On April 29, 1994, Brenda Robinson, Regional Director for the Federal Labor Relations Authority, dismissed Complainant's charge of unfair labor practices against her supervisors. (EPA 27, p. 4). Ms. Robinson concluded that the actions taken against Complainant were due more to personality clashes between Complainant and her supervisors and had little, if anything, to do with retaliation for grievances Complainant had filed. Id. On November 2, 1994, Al Yeast, president of the National Federation of Federal Employees, issued a letter to the regional administrator indicating that Complainant did not represent the Union and that she was counseled by the Union to avoid making accusations of retaliation without documentation, to refrain from staying at work past 6:00 p.m., and to request a transfer out of her current department. (EPA 28). Furthermore, as reflected in a July 11, 1994 letter by Ms. Erickson, alleged Privacy Act violations were negated by upper management. (EPA 38, p. 2). On July 12, 1994, Mr. Mills removed Complainant from her position as a Contracting Officer - who had the authority to bind the government - to a Contracting Specialist, who merely prepared documents for the Contracting Officer. (OIG 18, p. 2).

   When word of Complainant's actions concerning the Region VI Superfund contract filtered back to Region IV, Jeanette Brown, a deputy director from the Office of Acquisition Management, suspended Complainant's contract officer's warrant on March 10, 1995. (OIG 7). Complainant's intervention in the bidding process on behalf of OHM, her earlier refusal to justify a .6 million dollar contract adjustment with OHM, (EPA 44, p. 1), and the fact that she had contributed to a panel paper with OHM entitled "Full-Scale Bioslurry Process Treatment of Wood Preserving Waste at a Superfund Cite," (OIG 16; CX 11C 14a), created an appearance of impropriety which prompted Mr. Waldrop to request an OIG investigation on March 10, 1995. (EPA 44, p. 1; OIG 11). Also on March 10, 1995, Mr. Waldrop detailed Complainant to the Information Management Branch of the EPA where she is currently employed. (EPA 45).

   On March 23, 1995, Complainant wrote a letter to her congressman, Newt Gingrich asking for assistance in stopping harassment and retaliation against her for reporting previous wrongdoings by the Respondent EPA. (EPA 41, p. 3; CX 25A). Complainant alleged that management would not allow her to work in contracting, and in fact reassigned any contracting work she was performing and hired new personnel to assume her former workload. (EPA 41, p. 3-4). Also, Complainant asserted that Respondent EPA referred her case to the Inspector General's office without any proof of wrongdoing. Id. at 5. Complainant further alleged that Respondent put her on public display in the library, searched her desk, work-area and personal belongings. Id. at 6.

   Ronald Barrow, suspended Complainant's flexiplace privileges on March 10, 2000, after repeated requests to straighten up her office and to properly manage office files. (EPA 50, p.2; EPA 55, p.1) After consulting with the legal department, Mr. Barrow took pictures of her office concerned that Complainant would file a whistleblower suit against him for suspending her flexiplace. (EPA 50, p. 2). By August 3, 2000, Complainant had complied with Mr. Barrow's request to clean up her office space, thus, Mr. Barrow reinstated Complainant's flexiplace privileges. Id.

   In April 2000, Complainant told Mr. Barrow that she had removed thirteen boxes of agency materials and stored them in her home. (EPA 50, p. 2-3). Mr. Barrow informed her that such actions were improper without obtaining his permission, and related that she must return the documents to the agency. Id. at 3. Although asserting that some of the files were personal and related to pending litigation, she brought the boxes into the office and was allowed to sort through them, on Agency time, in a space provided to her on another floor. Id. This caused problems, however, as Complainant was frequently absent from her work station claiming that she was sorting through her documents. Id. Because Mr. Barrow wanted to know where his employees were and if they had reported to work, he requested that Complainant leave a note at her workstation concerning her whereabouts and Mr. Barrow discussed the attendance problem with her. Id. Complainant related in an E-mail to Mr. Barrow, on July 20, 2000, that there was "no principled reason for EPA to use the threat of insubordination to make what in effect is a discovery request in relation to a complaint filed with the Secretary of Labor on July 19th." (EPA 53, p. 7). On May 19, 2000, Complainant filed a fourth whistleblowing complaint, alleging hostile work environment based on a denial of flexiplace.

   In June 2000, Complainant informed Mr. Barrow that she was working on her pending lawsuit during flexiplace time and Mr. Barrow told her that such use of official time was inappropriate. Id. In August 2000, after consulting with the legal department, Mr. Barrow reiterated that there was no provision that allowed Complainant to use her work time to pursue her whistleblower complaint. (EPA 58, p. 7). Nevertheless, Mr. Barrow had granted her administrative leave on March 16, 2000, to address the OSHA investigation of her whistleblower complaint. Id. at 1. On June 28, 2000, however, Mr. Barrow denied Complainant use of Agency time to meet with OSHA investigators in relation to her whistleblower litigation and forced Complainant to use eight hours of personal leave for the "days" of agency time Complainant had spent in pursuit of her complaints. (EPA 55, p. 5). Although there is no Agency-wide rule regarding administrative leave for employees to pursue grievances, Mr. Prince, Chief of the Human Resources Management Branch, indicated that a provision in the union contract and the EEOC regulations allow employees a "reasonable" amount of official time to work on their complaints. (EPA 64, p. 2). Complainant did receive three days of administrative leave since the summer of 2001 to answer interrogatories. Id. On July 19, 2000, Complainant filed her fifth whistleblowing complainant, alleging post-complaint retaliation and "conscious parallelism" between EPA and OSHA.

   On September 11, 2000, Complainant was rejected for a position in the Contract Procurement Section in favor of two other employees, Fran Harrell and Jeffery Napier. (CX 15A). On October 16, 2000, Complainant was rejected for a contract specialist position in favor of Anita Wender. (CX 15B). The contract specialist job was a GS-9 position. Id. at 2.

   No employer, subject to the provisions of the whistleblowing statutes, "may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions or privileges of employment because the employee . . . engaged in any [protected activity]." 29 C.F.R. § 24.2(a) (2001). Accordingly, to establish a prima facie case of discrimination under Whistleblower statutes, the complainant must show by a preponderance of the evidence that:

1. The employer is subject to the act and the employee is covered under the act;
2. The complainant engaged in protected activity under the act;
3. The employer took adverse action against the employee;
4. The employer knew or had knowledge that the employee was engaging in protected activity; and
5. The adverse action against the employee was motivated by the fact that the employee engaged in protected activity.

See American Nuclear Resources, Inc. v. U.S. Department of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998); Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 277 (7th Cir. 1995); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

   Respondent EPA argues that Complainant failed to show: (1) she engaged in protected activities prior to March 3, 1998; (2) management was aware of protected activities prior to March 3, 1998; (3) management took adverse action or subjected her to a hostile work environment either in whole or part because of her protected activity; and (4) management's motivation for the actions they undertook had an independent basis outside of any alleged protected activity. In essence, Respondent EPA contends there is no nexus between any alleged adverse action or hostile work conditions and Complainant protected activities. Indeed, Respondent EPA contends that most of the actions complained about by Complainant were not materially adverse or constituted more than a "mere inconvenience or alteration in job responsibilities" and thus are not actionable. See In re Brenda W. Shelton v. Oak Ridge National Laboratories, ARB No. 98-100 (ARB, March 30, 2001), citing Crady v. Liberty National Bank and Trust Co., 993 F.2d 132, 136 (7th Cir.1993).

   A. Employer and Employee Covered Under the Act

   B. Protected Activity

   The Code of Federal Regulations defines protected activities under the applicable whistleblowing statutes as:

1. Commencing a proceeding under the applicable statute(s) or commencing a proceeding for its administration or enforcement;
2. Testifying in such a proceeding;
3. Assisting or participating in such a proceeding, or assisting or participating in any other action to carry out the purposes of the statute(s).

29 C.F.R. § 24.2(b)(1-3) (2001).

   Accordingly, to engage in a protected activity, the employee must complain, testify, assist or participate in an action concerning a reasonably perceived violation of the underlying environmental statue or regulation. Abu-Hjeli v. Potomac Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993); Ilgenfrita v. United States Coast Guard Academy, 1999-WPC-3 (ALJ Mar. 30, 1999). The whistleblowing employee protection provisions and its statutory objectives are construed broadly. Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994). An employee, however, should have more than a mere subjective belief that the environment might be affected. Kesterson v. Y-12 Nuclear Weapons Plant, 95-CAA-12 (ARB April 8, 1997). The provisions do not apply to occupational, racial or other non-environmental concerns. Odom v. Anchor Lithkemko/Int'l Paper, 96 WPC 1 (ARB Oct. 10, 1997).

   In Tyndall v. United States Environmental Protection Agency, 93-CAA-6 (ARB June 14, 1996), the ARB determined that the complainant, Tyndall, stated a claim for relief under the Clean Air Act when his superiors at the EPA instructed him to "disregard certain evidence" and to conduct an investigation in a manner that he believed "was unethical and would distort the facts, thereby denying the proper execution of justice." Id. at 3. Tyndall had appealed an ALJ decision denying relief because Tyndall's complaint was not "grounded in conditions constituting reasonably perceived violations' of an environmental act," and thus, failed to state a claim upon which relief could be granted. Id. The ARB reasoned, however, that because Tyndall was investigating an inappropriate award of an acid rain study contract, which could lead the EPA to rely on data that understated the harmful effects of acid rain, Tyndall's actions could be construed as actions taken in furtherance of the statutory objectives of the Clean Air Act because hampering his investigation could lead the EPA to rely on an understatement of the harmful affects of acid rain and lead to less stringent air emission standards. Id. at 4.

   Here, Complainant alleges that she engaged in numerous protected activities dating back to June 18, 1993. Specifically, Complainant asserts that the following activities, among

others, are protected:

   Here complainant alleged that her actions prior to filing her first complaint in 1998, related to problems with EPA regulations and analytical methods that resulted in waste and impossibility of performance issues with regards to Superfund clean-up projects. As a result of such regulations and analytical procedures, Superfund clean-up sites would not undergo bio-remediation to the required standards. Complainant's actions led to contract reformation in 1993 and led to a restructuring of contractual language in 1995. Accordingly, I find that there is more than a scintilla of evidence demonstrating that Complainant actions prior to filing her first complaint in 1998 constitute protected activity making a grant of summary decision on this issue inappropriate.

C. Adverse Employment Action

   An employer violates a whistleblowing statute when the covered employer "intimidates, threatens, restrains, coerces, blacklists, discharges, or in any manner discriminates against any employee. . . ." 29 C.F.R. § 24.2(b) (2001). The Eleventh Circuit discerned a difference between discrimination and adverse action, defining adverse action as "simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone and Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997). Adverse actions must be more than a mere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Thus, memoranda of reprimand or counseling that amounts to no more than a mere scolding, without any following disciplinary action, do not rise to the level of adverse action. Davis v. Town of Lake Park, 245 F.3d 1232, 1236 (11th Cir. 2001). Here, Complainant alleges that she suffered discriminatory adverse action through a hostile work environment and denial of promotion.

   Respondent EPA asserts that Complainant is unable to show that an adverse action was ever taken against her for any reason stating that Complainant never suffered a tangible job detriment. Respondent EPA asserts that for every action it undertook with regards to Complainant's employment, there was always a separate, unrelated precipitating event for that action that was unrelated to any alleged protected activity. Respondent OIG asserts that an investigation by it can never be adverse action in light of its congressional mandate and asserts that it never attempted to "cover up" the results of the investigation, and even if it did, such a "cover up" does not implicate a term or condition of employment.

   C(1) Hostile Work Environment

   Adverse employment action can include the creation of a hostile work environment. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995)(finding a hostile work environment when employees were instructed not to talk to the complainant, called the complainant "inept" and a "s.o.b." and the prevailing attitude was a "loss of trust" directed toward complainant). The Secretary of Labor approved of importing the concept of hostile work environment from employment discrimination cases based on race and sex in violation of Title VII of the Civil Rights Act of 1964 in to the

whistleblowing statutes. Varnadore v. Oak Ridge Nat'l Laboratory, 92-CAA-2 (Sec'y Jan. 26, 1996)(reissued with non-substantive changes on Feb. 5, 1996). Accordingly, to prove the existence of a hostile work environment, a complainant must show:

(1) Complainant suffered intentional discrimination because of her membership in a protected class;
(2) The discrimination was pervasive and regular;
(3) The discrimination detrimentally affected the Complainant;
(4)the discrimination would have detrimentally affected a reasonable person in the same position; and
(5) the existence of respondeat superior liability.

   See Varnadore, 95 ERA-1, citing West v. Philadelphia Electric Co. 45 F.3d 744, 753 (3rd Cir. 1995).

   A critical factor in the a hostile work environment claim is whether the discrimination was pervasive and regular. West, 45 F.3d at 755-57. The determination of whether the employer is liable for its supervisor's action depends on whether the supervisor's harassing actions were foreseeable or fell within the scope of his employment, and even if they were, whether the employer responded adequately and effectively to negate liability. An employer is liable for a discriminatory abusive work environment created by a supervisor if the supervisor has actual or apparent authority to further the harassment, or if he otherwise aided in accomplishing the harassment by the existence of an agency relationship. In contrast, where a low level supervisor does not rely on authority to carry out harassment the situation is the same as if a co-worker had carried out the harassment with the employer being liable only if it provided no reasonable avenue for complaint or knew of the harassment and did nothing. Varnadore v. Oak Ridge National Labatory, 92-CAA-2 (ARB June 14, 1996) slip op. at 43., citing Baskerville v. Culligan International Co., 50 F.3d 428, 431-32 (7th Cir. 1995); Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 803 (6th Cir. 1994). An employer is not liable if the employer takes reasonable steps to discover and rectify discrimination and such reasonableness of reaction is determined by the gravity of the harassment.

   As discussed supra, there is more than a scintilla of evidence that Complainant, as a whistleblower, is a member of a protected class. To satisfy the pervasive and regular element, Complainant details, among others, the following actions by Respondents:

1) Removed Complainant from the contracting field, and assigned her boring or menial work;

2) Initiated an IG investigation and misled her into believing it was still open until October 1998 when the U.S. attorney had declined prosecution in June 1995;

3) Ostracized Complainant by putting her on display in the library for eighteen months;

4) Issued a gag order ordering her not to speak with other employees concerning the IG investigation, denying her access to the contract file room;

5) Subjecting her to excessive scrutiny, criticism, and name calling;

6) Issuing a written warning;

7) Removal of flexiplace, searching and confiscating items from her office; and

8) Taking photographs of her office and sharing those photographs with OSHA investigators.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

   Concerning non-selection for various positions from March 1998 through August 2001, Respondent EPA argues that under Frady, 92-ERA-19 ( Sec'y Oct.23, 1995), and McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973), Complainant is required to show that she was qualified for the position for which she was rejected and that after her rejection the position remained open with Respondent continuing to seek/select similarly qualified applicants. Respondent EPA also asserts that Complainant failed to show she had similar qualifications to selectees for merit promotion positions, supervisory details or service center details in that she lacked immediate contract section experience or GS-13 level experience or the requisite temperament and attitude necessary to "thrive in the work environment of the section." According to Respondent EPA:

Here, Complainant attempts to hide behind her argumentative, confrontational, and otherwise disrespectful conduct towards managers and fellow employees under the guise of engaging in protected activities. The truth of the matter is that Complainant has engaged in behavior on numerous occasions over the years not appropriate to the work place. An employer is not required to overlook unacceptable behavior by an employee, even when the employee threatens the employer with retaliation for addressing inappropriate workplace behavior . . . .

   Respondent EPA reviewed nine different application by Complainant for various positions on July 17, 1997, November 5, 1997, May 8, 1998, June 23, 2000, August 1, 2000, January 19, 2001, February 2, 2001, and May 24, 2001. (EPA 66). Complainant was eligible for six of the positions that she had applied for. Three positions were details for which there were candidates were not rated or ranked, but were merely referred to the selecting official. (EPA 33; EPA 35; EPA 68). Three positions were cancelled without a selection being made. Of the cancelled positions, Complainant was ranked and rated as qualified for two positions. With respect to the non-cancelled positions, Complainant was ranked and rated as qualified for one and highly qualified for three others. In each case Complainant was passed over for consideration in favor of another applicant. For each position that was given to another applicant, Respondent articulated an objective basis for its actions unrelated to any alleged protected activity.

   Nevertheless, by Respondent EPA own admission, Complainant met the Green test to show a prima facie case of discrimination because Complainant was qualified or highly qualified, for several of the positions, despite her qualifications she was rejected, and Respondent selected similarly qualified applicants. Additionally, Mr. Mills, with whom Complainant interviewed for the jobs, was the selecting official. Mr. Mills had knowledge of Complainant's earlier activities in 1993 and 1995 that Complainant alleges were protected. Accordingly, Complainant has established more than a scintilla of evidence that she suffered adverse employment action in the form of denial of promotion.

   D. Knowledge of Protected Activity

   The employer must have actual or constructive knowledge of a complainant's protected activities. Morris v. American Inspection Co., 92-ERA-5 (Sec'y Dec. 15, 1992); Adjiri v. Emory Univ., 97-ERA-36 (ARB July 14, 1998). Knowledge of protected activity cannot be imputed to higher management without proof. Mosley v. Carolina Power & Light Co., 1994-ERA-23 (ARB August 23, 1996). Here, Mr. Mills was Complainant's supervisor while she worked in the Contracts section of the EPA. As such, Mr. Mills had actual knowledge of her dealings with OHM in 1993 to resolve impossibility of performance issues, and had actual knowledge that Complainant had interfered in the 1995 Texas Superfund bidding process. Similarly, Ron Barrow, Complainant's supervisor while assigned to the Information Management Branch was aware that Complainant had transferred to his division as a result of grievances filed against Mr. Mills. Mr. Barrow was aware of the IG investigation and became aware that Complainant filed a whistleblowing complaint in the summer of 1998. Rebecca Kemp, Complainant's supervisor during her detail to the FOIA office stated that she knew Complainant had leaked information to Congress prior to her transfer out of the FOIA office. Accordingly, the record contains more than a scintilla of evidence that Complainant's supervisors had knowledge of Complainant's alleged protected activities.

   E. Adverse Action Motivated by Protected Activity

   A complainant must establish by a preponderance of the evidence that the respondent undertook adverse action against the complainant because the employee engaged in protected activity. 29 C.F.R. § 24.2(a) (2001). A complainant may prove retaliatory motivation through circumstantial evidence. Bartlik v. Tennessee Valley Auth., 88 ERA-15 (Sec'y April 7, 1993), aff'd sub. nom. Bartlik v. U.S. Dep't of Labor, 73 F.3d 100 (6th Cir. 1996). When using circumstantial evidence, however, the complainant must show intentional discrimination in order to prevail. Leveille v. New York Air Nat'l Guard, 94-TSC-3 (Sec'y Dec. 1, 1995).

   If a complainant establishes by a preponderance of the evidence that respondent had retaliatory motives, then a dual motive analysis is appropriate. Seater v. Southern California Edison Co., 95-ERA-13 (ARB Mar. 27, 1997). Under the dual motive analysis, which requires a showing of both discriminatory and non-discriminatory reasons for the adverse employment action, the respondent must demonstrate by clear and convincing evidence that the same personnel action would have been taken in the absence of the complainant's protected activity. Mount Healthy School Dist v. Doyal, 429 U.S. 274, 285-86, 97 S. Ct. 568, 575, 50 L. Ed. 2d 471 (1977); Sysert v. Florida Power Co., 93-ERA-21 (Sec'y April 25, 1983). This clear and convincing standard is invoked only if the doctrine of dual or mixed motives is invoked. Remusat v. Barlett, Inc., 94-ERA-36 (Sec'y Feb. 26, 1996).

   Respondent EPA asserts that many of the actions it took in regards to Complainant's employment are unrelated to the protected activity and do not arise out of any common or related core of operative facts. Indeed, Respondent EPA asserts that Complainant has been treated as well as any other employee and produced evidence to show that there was no temporal proximity between the alleged protected activity and the alleged adverse action. Nonetheless, I find that Complainant has provided more than a scintilla of evidence to overcome a Motion for Summary Decision. Specifically at issue are the motives of Mr. Mills, Ms. Kemp and Mr. Barrow, among Complainant's other supervisors, in changing Complainant's job duties, their motives in changing the conditions of Complainant's employment, and why the IG investigation was held over Complainant's head long after her case was closed.

   In summation, Complainant provided more than a scintilla of evidence necessary to establish a prima facie case for a whistleblowing lawsuit. Specifically, Complainant provided more than a scintilla of evidence that she engaged in protected activities dating back to 1993, that she suffered discriminatory adverse employment action because of those activities in the form of denial of promotion and hostile work environment, that Respondents had knowledge of her protected activity and that Respondents' employment actions were motivated by the fact Complainant engaged in a protected activity. Complainant is entitled to summary decision in part on the issues of jurisdiction (with the exception of the Toxic Substances Control Act), and on the fact that Complainant and Respondent has an employer-employee relationship. Respondents are entitled to summary decision in that I find that they have not waived sovereign immunity in regards to the Toxic Substances Control Act.

   Based upon Respondent's Motions for Summary Decision and Complainant's Response, I enter the following Order:

   1. Respondents' Motions for Summary Decision are DENIED because Complainant has presented more than a scintilla of evidence to establish a prima facie case for a whistleblowing lawsuit.

   2. Respondents are subject to the jurisdiction of the court under the applicable environment statutes outlined in 29 C.F.R. § 24.1 (2001) with the exception of the Toxic Substances Control Act.

   3. Respondent EPA and Complainant had an employer-employee relationship.

       CLEMENT J. KENNINGTON
       Administrative Law Judge