U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002
DEC 14 1992
CATE JENKINS, Ph.D.
U.S. ENVIRONMENTAL PROTECTION
Stephen M. Kohen, Esq
Michael Kohn, Esq.
For the Complainant
Bridget C. Shea, Esq.
For the Respondent
Before Glenn Robert Lawrence
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises from a complaint filed by the complainant
against the respondent on April 21 1992 alleging violation of
the Safe Water Drinking Act. 42 U.S.C. Sec. 300j-9; The Water
Pollution Control Act, 33 U.S.C. Sec. 1367; The Clean Air Act, 42
U.S.C.Sec.7622. The Solid Waste Disposal Act, 42 U.S.C. Sec.
6971; The Toxic Substance, control Act, 15 U.S.C. Sec. 2622 and
the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9610 and under the regulations at 29
C.F.R. 24. The basis of the complaint is alleged retaliatory
reassignment on account of complainant's protected activity: The
respondent argues that complainant's reassignment was not
retaliatory but rather was motivated by legitimate management
concerns. The U.S. Department of Labor (DOL) investigated the
complaint and found in favor of the complainant ordering the
respondent to be returned to her former position as well as costs
and attorney fees. From that decision, the respondent appealed to
this office. The matter was heard in Washington, D.C. from
September 28, 1992 through September 30, 1992. The record was
closed on November 20, 1992 when the last brief was received from
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Findings of Fact
1. Attachment A (A) to this decision is a stipulation of facts by
the parties. It is incorporated herein as findings of fact.
2. Dr. Cate Jenkins holds a PH.D in organic chemistry and a
General Schedule Grade (GS) 13 as an environmental scientist
employed since 1979 by The Environmental Protection Agency (EPA).
By her preference, since 1980 until March, 1992, she worked at
detecting hazardous waste and developing regulations for their
control (listings or listing regulations). She specialized in
Dioxin (Agent Orange), a contaminant of wood preservatives and
used in the Vietnam War as a defoliant.. Her work involved both
public and industry contact and required scientific research,
sampling and analyzing specimens T17-21,23,61 A,C43,5.
3. In 1980 Dr., Jenkins was employed by the Listing Section of
The Waste Characterization Branch (WCB) of the Character
Assessment Division of the EPA Office of Solid Waste (OSW) In
1988 WCB was moved to the Land Disposal Branch. Dr. Jenkin's
duties remained the same A.
4. In 1989 and 1990 Dr. Jenkins received cash awards for on the
job performance. She was never criticized by her supervisors nor
advised that she had violated any rule T25-27,97.
5. With notice to her supervisors, the complainant from 1988 to
1990 wrote several times to Congress stating that EPA OSW had
acted improperly T28-30,C9-11.
6. Monsanto Chemical Corporation was the largest producer of
Agent Orange during the Vietnam War. Monsanto promulgated a
scientifc study claiming that Dioxin exposure as a causal agent
for cancer was uncertain T31-32. Dr. Jenkins wrote the EPA
Science Advisory Board (SAB) on February 23, 1990 that there was
misinformation in the Monsanto study. SAB wrote Dr. Jenkins that
her paper was sent to National Institute of Health and Safety
(NIOSH). In 1991 NIOSH issued a paper saying the Monsanto study
was invalid T34, C14.
7. Shortly after Dr. Jenkins memo to SAB, Edwin Abrams, Chief of
The Listing Branch where the complainant was employed, issued a
memorandum stating that Dr. Jenkins "should not be involved with
anything that puts her in direct contact with the regulated
community or the public" and that she should be placed in an
administrative or staff position like Bill Sanjour," a well known
whistleblower at the EPA, and that "not worry about whether she
is happy". Mr. Abrams told Mr. Bussard, the director of the
division that he didn't want Dr. Jenkins in his section because
she would look for Dioxins in absolutely every waste stream 53-
54, 144-145 ;C12,13,26
8. The complainant's work load was reduced in the spring and
summer of 1990 T41.
9. Dr. Jenkins issued on September 3, 1991 a 150 page affidavit
in support of veterans that were prosecuting an Agent Orange
injury claim. In her cover letter, sent to Mr. Robert Hager of a
public interest group, she alleged that Mr. William Reilly, the
EPA Administrator, falsely stated that the EPA scientists agreed
that Dioxin was not the problem previously thought. The chief
executive officer of the National Vietnam Veteran's Coalition
testified that Dr. Jenkins received an award from his
organization for her outstanding work in exposing the carcinogen
effect of Agent Orange and in assisting in the enactment of laws
compensating veterans for exposure to Agent Orange..T39, C18.
10. Mr. David Bussard, the Division Director of CAD had
conversations with Monsanto concerning Dr. Jenkins allegations of
fraud T168. On May 4. 1990, Mr. Don Clay, EPA Assistant
Administrator for the Office of Solid Waste and Emergency
Response, wrote to Monsanto apologizing for the statements that
Dr. Jenkins made alleging fraud in the Monsanto report C33. In
November 1991, Mr. David Bussard, the CAD Division Director T
109, initiated conversations with Dr. Jenkins regarding her
transfer from the listing section to a newly created Position. In
April 1992 the complainant was relocated from the Listing Section
to the Technical Assessment Branch of CAD. The new job removed
the complainant from any of her prior duties involving hazardous
waste and substantially reduced her public and industry contacts,
The new job was not a good fit for Dr. Jenkins talents T220.Her
now position description eliminated her technical duties that
were set out in the prior description A, T61-63,84-
Discussion and Conclusions of Law
11. The complainant to rove discrimination must show: 1. that
the party charged with discrimination is an employer subject to
the Act(s);(2) that the complainant was an employee under the
Act(s); (3) that the complainant employee was discharged or
otherwise discriminated against with respect to his or her
compensation, terms, conditions,or privileges of employment;(4)
that the employee engaged in a protected activity; (5) that
employer knew or had knowledge that the employee engaged in a
protected activity; and (6) that the retaliation against the
employee was motivated, at least in part, by the employee's
engaging in protected activity. 29 C.F.R. Part 24.
12. As previously ruled in this case, the parties are subject to
the Act(s)[ (1) & (2)]. Page v. U.S Department of Navy, 87 ERA 21.
The reassignment is considered discrimination under the
applicable regulation 29 C.F.R. 24.2(b) Deford v. Secretary of
Labor, 700 F.2d 281,283 (6th Cir.1983) [(3)]. It is stipulated that
the complainant engaged in protected activity and her employees
knew of it[4 & 5]. The Abram's statement as well as an abundance
of other evidence makes it clear that the motivation was at least
in part was attributable to the protected activity involving the
13. Having established her prima facie case, the employer must
establish that the same decision would have been made even if the
employee had not engaged in the protected activity. The employer
fails his burden. McDonald Douglas Corp. v. Green, 411 U.S. 792
(1973) The testimony of EPA officials largely give begrudging
respect to the complainant and her work. The basis for the
transfer as explaned by the officials is not credible. Her
whistle blowing activities were well known at the supervisory
level. Most importantly, the Abram's memo set out a course of
retaliatory action and EPA essentially followed his
recommendations and isolated the complainant from contact with
the public and the regulated industries.
14..Dr. Jenkins articulated to Congress and to other cognizant
organizations the carcinogen effect of Agent Orange and created
doubt over Monsanto's research report to the contrary. EPA at its
highest levels, was charged by the complainant of improperly
helping Monsanto. Her reassignment followed and EPA as not
presented a legitimate non-discriminatory reason for the
reassignment. The testimony with respect to reorganization does
not support the relocation of the complainant. Assuming arguendo
that the employer has presented a reason as contemplated by
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1119,
1963 (9th Cir. 1984),. the complainant has shown by a
preponderance of evidence that the reasons are pretextual. It has
been shown amply that the conduct of Dr. Jenkins was an
embarrassment to EPA and that EPA's intent, as was shown in the
Abram's memo, was to isolate Dr. Jenkins.
15. EPA's argument that the relocation or reassignment of an
employee is not an adverse action and therefore could not be
violative of the Act is not plausible and it flies in face of the
regulation and case law, cited supra. Who can doubt that putting
an employee in isolation with little to do could have as adverse
impact on an employee as severe at reducing his or her pay or
even firing the employee.
16. Based on the foregoing, complainant has established his
grounds for relief under 29 C.F.R. 24.6 (b) (2). (1) the
complainant should be reinstated to her position as Environmental
Scientist Wo-1109 in the Listings Section; Donovan v. Freeway
Construction Co, 551 F. Supp 869,880-881, 1982);(2) The
claimant asks for $5,000 loss of professional reputation under
the doctrine of the DeFord case, cited supra. There was no
evidence that the complainant's professional reputation was
damaged. This request is not justified; (3) The employer is
prohibited from terminating, demoting, involuntarilly
transferring or other adverse action against the employee except
if good cause exists for the action; (4) Attorney's fees and
costs shall be paid the complainant based on an appropriate
petition setting out the hours and the hourly fees; (5) The
decision and order should be posted at all EPA job sites and
circulated; (6) The respondent agent and employees are enjoined
against taking any future retaliatory action-against the
complainant. Donovan cited supra (7) In view of the flagrant
disregard of this employees rights, it is considered that
exemplary damages in the sum of $10,000 is justified. U.S.C.
The EPA is ordered to:
1. Reinstate the complainant Dr. Cate Jenkins to her position as
Environmental Scientist WO-1109 in the Listings Section
2. Not terminate, demote, involuntarily transfer or take other
adverse action against the complainant unless good cause exists.
3. Pay all attorney fees and costs.
4. Post this decision and order prominently at all EPA job sites
and circulate to all EPA employees.
5. Not take any future retaliatory action against Dr. Jenkins.