CU1//PRIIC/PRVCY
Report of Investigation:
Whistleblower Reprisal
Investigation
September 17, 2024 | Report No. 24-N-0065
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Abbreviations
C.F.R. Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FY Fiscal Year
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 13
Analysis 15
Conclusions 22
Recommendation 22
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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 four personnel actions
against^^^^^^^^^J over the course of three years: three actions in 2019 and 2020, after J
expressed differing scientific opinions, and one action in 2022, after PEER filed the June and August 2021
hotline complaints. 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). We also investigated whether the 2022 action was in retaliation for|
complaints made to the OIG, in violation of the Whistleblower Protection Act.
Our investigation first sought to determine whetherl
expressed differing scientific opinions or
made 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 againstWe
determined thatH
expressed and was perceived to have expressed differing scientific opinions in
2019 and 2020 and engaged in protected activity and made a protected disclosure in 2021. We found
that management knew of
against^H (1) issued
differing scientific opinions when it took two personnel actions
a lower performance rating than the previous year and (2) reassigned I
to
a different division. Our investigation identified
as
who
issued
FY 2020 performance evaluation and identified
as 1
who reassigned Both personnel actions occurred within a period of time such that a
reasonable person could conclude that^^^^f differing scientific opinions were a contributing factor
in the personnel actions. We determined that^^^^J differing scientific opinions were not a
contributing factor in one of the remaining two actions and that the other remaining action did not
constitute a personnel action. We determined thatl
protected activity and protected disclosure
were not contributing factors in the personnel actions taken against
Next, we assessed whether the EPA could establish that it would have taken the same two personnel
actions even if^^^| had not expressed differing scientific opinions. After reviewing the evidentiary
support for the two personnel actions, any evidence of any 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 substantiatedretaliation allegation with respect
toj performance rating. We did not substantiate^ retaliation allegation with respect to J
reassignment. We recommend that the EPA administrator consider appropriate corrective action
considering these findings.
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 August 23, 2024, we providedwith a tentative conclusions letter containing our
preliminary report of investigation and gave^J an opportunity to review and comment before we
finalized our report. In^J response, dated September 6, 2024, disagreed with our
conclusions. stated that^| did not penalize^^^J 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.^f 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^J at the time of
rating, as it was published in October 2020.
After carefully considering^^^^^^^^H
but did not alter our original conclusions.1
response, we amended some sections of the report
Findings of Fact
is a
in the
within the OPPT.
started at the EPA in
in RAD, wherej did
work under the Toxic
Substances Control Act as well as contributed to human health assessments of new chemicals .
testified thatH was initially hired in RAD to do
work but was assigned to complete new-
chemicals assessments because of organizational needs. When the OPPT was reorganized in October
2020, J was moved to the^^J.
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.3 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 full assessments and regulatory
response, we provide a copy of the full
1 While we included what we believe is a reasonable synopsis ofl
response with this report.
2 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.
3 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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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
|oppt|
¦ 1
| RAD |
Post-Reorganization
OCSPP
1 1 1 1
1 1
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-
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 determination.
In 2016, the Toxic Substances Control Act was amended by the Frank R. Lautenberg Chemical Safety for
the 21st Century Act.4 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. 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 responsible fori
1 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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testified that Agency leadership was constantly contacting them.5 One of I
described the pressure as "pushing us like animals in a farm."!
testified that^f was afraid
that if it was not reduced, there would be repercussions in^f performance evaluation. Witnesses from
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 the final regulatory
determination is made, the 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^^^^J
the division is required to consider anything the chemical submitters supply,
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 regulatory determination, then they can continue to submit more
information for the EPA to consider until an agreement between the chemical submitters and the EPA is
reached, extending the timeline beyond the statutory 90-day deadline.
testified that submitters' desire for a regulatory decision 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
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
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
5 In March 2020, the assessors who worked on new chemicals were split into two groups: a backlog team and an incoming-
served as the
H supervisor of record was^^^^^^^^H manager.
submissions team.
V
manager. However,!
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written guidance regarding how to select the best analogue chemical, but instead that 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 leaves room for scientific disagreements.
Scientific Disagreements While in RAD
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
assessors. According the OPPT deputy director and the OPPT senior science advisor
believed that the^^J human health assessors who were on team, including
took an overly conservative approach in their assessments, in particular regarding hazard
identification. 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.
testified that from approximately May 2019 through October 2020, J frequently expressed
scientific disagreements to RAD and OPPT managers concerning their edits toH assessments of new
chemicals.
, testified that
disagreements were
about hazard identification and analysis in assessments of new chemicals. OPPT management disagreed
withl
H analogue and point of departure selection in certain assessments.6 For example, in a
2019 draft assessment, the OPPT deputy director inserted comments questioning!
use of a particular analogue chemical. Additionally, in April 2020,
about analogue selection in a disposition meeting. After the meeting,!
documented a disagreement
emailed all participants and
noted that "we've been getting lots of comments from the OPPT 10 [immediate office] on our POD
[point of departure] selection rationales."!
also documented a discussion disputing changes that
and the OPPT
had completed,
were made to another one of J assessments. In May 2020,
senior science advisor changed the points of departure in an assessment that^B^^
resulting in the removal of concerns for "reproductive toxicity" from the new chemical's Safety Data
Sheet.emailed the OPPT senior science advisor and others, noting that J disagreed with the
revised points of departure. The OPPT senior science advisor testified regarding this same incident and
confirmed that changes were made to the assessment. In a message to the OPPT deputy director about
6 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.
7 Safety Data Sheets are used to communicate the hazards of a given chemical. Employers must ensure that the Safety Data
Sheets are readily accessible to all employees for each hazardous chemical in their workplace^
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 meeting, the OPPT senior science advisor called the|
assessors the "tox[ic]
human health
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 the otherhuman health assessors would frequently respond to
OPPT management's edits because they disagreed with the edits 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 the other^^^^^^^^^^^^^^J 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 otherl
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
to "defend the outputs from our data systems
thel
every week" in weekly meetings about delayed assessments, which became a "never-ending status
update."recalled a meeting in which the Office of Chemical
"barked"
(manager, and the OPPT senior science advisor and asked why the|
I team was not completing assessments more quickly,
recalled the Office of Chemical Safety and Pollution PreventionI
communicating that RAD supervisors needed to have a "firm hand" and
| testified that the OPPT|
constantly contactedpressured!
push timelines,
completing assessments.
and focused on the division
OPPT management complained to RAD management about^^^f and the other^J
human health assessors. On April 30, 2020, the OPPT deputy director messaged
manager calling th^^^J
human health assessors the "worst 'conservativist[s]'" and complaining that they
were "trying to indict every chemical."described how the OPPT deputy
director and the OPPT senior science advisor began to characterize human
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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health assessors' scientific disagreements as insubordination in 2019 and 2020. In early 2020, the OPPT
deputy director stated in an email human health assessors' failure to use
approach to assessments "could be considered insubordination."
perceived
and the other
human health assessors as
closely aligned with one another.
emailed
when^J
witnessed the
human health assessors talking together and mentioned more than
once that^f assumed they would "join forces" to file a complaint. called the^^^^^^^^J
human health assessors passive-aggressive and described them as "piranhas" because]
feared that they would make scientific integrity allegations about^^. Other assessors noticed how
testified that disagreeing or
those who disagreed with management were perceived. I
delaying the resolution of backlogged cases could get an employee labeled as "problematic" by
management. J testified that, once management labeled an employee as problematic, they were
"done."
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, the
organization 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 the complaint. This included|
former RAD supervisor; several of^^^^J former coworkers; and the former]
manager, who worked in the same division as^^^J at the time. In^J email, the deputy
scientific integrity official mentioned the whistleblower protections under 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 another 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 performance rating in the
subsequent performance period.
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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Allegations of Retaliation
alleged that EPA management took four actions against^J in retaliation for| differing
scientific opinions, protected activity, and protected disclosures: (1) issueda lower performance
evaluation for FY 2020 than the previous year, (2) reassignedto the^^J in October 2020, (3) did
select^J for aposition in March 2022, and (4) subjected to
harassment in 2019 and 2020.
1. FY 2020 Performance Evaluation
^^^^^^^Jsupervisor rated as inj FY 2019 performance evaluation.8 Out of the
five critical elements within J evaluation, | received a rating of for four and
I" for one.^^^| reported to the same supervisor in FY 2020, and^| describedas
In March 2020, the RAD new-chemicals assessors were split into two teams.
was assigned to the
but^^^J supervisor was assigned
1. While on the
day-to-day work was managed by the
testified that|
had "nothing but good things to say about^^^^^J
technical abilities.
a smart^|."
As noted earlier, scientific disagreements between assessors and OPPT management on initial
assessments led to delays. According to the testimony of management, however, such disagreements
were just one of several reasons that new-chemicals assessments frequently missed the 90-day
statutory deadline and assessments were often delayed even in the absence of scientific disagreements.
testified that all assessors, regardless of whether they expressed differing
scientific opinions, had cases that were delayed for various reasons.
The OPPT deputy director and the OPPT senior science advisor commented tol
that thehuman
scientific disagreements were a performance issue. The OPPT deputy director alleged in an email that
human health assessors' failure to use her approach to assessments could be
insubordination.confirmed,
that the assessors were not given direct orders to make changes in their assessments.
In November 2020,
supervisor issued^ performance evaluation for FY 2020 and gave
a lower overall rating, "
," thanj had received the previous year.^ rating
8 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."
9 The OPPT deputy director declined our 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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also decreased in three of the five critical elements.10 In critical element one, "Project Management and
Technical Support to New Chemicals/' was rated as in FY 2019 but only
2020.testified since^^^f was on the^^^^^J
and was on evaluation of was based on feedback from
others. Specifically,^ rating was based on^J understanding of J performance from conversations
with manager, the OPPT deputy director, and the OPPT senior science
advisor throughout the year.^J testified that while the quality of^^^^J work on new chemicals did
not decline, the timeliness of J work did.^| testified, however, that^| did not track how many
cases were delayed or how delayed they were, nor did^| receive documentation of these metrics.
supervisor's comments for critical element one stated, in part,
(emphasis
added). testified that^J comments were informed by views expressed by the
OPPT deputy director and the OPPT senior science advisor, who were frustrated that the
human health assessors' scientific disagreements caused delays. explained
that, at the time, 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. confirmed that some of the differences in opinion
directly cited in^^^^| performance evaluation may have been differing scientific opinions.
The supervisory comments regarding critical element one stated thatl
was
level '|
testified that^f expected to solve disagreements,
including^ scientific disagreements, and thatj was expected to make compromises in order to
complete the chemical assessments.
For critical element three, "Material and Financial Resources and Administrative Duties," was
rated as in J FY 2019 performance evaluation but only in J
FY 2020 performance evaluation.supervisor explained that^| recalled a decline in
performance in this critical element because^ did not consistently send^^^^^^^J
|that was required of the assessors in^| unit.^f explained that^^^f communicated with
less in FY 2020 thanj did in the previous year.^J did not directly oversee J work in FY 2020, but
was directly involved with^ assessments in FY 2019. noted that^| learned about the delays
inH work from themanager, notfrom^H However, also testified
10 For the FY 2020 performance period,^^^| received no rating for critical element two because, as|
the evaluation,® "was not assigned work" under that critical element.
supervisor noted in
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that^J heard about the status of cases in the weekly disposition meetings. Despite^| testimony that
rating for critical element three was "heavily" based on the decline this
decline was not noted in^| supervisory comments for critical element three, which stated that^^^|
For critical element four, "Build Coalitions/Communications, and Advise supervisor] and Senior
Managers," was rated as in FY 2019 but only in FY 2020.
^^^^^^^Jsupervisor testified that if a certain issue was applicable to multiple critical elements,
tried to avoid "double counting" and only to consider it in one critical element. Nonetheless,
testified that the decline in^^^^f rating for critical element four was, in part, for the same reason as
the decline for critical element three:| did not consistently submit the required
also mentioned thatj rating in critical element four was attributable to disagreements about
scientific issues in the new-chemicals assessments that affected the timely completion of J work.
^^^^^^^Jsupervisor testified that delays caused by such disagreements should not be reflected in an
employee's performance evaluation. also testified, however, that in preparing FY 2020 ratings,
took no steps to determine whether^^^^J delays were caused by scientific disagreements.
testified that if someone had explicitly told^J not to include scientific disagreements in^^^^f
performance evaluation,® might have had a different rating.
disputed J FY 2020 rating for critical element one. J noted that^^^J supervisor never
raised concerns with J performance in their biweekly meetings and that, toj knowledge, J
assessments required fewer rounds of revisions than others' assessments. After considering J
response, Isupervisor raised the rating for critical element one from to
2. Reassignment to the^^J
In April 2020, the OPPT immediate office began to consider a reorganization and staffing decisions for
the new divisions. On May 13, 2020,1
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 be in each. That chart placed I
in the New Chemicals Division under a
section designated as 'I
I." The chart, along with another organizational chart produced
around that time, did not contemplate a separate I
division. The chart also placed
human health assessors in the
division with
while
was placed in
division.
On May 14, 2020, the OPPT senior science advisor responded to thel
proposed
organizational chart, noting that "[t]here are
people who should not be in the same branch or on
the same project" and mentioning
human health assessors by name.
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 OPPT senior science advisor testified that J believed that those assessors needed to be separated
because they were engaged in "group think" and were not collaborative.
that^J heard from others that^^^^^^^^^J were "pot stirrers" and that they would
"convene and ... talk too much/' which would lead to cases taking longer to complete.
By June 2020, all RAD managers were included in discussions regarding the reorganization. On June 3,
2020,|
that I
recommended that I
be moved to thel
position in the New Chemicals Division be filled with a human health assessor.
team and
explained
that
was hired to do
work and that it should bej primary responsibility.
supervisor supported the recommendation and noted that^| was planning to move
back
earlier that year, but the political focus on the backlog had prevented from doing so.
This intention was reflected in I
[supervisor's emails as early as January 2020.
By July 2020, the proposed OPPT organizational charts included a separatedivision, the
, wherewas designated to move, along with other employees who worked on^J
was informed that| would be transitioning andj emailed J
supervisor to express^ appreciation for refocusing J activities on that work. In October 2020,
were reassigned to the^^H as part of the OPPT reorganization.
3. Nonselection for a
Position
In February 2022,applied for a as ain the
Office of Research and Development, Office of Science Advisor, Policy, and Engagement, Science Policy
Division.11 The original vacancy listed multiple available duty stations,!
After applied to the position, a human resources staffing specialist reviewed J application
materials to determine whether J application was complete and whether^ met the eligibility and
qualification requirements. She testified that, prior to reviewing J application materials, she had never
communicated with^^^l or heard of^H
The human resources staffing specialist determined that^^^J was ineligible for the position because
J application materials did not demonstrate thatj had the specialized experience required for the
position. When^J reviewed resumes for this position, she looked at whether applicants had one year
of full-time level experience in three separate specialized areas that were listed in the vacancy:
independently analyzing, interpreting, and evaluating the integrity of scientific processes or procedures;
providing technical expertise to others; and serving as a point of contact for a department or
organization. In reviewing^^^^f resume, she noted that| did not provide^ GS level for one ofj
former positions, so that position could not be considered when determining whetherH met the
11 "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.
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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specialized experience for the position. Similarly, J did not demonstrate that J provided
technical expertise to others or served as a technical point of contact for a department or
organization.12
Because^^^^J application materials did not indicate that| possessed the necessary specialized
experience, the human resources staffing specialist did not include^J on the certificate of eligible
applicants that was provided to the selecting official on March 11, 2022. On March 23, 2022, the
selecting official returned the list of eligible applicants to human resources without a selection. The
vacancy was June 2022Althoughdid
not know who made the decision to rescind and repost the vacancy, | was aware that multiple
individuals in knew aboutj differing scientific opinions and OIG activity.
4. Harassment
alleged thatj was bullied and harassed by the OPPT deputy director and the OPPT senior
science advisor in 2019 and 2020 in retaliation for expressing differing scientific opinions.13
testified that 90 percent of the bullying from the OPPT deputy director was via email or in
comments toj written work. In her comments, the OPPT deputy director would ask "antagonistic
rhetorical questions," such as "who would do this?"^^^| noted that she would use all capital letters
or bold or underlined font with multiple question marks in a row.
testified that these types of questions and this written communication style
were typical of the OPPT deputy director. also provided one in-person instance of harassment,
which occurred in a meeting on December 18, 2019. J described that the OPPT deputy director was
providing feedback on an assessment of a new chemical that was composed in large part of a solvent
that caused cancer. The OPPT deputy director told the assessors that they should not consider the
hazards of the solvent when assessing the new chemical. She then threw a stack of memorandums
related to solvents across the conference table, and they scattered everywhere.
testified that the OPPT senior science advisor made sharp comments at weekly scientific
discussion meetings. felt that the OPPT senior science advisor's comments were tied toj
disagreements with assessors who took more conservative approaches to their new-chemicals
assessments. According to^^^J the OPPT senior science advisor's comments were made with the
intent to "try and get the result that he wanted from the assessment." For example, testified that
the OPPT senior science advisor would routinely tell assessors that they were wasting their time.H
12 application stated thatj represented^ office at international meetings and was a participant on several
workgroups. because attendance does
necessarily involve providing technical expertise, the human resources staffing specialist could not use that experience to credit
with the necessary specialized experience of providing technical expertise. She testified that she cannot assume
anything that is not explicitly stated in the application materials.
also characterized J FY 2020 performance review as harassment by^^^J supervisor. This was the sole allegation
of harassment® made against^| inH testimony.
Any request to the EPA for public release must be sent to the EPA OIG for proces
the Freedom of Information Act.
12
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testified regarding a quote from an email in which the OPPT senior science advisor told the team, "Wow.
I can't believe how difficult this is. You guys are wasting time with all the back and forth. GET ON THE
PHONE WITH CCD AND SET UP A MEETING WITH THE SENATOR TO DISCUSS THESE ITEMS."^^|
testified that the OPPT senior science advisor would include "personal attacks sprinkled in with his
scientific comments." For example,recalled the OPPT senior science advisor calling^J "passive
aggressive" in front of other staff, referring to another assessor as "emotional," and questioning whether
another assessor's work was meeting the expectations of her GS level.14
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.15
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.16
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
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
15 We did not assess the EPA's authority to extend the statutory protections of 5 U.S.C. § 2302 via Agency policy.
16 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.
13
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CUI//PRIIC/PRV CY
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).17 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.18
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.19 "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.20 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
17 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).
18 Lachance v. White, 174 F.3d 1378,1381 (Fed. Cir. 1999).
19 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).
20 Marano v. Dep't of Justice, 2 F.3d 1137 (Fed. Cir. 1993).
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
disclosure or protected activity was a contributing factor in the personnel action." 5 U.S.C.
§ 1221(e)(l)(A)-(B).21
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 personnel action would have been taken in the absence of
the protected activity or disclosure. 5 U.S.C. § 1221(e)(2).22 In other words, if the evidence shows that it
is highly probable that the employer would have taken the personnel action 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.23
Analysis
is an EPA employee. J alleges that individuals with personnel authority took personnel actions
against^J in retaliation for expressing differing scientific opinions and providing information to the
OIG. As^^^J alleged a violation of 5 U.S.C. § 2302(b)(9)(C) and a violation of the EPA's Scientific
Integrity Policy, the OIG has jurisdiction overH retaliation allegations.
Did
or
Express a Differing Scientific Opinion, Engage in Protected Activity,
MaR^^rotected Disclosure?
disagreements with J the OPPT deputy director, and the OPPT senior science
advisor from May 2019 through October 2020 regarding hazard identification in new-chemicals
assessments constituted differing scientific opinions. We obtained testimony and documentary evidence
confirming that^^^^f 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 expressed differing
scientific opinions.
21 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.
22 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).
23 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.
15
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CUI//PRIIC/PRV CY
, testified that^^^J and the otherhuman health assessors were
more likely than other assessors to disagree about scientific decisions made in assessments.^®
also testified that OPPT management perceived as making differing scientific
opinions, and in particular that the OPPT deputy director and the OPPT senior science advisor
complained about the assessors' differing scientific opinions.
also 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, which constitutes a rule. 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.24
Was a Personnel Action Taken Against, Threatened, or Withheld from
alleged four retaliatory actions to the OIG: (1) a lower FY 2020 performance evaluation than the
previous year, (2) a reassignment to the^^J, (3) a for a
position, and (4) harassment. We determined that three of these actions constitutes taking, withholding,
or threatening to take or withhold a personnel action.
1. FY 2020 Performance Evaluation
In September 2020,received^ performance evaluation for FY 2020. A performance evaluation
is among the personnel actions specifically enumerated in the statute. 5 U.S.C. § 2302(a)(2)(viii).
In October 2020, was reassigned to the^^J as a result of the OPPT reorganization. A
reassignment is among the personnel actions specifically enumerated in the statute. 5 U.S.C.
§ 2302(a)(2)(iv).
3. Nonselection for a
Position
In March 2022,applied for aposition. A human resources
staffing specialist reviewed® application and determined that® was ineligible for the position. An
24 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.
16
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CUI//PRIIC/PRV CY
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.
4. Harassment
alleged that in 2019 and 2020^ 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. § 2302(a)(2)(A)(xii).25^^^| alleges that the OPPT deputy director subjectedto
"antagonistic rhetorical questions" regarding J scientific opinions and criticized J scientific products
using all capital letters and bolded and underlined text in emails and comments. Further,| alleged that
the OPPT senior advisor subjectedto harsh disagreements with personal attacks "sprinkled in," such
as calling^J passive-aggressive. 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 being subjected to 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.27 These cases
contemplate that criticism and unpleasantness in the workplace alone is not actionable under the
Whistleblower Protection Act. Accordingly, the criticism and disagreements that^^^| experienced do
not constitute a personnel action.
In summary,FY 2020 performance evaluation, reassignment to the^^J, and nonselection for
aposition covered personnel under 5 U.S.C. §
2302(a)(2). The alleged harassment did not impose significant changes to^^^^f work conditions or
duties and is therefore not a personnel action.
kVere^^^^H Differing Scientific Opinions, Protected Activities, or Protected
Disciosur^^Contributing Factor in the Personnel Actions Taken Against
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 the action occurred within a period of
time such that a reasonable person could conclude that it was a contributing factor in the personnel
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 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. 609, 616-618 (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.
17
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CUI//PRIIC/PRV CY
action.28 After assessing the two factors, knowledge and timing, we determined that^^^^f differing
scientific opinions, but notj protected activity or protected disclosure, were contributing factors in
two personnel actions: J FY 2020 performance evaluation andj reassignment to the^^J. After
assessing the same two factors, we determined that^^^^f differing scientific opinions, protected
activity, and protected disclosure were not a contributing factor in J nonselection for a|
position.
FY 2020 Performance Evaluation
expressed differing scientific opinions regarding new-chemicals assessments from approximately
2019 through 2020.^^^^^^^|supervisor, who completed^ performance evaluation, had direct
knowledge of^^^^J differing scientific opinions. This is because many of J differing scientific
opinions were expressed during the disposition meetings that^| attended.^^^^^^^|supervisor
also testified that^| knew about^^^^f differing scientific opinions, and J differing scientific
opinions were explicitly mentioned inj performance evaluation, which was communicated to|
in September 2020 and provided to^| 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 the differing scientific opinions were a contributing factor
in the personnel action.29
Reassignment to the^^J
Many management officials were involved in the decision to reassignto the^^J, including the
As above,
testified that^| knew about^^^^f differing scientific opinions. Documentary evidence and witness
testimony support that the OPPT senior science advisor also knew of differing scientific
opinions. Many of^^^^J differing scientific opinions were expressed during disposition meetings,
which both the OPPT senior science advisor attended.expressed
differing scientific opinions in 2019 and continued to do so untilj reassignment in October 2020. The
timing between differing scientific opinions andj reassignment was less than a year, which is
a reasonable amount of time to conclude that the differing scientific opinions were a contributing factor
in the personnel action.
Nonselection for a
Position
After^ FY 2020 performance evaluation and reassignment, but before J nonselection for a|
position,engaged in protected activities and made a protected disclosure
28 5 U.S.C. § 1221(e).
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'toftheArmy,
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.
18
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CUI//PRIIC/PRV CY
when J provided information to the OIG in June and August 2021. nonselection was due to a
disqualification decision made by a human resources staffing specialist. The human resources staffing
specialist testified that she did not know who^^^f was prior to reviewing^ application materials, nor
did she have knowledge of J differing scientific opinions or OIG activities. Because the human resources
staffing specialist did not have knowledge of^^^^J differing scientific opinions, protected activities, or
protected disclosure, it is not reasonable to conclude that they were contributing factors in J
nonselection.
In summary, because EPA management knew about^^^^f differing scientific opinions and because
the personnel actions were taken less than a year afterj expressed differing scientific opinions, we
determined that^^^J established by a preponderance of the evidence thatj differing scientific
opinions were a contributing factor inj FY 2020 performance evaluation andj reassignment to the
Hotline complaints to the OIG occurred after the performance evaluation and
reassignment; therefore, J protected activities and protected disclosure were not a contributing factor
in the personnel actions. Because the human resources staffing specialist did not know aboutl
differing scientific opinions, protected activities, or protected disclosure, we determined that I
could not establish by a preponderance of the evidence that J differing scientific opinions, protected
activities, or protected disclosure were contributing factors inj nonselection for a|
position.
Would the Agency Have Taken the Personnel Actions Againstl
Absence of^M Differing Scientific Opinions?
in the
Once a preponderance of the evidence establishes that one or more differing scientific opinions
contributed to a personnel action 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. 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 in J FY 2020
performance evaluation in the absence of J differing scientific opinions. Analysis of the same three
factors led us to determine that the EPA could establish by clear and convincing evidence that it would
have reassigned to the^^J in the absence ofj differing scientific opinions.
FY 2020 Performance Evaluation
was rated as "
" in
J FY 2019 performance evaluation but only
in
FY 2020 performance evaluation.^ rating for three critical elements decreased in
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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CUI//PRIIC/PRV CY
^ FY 2020 evaluation. Despite^ rating decline, ^^^^supervisor testified that the quality of J
work did not decline from the previous year. supervisor's comments for critical element
one discussed J differing scientific opinions, and^| testified that the differing scientific opinions were
relevant to critical element four as well.^J testified that no one explicitly told^J to not consider
differing scientific opinions inj evaluation and that| might have received a different rating
if had been told that. For critical element one, supervisor explained that the decline in
J rating was caused by When the timeliness of J
work,^| did not distinguish delays that were caused by differing scientific opinions from delays caused
by other factors, nor did^| receive documentation of these metrics. received explicit feedback
that senior managers were frustrated with the delays caused by differing scientific opinions and noted in
performance that
|. For the third critical element, ^^^^^^^^supervisor testified that J lower rating was
due to a decrease in communications, though the decrease was not noted in^J supervisory comments.
testified that^^^^f rating in the fourth critical element was attributable toj
"back and forth ... disagreements" about "science issues related to risk assessments."30
In writing^^^^J FY 2020 performance evaluation,^^^^^^^Jsupervisor relied on input from
officials who expressed animus regarding^^^^f differing scientific opinions. testified that^J
performance evaluation was based, in part, on feedback from the OPPT deputy director and the OPPT
senior science advisor. The OPPT deputy director alleged that^^^^J failure to use her approach to
assessments "could be considered insubordination." The OPPT senior science advisor calledand
the otherhuman health assessors who expressed scientific disagreements
the "tox[ic]^^^|." Further,^^^^^^^^^^^^^^testified that the OPPT deputy director and OPPT
senior science advisor were frustrated with the^^J assessors' differing scientific opinions because
they was
who testified that the OPPT deputy director and the OPPT senior science
advisor complained about differing scientific opinions expressed by^^^J and others during the
FY 2020 performance period. In addition to relying upon input from officials who expressed animus,
also testified that^| was under intense political pressure to complete
assessments and recognized in^^^^f performance evaluation that differing scientific opinions
contributed to delays of those assessments.
There are no apt comparators with which to evaluate I
FY 2020 performance evaluation. The
hadl
human health assessors, including!
. While other new-chemicals human health assessors also reported to
supervisor,
[supervisor also attributed J lower rating for critical element four to J failure to submit|
consistently. However,^^^^^upervisor testified that^J used this issue as a reason to rate^J lower in critical element
three as well, despite^B testimony that^B tried to avoid "double counting" when doing performance ratings.
Any request to the EPA for public release must be sent to the EPA OIG for proces
the Freedom of Information Act.
20
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We find that the Agency's support performance rating is mostly 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 have determined that the Agency cannot
establish by clear and convincing evidence that it would have ratedas in
the absence of J differing scientific opinions. Accordingly, FY2020 performance rating
violated the EPA's Scientific Integrity Policy.
Reassignment to the^^J
testified that| was originally hired in 2019 to work but ended up helping with
new-chemicals assessments because of organizational needs. Documentary evidence shows that
supervisor planned to move^| back work in early 2020 but that the
political focus on the backlog prevented from doing so. In the October 2020 reorganization of the
OPPT,^^^| was moved to a division that focused th^^^H.
Management involved in planning the reorganization expressed animus regarding^^^J In discussing
which offices OPPT employees should be assigned to, the OPPT senior science advisor emailed the^H
stating that^^^J should be the same
believed that^| was to separate
the^^J assessors because others perceived them as "pot stirrers" who would "convene" and cause
delays. The OPPT senior science advisor confirmed that he said human health
assessors engaged in "group think" and were not collaborative. These^^J assessors were closely
associated with one another and widely perceived by management as employees who expressed
differing scientific opinions. Multiple^^^^^^^^^^^J testified that the OPPT senior science advisor
complained about these assessors' differing scientific opinions.
Comparator evidence shows that, in addition to^^^J the other OPPT employees who worked on^J
were moved to the^^J.^^^J specifically testified regarding another employee who was
hired under the same^^^^^^J vacancy asj was. That employee was also initially assigned to RAD
in 2019 and reassigned to the^^H in October 2020.^^^1 testified that all assessors who worked on
were moved to thel
We find that the support for movingl
animus evidence.
testified thatl
J to the J
was hired to do
and the comparator evidence outweighs the
work. As shown above, bothM
prior intentions and comparator placement demonstrate support for moving
to
the
. After reviewing the Agency's support for
reassignment, the animus evidence, and the
comparator evidence, we have determined that the Agency can establish by clear and convincing evidence
that it would have reassigned!
to thel
in the absence ofH 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.
21
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CUI//PRIIC/PRV CY
Conclusions
We determined that^^^J expressed differing scientific opinions, which were a contributing factor in
two personnel actions taken against^J (1)| FY 2020 performance rating and (2) a reassignment to
the^^J. We substantiated allegations of retaliation with respect toj FY 2020 performance
rating in violation of the EPA's Scientific Integrity Policy. We did not substantiate^^^^f retaliation
allegations with respect toj reassignment to the^^J.
Recommendation
We recommend that the EPA administrator consider appropriate corrective action considering our
findings.31
31 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). 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.
22
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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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