY
2020 performance evaluation was less than a year, which is a reasonable amount of time to conclude
that they were a contributing factor in the personnel action.29
supervisor also had direct knowledge of
protected activities.
. In addition, in October 2019 and February 2020,
received emails from
that detailed^ allegations of retaliation and harassment.discussed]
October 2019 email with a labor and employee relations specialist and called"unhinged." The
timing betweenl
protected activities andH FY 2020 performance evaluation was a year, which is
a reasonable amount of time to conclude that they were a contributing factor in the personnel action.
Reassignment to the^^^f
expressed differing scientific opinions as early as 2018 and continued to do so throughH
reassignment in October 2020.
differing scientific opinions at the time asl
I, who reassigned!
had actual knowledge of
had received and responded to a February 26, 2020
email from
detailing some ofH differing scientific opinions. Additionally,!
testified that the decision to reassignl
to the
was largely influenced by the OPPT senior
science advisor. The OPPT senior science advisor was also aware of I
differing scientific opinions,
as they were often expressed directly to him in meetings and work products. The OPPT senior science
advisor testified that he was more likely to have scientific disagreements with
and the
human health assessors than with other assessors.
testified thatreassigned
in response to the OPPT senior science advisor's feedback.30 The
timing between
differing scientific opinions andH reassignment was less than a year, which is a
reasonable amount of time to conclude that they were contributing factors in the personnel action. The
OIG does not have evidence to establish that the OPPT senior science advisor orl
was
29 The U.S. Merit Systems Protection Board has found time periods longer than a year between the protected disclosure and
adverse action to be reasonable in establishing that a disclosure was a contributing factor. See e.g., Redschlag v. Dep'tofthe
Army, 89 M.S.P.R. 589, H 87 (2001) (holding that a suspension proposed 18 months after an employee's protected disclosure
was a sufficient time period where a reasonable person could conclude that the disclosure was a contributing factor in the
suspension).
30 In addition to actual knowledge, this demonstrates also had constructive knowledge of^^J
differing scientific opinions. Constructive knowledge can be shown by demonstrating that an individual with actual knowledge
of the disclosure, here the OPPT senior science advisor, influenced the official taking the retaliatory action. Dorney v. Dep't of
the Army, 117 M.S.P.R. 480, 485 (2012); Aquino v. Dep't of Homeland Sec., 121 M.S.P.R. 35,11 19(2014).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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aware of 2019 and 2020 protected activities. As such, they were not a contributing factor in the
reassignment.
Nonselection for a
Detail
The decision to not select!
for the
. Although
1 |
detail was made
was not in RAD at the time ofH
differing scientific opinions, knowledge of the differing scientific opinions can still be imputed to
The nonselection was influenced by a panel of interviewers, including
who attended RAD disposition meetings and testified about
The nonselection was also influenced byl
challenges" regarding scientific integrity.I
work in RAD, which is wherej expressed J differing scientific opinions.
differing scientific opinions increased in frequency over time and that by 2020,
management a few times a month.32 The timing between October 2020 andH
differing scientific opinions.
'previous
supervisor, who specifically raised|
was reassigned in October 2020 from J new-chemicals
¦ testified thatH
| disagreed with
July 2022 nonselection
for thel
detail was approximately 21 months, which is a reasonable amount of
time to conclude that they were a contributing factor in the personnel action.33 Further, prior to J
nonselection,^^| engaged in protected activity and made a protected disclosure whenj provided
information to the OIG via Public Employees for Environmental Responsibility in June and August 2021.
as well as members of the interview panel were aware of J
protected activity and disclosure, as the complaint with J name unredacted was sent to them the day
after J activity. The timing between protected activity and protected disclosure and J
nonselection was approximately thirteen months, which is a reasonable amount of time to conclude
that it was a contributing factor in the action.
Nonselections for the
Position
Position and the
nonselections for position
position were due to disqualification decisions made by two human resources specialists. Both human
resources specialists testified that they did not know who^^^ was prior to reviewing^ application
materials, nor did they have knowledge ofj differing scientific opinions, protected activities, or
protected disclosures. Because the human resources specialists did not have knowledge of
31 Constructive knowledge can be shown by demonstrating that an individual with actual knowledge of the disclosure
influenced the official taking the retaliatory action. Dorneyv. Dep'tof the Army, 117 M.S.P.R. 480, 485 (2012); Aquino v. Dep't
of Homeland Sec., 121 M.S.P.R. 35,1119 (2014).
32^^| may have expressed differing scientific opinions while working in the
was limited to the allegations as outlined in Public Employees for Environmental Responsibility's disclosures to the OIG, which
encompassed retaliation for differing scientific opinions regarding hazard identification in assessments of new chemicals. As
such, retaliation for differing scientific opinions expressed in the^^J is outside of the scope of this investigation.
33 Mastrulleo v. Dep't of Labor, 123 M.S.P.R. 110, H 20 (2015) ((concluding that appellant's Aug. 2010 disclosure were a
contributing factor in the agency's failure to give him a 40-hour time off award in June 2012).
However, the scope of this investigation
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
23
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CUI//PRIIC/PRV CY
differing scientific opinions, protected activities, or protected disclosures, it is not reasonable to
conclude that they were contributing factors in J nonselections.
Conclusion
In summary, because management had knowledge of^^^J differing scientific opinions, protected
activities, and protected disclosures and because the personnel actions were taken within two years of
that knowledge, we determined that^^J established by a preponderance of the evidence that J
differing scientific opinions, protected activities, and protected disclosures were contributing factors in
the rating for critical element one inj FY 2020 performance evaluation, J reassignment, and inj
nonselection for the detail. Finally, because the human resources specialists did not have knowledge of
differing scientific opinions or protected activities, we determined that^^J could not establish
by a preponderance of the evidence that J differing scientific opinions or protected activities were
contributing factors inj nonselections for position and the^^^^J
position.
Would the Agency Have Taken the Personnel Actions Against in the
Absence of IH Differing Scientific Opinions, Protected Activities, or Protected
Disclosure?
Once a preponderance of the evidence establishes that one or more differing scientific opinions,
protected activities, or protected disclosures contributed to the personnel actions taken against the
complainant, the retaliation allegation is substantiated unless clear and convincing evidence establishes
that the action would have been taken in the absence of the differing scientific opinion, protected
activities, or protected disclosures. To make this determination, our analysis weighs the following three
factors: (1) the strength of the evidence in support of each action; (2) the existence and strength of any
motive to retaliate on the part of the officials who were involved in the decision, referred to as animus
evidence; and (3) any evidence that the employer has taken similar actions against employees who are
not whistleblowers but are otherwise similarly situated, referred to as comparators.
After analyzing the three factors, we determined that the EPA could not establish by clear and
convincing evidence that it would have rated as for critical element one inj
FY 2020 performance evaluation or that it would have reassigned to the^^^J in the absence of J
differing scientific opinions, protected activities, or protected disclosure in violation of the EPA's
Scientific Integrity Policy and the Whistleblower Protection Act. Analysis of the same three factors led us
to determine that the EPA could establish by clear and convincing evidence that it would have not
selected for detail in the absence of J differing scientific opinions,
protected activity, and protected disclosure.
FY 2020 Performance Evaluation
was as in |
the same overall rating as the previous year, I
FY 2020 performance evaluation. Although J received
FY 2020 rating for critical element one decreased by
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
24
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CUI//PRIIC/PRV CY
two levels, from a rating of to The supervisory comments for critical
element one directly referenced differing scientific opinions and the timeliness of J work
product. They provided no other feedback regarding other areas for improvement or no other
explanations for^^^J evaluation in this element. The supervisory comments specifically mentioned
that differing scientific opinions caused case delays, and^^^^^J supervisor corroborated this fact in
testimony.also testified that if^| been told to not consider differing scientific opinions in
performance evaluation,® rating for critical element one might have been different.
In writingl
FY 2020 performance evaluation,!
management officials who expressed animus regarding!
Isupervisor relied on feedback from
differing scientific opinions. testified
that^J evaluation was based, in part, on input from the OPPT deputy director and the OPPT senior
| testified that both officials were frustrated with the differing scientific opinions
and others because they were too conservative and caused delays. This testimony
science advisor,
expressed byH
was corroborated by I
and
that the OPPT deputy director and the OPPT senior science advisor complained about!
who testified
differing
scientific opinions. This testimony was also corroborated by documentary evidence. The OPPT deputy
director said in an email that!
failure to take^| approach to assessments constituted
" to describe
and the
insubordination. In a message to the OPPT deputy director, the OPPT senior science advisor used the
term the "tox[ic
human
assessors, who were viewed as more likely to express scientific disagreements than other assessors. In
addition to the animus regarding^ differing scientific opinions,may also have
been influenced by^J own animus regarding^^^J protected activities.reacted to| October
2019 email alleging harassment by calling^J "unhinged" and^| testified thatl
due toH allegations.
There are no apt comparators by which to evaluate!
FY 2020 performance evaluation. The
team had!
human health assessors, including!
these
assessors expressed differing scientific opinions. While other new-chemicals human health assessors
also reported to
supervisor, they did not have the same
for their
work.
We find that the Agency's support for^^^| lower rating in critical element one is based upon explicit
references toj differing scientific opinions. After reviewing the Agency's support for^^^J rating, the
animus evidence, and the lack of comparators, we determined that the Agency cannot establish by clear
and convincing evidence that it would have issued a rating for critical element
one in the absence of J differing scientific opinions in violation of the EPA's Scientific Integrity Policy.
Because the Agency's support for^^^J critical element one is based upon information that the Agency
is not allowed to consider under Agency policy and because^ supervisor expressed animus regarding
H protected activity, we determined that the Agency cannot establish by clear and convincing evidence
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
25
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CUI//PRIIC/PRV CY
that it would have issued a rating for critical element one in the absence of J
2019 and 2020 protected activities, in violation of the Whistleblower Protection Act.
Reassignment to the^^^f
The Agency's support for moving^J to the^^^J is weak.^^J worked on new-chemicals assessments
untilj was moved to the^^^fin October 2020. testified that^| initially
proposed placing^^J in the New Chemicals Division because at the timej was working on new-
chemicals assessments. However,testified that^| ultimately movedto^^^J after the OPPT
senior science advisor expressed concerns that^^^J assessments required extensive revisions.
testified that^| understood this to be a reference to^^J "risk hunting" and "back
and forth" scientific discussions.
There was considerable evidence of animus evidence towards!
differing scientific opinions from
the OPPT senior science advisor.
testified that the OPPT senior science advisor was
frequently frustrated with
differing scientific opinions.
testified that^|
moved to the^^^J
because of the OPPT senior science advisor's input that^^J and the other
human health assessors, who were known for making differing scientific
opinions, should not be in the same branch or on the same project.assumed
the OPPT senior science advisor was referencing his belief that^^J and the other assessors were "pot-
stirrers" and would cause assessments to take longer to complete. The OPPT senior science advisor
confirmed that he was referencing that thel
"collaborative."
assessors engaged in "group think" and were not
Although all RAD assessors were moved to newly created divisions as a result of the organization, many
of comparators were still assigned to the division dedicated to new-chemicals work. At the time
of the OPPT senior science advisor's May 2020 email, the proposed organization chart hadl
in the New
Between the May 2020 email and the October 2020 reorganization, many assessors were moved,
including^^l However, of thehuman only^^^^^^^^^J
human health assessor were moved from the New Chemicals Division.34
We find that the Agency's support for moving^^J to the^^^f is based upon references to J
differing scientific opinions. We determined that, as a result of this explicit support, the animus
evidence, and the comparator evidence, the Agency could not establish by clear and convincing
evidence that it would have reassigned to the^^^J in the absence of J differing scientific
opinions in violation of the EPA's Scientific Integrity Policy.
34 One staff member who was initially hired as
which is where that staff member was assigned.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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Nonselection for a
Detail
In July 2022,1
was not selected for a
agency's support for not selectingl
testified regardingH
detail in the New Chemicals Division. The
is strong. Both the panel members and the selecting official
interpersonal skills. While the interview panel uniformly remarked on^^^J
impressive technical skills, their interview notes all cited concerns regarding^ soft skills. Multiple panel
members were concerned thatj did not turn onj video camera during the interview, despite being
asked to do so. They discussed that interpersonal connection is an important function of leadership and
that video is an important tool to connect with team members who telework. The panelists also
discussed concerns that^
specific situations in which|
an interaction with
received from
does not always get along with J team members. Two panelists recalled
¦ upset coworkers, including one who recalled a coworker crying due to
This concern was also reflected in the feedback that the selecting official
, who said that^| is careful who
said thatB would only be a good addition to a "healthy, functioning team." The
¦
pairs
with.
selecting official ultimately did not selectH
not yet a healthy and fully functional team.|
leadership abilities.
in part because thel
team was new and was thus
also cited the selectees' stronger mentoring and
We are not aware of any statements of animus regarding^^^J differing scientific opinions, 2021
protected activities, or protected disclosure made by the deciding official or interview panel members.
However, during^ reference check, noted that^^J made it easy to put the
"previous challenges" regarding scientific integrity behind^J Notably,protected activities
included raising allegations of Scientific Integrity Policy violations to the OIG.
Three comparators were also interviewed for the position and not selected. was one of six
applicants, all of whom were interviewed. was one of the three top candidates; the other two top
candidates were selected for the detail. We are unaware of any protected activity, protected disclosure,
or differing scientific opinions made by the three applicants who, similar to^^J were interviewed but
not selected.
We determined that the Agency's strong support for not selectingoutweighed the weak animus
and comparator evidence. We find that the Agency could establish by clear and convincing evidence that
it would have not selected for detail in the absence of J differing scientific
opinions, protected activity, and protected disclosure.
Conclusions
We determined that^^J expressed differing scientific opinions, engaged in protected activities, and
made a protected disclosure, which were contributing factors in three personnel actions taken against
(1) a lower critical element inj FY 2020 performance evaluation than the previous year, (2) a
reassignment to the^^^|, and (3) a nonselection for adetail. We
substantiatedallegations of retaliation with respect to the critical element inH FY 2020
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
27
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CUI//PRIIC/PRV CY
performance evaluation in violation of the EPA's Scientific Integrity Policy and the Whistleblower
Protection Act. We also substantiated allegation of retaliation with respect toj reassignment
in violation of the EPA's Scientific Integrity Policy. We did not substantiate
retaliation allegations with respect toj nonselection for detail.
Recommendation
We recommend that the EPA administrator take appropriate corrective action considering these
findings. If the inspector general of an agency determines that a supervisor committed a prohibited
personnel practice under the Whistleblower Protection Act, the head of the agency in which the
supervisor is employed shall propose suspending the supervisor for a period that is not less than three
days. 5 U.S.C. § 7515(b)(l)(A)(i).35
to the I
35 While the EPA's Scientific Integrity Policy extends whistleblower protections to employees who express a differing scientific
opinion, it does not state whether the Whistleblower Protection Act's mandatory suspension provision applies when these
protections are violated.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
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Whistleblower Protection
U.S. Environmental Protection Agency
The whistleblower protection coordinator's role
is to educate Agency employees about
prohibitions against retaliation for protected
disclosures and the rights and remedies against
retaliation. For more information, please visit
the OIG's whistleblower protection webpage.
Contact us:
Congressional Inquiries: OIG.CoiwessionalAffairs(53epa.gov
Media Inquiries: OIG,PublicAffairs@epa.gov
line EPA OIG Hotline: OIG.Hotline@epa.gov
-§rg- Web: epaoig.gov
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