oversight

Mishandled/Impeded Investigations PI Misconduct Retaliation

Published by the National Science Foundation, Office of Inspector General on 2013-05-15.

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

                                                NATIONAL SCIENCE FOUNDATION
                                                 OFFICE OF INSPECTOR GENERAL
                                                   OFFICE OF INVESTIGATIONS

                                           CLOSEOUT MEMORANDUM

 Case Number: 1-12070045                                                                  Page 1 of 1



         We received an allegation of misuse of a National Science Foundation (NSF) award 1 made under
         the American Recovery and Reinvestment Act (ARRA). The complainant2 also alleged that he
         had been removed as Principal Investigator (PI) for first making the same allegations to the
         awardee3 •

         Pursuant to ARRA's prohibition against retaliation, our office conducted an investigation of the
         reprisal claim and issued a Report of our findings to NSF. Based on our report, NSF issued a
         Final Decision that the awardee presented clear and convincing evidence that it would have
         removed the PI from the award notwithstanding his allegations of misuse of NSF funds, and
         therefore did not engage in an unlawful retaliation.

         Our investigation did not find evidence that the allegations of misuse of NSF funds were
         substantiated or actionable with respect to the NSF award.

         This case·is -  - with no further action taken.
                      closed




NSF OIG Form 2 (11/02)
  OIG Report on American Recovery and Reinvestment Act Reprisal Claim

                                 Executive Summary


Allegation          On June 29,2012, NSF OIG received information from a Complainant
                    alleging misuse of funds under an NSF award to a university (the
                    University) made under the American Recovery and Reinvestment Act.
                    The allegation involved an NSF award for which the Complainant was the
                    Principal Investigator (PI). The Complainant stated he had made a similar
                    complaint to the University, but his allegations were denied, and the
                    University removed him as PI from the award in retaliation for filing the
                    complaint.

Claimant            The Complainant is a professor at the University in the Materials Science
                    & Engineering Department. The Complainant has been a PI on one other
                    NSF award and currently has a proposal with NSF pending.

OIG Investigation   OIG conducted an investigation into the Complainant's allegation that the
                    University removed him as PI in retaliation for making a complaint to the
                    University. OIG interviewed the Complainant and relevant University
                    staff, and also reviewed emails and other documentation provided by the
                    Complainant and by the University.

                    The award funded a program to increase the number of underrepresented
                    undergraduate students seeking              related degrees at the
                    University. The Complainant filed a complaint with the University
                    questioning certain costs charged to the award, and alleging improprieties
                    in the behavior of the Program Coordinator and co-PI.

                    The University reviewed the award expenditures, and informed the
                    Complainant that the review found no unallowable expenses charged to
                    the award. The University also found that the issues and conflicts had been
                    caused by an ineffective team structure and failed communication. The
                    University concluded that the Complainant had not been engaged in the
                    award to the extent required of a PI, and that he was to be removed as PI.
                    The University declined to provide the Complainant with a copy of the full
                    review, and did not give him an opportunity to respond to the University's
                    conclusion by producing evidence of his own regarding his level of
                    engagement before being removed as PI.
     I. Factual Background

       OIG conducted an investigation into the Complainant's 1 allegation that his University2
removed him as PI in retaliation for making a complaint. OIG interviewed the Complainant, the
award's co-PI3 , the award's Program Coordinator4 , the Dean of the College ofEngineering 5, the
Associate Provost of Faculty Affairs 6, the Assistant Director for
           in                                     f, the    Financial Compliance Coordinator8 , a
                 9                                                 10
Director in        , and the Associate Vice President ofResearch.     OIG also reviewed emails and
other documentation provided by the Complainant and by the University.

        a)        TheAward

        On August 16, 2009, NSF granted a 3 year award (the Award) 11 to the University. The
Award was made with American Recovery and Reinvestment Act (ARRA) funds and subject to
the terms and conditions of ARRA. 12 The Award was under the direction of the Complainant as
PI. 13 The project came about as the result of a collaboration between the Program Coordinator,
who was a graduate student, and the Complainant. The project was modeled after a similar NSF-
funded program at the                         . 14 The goal of the project was to increase the
number of underrepresented students seeking                   related degrees at the University
through encouraging enrollment in introductory level courses and employing undergraduate
student interns to conduct field and lab research, present their work at conferences, and conduct
             related outreach. 15 The Program Coordinator had been an organizer with the
program as an undergraduate at the                          , and brought the idea for the project to
the Complainant, his academic advisor at the time, because as a graduate student the Program
Coordinator could not submit an NSF proposal himself. 16

      The Program Coordinator took on the primary role in drafting the proposal for the
        17
Award. The Complainant was also involved in drafting the proposal. He provided guidance to




   TAB 1
13
   TAB 1
14
   TAB 2, pg 1;
15
   TAB 2, pg 3
16
   TAB 3,pg 5
17
   TAB 3, pg 13

                                                 1
the Program Coordinator, revised the proposal, and drafted the Award budget. 18 The co-PI was
included on the proposal because of a need for someone in the             Department to be
            19
involved. He was not involved in drafting the proposal, other than providing biographical
         20
details.

        The Program Coordinator ran the day-to~day operations of the program, including
overseeing the academics, research and outreach components, recruiting and supervising all
undergraduate interns, coordinating field trips and summer research activities, and handling
paper work to reimburse student interns for travel expenses, supplies, and other costs associated
with their internships? 1 It was intended that the Complainant and co-PI would provide guidance
to the Program Coordinator, and that the Complainant would handle the administrative tasks
associated with the Award, including approving all award expenses.

        b)      Breakdown in the Parties' Working Relationships

         A breakdown in the relationships between the parties began in the Fall of2010. On
              2010 through                2010, the Program Coordinator took a group of the
project's interns to             to attend and present at the 2010
                         22
        Annual Meeting. After the           trip, the Program Coordinator submitted an Expense
Report which included $757.04 for a two-day tour of                       in        , including a
slow moving rafting trip. 23 All parties agree that before the trip, the Complainant had approved
the trip to attend the      meeting24 and had disapproved a plan to visit
during the meetings. 25 However, the Program Coordinator said that the Complainant did
approve the two-day tour of                   , which took place after the      meeting, 26 but the
Complainant said he had not been advised about the tour? 7

        After receiving the Expense Report from the Program Coordinator, the Complainant
brought his concerns to the co-PI that the two-day tour should not be charged to a federal grant,
but the co-PI thought that the expenses were typical for            related travel. 28 The
Complainant then consulted        and was advised that the costs associated with the two-day tour
were not appropriate to charge to the Award, especially because the Award had been made with



18
   TAB 4
19
   TAB 3, pg 12
20
   TAB 3, pg 13
21
   TAB 2, pg 12
22
   TAB 5
23
   TAB 5
24
   TAB 4
25
   TAB 3, pg 25; TAB 4, pg 2
26
   TAB 3, pg 25
27
   TAB 6
28
   TAB 6

                                                  2
ARRA funds. 29 Based on the advice from         , the Complainant chose not to approve any
expenses associated with the two-day tour. 30

        The co-PI disagreed with the Complainant's decision not to approve the expenses
associated with the two-day tour, and reimbursed the Program Coordinator the $757.04 out of
                                            31
funds from the Department                      The co-PI also suspected that the Complainant's
decision not to approve the expenses, as well as his future questioning of Award expenses, was
related to the Program Coordinator's decision prior to the       trip to switch academic advisors
                                   32
from the Complainant to the co-PI. Because of the Complainant's decision not to approve the
expenses, as well as subsequent disagreements about the hiring/selection process for student
interns and supplementary compensation for the Program Coordinator, in early 2011, the co-PI
informed the College of Sciences that he would no longer continue with the project unless he
was made the sole PI or given joint financial approval authority. 33

        The co-PI's request to be made sole or joint PI was not granted, but he agreed to stay on
the project if the Program Coordinator's future salary support was assured by the Complainant,
and if the Department of                 was reimbursed $800 for past and future use of poster
                            34
printing and other supplies. The co-PI admitted to OIG that the request for $800 was an
attempt to recoup the $757.04 which the Department of                   reimbursed to the Program
Coordinator for the two-day tour, and did not have any relation to reimbursement for supplies. 35
After being informed by        that a direct payment could not be made from the Award to the
                             36
Department of                   and after being denied the use of indirect costs from the College of
              37
Engineering, the Complainant opted to make a personal donation of $800 to the Department of
              because he believed that the project could not be successfully completed without
                                                                       38
the space and resources provided by the Department of                                           .


        Following the Complainant's donation, there were no notable issues between the parties
for approximately one year. However, further conflicts arose in the Spring of2012. One of
those conflicts concerned drafting the Award's final report. In January 2012, the Complainant
and the Program Coordinator met to finalize a schedule for the final semester of the project and
the completion of the final report. 39 The Program Coordinator failed to meet all but the first
listed deadline in that schedule, and the Complainant felt that the Program Coordinator was not


29
   TAB 7
30
   TAB 4
31
   TAB 8, pg 16
32
   TAB 8, pg 21
33
   TAB 9
34
   TAB 10
35
   TAB 8, pgs 31,35
36
   TAB 4
37
   TAB 4
38
   TAB 11, pgs 40-41
39
   TAB 12

                                                 3
devoting the appropriate amount of his time to completion of the report. 40 The Complainant also
believed that the Program Coordinator was refusing to provide copies of the student interns'
presentations of their research, which the Complainant claimed he had instructed the Program
Coordinator to maintain. The Complainant told OIG that the presentations were integral for
drafting the final report, but would not have prevented the Complainant from completing a final
report on time to NSF ifnecessary. 41 The Program Coordinator acknowledged to OIG that he
did not meet the deadlines, but felt he could not finish the final report because he had not
received proper guidance from the Complainant, and also said he did not keep copies of the
missing presentations because he was not instructed to. 42 The Program Coordinator was
ultimately able to obtain many of the presentations by searching for them online. 43

        Another conflict involved a Spring Break trip in 2012. The Complainant rejected the use
of project funds for this trip because he considered the trip to be outside the scope of the project
and because there were not sufficient funds to support it. 44 The Program Coordinator was able to·
find alternate funding to take the student interns on the trip, but the Program Coordinator charged
some of his time leading the trip and some student time preparing for the trip to the Award,
which the Complainant considered to be inappropriate. 45 Also, the Complainant questioned
student time charged to the Award related to an outreach event in March 2012. The Complainant
had questioned a student about a note on her timesheet that read "Incentive for working all of
TFB (from        )."46 In her response, the student explained that the students had been instructed
by the Program Coordinator that any students who worked the full8 hour days at the outreach
event may clock an extra 8 hours because they were having trouble finding people to work both
days; she had added a half-hour. 47 Although the Complainant was successful in removing this
student's "incentive" time from the Award, he suspected other students had submitted incentive
hours for the event and did not know if the Program Coordinator had given similar instructions
on other occasions. The Program Coordinator told            and OIG that the students were
instructed to record anything over 8 hours in a day that they actually worked at the event to a
different day, that this is the only instance he gave this instruction, and that he never instructed
students to record incentive hours. 48 The Complainant was never provided with this
explanation. 49




40
   TAB 15
41
   TAB 11, pg 23
42
   TAB 3, pgs 57-58, 63
43
   TAB 3, pg 63
44
   TAB4
45
   TAB 13
46
   TAB 14
47
   TAB 14
48
   TAB 3, pgs 79-80
49
   TAB 4

                                                 4
          c)       The Complaint to the University

         On April25, 2012, the Complainant sent a comprehensive complaint (the Complaint) to
     , asking the office to investigate various issues that he believed had arisen under the
Award. 5° The Complaint detailed his concerns regarding the allowability of three field trips lead
by the Program Coordinator. In addition to the           trip and the Spring Break trip, the
Complainant said he suspected that unauthorized A ward funds may have been spent on rafting in
a Spring Break 2011 trip, although he acknowledged that he approved the trip and had no
evidence of Award funds being spent on rafting. 5 1 The Complaint also included the Program
Coordinator's failure to provide information for ARRA reporting, the Complainant's personal
$800 donation to the                 Department which he felt he had no choice but to make so that
the project could continue, the incentive hours from the March 2012 outreach event, the issues
surrounding preparation of the final report, and the Complainant's perceived lack of support
from the College of Engineering. 52 The Complaint also included emails to support these claims.

              assigned the Assistant Director for                                        and the
Financial Compliance Coordinator to conduct a financial review of the Award, and asked the
Associate Provost of Faculty Affairs to meet separately with the parties to attempt to informally
mediate their issues. 53 The purpose ofthe mediation was to look into the problems from a
personal perspective. 54 The mediations focused on options for effectively finishing the final
report. 55 Ultimately no resolution was reached through the mediation. It was the Associate
Provost of Faculty Affairs' assessment that the Complainant was unlikely to move off of his
view of the situation and that it would be very difficult to repair the working relationships to the
point where the project could continue with the same team structure. 56 At this point, completing
the final report was all that remained to be done for the award.

        The objectives ofthe       financial review were to determine the allowability of expenses
posted to the Award and to provide recommendations to resolve questioned costs and improve
internal controls. 57    did not review the interpersonal conflicts or management issues
associated with the Award, but did look at how those conflicts affected the financial
management. 58        reviewed all project costs charged to the Award from its inception through
March 31,2012, totaling $143,214.66. 59         also interviewed personnel associated with the .
Award, including the Complainant, the co-PI, and the Program Coordinator. The Complainant

50
   TAB   15
51
   TAB   15, pgs 1-2
52
   TAB   15, pps 2-6
53
   TAB   16
54
   TAB   16
55
   TAB   16
56
   TAB   16
57
   TAB   17, pg 1
58
   TAB   17, pg4
59
   TAB   17, pg 4

                                                 5
was asked questions about his involvement in the Award, but was not informed that it was an
area of concern being looked into. 60 In       interview with the Complainant, he mentioned that
he was considering making a complaint to NSF OIG. The Assistant Director for
                         responded that he could, but that NSF OIG would only do the same
financial review or audit that     is doing now. 61      produced a                      Review of
                                                62
Transactions dated June 13, 2012 (the Report). The Report found "no unallowable expenses
except a few minor errors that will be corrected." 63 This included fmdings of"case closed" on
any issues raised by the Complainant where the funds were ultimately not charged to the Award
because of his intervention. 64 The Report further found that "the issues and conflicts were
caused by an ineffective team structure and failed communication," and recommended that "the
College level management step in to settle the differences or reorganize the project team, but
makes no further recommendations on this topic." 65 ,66

        The Report questioned the effectiveness and the efficiency of separating the
programmatic from the administrative duties of an award, which it asserted was not a logical way
to manage a project. 67 It further noted that the Complainant's direct involvement in the project
was minimal after the Program Coordinator switched departments and that the Complainant was
not mentoring any student interns or participating in the project activities. 68 The Report did not
conclude that the Complainant was not adequately engaged nor did it recommend that he should
be removed as PI. There was no analysis of the totality of the Complainant's involvement in the
Award, nor how the nature of this particular program may have influenced the extent to which
his involvement was necessary, nor the particular reasons that the Complainant was not, or may
not have been able to, be involved more in the programmatic aspects.

       The University's PI Handbook, which was referred to in the Report and by the Associate
Vice President for Research in her interview with NSF OIG, defines a PI as:




60
   TAB 4
61
   TAB 4
62
   TAB 17
63
   TAB 17, pg 1
64
   TAB 17
65
   TAB 17, pg 1
66
   At this time, OIG is not making any assessment regarding the fmdings of the Report.
67
   TAB 17, pg 11
68
   TAB 17, pg 11

                                                         6
                                                                                  . 69

This is consistent with the NSF Grant Proposal Guide, 70 which states that the PI

         is the individual designated by the grantee, and approved by NSF, who will be
         responsible for the scientific or technical direction of the project. 71 ... The NSF
         decision to support or not to support a proposed project is based to a considerable
         extent upon its evaluation ofthe proposed PI/PD and any identified co-PI/co-PD's
         knowledge of the field of study and his/her capabilities to conduct the project in
         an efficient and productive manner.... The named PIIPD (and co-PI/co-PD)
         should be continuously responsible for the conduct of the project and be closely
         involved with the effort. 72 .•. The Project Description should provide a clear
         statement of the work to be undertaken and must include: objectives for the period
         of the proposed work and expected significance; relation to longer-term goals of
         the PI's project; and relation to the present state of knowledge in the field, to
         work in progress by the PI under other support and to work in progress
         elsewhere. 73

There was no analysis, in the Report or by the University74 , comparing the Complainant's
involvement in the project with either of these definitions, such as if it was consistent with the
scope of work in the proposal submitted to NSF, or if his involvement, in its totality, had met his
required responsibilities.

         d)      The Complainant's Removal as Principal Investigator

        On June 20, 2012, the Associate Vice President for Research emailed the NSF Program
Officer for the Award (the PO) to schedule a phone call to talk about the University's financial
review. 75 In the phone call the next day, the Associate Vice President for Research informed the
PO and two other NSF employees from the Division of Grants and Agreements that the
University review found that the Complainant had not been very engaged in the work of the
project or in its oversight, and therefore the University was considering removing him as PI from
the Award. 76 On June 28, 2012, the Complainant met with the Associate Vice President for
Research and the Dean of the College of Engineering to discuss the Report. At the meeting, the

69
   TAB 18
70
   nsf.gov/pubs/policydocs/pappguide/nsfl300 llnsfl3 _1.pdf I goo.gl!CLmza.
71
   Grant Proposal Guide (GPG), Introduction, D.l.h.
72
   GPG, II.B.2.a.
73
   GPG, II.C.2.d.i (emphasis added).
74
   TAB 19, pgs 33-35
75
   TAB 20
76
   TAB 21

                                                        7
Complainant was provided with a one page closing memorandum, which summarized the
Report's findings. 77 The Complainant requested a copy of the full Report, but was denied
because it was the University's policy not to provide copies of reports to complainants, in order
to protect the investigative process. 78 ,79

         After telling the Complainant that the review found that all expenses charged to the
Award were allowable and appropriate, the Associate Vice President for Research told the
Complainant that the review also concluded that the conflicts were caused by an ineffective team
structure and failure to communicate. 80 She also advised him that the reviewers observed from
interviews that he was not involved in developing the project or carrying out the plan and that
there was not a lot of evidence that he met on a regular basis with the Program Coordinator or
others to discuss the project. She further explained that the disconnect between the planned
activities and approval of expenses, and the heavy reliance on the Program Coordinator to
provide information for the annual and final reports, showed that the Complainant was not
engaged at a level that the University expects of a Pl. 81 The Complainant told OIG that this was
the first time that he was made aware that the University had concerns regarding his level of
engagement in the project. 82

        The Associate Vice President for Research explained that the evidence came from
interviews with students and the fact that the Complainant relied on the Program Coordinator to
provide the materials necessary to write the final report. 83 The Associate Vice President for
Research gave the Complainant an opportunity to provide his perspective, but he declined,
stating that he would provide a response at a later time. 84 The Associate Vice President for
Research told the Complainant that she had concerns he was letting a personal conflict affect his
perspective on the grant, and the decision had been made that it was in the University's best
interest to remove him as PI and to assign the co-PI as PI, who has had a more active role in
carrying out the Award's goals and objectives. 85 She also noted that they knew the Complainant
had expressed an intent to contact NSF OIG and that the University stands by the Report. 86




77
   TAB 22
78
   TAB 19, pg 45
79
   On June 25, 2012, the Complainant also filed a Public Records Request seeking a copy of the Report, but was
denied by the University. TAB 23
80
   TAB 4
81
   TAB 4
82
   TAB 1l,pg28
83
   In our interview with the Associate Vice President of Research, she stated that in making the decision, the
University took into account the work done by the Provost Office and the conclusions in the Report, and concluded
that the Complainant's involvement in the Award did not meet the University's requirements for a PI.
84
   TAB 19, pgs 38-39
85
   TAB 19, pg 41
86
   TAB 4

                                                        8
        Later that day, the University submitted a request to NSF that the co-PI be substituted as
PI on the Award, which was approved by NSF. 87 On June 29,2012, OIG received an email from
the Complainant alleging misuse of the Award's funds, inappropriate actions by personnel and
administrators at the University, and retaliation by the University for bringing his concerns to its
attention. 88 On July 10, 2012, the Complainant emailed the Associate Vice President for
Research concerning the University's claim that he was not engaged in the project. 89 In his
email, the Complainant pointed out that he had not been provided with any evidence supporting
the University's position. He also offered to provide email evidence documenting his level of
engagement in the project. 90 The Associate Vice President for Research responded that the
University had conducted a thorough review and stood by its decision. 91 When asked in OIG's
investigation why the Complainant was not allowed to put together a response to the University's
findings before the decision to remove him was made, the Associate Vice President of Research
said because it was in the project's best interest to make the change. 92

          e)       The Complainant's Engagement in the                 Project

        The Program Coordinator said that when he first came to the Complainant about applying
to NSF for the grant, it was part of his initial pitch that the Complainant was needed for the
administrative duties, but that the Program Coordinator would take on the programmatic
responsibilities, so that the Complainant's time commitment would be minimal. 93 It was
intended from the outset that the Program Coordinator would handle the "nitty gritty" and day to
day aspects of the project. 94 These intentions were reflected in the proposal, which listed the
Complainant as the PI, but assigned the Program Coordinator the responsibilities of overseeing
the academics, research and outreach components of the program, recruiting and supervising all
undergraduate interns, coordinating field trips and summer research activities, and handling
paperwork to reimburse student interns for travel expenses, supplies, and other costs associated
with their internships. 95 The proposal stated that the Complainant will lead research projects for
the program participants to work on. 96 The Award also only budgets 0.25 person-months of
salary for the Complainant for each year of the Award. Although the Program Coordinator took
on the primary role in drafting the proposal, he acknowledged that the Complainant was also




87
   TAB   24
88
   TAB   25
89
   TAB   26
90
   TAB   26
91
   TAB   26
92
   TAB   19, pg 39
93
   TAB   3, pgs 5, 14
94
   TAB   3, pg 14
95
   TAB   2, pg 12
96
   TAB   2, pg 11

                                                 9
involved. 97 He provided guidance to the Program Coordinator, revised the proposal, and drafted
the Award budget. 98

        For the first year and a half of the Award, the Program Coordinator had an office down
the hall from the Complainant, and the two would have daily and sometimes hourly contact with
each other. 99 In that first year, in addition to his administrative responsibilities, the Complainant
attended three or four meetings with the Program Coordinator and the co-PI to discuss the
direction of the project. The Complainant also attended one outreach event, several of the
weekly meetings with the project participants, and provided feedback on any documents or
reports related to the project. 100 The Program Coordinator said he copied the Complainant on all
of the emails concerning the project, and the Complainant responded with feedback to
approximately 1 out of every 10. 101 The Program Coordinator believed that this level of
involvement from the Complainant allowed them to have a "great first year" for the project. 102

       The Program Coordinator said that after the Program Coordinator switched from the
Complainant as his academic advisor, the Complainant continued to perform his same
administrative responsibilities, but the face-to-face communications between the Complainant
and the Program Coordinator were mostly replaced with emails. The Program Coordinator
continued to copy the Complainant on all emails regarding the project, and the Complainant
continued to respond with feedback, but the Program Coordinator said the feedback was
primarily negative. 103 The Program Coordinator stated that he received very little guidance in
decision making from the Complainant after the first year, other than to be informed when
something was unsatisfactory. 104 In the Spring of2011, the Complainant donated $800 ofhis
own money to the department of                   when the co-PI demanded the money as a
requirement of staying on the award, so that the project could continue. The Complainant
continued to attend some of the outreach events; however, in the final year of the Award, he
attended approximately one meeting per semester with the program participants, primarily
because the time that the Program Coordinator scheduled the meetings for was a time period that
the Complainant subsequently had to commit to teaching a class. 105 The Complainant did not act
as a mentor for any of the student intems. 106




97
   TAB 3, pg 13
98
   TAB 4
99
   TAB 4
100
    TAB3 ,pg16
101
    TAB 3, pg 18
102
    TAB 3, pg 17
103
    TAB 3, pg 52
104
    TAB 3,pg 52
105
    TAB 11, pgs 37-38. The Complainant asked the Program Coordinator to reschedule the meetings so he could
attend, but the Program Coordinator told him that was the only time that worked for all of the students.
106 TAB 4


                                                      10
        II. Reprisals Prohibited by ARRA

       ARRA prohibits an employee of any non-Federal employer receiving covered funds
from being

            discharged, demoted, or otherwise discriminated against as a reprisal for
            disclosing, including a disclosure made in the ordinary course of an employee's
            duties, to ... a,n inspector general, ... a person with supervisory authority over
            the employee (or such other person working for the employer who has authority
            to investigate, discover, or terminate misconduct), ... the head of a Federal
            Agency, or their representatives, information that the employee reasonably
            believes is evidence of-
                (1) gross mismanagement of an agency contract or grant related to covered
                    funds;
                (2) a gross waste of covered funds;
                (3) a substantial and specific danger to public health or safety related to the
                    implementation or use of covered funds;
                (4) an abuse of authority related to the implementation of covered funds; or
                (5) a violation of law, rule, or regulation related to an agency contract
                    (including the competition for or negotiation of a contract) or grant,
                    awarded or issued relating to covered funds. 107

        Under recent revision of an analogous statute that protects federal employee
whistleblowers, the Whistleblower Protection Enhancement Act of 2012, an employee
"reasonably believes" that there has been a violation of law, rule, or regulation if "a
disinterested observer with knowledge of the essential facts known to and readily ascertainable
by the employee or applicant could reasonably conclude that the actions ... evidence such
violations. " 108

       III. NSF's Role

            a)      Investigation of Complaints
        Unless the complaint is determined to be frivolous or not relating to covered funds,
ARRA requires any inspector general which receives a complaint of a prohibited reprisal to
investigate the complaint and, upon completion of such investigation, submit a report of the
findings to the person, the person's employer, the head of the appropriate agency, and the
Recovery Accountability and Transparency Board not later than 180 days after receiving the



107
      The American Recovery and Reinvestment Act of2009, Pub. L. No. 1115, § 1533(a), 123 Stat. 115, 297 (2009).
108
      5 U.S.C. § 2302(b)

                                                         11
complaint. 109 The 180-day period can be extended per agreement between the IG and the
complainant110, which was obtained in this case.
        b)       Agency Action
        Not later than 30 days after receiving the inspector general report, the head of the agency
shall determine whether there is sufficient basis to conclude that the employer has subjected the
complainant to a prohibited reprisal. 111
        c)       Burden of Proof

         In alleging a reprisal prohibited by ARRA, an occurrence of a reprisal is affirmatively
established by demonstrating that a covered disclosure was a "contributing factor in the
reprisal." 112 A disclosure can be demonstrated as a contributing factor to a reprisal through
circumstantial evidence, such as if the official undertaking the reprisal knew of the disclosure or
if the reprisal occurred within a period of time after the disclosure such that a reasonable person
could conclude that the disclosure was a contributing factor. 113 If the occurrence of a reprisal is
affirmatively established in this manner, "[t]he head of an agency may not find the occurrence of
a reprisal ... if the non-Federal employer demonstrates by clear and convincing evidence that
the non-Federal employer would have taken the action constituting the reprisal in the absence of
the disclosure." 114

                      i. Contributing Factor

        The burden of proof set out in ARRA to affirmatively establish a reprisal is nearly
identical to the burden set out in the Whistle blower Protection Act of 1989 ("WPA"). 115
Accordingly, the courts' interpretation of the WPA may be informative in analyzing ARRA' s
reprisal provision. 116 Under the WP A predecessor legislation, courts required a whistleblower to
establish that the disclosure was a "significant" or "motivating" factor in a reprisal. 117 However,
the "contributing factor," standard, as established by the WPA and included in ARRA, is
"something less than a 'substantial' or 'motivating' factor. "' 118 The Federal Circuit stated that
Congress included the "contributing factor" standard in the WP A specifically to overrule what it
considered to be an excessively heavy burden which had been imposed on employees in


109
    ARRA §§ 1553(b)(l) and-(2)
llO ARRA § 1553(b)(2)(B)(i)
m ARRA § 1553(c)(2).
u 2 ARRA § 1553(c)(l)(A)(i).
113
    ARRA § 1553(c)(l)(A)(ii).
u 4 ARRA § 1553(c)(l)(B).
115
    5 U.S.C. § 1221(e).
u 6 The only court opinion to date to assess a reprisal claim against an ARRA-funded employer cited WPA case law
to interpretARRA § 1553, Gerhardtv. D Construction, Inc., 2012 WL 893673, *3 (N.D. Ill2012).
117
    Marano v. DOJ, 2 F.3d 1137, 1140 (Fed. Cir. 1993).
us Gerhardt v. D Construction, Inc., 2012 WL 893673, *3 (N.D. Ill. 20 12) (citing Addis v. Department ofLabor,
575 F.3d 688, 691 (7th Cir. 2009)).

                                                       12
whistleblower cases. 119 The "contributing factor" standard in the WP A means "any factor
which, alone or in connection with other factors, tends to affect in any way the outcome of the
decision." 120 There is no requirement that the whistleblower establish a retaliatory motive. 121
"The circumstantial evidence of knowledge of the protected disclosure and a reasonable
relationship between the time of the protected disclosure and the time of the personnel action
will establish, prima facie, that the disclosure was a contributing factor to the personnel
action." 122

                      ii. Opportunity For Rebuttal

         Whistleblower protection is not intended to protect whistleblowers from their own
conduct. 123 NSF cannot find that the Complainant's removal as PI was a prohibited reprisal if
there is clear and convincing evidence that the University would have removed him even in the
absence of his complaint. The relevant factors to consider in this determination are the strength
of the University's evidence in support of its decision, the existence and strength of any
retaliatory motive by the University, and any evidence that the University has taken similar
actions against employees who are not whistleblowers but who are otherwise situated. 124

                  d) OIG Findings

        The Complainant is an employee of the University, which is a non-Federal employer
receiving covered ARRA funds in the form of the Award. 125 Beginning in the Fall of2010, the
Complainant made a series of disclosures to the Dean ofthe College of Engineering, who is his
supervisor, and to      , which has authority to "investigate, discover, and terminate misconduct",
of what the Complainant believed to be violations of Federal law, rule and regulation relating to
the Award. On April25, 2012, the Complainant made a comprehensive disclosure to the
University of all his concerns regarding the Award, 126 and        issued the Report on June 13,
2012. The University knew of the Complainant's disclosures at the time that it made the
decision to remove him as PI on the Award.

        The University claims that it would have removed the Complainant even absent his
complaints to the University. The stated reason for the removal was that the Complainant's level
of involvement with the Award failed to meet the University's standards required of a PI. There
is no direct evidence that the University had a retaliatory motive in its decision to remove the
Complainant as PI of the Award. In making the decision, the University took into account the

119
    Marano at 1140 (citing 135 Cong.Rec. 5033 (1989) (Explanatory Statement on S.20)).
120
    Id. at 1140.
121
    Id. at 1141.
122
    Horton v. Dep 't ofNavy, 66 F.3d 279, 284 (Fed. Cir. 1995).
123
    See Watson v. DOJ, 64 F.3d 1524, 1527 n.3 (Fed. Cir. 1995).
124
    See Geyer v. DOJ, 70 M.S.P.R. 682, 688 (1996), affd, 116 F.3d 1497 (Fed. Cir. 1997).
125 TAB 1
126
    TAB 15

                                                       13
work done by the Provost Office, the conclusions in the Report, and the Complainant's reliance
on the Program Coordinator to draft the final report and to provide him with copies of the
students' presentations. 127

         The University's evidence in support of its decision relied heavily on the Report, which
questioned the effectiveness and the efficiency of separating the programmatic from the
administrative duties of an award, and raised concerns about the Complainant's level of
engagement in the Award. 128 However, the Report was not a complete assessment of the
adequacy of the Complainant's involvement.            interviewed the Complainant for the Report,
and gave him an opportunity to discuss his involvement, but he was not told in the interview that
his level of involvement was a concern for the University. The Report did not analyze the
totality of the Complainant's involvement in the Award, nor how the nature ofthis particular
program may have influenced the extent of his involvement, nor the reasons that the
Complainant was not, or may not have been able to be, more involved in the programmatic
aspects. There is no evidence that the Report or the University assessed whether the
Complainant's involvement in the Award met the requirements of the University's or NSF's
definitions of a PI. Specifically, the Report contains no analysis of whether his involvement was
consistent with the scope of work in the proposal submitted to NSF, which is an element of both
definitions. Further, the University did not give the Complainant an adequate opportunity to
respond to the Report or to the allegation that he was not adequately engaged in the Award, and
the University declined to review evidence to the contrary offered by the Complainant, all of
which may have better informed the University whether the Complainant's involvement, in its
totality, had met his required responsibilities. It was the opinion of the Provost Office that it was
unlikely that the Award could successfully continue with the same team structure. 129

        The University told us that most PI changes are made at the department level, and the
University does not keep statistics on those changes or the reasons that the changes are made. 130
The University cited four instances where       had been involved in the removal of a PI. 131 In
only one of those cases the PI was removed for a lack of effort. The other instances involved a
disciplinary action against the PI, a disagreement between a PI and co-PI where the co-PI agreed
to step down, and a PI who had left the University, but initially remained on the award. 132 In this
matter, the Complainant was replaced as PI with the co-PI, who had been subject to the same
standards of involvement as the Complainant. 133 It is evident that the co-PI enjoys a better
relationship with the Program Coordinator than does the Complainant, and that as a result he was
more active providing programmatic guidance during the final years ofthe Award. However, it

127
    TAB   19, pg 35
128
    TAB   17
129
    TAB   16
130
    TAB   27
131
    TAB   27
132
    TAB   27
133
    TAB   19, pg 34

                                                 14
is not clear, because the University did not assess it, whether the co-PI's involvement met the
University's and NSF's definitions of a PI any more than the Complainant's involvement. The
co-PI did not have any substantive involvement in drafting the proposal, and it was the intention
that he would only act as a consultant and allow the project to use the Department of
               resources as needed. 134 The Program Coordinator described the co-PI as a
periphery player in the first year of the project. 135 After the first year of the Award, the co-PI
was more active, providing guidance to the Program Coordinator in the direction of the
project, 136 mentoring students, and helping to plan some of the programmatic elements. Even
with the co-PI's increased role, it was the Program Coordinator who took on the responsibility
for the programmatic work. The co-PI did not attend any ofthe weekly meetings with the
project participants, or otherwise participate in the programmatic activities ofthe AwardY 7




134
    TAB   8, pgs 9-10
135
    TAB   3, pg 14
136
    TAB   3, pg 52
137
    TAB   8, pg 41

                                                15
                               NATIONAL SCIENCE FOUNDATION
                                      4201 Wilson Boulevard
                                    ARLINGTON, VIRGINIA 22230




   OFFICE OF THE
 GENERAL COUNSEL




                                                            April25, 2013


VIA FIRST CLASS MAIL AND ELECTRONIC MAIL




       Re:     Decision on Complaint ofRetaliation under the American Recovery and
               Revinvestment Act of 2009



In accordance with section 1553(c)(2) ofthe American Recovery and Reinvestment Act of2009
("ARRA"), this letter serves as my decision on your complaint of retaliation, which was filed
with the National Science Foundation's (''NSF") Office of                                 June
         1
29, 2012. In your complaint, you assert that your employer, the
("University''), removed you as Principal Investigator ("PI") on an                      you filed
a complaint with the University alleging the misuse of grant funds and other inappropriate
actions by University personnel and administrators. For the reasons outlined in detail below, I
have determined that the University did not engage in unlawful reprisal against you when it
removed you as Pl.


Facts and Background

In the Factual Background section of its Report of Inve~t!gation ("ROI") prepared in connection
with your complaint, the OIG accurately set forth the relevant facts and background of this
matter. Thus, I hereby incorporate by reference this section of the ROI into my decision.




                           Telephone (703) 292-8060     FAX (703) 292-9041
                                                                                              Page2
Legal Standard

ARRA includes whistleblower provisions to protect employees who report concerns about the
use of stimulus funds. A non-Federal employer receiving ARRA funds may not take adverse
employment action against an employee who, in the ordinary course of his duties or otherwise,
discloses to a person with supervisory authority over the employee (or such other person working
for the employer who has the authority to investigate, discover, or terminate misconduct),
information that he reasonably believes is evidence of: (1) gross mismanagement of an agency
contract or grant related to covered funds; (2) a gross waste of covered funds; (3) a substantial
and specific danger to public health or safety related to the implementation or use of covered
funds; (4) an abuse of authority related to the implementation or use of covered funds; or (5) a
violation of a law, rule, or regulation related to an agency contract or grant, awarded or issued
relating to covered funds. ARRA, Section 1553(a).

An individual alleging a reprisal is deemed to have affirmatively established the occurrence of
the reprisal if the person demonstrates that a disclosure was a contributing factor in the reprisal.
ARRA, Section 1553(c)(1)(A)(i). A Federal agency may not find the occurrence of a reprisal,
however, if the non-Federal employer demonstrates by clear and convincing evidence that the
non-Federal employer would have taken the action constituting the reprisal in the absence of the
disclosure. ARRA, Section 1553(c)(l)(B).

Analysis

In this case, the University has offered clear and convincing evidence that it would have removed
you as PI from the award in question notwithstanding your disclosures. 3 Upon receiving your
complaint in April 2012, the University's Provost Office and the Office of Senior Vice President
for Research ~t the                                                           conduct a financial
reviewofthe----award. ROI, tabl7,p. 1. In addition,                                    the
Associate Provost of Faculty Affairs, was asked to speak with                             co-PI
whom the University designated as PI to replace you), and                       Program
Coordinator, to address the award-related issues from a personnel perspective. ROI, tab 16, p. 2.

The discussions spearhea~were not successful in producing a resolution. After
speaking with all parties, ~ded that it would be extre~, if not
impossible, to repair the working relationships to the point where the----project could
continue with the same team structure. ROI, tab 16, pp. 10-11. The fmancial review that
prepared and issued in June 2012 reached a similar conclusion. ROI, tab 17. Specifically,
report identified numerous issues and conflicts that arose during the course of the award, and
found that these issues and conflicts "were caused by an ineffective team structure and failed
communication." ROI, tab 17, p. 1. The report questioned the effectiveness and the efficiency
of separating the programmatic from the administrative duties of the award, which it asserted

3
  Thus, for the purpose of this decision, it is unnecessary for me to assess whether your
disclosures were a contributing factor in the University's decision.
                                                                                              Page3
was not a logical way to manage the project. ROI, tab 17, p. 11. The report concluded that "[i]f
the PI cannot work with other project personnel to resolve the issue, the College level
management needs to step in to settle the differences or reorganize the project team." ROI, tab
17, p. 12.

The University took              recommendations seriously, and reviewed the manner in which the
- p r o j e c t was being managed. Ultimately, the University determined that the project
                   ......
                   u~.~      ifthe current team structure remained in effect. ROI, tab 19, p. 27.
                     Associate Vice President for Research at the University, expressed significant
concern         you were not directly in~e planning and execution of the award. ROI, tab
19, p. 28. For example, according t o - you failed to attend the vast majority of weekly
meetings held with program participants. ROI, tab 3, pp. 33-34. ~so indicated that
yo.u provided little, if any input, during the evaluation phase of the project, and that you provided
little, if any, input as to how to sustain the project beyond the life of the award- critical
responsibilities that reside with a PI. ROI; tab 3, p. 34. On the other hand, -ndicated
~was actively involved in the mentoring of students, and in meeting with
~e project. ROI, tab 19, p. 41. Thus, the University determined that
engaged in the          ect to a              than you. !d. Consequently, because the University
determined that                                      primarily responsible for the execution of
responsibilities                     .       award~ou were only tangentially involved, the
University decided to replace you as PI w i t h - - !d. In short, the University has
presented persuasive evidence to demonstrate that you were removed as PI for legitimate,
business-related reasons.

In addition, I note that, despite the fact that most personnel changes made in connection with a
University award are undertaken at the local l e v e l , - identified several other occasions
in which her office became involved in such decisions. ROI, tab 27. In fact, on at least one prior
occasion~ the University's Office of Research was integrally involved in the decision to remove a
PI for lack of effort and poor performance. ROI, tab 27. In that case, much like here, officials
with the Office of Research worked with the funding agency to name a replacement PI to ensure
that the project was completed in an effective manner. ROI, tab 27. Thus, I do not fmd that the
actions ofthe University in this case to be anomalous.

Although I do not believe that the University engaged in unlawful retaliation by virtue of your
removal as PI, I do agree with the OIG's comment in its ROI that the University could have
provided you with a more meaningful opportunity to respond to the conclusion that you were not
heavily involved in the programmatic aspects ofthe award. At bottom, however, the University
is the grantee and, consequently, is responsible for ensuring that the performance on the project
is conducted in a timely manner, and in accordance with all performance objectives and other
standards. Thus, absent a finding of unlawful reprisal, it is not appropriate for me to substitute
my judgment for that of the University on how to manage an award that it receives. After
extensive investigation and consideration, the University determined that replacing you as PI was
in the best interests of the project and, as previously discussed, there is no evidence to suggest
that this conclusion would have been different absent your disclosures.
                                                                        Page4
For all of the foregoing reasons, your complaint is denied.

Should you have any~t the foregoing, please
General Counsel, a t - - - .



                                                     Sincerely,




                                                     Lawrence Rudolph
                                                     General Counsel



cc:




       Allison Lerner
       Inspector General
       NSF