oversight

a telephone call from Dr.
complainant).
                          -
                      CLOSEOUT FOR M93060032
     This case was brought to OIG on June 3, 1993, when we received
                                            of 6   -
                 The complainant subsequently suppliedlarious
                                                               (the
written materials to document his allegations. The subjects of the




research in the laboratory under Subject #lls direction.       The
complainant, while a visitor in Subject #lls laboratory, made
allegations to the institute that the subjects tampered with the
complainant's experiments in order to simulate results consistent
with the subjects' hypotheses. He also alleged that one or both
subjects retaliated against him for blowing the whistle, destroyed
evidence relevant to the forthcoming misconduct inquiry, made
misleading statements in a publication, knowingly published
incompetently done research, and breached the confidentiality of a
whistleblower. In his complaint to OIG, the complainant further
claimed that the institute mishandled its inquiry into these
matters.
     The complainant inferred that someone had tampered with his
experiments on the basis of a pattern of scientifically unexplained
results from his work. OIG determined that there is no possibility
of developing additional evidence that the experiments had been
tampered with.     A distinguished consultant who assisted the
institution's inquiry reached a similar conclusion.        OIG also
learned that experiments with the organisms that the complainant
studies sometimes yield anomalous results. OIG also determined
that the only connections between the subjects and the alleged
tampering were their presumed motive for tampering with the
complainant's experiments and their knowledge of how to interfere
with the complainant's       experiments in order to create
systematically misleading data.      The evidence in the inquiry
report, confirmed by the complainant's own testimony, indicates
that neither subject acting alone could have performed the alleged
tampering. But the complainant supplied no direct evidence of a
conspiracy between the subjects. In light of these facts, OIG
concluded that it would not be possible to meet the burden of proof
regarding this allegation.

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     The complainant alleged that he was a victim of retaliation in
that Subject #1 (1) prevented him from working in his laboratory
after the complainant made misconduct allegations against Subject
#2 and (2) retaliated against the complainant by causing the
institute to terminate the complainant's guest investigator status
after the inquiry ended. With regard to the first allegation of
retaliation, the complainant admits that he agreed to limit his
research in Subject #lls laboratory and to accept closer
supervision from Subject #l. Subject #1 gave plausible reasons,
consistent with his responsibilities as a mentor and laboratory
director, for requiring the complainant to accept this additional
supervision. O I G determined that this allegation lacked substance.
With regard to the second allegation, Subject #1 informed O I G that
the complainant had been verbally abusive to both subjects in ways
that significantly and adversely affected the orderly functioning
of the laboratory, and the complainant confirmed Subject #lts
account of the complainant's behavior. OIG concluded that the
complainant's disruptive behavior provided a reason for his
dismissal and that the evidence did not indicate tkiat the
complainant was dismissed in retaliation for making allegations of
misconduct.
     The complainant also alleged that Subject #1 "disposed of
frozen samples and of bacterial stocksu that "were relevant to the
inquiry into scientific fraud and were meant to be checked by
outside investigators." O I G learned that these materials were not
clearly designated as evidence for the misconduct inquiry and were
discarded in the course of routine cleaning after the complainant's
association with Subject #lis laboratory had ended. O I G concluded
that there was no substance to this allegation.
     The complainant's allegation that Subject #1 made misleading
statements in a publication' was examined in a separate inquiry at
the institute. O I G determined that Subject #1 did not misrepresent
himself as having performed analytic tasks in his own laboratory
that had in fact been performed elsewhere. The inquiry determined
that Subject #11s failure to acknowledge analytical services
rendered for a fee was not a serious deviation from accepted
practice and that the allegation therefore lacked substance. O I G
accepted this conclusion.




                            page 2 of 3                      M93-32
     The complainant also alleged that the subjects knowingly used
an inappropriate analytic technique in a p~blication.~ OIG
determined that this publication was not supported by NSF and that
misconduct allegations regarding it therefore fell outside our
jurisdiction. We advised the complainant that he could contact the
funding agency to pursue a misconduct allegation. We also pointed
out that he could contact the journal to raise scientific
objections to the analysis in the publication.
     The complainant alleged that the institute did not follow its
own procedures in the course of its inquiry and that the procedures
themselves were flawed. OIG does not consider departures from or
flaws in institutional procedures as such to be evidence of
misconduct. If OIG determines that these alleged departures and
flaws would not compromise the fundamental fairness of the
institution's inquiry, then OIG does not consider these allegations
to raise concerns about misconduct. In this case, the alleged
departures and flaws were minor and did not affect the inquiry's
fairness.
                                                            L '

     The complainant further alleged that Subject #1 discussed the
complainant's allegation with a dean at the institute and, in so
doing, inappropriately breached the confidentiality to which a
whistleblower is entitled. OIG believes that a laboratory director
confronted with an allegation of misconduct is entitled to seek
guidance from institutional officials on how it should be handled
and that Subject #1 cannot be considered to have committed
misconduct when he did so.
     The allegations in this case do not have sufficient substance
to warrant a formal investigation. This inquiry is closed and no
further action will be taken on this case.




                                            ished in the
                                            . The authors were the
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