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Report of Investigation:
Whistleblower Reprisal
Investigation
September 17, 2024 | Report No. 24-N-0062
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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 2
Analytic and Legal Framework 15
Analysis 17
Conclusions 28
Recommendation 28
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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 a total of eight retaliatory actions
against^^^^^^^^^^^: two actions in 2020 and 2021 after^J expressed differing scientific
opinions and six personnel actions in 2021 and 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 were in retaliation for^^^^^J differing scientific opinions, in
violation of the EPA's Scientific Integrity Policy (2012). We also investigated whether the 2021 and 2022
actions were in retaliation for^^^^^J complaints made to the OIG, in violation of the Whistleblower
Protection Act.
Our investigation first sought to determine whetherl
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 I
We determined thatl
expressed differing scientific opinions from 2020 through
2022, engaged in protected activity in 2021, and made a protected disclosure in 2021. We determined
that Agency management knew of
differing scientific opinions, protected activities, and
protected disclosure when it took six personnel actions against^J (1) issueda performance
evaluation for fiscal year 2020 that was lower than^| expected, (2) issueda performance
evaluation for FY 2021 that was lower that
expected, (3) denied leave, (4) failed to select^
| for
detail, (5)|
1. Our investigation identified!
who issued
FY 2020 and FY 2021 performance evaluations and denied^
| leave. We identified
as
who failed to selecl
for
detail and
asl
and
that a reasonable person could conclude that
. All six personnel actions occurred within a period such
differing scientific opinions, protected activity,
or protected disclosure were a contributing factor in the personnel actions. We determined that the two
remaining alleged retaliatory actions did not constitute personnel actions.
Next, we assessed whether the EPA could establish that it would have taken the same six personnel
actions even if^^^^J had not expressed differing scientific opinions, engaged in protected activity,
or made a protected disclosure. After reviewing the evidentiary support for the six 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
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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did not substantiateretaliation allegations. We make no recommendations regarding
corrective action in light of these findings.
Findings of Fact
was employed by the EPA as|
in the Office of Chemical Safety and Pollution
was hired in
to a
, began a detail
RAD, where^J worked on human health assessments of new chemicals.1!
was permanently
reassigned to RAD in December 2019. In October 2020, during the reorganization of the OPPT,^| was
resigned from the Agency.
reassigned to the New Chemicals Division.
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.2 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
i
|oppt|
¦ i
| RAD |
Post-Reorganization
OCSPP
i i 1 i
1 OPPT I
1
it
Notes: NCD = New Chemicals Division; OCSPP = Office of Chemical Safety and Pollution Prevention.
Source: OIG analysis of OPPT reorganization. (EPAOIG image)
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-
1 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 who worked in four
other disciplines: engineering, exposure science, fate, and ecological toxicity.
2 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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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.3 RAD staff testified that prior to the 2016 amendment, the division conducted a
full assessment of about 20 percent of the new-chemicals 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."
testified that Agency leadership was constantly contacting them. One of^^J
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^f 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 room 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 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
determination is made, chemical submitters are told the EPA's tentative conclusion and have an
' Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. No. 114-182, § 5,130 Stat. 448 (2016).
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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opportunity to dispute the EPA's assessment or provide additional information. According to I
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 risks 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 explained assessments
chemical submitters disagree with end up more delayed than assessments that they agree with. This
also testified that identifying fewer hazards or determining that a
chemical was less hazardous led to quicker case 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 to tell them 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 to^|
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 an 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 to RAD management,and other human health assessors were more likely
than other assessors to express disagreements about scientific decisions made in risk assessments. As
noted above, hazards in new-chemicals assessments are identified by assessing and 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.
After starting work in RAD spentfirst few months learning the new-
chemicals assessment process. While^J had conducted human health assessments in^J previous
division, there were many differences between^B work in and in RAD.
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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In March 2020, the assessors working on new chemicals were split into two groups: a backlog team and
an incoming-submissions team.was placed
testified was
express differing scientific opinions. However, from 2020 through 2022, expressed scientific
disagreements with chemical companies and OPPT management about hazard identification. The
earliest scientific disagreement that^^^^J could recall occurred in approximately February 2020 and
involved a reproductive toxicity hazard that^| retained in one of^J assessments over the
disagreement of the chemical submitter. testified that a more significant scientific
disagreement with management occurred in May 2020. On May|, 2020, submitted a draft
assessment of a new chemical to RAD management that used a possible metabolite of the chemical as
an analogue to assess its hazards. The analogue chemical was a developmental toxicant, and thus
identified that developmental toxicity was a hazard of the new chemical. That same day, a
coworker who had been communicating with the chemical submitter emailed noting that the
company was "ready for a fight" regarding^^^^^J hazard identification.
On Jun^|, 2020,submitted an edited draft assessment to RAD and OPPT management. In
this edited draft, maintained the developmental toxicant as an analogue chemical.also included
language noting that studies of the new chemical showed little-to-no developmental toxicity hazards,
but^| dismissed these studies because the new chemical was administered to test subjects in a way
that could mask its toxicity.4
In mid-August 2020, the chemical submitter called the associate deputy assistant administrator for new
chemicals to discuss the assessment. On August^J, 2020,June 2020 draft assessment was
edited by OPPT management. Managers left comment bubbles in^J assessment, including one written
in all capital letters stating, "WHY WOULD YOU NEED TO USE THIS POOR STUDY WHEN HAVE SO MUCH
DATA ON THE NEW CHEMICAL SUBSTANCE." In September 2020, a coworker contacted
supervisor, and others to "remind" them that the company contacted the associate deputy assistant
administrator for new chemicals and said it planned to "fight" the hazard identification. Two days later,
submitted another draft to RAD management, maintaining^^ use of the analogue data. RAD
management worked on the assessment for months. Ultimately, scientific conclusions were
altered. The analogue chemical was replaced with data from a study that^^^^H had dismissed.
expressed additional scientific disagreements from 2020 through 2022.5 Our review of email
communications during this time period uncovered several emails from^^^^H that outlined
4 The new chemical was administered to test subjects in an oil that is the same class as the new chemical. Some assessors,
including^^^^J were concerned that this could create competition for the enzymes that cause metabolism. Those enzymes
might break down the oil, leaving fewer enzymes to break down the new chemical. As a result, the new chemical might not
have been entirely broken down, which means the full toxic effects of any metabolite would not be seen.
5 In this time frame, as discussed earlier,was originally assigned to RAD, which was dissolved in October 2020. At that
point,was assigned to the newly created New Chemicals Division.supervisor in RAD was also assigned to the
New Chemicals Division.
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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disagreements. In these emails,cited scientific data to support^| positions, continued to
expressscientific opinions to counteract chemical submitter rebuttals and management opposition,
and raised scientific disagreements with^J coworkers' work products. supervisor was included on
all emails that we identified as scientific disagreements.testified about a
differing scientific opinion that^^^^J expressed in March 2021. said that after this
point, interactions between the two of them would "ramp up," and every time^| would ask|
to provide justification for^J scientific decisions, it was a "trigger." testified that
expressed scientific disagreements "almost all the time."
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
disagreements, neither they nor the assessors' supervisors directed the assessors to make the changes.
The human health assessors would frequently respond to OPPT management's edits when they
disagreed with them. 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. testified that assessors had delays, and one noted
that assessors who did not express scientific disagreements processed cases faster.
Disclosures to the OIG
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 supervisor, the New Chemicals Division director, and
many of^^^^^J former and current 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,did
not redact their names prior to distributing the complaint. On August 3 and 31, 2021, Public Employees
for Environmental Responsibility filed additional OIG Hotline complaints on behalf of^^^^J and
other human health assessors. Encompassed in^^^^^J June and August 2021 OIG Hotline
complaints were allegations that assessors were verbally attacked in meetings for their disagreements
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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and that their scientific disagreements were referenced in their performance evaluations as support for
a lower rating. Additionally, these complaints included concerns about the wayl
supervisor
conducted
testified that, when
started to raise complaints about^J
thought that
was a "problem" and told
¦
to work
on^J communication style.
explained that this made^J "frustrated."
Allegations of Retaliation
alleged that EPA management took eight actions against^J in retaliation for^J differing
scientific opinions and protected activity: (1) issueda final performance evaluation for FY 2020 that
was lower than^| expected, (2) issueda midyear performance evaluation for FY 2021 that was
lower than^| expected, (3) issueda final performance evaluation for FY 2021 that was lower than
expected, (4) deniedleave in August 2020, (5) failed to select^| for detail in either
December or January
and harassed from
1. FY 2020 Final Performance Evaluation
received a final performance rating of '|
performance while in the|
work wasl
" for FY 2019.7 This rating reflected]
. The supervisory comments noted that
6 In addition to these alleged actions,made other retaliation claims that do not allege a violation of
5 U.S.C. § 2302(b). For example, the EPA issued a memorandum to^^^^J requiring^] to provide^^^^^^^^J
documentation to^J supervisor within calendar days Although
the memorandum noted that a failure to produce the documentation could result in an absent-without-leave charge, this is not
a concrete manifestation of intent to take a personnel action and thus is not considered a threat of a personnel action. Koch v.
S.E.C., 48 Fed. App'x. 778, 787 (Fed. Cir. 2002) (nonprecedential) (holding that a performance counseling stating that "[u]nless
you make immediate and profound improvements in your performance, it will be necessary to discharge you" did not
constitute threat to take personnel action) (bracket in original text); Delosreyes v. Gen. Servs. Admin., No. NY-1221-14-0379-W-
1, H 13 (M.S.P.B. May 5, 2016) (nonprecedential) ("not all general statements setting forth performance expectations and the
consequences of failing to meet those expectations or counseling measures directed at particular employees constitute threats
to take a personnel action"). In addition, in October 2021,
requested thatl
promote^| to a General Schedule
position. At the time,
was at the full promotion potential of General
Schedule^^^J
for^J position.|
explained tc
that promotions are typically
managed through competition and are announced via USAJobs or Talent Hub, which are the federal government's official
employment website and the EPA's internal recruitment platform, respectively.!
open vacancies with promotion potential. As^H
encouragedl
to apply for
| was at the full promotion potential for^J position and as^| had
neither applied for nor failed to be selected for another position, we determined that the lack of a promotion does not
constitute a failure to take a personnel action, as no action was "due, required, or expected." Special Counsel v. Brown,
61 M.S.P.R. 559, 568(1994).
7 For the FYs 2019 and 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." Starting in the FY 2021 performance year, the EPA went from a five-tiered performance rating
system to a three-tiered system, with "distinguished" as the highest rating, followed by "effective" 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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. The supervisory comments further stated that I
"8
"dc
begandetail to RAD.
On March 11, 2020,|
emailed]
J supervisor about the coronavirus-pandemic-related closure
| and the effects it would have on^J ability to telework. On March 15, 2020,
supervisor sent an email to all of direct reports about available telework flexibilities.
supervisor moved
to a flexible schedule, so
could work flexible hours instead
of a set daily schedule.
notified management of continued struggles due to^J personal situation.supervisor
provided with information regarding various leave options, including how to use leave
At the same time, RAD management began to concerns
that^^^^J was not completing work when^J was on duty.^^^^^J supervisor reassigned some
of^^^^^J work but also stressed that^^^^J needed to complete work when^J was not on
leave.9
began missing work deadlines. On June 29, 2020, was assigned two memorandums to
complete by the end of the work week: one to describe a chemical submitter's rebuttal of the EPA's
assessment of its chemical and one to document^| completion of an assessment.
supervisor told^J that^J could skip some of the division's required meetings to complete this work
and approved five hours of compensatory overtime for the explicit purpose of completing the
memorandums. On July 4, 2020,
emailed supervisor that the memorandums were not
complete. From July through August 2020,
failed to meet multiple deadlines set by^J
supervisor to complete the memorandums. In these two months,
recorded over 180 working
hours but did not complete the memorandums. Despite being urged multiple times to skip division
meetings to complete the memorandums,!
meetings.
continued to work on other tasks and attend the
In August 2020,emailed RAD leadership that^J supervisor's daily emails "demanding" the
memorandums constituted harassment, and^| requested to be transferred to a different branch.
was transferred. testified never spoke
8 Notably,^^^^^^ FY 2019 performance evaluation referenced scientific disagreements under critical element five,
"Building Coalitions," for which^J was rated as It noted^J could improve^] rating in that element by
However,did
raise^J FY 2019 performance evaluation to the OIG as a retaliatory personnel action.
9 Multiple times,expressed that^J was too distressed to concentrate and requested to be assigned only short tasks.
Management discussed internally the difficulty of balancing^^^^^J challenging circumstances with the needs of the
overburdened division. On July 16, 2020,supervisor sent^J information about how to request^^^^^^J
|, but^^^^J did not initiate the process until October 2021. While^^^^^J supervisor continued to assign
| work,^| also made efforts to find easier tasks for^J
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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to^| about^| communication style.
supervisor engaged in harassment.
testified thatl
did not believe that
In addition to late work product,also displayed performance issues pertaining to|
timecards, leave requests, and work summaries. During the FY 2020 performance period,
needed at least six reminders to complete^| timecards. Similarly,repeatedly had to be reminded
to obtain supervisory approval before taking leave. During the FY 2020 performance period,
supervisor required the members of^J team to email^J their work summaries. In April 2020,
supervisor reemphasized this expectation and asked for the summaries on a weekly basis.
Multiple times, supervisor had to remind^^^^J to send this information, but I
did not always provide an update in response to these reminders.
supervisor asked a labor and employee relations specialist for advice regarding!
missed deadlines given the context ofl
specialist advised thatl
conduct should be addressed in
|. The labor and employee relations
performance evaluation. In^|
FY 2020 final performance evaluation,!
received the same rating as the previous year:!
However, the supervisory comments noted that^^^^J
received a "borderline"
rating of
The comments that^^^^^J^J
and J
| had
. In addition, the supervisory comments mentioned that
Finally, the supervisory comments also stated thatl
In
response to^J FY 2020 final performance evaluation,did not dispute that
Rather, raised the concern that^J performance evaluation did not explain
the circumstances beyond^H control that^| alleged led to the missed deadlines, such as the
2. & 3. FY 2021 Midyear and Final Performance Evaluations
Many of the performance issues identified in^^^^^J FY 2020 final performance evaluation were
also reflected in^^^^^J midyear and final performance evaluations for FY 2021. For^^^^^J
FY 2021 midyear performance evaluation, which was issued to^J in June 2021,supervisor
provided written feedback regardingperformance to that point in the fiscal year. While the
midyear evaluation indicated that^J performance was "trending down," it did not provide a formal
rating or indicate what rating^f would receive in^J final evaluation if^| did not improve^|
performance.
The midyear evaluation noted that
. It identified
as examples
Three were assessments that were assigned to
in January and February 2021 in which
expressed a scientific disagreement, with two of these assessments remaining incomplete at
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 time of^^^^^J June 2021 midyear evaluation.10 The other four identified assessments remained
incomplete at the time of June 2021 midyear evaluation but were delayed for reasons other
than scientific disagreements. One of these four assessments was assigned to^^^^J in November
2020 and was delayed due to a policy dispute.11 Two were assigned to^^^^J in February and March
2021. The fourth assessment was assigned to^^^^J in May 2021.12 We reviewedemails
to^| supervisor and team members regarding these four cases and did not find discussions of scientific
disagreements.
The midyear evaluation also describedinconsistencies reportingweekly work summaries
and submitting^| work schedule. Multiple times,supervisor had to remind^^^^J to
keep^J informed of changes to^^^^^J schedule and to take leave only after it was approved,
also had to be reminded to submit^B timecards and work schedule.
In addition to discussing late assignments and timecards,
midyear evaluation addressed
performance as it related to
. It stated that
. This feedback was also reflected in
testimony that we received.
described
as harassing, belittling, and attacking them,
raised these same concerns to New Chemicals Division leadership in emails that
described
behavior as "toxic" and "bullying."
contacted New Chemicals Division leadership to raise concerns about|
communications, calling them "hate-filled."
For^| FY 2021 final performance evaluation,
received a rating of 'I
which was the
equivalent of the 'I
comments described!
I" rating that^| received the two previous years. The supervisory
performance as 'I
|" and outlined the same general
performance issues that were mentioned in^| FY 2021 midyear performance evaluation and
FY 2020 final performance evaluation. Specifically, the comments noted that I
needed to work
on
. The supervisory comments also described
inconsistency in
10 A regulatory determination was issued in the third assessment based on the work of other RAD employees.
raised the use of this policy as an alleged violation of the Scientific Integrity Policy.
12 Toward the end of the midyear evaluation period,^^^^^ askedsupervisor and
if^J could be relieved of some of^| case work duties. In April 2021,^^^^^^ supervisor conducted a review of
case assignments over the past year. From March 2020 to mid-April 2021,^^^^^ was assigned approximately
37 assessments, seven of which were completed. Shortly after this review,^^^^^ was removed from the rotational
assignment of assessments and given official time and work with the Scientific
Integrity Office.
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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4. Denial of Leave
RAD's work involved the assessment of Toxic Substances Control Act confidential business information,
or CBI.13 The Toxic Substances Control Act requires that CBI be protected from disclosure to the public.
The OPPT manages a separate local area network, or LAN, on which all TSCA CBI is stored. The CBI LAN is
accessible through a virtual desktop infrastructure and houses its own version of Microsoft Outlook
email, folder storage, and multiple RAD-specific applications, including the New Chemical Review. RAD
used the New Chemical Review application as a repository of formal records and for electronic case
tracking.
On Thursday, July 30, 2020, an information technology specialist on the Office of Chemical Safety and
Pollution Prevention's CBI information technology team emailed all CBI LAN users, notifying them that
multiple applications on the CBI LAN would be inaccessible over the weekend, including the New
Chemical Review. The next day, multiple RAD assessors noticed that their Outlook email on the CBI LAN
was not functioning.
On Saturday, August 1, 2020,emailedsupervisor, noting that the entire CBI LAN was
"down for maintenance" and as a result^J was taking the day off.^^^^^J supervisor responded
with a denial of^J leave request.14^| noted that the CBI LAN was operational and that^^^^J was
expected to work the 11 hourswas scheduled for that day. The supervisor stated that^| expected
to finish the two memorandums that had been outstanding for several weeks. The supervisor
followed up, noting that ifOutlook email on the CBI LAN was not working, could
"work around" that issue by placingcompleted memorandums into shared folders on the CBI drives
and notifying the supervisor of the file's location via email on the Agency's administrative LAN.
testified that^| was "probably" not able to access the CBI LAN. When presented with
evidence that CBI applications would be down but not the CBI LAN itself, testified that^|
needed the CBI applications to upload^J completed memorandums.then testified that^| could
not remember whether the entire CBI LAN was down.
initially testified that^| did not work that day.^J explained that|
When with^| time attendance
record, which reflected that^| worked 11 hours, including two hours prior to requesting leave,
testified that^| might have worked.
13 CBI is broadly defined as proprietary information that is considered confidential to the submitter and that, if released, would
cause substantial business injury to the owner.
14 Supervisors have discretion to decide when and how much annual leave to approve and may consider workload in making
their decision. Even in cases of emergency or unplanned situations, supervisors may deny the leave request if they determine
that the needs of the unit preclude the use of leave or that the employee's reasons are not acceptable.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
11
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CUI//PRIIC/PRV CY
5. Nonselection for a
Detail
On November 10, 2020, detail in the New Chemicals Division was posted on Talent Hub.
A detail is a temporary assignment made available to current federal employees. was one of
13 applicants and was interviewed by a panel of New Chemicals Division managers on December 17,
2020.was ultimately not selected.
served as the for though^J
testified that the selection decision was made in concert with the interview panel members, including
testified that in evaluating applicants,was looking for leadership and technical
skills. stressed that, given the resource constraints and infancy of the division, leadership skills were
key.^| expected the selectee to keep the team's morale up and help team members prioritize and
meet tight deadlines.
testified that
and was less qualified
overall than the selectee.
application materials discussedleadership as
though
materials also noted that
these experiences were more recent. In contrast, the selectee's application materials reflected that he
had years of experience leading interdisciplinary technical teams, mentoring and coaching team
members, developing training materials, communicating assignments to staff, and leading meetings. His
materials reflected that he recently graduated from a 12-month course designed for current and future
leaders within the federal government. In 2020, he held an informal leadership role in NCD. The selectee
detail in January 2021 and was selected as a permanent
began the
in March 2021.
6. & 7.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
12
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CUI//PRIIC/PRV CY
forwarded seven Agency meeting invites to^J personal email address, as well as several internal
Agency documents including draft standard operating procedures and a document marked "Interim
Deliberative Draft. Do Not Distribute."
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CUI//PRIIC/PRV CY
their own qualified as misconduct when read in the context of the other emails. further clarified
that, although some of the emails raised allegations of wrongdoing, it was the manner in which the
allegations were raised that was improper, not the making of the allegations on its own.
clarified that^^^^J could have raised
some of the concerns in^f email, including allegations against^^^^^^^^^^^^^^^^^^^^f, but
that the tone and word choice qualified the email as misconduct. Finally,included
five specifications of a failure to follow instructions. These specifications coveredfailure to
follow instructions when^B forwardedAgency documentsl
resigned from EPA employment in
. A decision on
was not issued.
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
14
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CUI//PRIIC/PRV CY
8. Harassment
alleged that^^ was harassed from 2020 through 2022 by^^ supervisor in retaliation for
expressing different scientific opinions. testified that when^J identified hazards in new-
chemicals assessments,^] supervisor would ask "demanding" questions. For example,^! supervisor
would ask, "What does the data show you?"; "What - what do you see?"; and "Look at it again."
explained that the questions would be asked "over and over again" and "get louder and
louder." testified that^^ supervisor would get "as loud as you could get [] without yelling."
contrasted the treatment^! received when^^ did not agree with^^ supervisor with the treatment
received when^^ did. When^^ agreed with^^ supervisor by removing a hazard, the supervisor
would praise in front of^^ peers for^^ "insight" and send^^ an email after the meeting thanking
for speaking up. If^^ disagreed by identifying a hazard, however, claimed that^^
supervisor would give^^ a public "scolding." This treatment made^^^^J hesitant to voice^^
opinions.testified that^^ supervisor would also send multiple "demanding" emails
establishing short deadlines within minutes of one another. recalled receiving an email at the
end of the day stating, "I need this [close of business]found these emails so overwhelming
that I
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 Whistleblower Protection Act to all EPA employees who
uncover or report allegations of scientific and research misconduct or who express a differing scientific
opinion.18
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.19
The EPA's Scientific Integrity Policy does not define the term differing scientific opinion. However, in
October 2020, after the alleged differing scientific opinions at issue in this matter, the EPA's Scientific
18 We did not assess the EPA's authority to extend the statutory protections of 5 U.S.C. § 2302 via Agency policy.
19 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.
15
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CUI//PRIIC/PRV CY
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.
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).20 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.21
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.22 "Contributing factor" is defined as any factor which, alone or
20 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).
21 Lachance v. White, 174 F.3d 1378,1381 (Fed. Cir. 1999).
22 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." 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).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
16
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CUI//PRIIC/PRV CY
in connection with other factors, tends to affect in any way the outcome of the decision.23 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).24
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).25 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.26
Analysis
alleges that during^J EPA employment individuals with personnel authority took personnel
actions against^J in retaliation for expressing differing scientific opinions, protected activity, and
protected disclosures. As^^^^J alleged a violation of 5 U.S.C. § 2302(b)(8), § 2302(b)(9)(C), and a
violation of the EPA's Scientific Integrity Policy, the OIG has jurisdiction over^B retaliation allegations.
Did
H MaK^^Hrc
or Make a Protected Disclosure?
disagreements with^J supervisor, OPPT management, and chemical submitters from
February 2020 through August 2022 regarding hazard identification in
assessments of new chemicals constituted differing scientific opinions. We obtained evidence that
disagreements concerned interpretations of scientific data, such as the selection of analogue
chemicals that were to be used in the assessments. EPA's assessments of new chemicals constitute
scientific products. Thus,^^^^^H scientific disagreements meet the plain language meaning of a
23 Marano v. Dep't of Justice, 2 F.3d 1137 (Fed. Cir. 1993).
24 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.
25 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).
26 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.
17
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CUI//PRIIC/PRV CY
differing scientific opinion and the formal definition of a differing scientific opinion that was later issued
by the Scientific Integrity Program in October 2020.
In addition, was widely perceived by OPPT and RAD management to have expressed differing
o p non s. ,
testified that^^^^J and others were more likely than other assessors to disagree about scientific
decisions made in assessments.
engaged in protected activity when^J provided information to the OIG via complaints filed
by the Public Employees for Environmental Responsibility PEER 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 in^J 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. EPA Scientific Integrity Policy. As such, it was reasonable for
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. 27
Was a Personnel Action Taken Against, Threatened, or Withheld from ?
alleged eight retaliatory actions in the information provided in^J hotline complaints to the
OIG: (1) a final performance evaluation for FY 2020 that was lower than^| expected (2) a midyear
evaluation for FY 2021 that was lower than^| expected, (3) a final performance evaluation for FY 2021
that was lower than^| expected, (4) a denial of leave, (5) a nonselection for detail, (6)
(7) and The Whistleblower
Protection Act prohibits taking, failing to take, threatening to take, or threatening to fail to take a
personnel action in retaliation. We determined that six of these actions constitute personnel actions.
1. FY 2020 Final Performance Evaluation
In November 2020,received FY 2020 final performance evaluation, in whichwas rated
as A performance evaluation is among the personnel actions specifically enumerated
in the statute. 5 U.S.C. § 2302(a)(2)(viii). Accordingly, FY20 performance evaluation
constitutes a personnel action.
2. FY 2021 Midyear Evaluation
In June 2021,receivedFY 2021 midyear performance evaluation. A performance evaluation
is a personnel action. 5 U.S.C. § 2302(a)(2)(viii). However, a performance evaluation is the performance
rating prepared at the end of an appraisal period and does not include a progress review taken during the
27 For the purposes of this analysis, we did not assess whether each allegation contained within the complaints constituted a
protected disclosure.
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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CUI//PRIIC/PRV CY
course of an appraisal period.28 As such,
action.
midyear evaluation does not constitute a personnel
Statements made in a progress review may constitute a threat to lower an employee's rating of record.29
While^^^^^J FY 2021 midyear evaluation mentionedit did not provide
a formal or indicate what ratingwould As
such,^^^^^J FY 2021 midyear appraisal does not constitute a threat to take a personnel action.
3. FY 2021 Final Performance Evaluation
In November 2021,FY 2021 final performance evaluation was issued.was rated as
A performance evaluation is among the personnel action specifically enumerated in the
statute. 5 U.S.C. § 2302(a)(2)(viii). Accordingly,FY21 final performance evaluation constitutes a
personnel action.
4. Denial of Leave
On August 1, 2020, emailed supervisor that^J was taking the day off because the CBI
LAN was down.^| supervisor responded that the CBI LAN was operational and that^^^^J was
expected to work^| scheduled hours. A denial of leave constitutes a personnel action.30 Accordingly,
the denial of leave constitutes a personnel action.
5. Nonselection for a
Detail
In November 2020,applied for detail. In January 2021, a different applicant was
selected for and appointed to the detail. An appointment is among the personnel actions specifically
enumerated in the statute. 5 U.S.C. § 2302(a)(2)(A)(i). Accordingly, the nonselection of^^^^J for the
position constitutes the failure to take a personnel action.
6'
On May 2022,is a
significant change in duties, responsibilities, or working conditions, which is a personnel action under
28 See generally 5 C.F.R. pt. 430. A progress review undertaken during a performance review period is not an evaluation for the
purposes of 5 U.S.C. § 2302(a)(2)(A)(viii). See King v. Dep't of Health & Human Servs., 133 F.3d 1450,1453 (Fed. Cir. 1998)
(holding that a progress review, undertaken during a performance review period, does not constitute a personnel action);
Special Counsel v. Spears, 75 M.S.P.R. 639, 669 (1997) (finding that a "mid point" counseling memorandum informing an
employee that she was failing two of her critical elements was part of a process designed to assist her to bring her performance
to an acceptable level, rather than a threatened personnel action).
29 See Mastrullo v. Dep't of Labor, 123 M.S.P.R. 110,11 24 (2015).
30 Marren v. Dep't of Justice, 50 M.S.P.R. 369, 373 (1991) (finding that a denial of annual leave constitutes a "decision
concerning a benefit" under 5 U.S.C. § 2302(a)(2)(A)(ix)).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
19
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5 U.S.C. § 2302(a)(2)(A)(xii).31 Accordingly,]
personnel action.
constitutes a
On 2022,received
which is among the personnel actions specifically enumerated in the statute. 5
U.S.C. § 2302(a)(2)(A)(iii). Accordingly, constitutes a threatened personnel
action.
8. Harassment
alleged that^| was harassed by^J supervisor in retaliation for expressing differing scientific
opinions and engaging in a protected activity. 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.32 5 U.S.C. § 2302(a)(2)(A)(xii).^^^^J alleged that^| was
subjected to harsh, loud disagreements with^J scientific opinion; repeated questioning; and many
emails asking about the status of work. Verbal criticism and rudeness are not usually considered
personnel actions.33 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 is generally not so intolerable as to
compel a reasonable person to resign and thus is not a personnel action.34 These cases contemplate that
criticism and unpleasantness in the workplace alone are not actionable under the Whistleblower
Protection Act. Accordingly, the alleged harassment that^^^^J experienced does not constitute a
personnel action.
In summary, of the eight actions that^^^^J alleged were retaliatory, six constitute taking or failing
to take personnel actions under 5 U.S.C. § 2302(a)(2): the FY 2020 final performance evaluation, the
FY 2021 final performance evaluation, the nonselection for detail, the denial of leave, the
and FY
and the alleged harassment do not constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A).
32 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)
33 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) (finding that an oral counseling does not constitute
disciplinary or corrective action within the coverage of the Whistleblower Protection Act).
34 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. 609, 616-18 (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).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
20
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CUI//PRIIC/PRV CY
Werei
Disclosure a
Differing Scientific Opinions, Protected Activities, or Protected
Tohtributing Factor in the Personnel Actions Taken AgainstMM?
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.35 After assessing the two factors, knowledge and timing, we determined that^^^^^J
differing scientific opinions, protected activity, and protected disclosure were contributing factors in the
six personnel actions:FY 2020 final performance evaluation, FY 2021 performance evaluation,
the leave, nonselection for detail, and
FYs 2020 and 2021 Final Performance Evaluations and Denial of Leave
expressed differing scientific opinions regarding new-chemical assessments from
approximately the summer of 2020 through the summer of 2022. In that same time frame,
supervisor deniedrequested leave in August 2020, completedFY 2020 final performance
evaluation in November 2020, and completedFY 2021 final performance evaluation in
November 2021.supervisor had direct knowledge of^^^^^J differing scientific opinions.
was included on all of emails that we identified as scientific disagreements. also
testified as to^J knowledge of^^^^^J differing scientific opinions. The timing between^^^^^J
differing scientific opinions and^^^^^J two final performance evaluations and denied leave was less
than 18 months, which is a reasonable amount of time to conclude that the differing scientific opinions
were contributing factors in the three personnel actions.36
engaged in protected activities in June and August 2021 when^J filed OIG Hotline
complaints.OIG Hotline complaints contained at least one protected disclosure.supervisor was
aware of^J protected activity and protected disclosure, as^| received an unredacted copy of the
June 2021 OIG hotline complaint and testified that^J supervisor discussedconcerns with
While^^^^^J FY 2020 final performance evaluation and denied leave predatedprotected
activity, the timing between^| June and August 2021 protected activity and disclosure and^J
November 2021 FY 2021 final performance evaluation was less than 18 months, which is a reasonable
amount of time to conclude that the protected activity was a contributing factor in the personnel action.
35 5 U.S.C. § 1221(e).
36 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, H87 (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).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
21
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CUI//PRIIC/PRV CY
Nonselection for a
Detail
The decision to not select
for the
detail was made by
. Although
was not closely involved in
work, knowledge of
differing scientific opinions can still be imputed to^|37 T
testified as to their knowledge differing scientific opinions. expressed differing
scientific opinions from approximately the summer of 2020 through the summer of 2022. The decision
not to select^^^^J was made in either December 2020 or January 2021. The timing between
differing scientific opinions and the nonselection was less than 18 months, which is a
reasonable amount of time to conclude that the differing scientific opinions were a contributing factor
in the personnel action.38nonselection predated protected activities and protected
disclosure. As such, protected activities and protected disclosure were not a contributing factor in
the nonselection.
testified that|
and^J supervisor directly informedabout
differing scientific opinions. also had direct knowledge of
June 2021 protected activity,
as^| received an unredacted copy of it via email.
expressed differing scientific opinions
throughout 2020 and 2021 and engaged in protected activities and made a protected disclosure in June
and August 2021.
. The timing between
differing scientific opinions, protected activities, and
protected disclosure anc
was less
than 18 months which is a reasonable amount of time to conclude that the differing scientific opinions,
protected activities, and protected disclosure were contributing factors in the two personnel actions.
In summary because EPA management had knowledge ofl
differing scientific opinions and
because these six personnel actions were taken less than 18 months after^B expressed the differing
scientific opinions, we determined thatl
established by a preponderance of the evidence that
differing scientific opinions were contributing factors in the six personnel actions. EPA management
also had knowledge of
protected activities and disclosure and issuedFY 2021 final
performance evaluation,
, and
within eighteen
months of these actions. As such,
we determined that
established by a preponderance of the
37 Constructive knowledge can be shown by demonstrating that an individual with actual knowledge of the disclosure
influenced the official taking the retaliatory action. Dorney v. Dep't of Army, 117 M.S.P.R. 480, H 11 (2012); Aquino v. Dep't of
Homeland Sec., 121 M.S.P.R. 35,1119 (2014).
38 Redschlag v. Dep't of the 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).
Any request to the EPA for public release must be sent to the EPA OIG for processing under
the Freedom of Information Act.
22
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CUI//PRIIC/PRV CY
evidence that|
actions.
protected activities and disclosure were a contributing factor in those three personnel
Would the Agency Have Taken the Personnel Actions Against in the
Absence ofJH Differing Scientific Opinions, Protected ActiviVes^^rotected
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
activity, or protected disclosure. To make this determination, our analysis weighs the following 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 can establish by clear and convincing
evidence that it would have taken all six personnel actions in the absence of^^^^^J differing
scientific opinions, protected activities, and protected disclosure.
FY 2020 Final Performance Evaluation
was as^J
supervisory comments fori
in^| FYs 2019 and 2020 final performance evaluations in the
FY 2020 final performance evaluation,!
supervisor noted that
received a '
'borderline" rating of
." To explain the rating, the supervisory
comments noted that
. Documentary evidence confirms this. For example,
was told to prioritize these
was assigned two memorandums in June 2020. Multiple times,
assignments;^! was excused from some of^^ required meetings and granted compensatory time to
complete them. However, despite working over 180 hours over the following two months, the
supervisor raised these
memorandums remained incomplete at the end of August 2020.
issues to a labor and employee relations specialist, given the context of at
the time. The labor and employee relations specialist advised the supervisor to address the missed
deadlines in^^^l
performance evaluation. In^| response to^| performance evaluation,
did not dispute thatl
As to motive to retaliate, when^^^^^J supervisor began to send more frequent emails regarding
the late memorandums,alleged that the emails constituted harassment. On August 20, 2020,
sent this allegation to RAD management, including^! supervisor's manager. Another
manager the to^^^^^J supervisor.testified that^^^^f
never spoke to^^ about^^ communication style.testified
that^^ did not believe that the supervisor engaged in harassment.
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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There are no apt comparators for^^^^^J FY 2020 final performance evaluation because human
health assessors who^^^^^J supervisor also rated expressed differing scientific opinions.
We find that the strength of the evidence in support of rating outweighs any animus
evidence. There was ample documentary evidence throughout the performance period of
struggles to meet deadlines. This strong supporting evidence outweighs the weak animus evidence and
neutral comparator evidence. We have determined that the Agency can establish by clear and
convincing evidence that it would have ratedas in the absence of^J
differing scientific opinions.
FY 2021 Final Performance Evaluation
Although the Agency's performance rating system changed in FY 2021 to a three-tiered system,
still receivedrating in^J FY 2021 final performance evaluation as^| had the two
previous years. The supervisory comments associated with^J rating outlined concerns
regardAll three
these issues were documented in email communications throughout the performance year, as well as in
FY 2021 midyear performance evaluation.had multiple assessments that were
significantly delayed, including assessments without differing scientific opinions.also had to be
reminded multiple times to informal supervisor of schedule changes and to submit^| timecards.
Finally, testified about^^^^^J communications, which they characterized as
harassing, belittling, bullying, and toxic. New Chemicals Division leadership also received similar
feedback from outside of the OPPT.
supervisor expressed animus regarding^^^^^J differing scientific opinions, protected
activities, and protected disclosure. Encompassed in^^^^^J June and August 2021 OIG Hotline
complaints were concerns about the way^J supervisor conductedtestified that
when^^^^J started to thought
the^^^^^J was a "problem" and told^J to work on^J communication style.
explained that this made^J "frustrated." also testified about a differing scientific opinion that
expressed in March 2021. testified that after this point, interactions between
the two of them would "ramp up" and that every time^| would ask^^^^J to provide justification
for^| scientific decisions, it was a "trigger."
supervisor rated three other employees as in their FY 2021 final performance
evaluations. None of the three comparators' evaluations mentioned delays in work product or
interpersonal strife. Two of the employees were human health assessors. We are not aware of any
differing scientific opinions expressed by these employees.
We find that the Agency's evidentiary support for^^^^^J FY 2021 final performance rating, paired
with the comparator evidence, outweighs the animus evidence. Documentary evidence supports that
had multiple assessments that were significantly delayed, including assessments without
differing scientific opinions. Although there was animus evidence, this was outweighed by the support
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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for the rating and comparator evidence that showed the same rating was given to
comparators who did not have delays cited in their performance evaluations. After reviewing the
Agency's evidentiary support for^^^^^J rating, the animus evidence, and the comparator evidence,
we have determined that the Agency can establish by clear and convincing evidence that it would have
rated as in FY 2021 in the absence of^J differing scientific opinions, protected
activities, and protected disclosure.
Denial of Leave
On Saturday, August 1, 2020, emailedsupervisor that^| was taking the day off because
the CBI LAN was down.39^| supervisor responded that the CBI LAN was operational and that^^^^J
was expected to work^| scheduled hours. At the time,^^^^| had at least two work products that
were overdue, and the supervisor informedthat^J expected the work products to be
completed by the end of that day. The supervisor's decision to deny the leave request is consistent with
EPA policy. Supervisors have discretion to deny annual leave, even in emergencies, due to the needs of
the unit or if the employee's reasons are not acceptable. Documentary evidence supports the
supervisor's statement that the CBI LAN was operational at the time of requested leave. An
Office of Chemical Safety and Pollution Prevention information technology email notification to staff
two days earlier clarified that only certain applications on the CBI LAN would be down for maintenance
that weekend, not the entire CBI LAN. ultimately could not recall whether the full CBI LAN was
down that day or just certain applications. time-and-attendance records indicated that^|
worked 11 hours on August 1, 2020, including two hours before^B requested leave.
We did not uncover statements of animus made by^^^^^J supervisor prior to August 1, 2020.
However, at the time, at least one of^^^^^J new-chemical assessments was receiving push back
from the chemical submitter.supervisor was aware that the chemical submitter was "ready
for a fight" regarding the hazard identification. Further, the supervisor was included on the email in
whichespressed^J scientific opinion that the hazard identification should not change.
Disputes with chemical submitters caused delays, which supervisor testified created
"pressure."
There are no apt comparators for^^^^^J denied leave. Other RAD employees were able to use the
CBI LAN but not certain CBI applications during the time in question. We are not aware of any
employees who did not express differing scientific opinions and requested leave during this time due to
a lack of CBI LAN access.
We find that^^^^^J supervisor had support for denying the leave request, as^| had evidence that
the CBI LAN was operational and that^^^^J had delayed work product to complete. This support,
paired with^^^^^J weak testimony as to whether^J could access the CBI LAN, outweighs any
animus evidence and the neutral comparator evidence. For this reason, we have determined that the
39
of
was on a maxiflex work schedule, which allowedto work on weekends.typically worked onl
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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Agency can establish by clear and convincing evidence that it would have denied I
request in the absence of^| differing scientific opinions.
leave
Nonselection for a
Detail
applied for detail in the New Chemicals Division in November 2020. The selecting
official testified that^| prioritized finding a selectee with leadership experience, given the resource
constraints of the new division. While^^^^^J application material discussed "more recent"
the
application reflected years of leadership experience. For example, he had recently graduated from a
12-month course designed for current and future leaders within the federal government and had
already held an informal leadership position in the unit. testified that^^^^J had
"much less" leadership experience and was "less qualified overall" than the selectee.
In terms of animus evidence, the interview panel that influenced the selecting official's decision
includedsupervisor. At the time of^^^^^J interview in December 2020, the supervisor
was aware of^^^^^J August 2020 complaint against^J to RAD management regarding alleged
harassment. However, no actions were taken againstsupervisor based on this complaint.
made at least two additional complaints regarding^| supervisor's alleged harassment in
September 2020 and November 2020 to^J supervisor's manager in the just-created New Chemicals
Division, where both^^^^J and^J supervisor were assigned. Our investigation did not confirm
whether the supervisor had knowledge of these two complaints at the time of interview in
December 2020 or^J nonselection in either December 2020 or January 2021. However,
testified gave^J negative on^J
communication style in one of their first meetings in late 2020. testified that^^^^| caused
"major frictions" between and I
In terms of comparators,was one of 12 applicants who were not selected for the detail.
Among the individuals who were not selected was an assessor who appeared to be well qualified, as^|
was later selected to be a supervisor in the division. We are not aware of any differing scientific opinions
expressed by the other applicants who were not selected for the detail.
We find that the Agency's strong evidentiary support for the nonselection outweighs the animus
evidence. The selecting official provided a reasoned explanation for seeking leadership experience in the
selectee for the detail. The selecting official's testimony that^^^^J had much less leadership
experience than the selectee was well supported by the selectee's application materials. Although
was a panel member with input into the selection decision, we found that the
supporting evidence outweighed the animus evidence. After reviewing the Agency's strong evidentiary
support for the decision, the animus evidence, and the comparator evidence, we have determined that
the Agency can establish by clear and convincing evidence that it would have failed to select^^^^J in
the absence of^| differing scientific opinions.
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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was
instructed not to access or use any government equipment, network, or system or to conduct any
official EPA duties. After receiving the notification,forwarded Agency documentation to^J
personal email address including draft standard operating procedures and a document marked "Interim
Deliberative Draft. Do Not Distribute." Slightly over three months later,!
discussed in some of
expressed animus regarding the viewpoints and allegations
communications cited I
| noted thatl
that the Agency was engaged in fraud or misconduct were unbecoming.
accusations
There are no comparators regarding!
We find that the Agency's evidentiary support fori
is strong. While there is animus evidence related to the allegations made in
would have been issued in
the absence of
. For this reason, after reviewing the Agency's evidentiary support for
, the animus evidence, and the lack of
comparator data, we have determined that the Agency can 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.
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that it would have^^^^^^^f
differing scientific opinions and|
Conclusions
in the absence ofl
protected activity.
We determined that^^^^J expressed differing scientific opinions, which were contributing factors in
six personnel actions taken against (1) a performance evaluation for FY 2020 that was lower than
expected (2) a performance evaluation for FY 2021 that was lower than expected, (3) a denial of
a for detail, and a
We also determined that^^^^J engaged in protected activity, which was a
contributing factor in three of these personnel actions: the FY 2021 performance evaluation,
We did substantiateallegations
retaliation with respect to these personnel actions.
Recommendation
Given the conclusions discussed above, we make no recommendation regarding corrective action.
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.CongressionalAffairs@epa.gov
Media Inquiries: OIG.PublicAffairs(5)epa.gov
'line EPA OIG Hotline: OIG.Hotlineffiepa.gov
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