DEC 14 1992

92-CAA-6

CATE JENKINS, Ph.D.
    Complainant

    v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
    Respondent

Stephen M. Kohen, Esq Michael Kohn, Esq. For the Complainant

Bridget C. Shea, Esq. For the Respondent

Before Glenn Robert Lawrence Administrative Law Judge

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 the parties.

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- 85,227,220,338, C43-45.

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 complainant [(6)].

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. Sec. 300j-9(i)(2)(B)(ii).

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.

6. Pay Dr. Jenkens $10,000 exemplary damages.

Glenn Robert Lawrence
Administrative Law Judge