oversight

Environmental Protection: Employees Who Made Allegations and Left EPA

Published by the Government Accountability Office on 1999-03-02.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States
GAO   General Accounting  Office
      Washington, D.C. 20548

      Resources, Community,            and
      Economic Development             Division
      B-282057

      March 2,1999

      The Honorable F. James Sensenbrenner, Jr.
      Chairman, Committee on Science
      House of Representatives

      Subject: Environmental Protection: Emnlovees Who Made Allegations and Left
      a

      Dear Mr. Chairman:

      The mission of the Environmental Protection Agency (EPA) is to protect human health
      and to safeguard the natural environment. EPA’s purpose is to ensure that all
      Americans are protected from significant environmental health risks and that national
      efforts to reduce environmental risks are based on the best available scientific
      information. On June 10,1998, The Wash&ton Times published a letter from 20
      individuals,’ including EPA employees, alleging mismanagement by EPA and retaliation
      against whistleblowers. On January 29,1999, we reported on the specific allegations of
      these individuals and instances of alleged whistleblower retaliation by the agency.’ We
      further reported that some of the individuals were no longer working at EPA

      You requested that we provide additional information on three EPA employees who are
      no longer employed by EPA, two individuals who left EPA after working under either
      an interagency agreement appointment or for a grantee, and one individual who
      remains on EPA’s payroll but has a 2-year assignment at a university. Specifically, you
      asked why the individuals had left and their current employment status.

      RESULTS IN BRIEF

      Six of the 20 individuals who sent the letter making allegations to the newspaper no
      longer work at EPA Three of these individuals left as a condition of settlement
      agreements resolving complaints they filed against the agency. Another two
      individuals, who had been working under either an interagency agreement or under a
      grant, left when the interagency agreement appointment expired or when EPA no
      longer required the individual’s services. Another individual was removed from his
      position for unacceptable work performance.


      ‘The Wash&ton Times published the letter with 13 signatures. The original letter the newspaper received had 19
      signatures. Six of the signatures were not published because the newspaper did not get permission from those
      individuals to print their names. The actual author of the letter was not among its signers but was considered for
      the purposes of this report to be the 20th individual involved.

      2Environmental Protection: Alleeations bv EPA Emolovees (GAO/RCED-99-61R.Jan. 29,1999).


                                                    /6/         77f
                                           GAO/RCED-99-97R Employees Who Made Allegations                     and Left EPA
B-282057


For those individuals no longer working at EPA, as of February 1999,three are
unemployed, one has found new employment working at a university teaching biological
engineering, and the employment status of one employee is unknown. Another individual
remains on EPA’s payroll but has a Z-year assignment at a university and has agreed to
resign or retire from the agency no later than May 2003.

BACKGROUND

The 20 individuals who sent the letter to The Washington Times alleged that EPA
employees have been harassed and fired for criticizing EPA’s enforcement of the
Comprehensive Environmental Response, Compensation, and Liability Act; the Clean Air
Act; the Safe Drinking Water Act; and other environmental statutes. The individuals
alleged that retaliation against whistleblowem occurs at every management level and is
supported throughout EPA Additionally, the letter stated that even if whistleblowers’
claims are substantiated, whistleblowers are fired or their careers are “dead-ended” and
that the agency employees carrying out the retaliation are rewarded.

Employees who believe they have been retaliated against by an employer, including EPA,
for whistleblower activities related to the Comprehensive Environmental Response,
Compensation, and Liability Act; the Clean Air Act; the Safe Drinking Water Act; the
Federal Water Pollution Control Act; the Solid Waste Disposal Act; and the Toxic
Substances Control Act may file a complaint with the Secretary of Labor under employee
protection provisions contained in these laws. Complaints filed under these
environmental laws are reviewed by an Occupational Safety and Health Adnkistration
investigator3 If the investigator determines that retaliation has occurred, the
Occupational Safety and Health Adminktration may order corrective actions. Unless
the Occupational Safety and Health Adminktration’s findings and remedy are appealed,
the order becomes a final order of the Secretary of Labor. However, either party may
request a hearing before a Department of Labor admkistrative law judge. Jf a hearing is
requested, any tidings made by the Occupational Safety and Health Admikstmtion are
given no legal effect, and a new review of the complaint is begun. Recommended
decisions and orders issued by the adminktrative law judges may be appealed to the
Department of Labor Admikstrative Review Board and, after that, to the United States
court of appeals for the circuit in which the alleged discrimination occurred. The
employee and the employer, such as EPA, may agree to settle the complaint at any time
and reach a settlement agreement. A condition of these agreements may be that either
party shall not disclose the terms of the agreements.

During the time between the publication of the letter in The Washington Times in June
1998 and our review in February 1999,6 of the 20 employees who sent the letter were no
longer working at EPA Five of these individuals had filed complaints; one had not. The
specifics of these whistleblower complaints are contained in our prior report4




STheOccupational Safety and Health Administration is an agency within the Department of Labor. prior to February 3,
1997, these matters were investigated by the Department of Labor’s Wage and Hour Division.

‘GAO/RCED-99-61FI,Jan. 29,1999.



2                                      GAOIRCED-99-97R Employees Who Made Allegations and Left EPA
B-282057

REASONS INDIVIDUALS LEFT
AND THEIR EMPLOYMENT STATUS

The six individuals no longer working at EPA left for three reasons: (1) three left as a
condition of a settlement agreement resolving complaints they filed against the agency;
(2) one left because his employment agreement had expired, and one left because the
work she was doing was no longer needed; and (3) one employee was removed from his
position for unacceptable work performance. Three of these six individuals were
unemployed as of February 1999, a fourth individual was working at a university teaching
biological engineering, and a iifth individual was on a 2-year assignment at a university.
We were unable to contact the sixth individual to determine his employment status. The
specific reasons the individuals left are contained in the enclosure to this report, but a
brief summary follows:

    l   One employee did not leave EPA’s payroll but, as part of a settlement agreement,
        voluntarily began a 2-year assignment at the University of Georgia in December
         1998. He had been an employee at EPA’s laboratory in Athens, Georgia, and had
        filed a complaint against the agency for retaliation for whistleblower activities.
        (He is identified as individual 1 in our prior report and in the enclosure to this
        report.)
    l   One employee of EPA’s Region VIII office in Denver, Colorado, left in November
         1998 as part of a settlement agreement. He stated that he felt he had no future at
        EPA with people he could not trust. He is currently unemployed. (He is identified
        as individual 3 in our prior report and in the enclosure to this report.)
    l   Another EPA Region VIlI employee left in September 1998 as part of a settlement
        agreement after he filed a discrimina tion complaint against the agency. He and
        the agency agreed not to disclose the terms of the agreement, and we were unable
        to determine his employment status. (He is identified as individual 10 in our prior
        report and in the enclosure to this report.)
    *   An individual who was working for a contractor at EPA’s laboratory in Athens had
        his appointment to a 3-year position expired in July 1998. Such appointments
        cannot exceed 3 years. The individual was working at the University of Georgia in
        February 1999. (He is identified as individual 7 in our prior report and in the
        enclosure to this report.)
    l   Another individual had been working for a grantee in EPA Region VIII through an
        agreement between EPA and a nonprofit center that employs older workers. The
        individual stated that EPA terminated her employment for whistleblower
        activities and hired a full-time employee to replace her. According to EPA, the
        individual’s agreement with the center was not renewed because her duties were
        no longer required and funds were unavailable. (She is identified as individual 17
        in the enclosure to this report.)
    l   One other individual had been an EPA Re#on VIII employee and was removed
        from his position in January 1999 for unacceptable work performance. He was
        unemployed as of February 1999. (He is identied as individual 11 in our prior
        report and in the enclosure to this report.)

AGENCY COMMENTS

We provided a draft of this report to EPA for review and comment. The agency generally
agreed that the report provided a good characterization of the circumstances surrounding
the six individuals who left EPA after sending the letter to The Washington Times. EPA

3                             GAO/RCED-99-97R Employees Who Made Allegations and Left EPA
 B-282057

 suggested some editorial changes to the report to help ensure that the information on the
 six individuals was accurate, and we incorporated the agency’s comments as appropriate.

 SCOPE AND METHODOLOGY

 To obtain information on why the individuals left EPA and their current employment
 status, we interviewed all of the individuals, except for one we were unable to contact.
 We also obtained documents and comments from EPA on why the individuals left the
 agency, and we included this information in the enclosure to this report.

 We conducted our review from November 1998through February 1999 in accordance
 with generally accepted government auditing standards.



 We are sending copies of this report to the appropriate congressional committees;
 interested Members of Congress; the Adnkistmtor of EPA; and other interested parties.
 We will also make copies available on request.
 Please call me at (202) 5126111 if you or your staff have any questions. Major
 contributors to this report were Doreen S. Feldman, Hamilton C. Greene, Robert E.
 Lippencott, Everett 0. Pace, Rosemary Torres-Lerma, and John A. Wan&a.

 Sincerely yours,

yfj&q&                              -
 Peter F. Guerrero
 Director, Environmental
  Protection Issues

 Enclosure




                               GAOIRCED-99-97R Employees Who Made Allegations    and Left EPA
ENCLOSURE I                                                                            ENCLOSURE I


                                 REASONS INDIVIDUALS LEFT EPA

This enclosure lists the reasons six individuals left the Environmental Protection Agency (EPA) after
sending a letter critical of the agency to The Washington Times. The letter to the newspaper was
published in June 1998;the six individuals had left the agency by the end of January 1999.

The individuals are identified by numbers that are the same as those used in our report,
Environmental Protection: Allegations bv EPA EmDlovees (GAO/RCED-99-GlR, Jan. 29,1999). The
reasons the individuals left are organized and presented in three categories:

l   Three individuals left as a condition of settlement agreements resolving complaints they filed
    against the agency. (See table I. 1.)

l   Two individuals left when either an interagency agreement appointment expired or when the
    services they were performing were no longer required. (See table 1.2.)

l   One individual was removed from his position for unacceptable work performance. (See
    table 1.3.)




                                        GAO/RCED-99-97R Employees Who Made Allegations and Left EPA
ENCLOSURE I                                                                                                                                               ENCLOSURE I


Table 1.1: Individuals Who Left as a Condition of Settlement Aareements

                                       Reason em@ yee left EPA
 Employee’s account                               EPA’s account                                                   Current status of Individual who left
 Individual 1, an EPA employee in Athens, Ga., filed    As settlement, the individual agreed (1) to withdraw      The individual began his 2-year assignment at the
 a complaint with the Occupational Safety and           the complaint, (2) to the previous findings of the        University of Georgia 0.n December 13, 1998.
 Health Administration after his promotion was          Occupational Safety and Health Administration
 denied. In negotiating a settlement with EPA           being moot and without effect, (3) to take a a-year
 during the investigation of his complaint, he          Intergovernmental Personnel Act assignment at the
 proposed to leave EPA, a condition that was            University of Georgia, (4) to resign or retire no later
 subsequently part of a settlement with EPA.            than May 28,2003, and (5) to generally limit his
 Individual 1 did not leave EPA. However, this          university work to pathogen contamination of
 individual has been assigned to an                     medical or dental devices. EPA agreed (1) to pay
 Intergovernmental Personnel Act assignment at the      100 percent of the individual’s salary and benefits
 University of Georgia.                                 while he is on the assignment, (2) to consider an
                                                        extension of the assignment beyond the original 2-
                                                        year period, and (3) to pay $25,000 in attorney fees
                                                        and costs. On January 5, 1999, the Office of
                                                        Administrative Law Judges- approved
                                                                                      ..       the
                                                        settlement.
 Individual 3, an EPA employee in Region VIII,          As settlement of a complaint filed by the individual      According to individual 3, he is currently reviewing
 Denver, Colo., resigned from EPA on November 7,        with the Department of’labor, Office of                   his optio&. Since leaving EPA, he has finished -
 1998. According to individual 3, he felt that he had   Administrative Law Judges, the individual agreed to       most of the classes needed for completion of his
no future at EPA with people he could not trust. He     (1) withdraw the complaint and (2) to resign his          doctoral program. He is currently unemployed.
resigned because he believed he was a victim of         position as an environmental scientist no later than
many violations of the law. For example, individual     November 7, 1998. EPA agreed to (1) make a
3 stated that EPA’s Inspector General conducted a       lump sum payment to the individual and his
criminal investigation against him and that the         counsel in the amount of $100,000 and (2) provide
Inspector General’s agent in charge of the              him with a mutually acceptable letter of
investigation was very aggressive and committed         employment reference.
illegal acts, including harassment, changing
testimony, and omitting information favorable to the
employee from the Inspector General’s report. He
also stated that the EPA official who allegedly
helped bring the charges against him gave false
statements to the Inspector General.
Individual 10. an EPA emplovee in Reoion VIII,          The individual resigned from EPA on September             The current status of the individual is unknown.
Denver, resigned from EPA on September 30,.             30, 1998, in accordance with a settlement
1998. On March 3, 1998, the individual filed a          agreement between EPA and the individual. Both
complaint of discrimination with EPA. The               gariies to the settlement agreed to not divulge the
individual ultimately withdrew that complaint when      ,erms of the agreement in any manner.
he resigned from EPA.




                                                                                                GAO/RCED-99-97R Employees Who Made Allegations                and Left EPA
ENCLOSURE I                                                                                                                                                  ENCLOSURE I



Table 1.2: individuals Who Left When Their lnteraaencv Aareement Annointment                     Ended or When Services Thev Were Performina              Were
No Lonaer Needed

r                                         Reason emalovee left EPA                                                 -I-
    Employee’s account                                EPA’s account                                                  Current status of individual who left
    Individual 7 was an employee of the Oak Ridge          EPA stated that an individual’s appointment to the        The individual is currently a professor teaching
    Institute for Science and Engineering, a               Oak Ridge institute for Science and Engineering           biological engineering at the University of Georgia’s
    Department of Energy program that is operated          program is renewed on an yearly basis, with               engineering school.
    by a contractor. EPA has an interagency                extensions based on the status of a participant’s
    Agreement with the Department of Energy                training and the availability of funds. However,
    whereby Institute employees work at EPA’s              according to EPA, appointments cannot exceed 3
    Ecosystems Research Division in Athens, Ga.            years, and the individual’s appointment ended on
    Individual 7 had a 3-year appointment to the           July 31, 1998.
    Institute, effective August 1, 1995, and ending on
    July 31, 1998. When the individual’s 3-year
    appointment with EPA ended, he left EPA.
    Individual 17 did not file a whistleblower complaint   According to EPA, the individual’s agreement was          According to the individual, she has not sought other
    but left EPA. The individual had an agreement          not renewed because of a regulatory change that           employment and is currently unemployed.
    with EPA through the National Older Workers            resulted in her work no longer being required.
    Career Center and was assigned to EPA in               (EPA’s Water Enforcement Program is no longer
    Region VIII, Denver, Colo., to perform clerical        required to issue the public notices the individual
    duties (mailing public notices and filing) for the     handled.) EPA stated that it did not hire a full-time
    Water Enforcement Program. The individual              EPA employee to replace the individual. EPA also
    stated that EPA terminated her agreement on            stated that a lack of funds was another factor that
    June 8, 1998, as retaliation for whistleblower         contributed to the decision not to renew her
    activities. According to the individual, EPA hired     agreement.
    a full-time EPA employee to replace her.




7                                                                                                   GAO/RCED-99-97R Employees Who Made Allegations                and Left EPA
ENCLOSURk’I                                                                                                                                                 ENCLOSURE I


Table 1.3: Individual Who Was Removed for UnacceDtable Performance

                                           Reason employee left EPA
    Employee’s account                                 EPA’s account                                              Current status of individual who left
    On May 26, 1998, individual 11, an EPA                  EPA agreed with the individual’s account of why he    According to the individual, he is currently applying
    employee in Region VIII, Denver, Cola., was             left EPA, with the exception of the comment by the    for other federal jqbs but has not been successful
    placed on a Performance Improvement Plan                individual that the removal was unjustified and was   in locating employment.
    because of an unsatisfactory rating. On                 illegal retaliation.
    November 16, 1998, the individual was notified
    that EPA proposed to remove him in 30 days
    because he failed to perform at the minimum level
    required for retention. The individual indicated on
    the notice that it was unjustified and was illegal
    retaliation. On January 15, 1999, the individual
    was removed for unacceptable work performance.
    On a prior complaint alleging retaliation, the Office
    of Special Counsel determined that the
    employee’s complaint did not rise to the level of
    protected disclosure. The individual appealed the
    decision, and the appeal is currently under review
    by the Merit Systems Protection Board.




(160471)




8                                                                                                 GAOIRCED-99-97R       Employees    Who Made Allegations      and Left EPA
Ordering    Information

The first copy of each GAO report and testimony is free.
Additional  copies are $2 each. Orders should be sent to the
following address, accompanied by a check or money order
made out to the Superintendent    of Documents, when
necessary. VISA and Mastercard     credit cards are accepted, also.
Orders for 100 or more copies to be mailed to a single address
are discounted 25 percent.

Orders by mail:

U.S. General Accounting    Office
P.O. Box 37050
Washington, DC 20013

or visit:

Boom 1100
700 4th St. NW (corner of 4th and G Sts. NW)
U.S. General Accounting Office
Washington, DC

Orders may also be placed by calling (202) 512-6000
or by using fax number (202) 512-6061, or TDD (202) 512-2537.

Each day, GAO issues a list of newly available reports and
testimony.   To receive facsimile copies of the daily list or any
list from the past 30 days, please call (202) 512-6000 using a
touchtone phone. A recorded menu will provide information         on
how to obtain these lists.

For information on how to access GAO reports on the INTERNET,
send au e-mail message with “info” in the body to:

info@www.gao.gov

or visit GAO’s World Wide Web Home Page at:

http&vww.gao.gov




                                                                       e
United States
General Accounting Office
Washington, D.C. 20548-0001


Official   Business
Penalty    for Private   Use $300

Address    Correction    Requested