requests to the OIG, who promised that it would release the investigative report one the investigation was completed and several Congressmen and Senators submitted inquiries on her behalf. Although Complainant submitted her two FOIA requests in 1995, it was not until October 1998 that the OIG complied with her request. Without any information from the OIG or her supervisors, Complainant thought that the investigation was still pending when the OIG had officially closed her case in May 1996.

   Management transferred Complainant to a position in the Information Management Branch involving technical knowledge, which she was not qualified to perform, but her immediate supervisor modified the position description so that she could perform her duties provided she received cooperation from numerous lower level work assignment managers. The work assignment managers, however, refused to work with Complainant, and as a result EPA Region 4 became a dysfunctional organization from the point of view of private computer service contractors. Management knew of the hostility directed toward Complainant from the work assignment managers but did not effectively remedy the situation. Complainant attempted to find other work. For a brief time Complainant worked in the FOIA office but management terminated her work there after she deviated from her instructions and broke the chain of command. Complainant also leaked information to Congress concerning the destruction of e-mail that potentially violated FOIA. Additionally, Complainant attempted to reenter her career field in the Procurement Section by applying for positions through competitive process. Although she was a highly qualified candidate, Complainant's former managers refused to select her for any position.

A. Prior Work History

   Complainant received her bachelor of science in psychology from Michigan State University. (Tr. 2092-93). Additionally, Complainant did graduate work in clinical psychology at Trinity University in San Antonio, Texas, while obtaining her masters degree in criminal justice. (Tr. 2092-93). Complainant is also a member of Mensa, an organization open exclusively to those with an intelligence quota in the top two percentile. (Tr. 2154).

   On October 23, 1977, Complainant started her federal employment in the prison system doing probationary work. (Tr. 2091-92). During her four years in the federal prison system, Complainant won an Equal Employment Opportunity lawsuit based on her gender. (Tr. 2092). On January 7, 1982, after taking the civil service examination, Complainant left the federal prison system to work at Robins Air Force Base in Georgia, as a contract specialist. (Tr. 2093). Eventually, Complainant began to work on large dollar contracts involving Congress and large multinational corporations. (Tr. 2094-95). Complainant liked her job at the Air Force, but was not happy about the location of Robins Air Force Base and after Complainant neared the end of her learning curve on that job she decided to transfer to the EPA in January 1989. (Tr. 2096-97).

   Despite Complainant's protests over Mr. Mills's involvement in the file and the need for a further documentation, Complainant attempted to comply with Mr. Mills's order. On August 26, 1993, Complainant attached a memo to the Southeastern contract file stating that it was unnecessary to perform a detailed profit objective in accordance with EPA standards because it was patently obvious that the overall contract amount was much less than the maximum allowable under EPA standards. (EPA 12, p. 1). Mr. Mills objected to this profit analysis because it did not contain a detailed analysis or profit objective calculations. (Tr. 2127; EPA 12, p. 1).

   On August 30, 1993, Mr. Mills transferred the Bechtel contract, which Complainant had worked on for two years, to Deborah Davidson, citing three faults with Complainant's handling of the file: 1) Complainant discussed her opinion on indemnification issues with Bechtel - an agency issue that must be coordinated with headquarters; 2) Complainant took a position on indemnification applied in Region 9 and made it apply to Region 4 without any legal opinion; and 3) Complainant negotiated with Bechtel on issues that did not agree with the position taken by EPA headquarters and falsely asserted that EPA Region 9 supported her position. (EPA 13, p. 1-2). In her dealings with Bechtel, Complainant related that she adhered to EPA's official position, and did what was in the government's best interest without benefitting Bechtel. (Tr. 2147, 2151). Complainant related that she had a difficult time making Mr. Mills understand the issues because he kept mixing up the issues of contractor indemnification with a refusal to do work on federal facilities. (Tr. 2139).

   On October 7, 1993, Ms. Ogden wrote to Deborah Davidson, now the contracting officer in charge of dealing with Bechtel, relating that Paul Tomiczek, an employee of Bechtel, had signed a modification agreement extending the performance of a Superfund contract pending agreement on the outstanding indemnification issue. (EPA 15, p. 1). Ms. Ogden stated that Mr. Tomiczek only signed the modification because it was presented to him by Complainant and he assumed that Complainant had gotten permission from Bechtel for him to sign. (EPA 15, p. 1). Ms. Ogden admonished that Complainant should not have pressed Mr. Tomiczek to sign without first consulting Bechtel counsel. (EPA 15, p. 1-2).

D. Union Grievances and Unfair Labor Practice Charges

   Complainant attempted to file another FLRA complaint in 1994 alleging false accusations, unreasonable work requirements, and failure to issue instructions. (EPA 31, p. 1-8). In an April 14, 1994 statement to the Federal Labor Relations Authority (FLRA), Complainant related that in September 1993, she had requested a desk audit to obtain a promotion from a GS-12 level to a GS-13 level of pay, but the personnel office denied Complainant a pay increase based on her manager's remarks about her need for excessive supervision and the representation that management had to take away Complainant's contracting officer's duties. (EPA 32, p. 6). Complainant also noted that minor disagreements over her work never rose to the level of accusations until Complainant joined the union, and Complainant alleged closed door meetings with management, where they threatened to make her life miserable if she filed a grievance with the union about having to work after hours. (EPA 32, p. 3).

   On April 29, 1994, Brenda Robinson, Regional Director for FLRA, decided not to issue a complaint on behalf of Complainant. (EPA 36, p. 1). Ms. Robinson concluded that Complainant's dispute with management was more likely the result of a personality clash and that Mr. Mills would have taken the same actions regardless of whether or not Complainant had ever filed a union grievance. Id. at 4. Specifically, Ms. Robinson found:

   Erickson has been working very independently on the Southeastern contract, working on a reformation. The reformation was going to require the expenditure of funds; around this time, the administrators of the Superfund Program began inquiring as to why the money was needed. Erickson had been working so independently on the Southeastern contract that none of the managers actually knew what was going on with it. Mills and Singly began holding additional meetings with Erickson, so that she might bring them up to speed. There were several disagreements, with both sides contending that the other took these work-related disagreements personally. The managers were essentially contending that Erickson had not documented the file sufficiently so that someone not familiar with the file could and (sic) understand what Ms. Erickson had done. Erickson contended that it was obvious what had been done, and that they were simply harassing her.

(CX 11 C (10), p. 2).

   In a November 2, 1994 memorandum from union president Al Yeast, to Mike Peyton, Mr. Yeast related that Complainant did not have any authority to speak on behalf of the union and he related that Complainant had been informed to avoid accusations of retaliation without supporting documentation, to refrain form working past 6:00 p.m., and to request a transfer to the Human Resources Department. (EPA 37, p. 1). Indeed, in a letter to Complainant the same day, Mr. Yeast stated that after two grievances and one unfair labor practice charge filed on her behalf, the supervisors who previously caused her problems, Jane Singly, Nancy Bach, and Sam Jamison, had all moved, and while she performed her detail, she was no longer under the supervision of Keith Mills. (EPA 38, p. 1).

E. North Cavalcade Contract

   As soon as Complainant got back to the office, she met with Jan Rogers and informed him of her actions and told him to expect a telephone call from Region 6. (Tr. 2173). Complainant and Mr. Rogers then contacted EPA headquarters. (Tr. 2173). Complainant related that her actions in contacting the North Cavalcade officials were consistent with FAR (Federal Acquisition Regulations) because the FAR directs contracting officers to share information with regards to contracts to protect the government's interest. (Tr. 2177). According to the EPA Guidance on Ethics and Conflicts of Interest, Complainant acknowledged that employees were to avoid any action that might result in, or create the appearance of, giving preferential treatment to any organization or person. (Tr. 2522-54). As a result of Complainant's interference contract bidding was delayed for two weeks and the contract was modified so that the contractor would be totally liable for meeting the specifications. Id. Dr. Glasser opined that Complainant's actions at the North Cavalcade site were heroic and that she had a duty to the EPA to make sure her knowledge was imputed into the North Cavalcade contract proposal. (Tr. 1854-55). Ultimately, the North Cavalcade Superfund contract cost the State of Texas 2.5 million dollars before the contractor quit working. (Tr. 2263).

   Meanwhile, Mr. Springer saw the document entitled "Contract Requirements vs. Performance Criteria or Standards" that Complainant had OHM fax Region 6 officials on EPA letterhead. (OIG 1, p. 5). Mr. Springer contacted Mr. Jamison who told Mr. Springer about Complainant's involvement in the Region 6 contract. (OIG 1, p. 5). Concerned about possible ethical violations, and inquiries from Region 6 about Complainant's contacts, Complainant's supervisors approached Mr. Waldrop who referred the matter to the Office of Regional Counsel for possible ethical violations. (Tr. 81, 232; OIG 1, p. 14).

F. OIG Investigation and Administrative Action

G. Complainant's OIG FOIA Requests and Congressional Inquiries

   Complainant also spoke with Mr. Peyton during the pendency of the OIG investigation asking whether he had seen the investigative report and inquiring when she could obtain a copy of it. (Tr. 2053). Mr. Peyton replied that she needed to take that matter up with the OIG because he did not know when they would finish their investigation. (Tr. 2053-54). Although Mr. Peyton requested that the OIG office keep him informed, he never received any statement from the lead investigator. (Tr. 2067-68).

   Attempting to gain access to her investigative report, Complainant contacted Gary Fugger, a desk officer in Washington D.C. (Tr. 2878). As a desk officer, Mr. Fugger provided staff and administrative assistance to the Assistant Inspector General for Investigations, reviewed field work, prepared memos for the assistant inspector general's signature, and responded to congressional inquiries. (Tr. 2879). Mr. Fugger related that he had four or five telephone conversations with Complainant all of which were prior to August 30, 1995. (Tr. 2882-84, 2926-27, 2973). Mr. Fugger told Complainant that once the OIG reviewed the report and the Assistant Inspector General signed it, the OIG would provide the investigative report to Agency management. (Tr. 2886). Complainant learned about the existence of the report during a phone conversation with Agent Mullis who related that he had sent a report to Region 4 Headquarters but Agent Mullis refused to tell her what the report indicated and Complainant did not know what EPA Region 4 was planning to do with the OIG report. (Tr. 2306-08, 2321).

   As the point-of-contact personnel in charge of overseeing computer contracting services, Mr. Barrow stated that all work assignment managers at EPA are supposed to report to Complainant in regards to the computer work EPA contracted out. (Tr. 515). Complainant related that her job was made more difficult because work assignment managers, who were supposedly under Complainant, continued to go behind her back to have contractors to undertake personnel actions. (Tr. 2223). When a performance problems arose with a contract employee, Complainant forwarded the complaint to GSA, which then informed management who takes care of the problem. (Tr. 2446). The work assignment managers also attempted to circumvent Complainant and go directly to Mr. Barrow who had the same authority as Complainant. (Tr. 515-16, 2936). Mr. Barrow testified that he tried to discourage such behavior but could not stop it, and he attempted to make sure that Complainant had already cleared the proposed action. (Tr. 516, 2225, 2936). Many of the work assignment managers had trouble working with Complainant. (Tr. 515-16).

   Mr. Place, an EPA contractor responsible for the placement of contract employees to perform computer operations at Region 4, testified that generally the point-of-contact personnel was an experienced computer programmer or somebody knowledgeable in information systems. (Tr. 260-62). In all his years of contracting, Mr. Place related that Complainant was the only point-of-contact who did not have considerable experience in computing. (Tr. 263). Mr. Place raised his concern with Mr. Barrow, asking him to replace Complainant because her lack of knowledge made the work environment dysfunctional. (Tr. 263). Mr. Place's understanding was that Complainant was the point-of-contact because Mr. Barrow had nothing to do with her assignment and he could do nothing to change it. (Tr. 264).

   Most of the work Ms. Kemp had to offer was data entry, which Complainant was not willing to do because of her carpal tunnel disability. (Tr. 2627). Instead, Complainant was assigned to help a FOIA specialist comply with a request dealing with contracts. (Tr. 2627-28). Complainant refused FOIA training that Ms. Kemp offered stating that she was already familiar with FOIA during her tenure at Robins Air Force Base. (Tr. 2628, 2975). Complainant related that the FOIA staff had reservations about her joining that office because she was a higher grade and the FOIA staff was worried that she might cut off their promotion potential. (Tr. 2981). In a short period of time Ms. Kemp requested that Complainant no longer assist in the FOIA office. (Tr. 1061).

   Problems arose when an issue came up in the FOIA request Complainant was working on concerning whether EPA could release pricing information. (Tr. 2975). Complainant realized that the FOIA staff was improperly releasing cost information and Complainant suggested that someone should call headquarters and she directed their attention to a legal treatise. (Tr. 2975-76, 2978). Rather than making a decision on their own, the FOIA staff retorted that they were waiting on Lief Palmer, an EPA attorney to make a ruling on what information to release. (Tr. 2977).

that everybody at the meeting made a negative statement about what had happened and that she only remembered Complainant speaking out after Ms. Brinson's comment. (Tr. 2682). Similarly, Mr. Barrow stated that no one at the meeting knew Complainant had made the Congressional inquiry even after the comment made by Ms. Brinson and there were no hostile remarks directed toward Complainant. (Tr. 1051-52, 1060). At the short meeting, neither Mr. Barrow nor Ms. Kemp explained that the employees should back off because activities with Congress were protected. (Tr. 2778, 3039). On February 20, 2000, Complainant filed a whistleblower complaint of post-complaint retaliation and hostile work environment alleging that she was subject to a din of hostile remarks at the branch meeting for leaking information to Congress.

   Ms. Kemp did not know that Complainant had initiated the inquiry, but after the meeting, several members of her staff came to her opining that Complainant was to blame. (Tr. 2682-82, 2775). Ms. Kemp testified that even after FOIA staff approached her pointing the finger at Complainant, she did not know who initiated the inquiry, and she did not care because she answered Congressional inquiries on a frequent basis. (Tr. 2634). The inquiry was actually beneficial because she had tried to obtain an answer from Headquarters on the issue for some time. (Tr. 2681). Ms. Kemp still needs assistance in the FOIA department, and is possible that Complainant could continue to work there, but the staff had little confidence in Complainant. (Tr. 2630).

   H(2) AFC Peoples With Disabilities Advisory Counsel

   As an employee of the EPA, Complainant became the Agency's program manager for people with disabilities, and she was authorized to spend up to twenty-five percent of her time working on that program. (Tr. 1939). Complainant's official term expired on June 1, 1998 and Nancy Barron took her place, but Complainant remained on the EPA advisory counsel. (Tr. 1756, 1939, 3004, 3012). EPA was just one of many employers in the Sam Nunn Atlanta Federal Center and disabled employees working for different employers within the building began an unofficial group in March 1998, entitled "AFC People With Disabilities Advisory Counsel" to address the concerns of handicap personnel regarding such issues as power doors, handicap parking spaces, difficulty using EPA's new security system, camera's in the parking garage and the placement of skid strips. (Tr. 3016; CX 32 A, p. 1; CX 32 D, p. 2, CX 32 E, p. 1). Complainant was listed as a point-of-contact for the Advisory Counsel as was Bill McLesky, who worked for GSA. (CX 32 A, p. 1; CX 32 D, p. 3).

approached Mr. McLesky about ADA requirements for new construction, and a July 8, 1998 incident where Complainant demanded an EPA ADA representative be put on a building committee. (Tr. 2723-30). Additionally, Mr. White related that he witnessed several loud outbursts between Complainant and other employees in his section. (Tr. 2741-42). Once Complainant was arguing with a security officer about locked doors in the elevator lobby, and a second time Complainant was demanding different access during different hours for EPA contractors. (Tr. 2742). Another time Complainant wanted a fire-door unlocked to allow her better access to a nurses station. (Tr. 2743).

   Mr. White did not approach Complainant about complaints from GSA regarding her contacts because he was not her supervisor. (Tr. 2732). Rather, Mr. White routinely contacted the supervisor of problem employees to correct an employee for directly contacting GSA. (Tr. 2736). Accordingly, Mr. White approached Mr. Barrow on several occasions over the years but he was without success in changing Complainant's behavior. (Tr. 2732). GSA did not want Complainant contacting it directly because it preferred to work through the designated official from each agency in dealing with building issues considering there were 1,250 employees in the building. (Tr. 2732).

   Subsequently, on August 4, 1998, Michael Peyton issued a memorandum to the AFC People With Disabilities Advisory Counsel stating that there was no official recognition or endorsement of that group by the tenant agency in the Sam Nunn Federal Center. (EPA 103, p. 1). Mr. Peyton requested that the name of the group be changed to avoid the impression that it represents the tenant agencies. (EPA 103, p. 1). Topics addressed by the Advisory Counsel should be submitted to the appropriate management officials within the group's respective agency for submission to GSA and individual tenants should not contact GSA directly. (EPA 103, p. 1-2). Also, as there was no official recognition of the group, EPA employees were not authorized to use official time to attend its meetings. (EPA 103, p. 1).

home and he arranged a space at the Atlanta Federal Center to store her documents. (EPA 113, p. 16-18). On July 19, 2000, Complainant filed a whistleblower complaint alleging post-complaint retaliation and "conscious parallelism" between EPA and OSHA. On July 20, 2000, Complainant sent Mr. Barrow an update stating what boxes she had brought in and stated that: "There is no principled reason for EPA to use the threat of insubordination to make what in effect is a discovery request." (EPA 113, p. 21). Complainant further stated: "there is no principled reason for EPA to waste my time - - just so that the papers can be eventually thrown into the trash here, instead of at home. I also don't appreciate all the sleep I am losing due to this all at once, when I don't get enough to begin with." (EPA 113, p. 21). On October 18, 2000, Mr. Barrow again charged Complainant with annual leave when she took time to attend an OSHA investigation meeting. (EPA 113, p. 28).

(EPA 60-66, 76, 84, 88 ).

   A contract specialist performs procurement planning, develops procurement objectives in terms of funding arrangements develops pricing arrangements, subcontracting policy and set-aside policies. (EPA 77, p. 2). The contract specialist serves as a leader of a team leading to the award of contracts or contract administration, and serves as an advisor to program officials. (EPA 77, p. 2). Additionally, a contract specialist serves as a lead negotiator, plans and coordinates negotiation strategy, and makes determinations as required by law or regulation. (EPA 77, p. 2). Basic qualifications to apply for the position include a bachelor's degree in any field and to enter as a GS-13, the applicant must have completed prescribed training or have twenty-four academic hours in areas dealing with business administration. (EPA 77, p. 2). Candidates are ranked according to skill in developing procurement strategy, knowledge of agency rules, ability to evaluate proposals, ability to communicate orally, and the ability to write effectively. (EPA 77, p. 2-3).

   For the procurement specialist position that Complainant applied for on July 17, 1997, Complainant was one of five candidates, out of eighty-four applicants, to have a score of "100" but there is no evidence in the record that any person was selected for this position. (EPA 64, p. 1-4). Likewise, Complainant's November 5, 1997 application received the third highest score out of fifteen applicants for the procurement specialist position. (EPA 65, p. 1). Apparently, no selection was made. (EPA 65, p. 1).

   Mr. Mills selected Jeffery Napier to fill a procurement specialist position on March 2, 1998. (EPA 63, p. 1). Complainant was one of five candidates ranked as "highly qualified." (EPA 63, p. 1). In not selecting Complainant, Mr. Mills stated that the person he selected had the right "temperament." (Tr. 1683). Following Complainant's non-selection, she filed a whistleblower complaint on April 8, 1998.

   On July 27, 1998, Mr. Mills declined to select any candidate on the merit promotion certificate for the contract specialist position for which Complainant applied on May 8, 1998. (EPA 66, p. 1). Among the candidates for this position, five were "highly qualified" and Complainant was one of two "qualified" applicants. (EPA 66, p. 1). In the non-competitive candidate referral certificate, however, Mr. Mills chose Charles Hayes for the position. (EPA 66, p. 2). In total, Mr. Mills testified that he interviewed nine applicants including Complainant. (EPA 67, p. 1). He selected Mr. Hays based on responses given during the interview and his background and experience. (EPA 67, p. 1). Specifically, Mr. Hays exhibited a high degree of confidence, and his application reflected leadership ability in that he was a team leader and a former contracting officer, and a current GS-13 warranted senior contracting officer with unlimited contracting authority. (EPA 67, p. 1). Furthermore. Mr. Hay's background with Navy contracts impressed Mr. Mills, and most importantly, Mr. Hays appeared to have the temperament to work well with Program and Technical staff. (EPA 67, p. 1). Complainant acknowledged that Mr. Hays was likely more qualified for the position than herself. (Tr. 2268).

   Regarding the detail complaint applied for on June 23, 2000, the record contains the application of Fran Harrell, Jeffery Napier, and Complainant. (EPA 72-74). Mr. Mills selected both Ms. Harrell and Mr. Napier on September 1, 2000, to fill the detail. (EPA 75, p. 1). Complainant filed another whistleblower complaint in September after she learned of her non-selection. Complainant was one of six candidates referred for consideration. (EPA 75, p. 1). Ms. Harrell was already a senior contracting officer in the Procurement Section, served in leadership positions, and had received numerous accolades such as the Superfund Team of the Year Award and received cash awards based on her performance. (EPA 72, p. 3-4). Prior to becoming a contract officer in 1991, Ms. Harrell was a procurement analyst, a project officer, and she began her career as a contract specialist in 1984. (EPA 72, p. 3-7). In 1989, Ms. Harrell received her MBA form Georgia College and State University. (EPA 73, p. 2).

   Jeffery Napier also received an MBA in 1991, and was a certified professional contracts manager since 1995. (EPA 73, p. 1). Prior to his selection, Mr. Napier had nearly ten years of experience as a GS-13 procurement analyst, and he began his contracting career in 1984 as a contracting officer at Robins Air Force Base. (EPA 73, p. 1-2). Like Ms. Harrell, Mr. Napier was working under Mr. Mills at the time of his selection. (EPA 72, p. 1; EPA 73, p. 4).

   Complainant's application reflected that she had over eighteen years of contracting experience, supervising programs and serving as a contract officer. (EPA 74, p. 1). Unlike Ms. Harrell and Mr. Napier, Complainant was a GS-12 at the time of her application. (EPA 74, p. 2). Also unlike Ms. Harrell and Mr. Napier, Complainant had been removed form the contracting field since 1995. Nevertheless, Complainant had certification as a procurement professional and had received awards and letters of appreciation form the EPA based on her contracting work. (EPA 74, p. 9). While Complainant did not have an MBA, she had an academic background in psychology and criminal justice. (EPA 74, p. 15-19, 23-260). Complainant testified that she had more contracting experience than both Jeffery Napier and Fran Harrell. (Tr. 2268). In selecting other candidates ahead of Complainant for contracting jobs, Mr. Mills related that they had leadership abilities. (Tr. 1693). Mr. Mills also related that in working with Complainant he knew that Complainant had the ability to tackle issues at the headquarters level and she exhibited leadership qualities. (Tr. 1693-95).

   On September 9, 2000, Matthew Robbins selected Fran Harrell and Jeffery Napier for a detail position. (EPA 62, p. 1). Complainant was one of six candidates referred for selection. (EPA 62, p. 1). Mr. Robbins became chief of the Grants and Procurement Branch in September 1996, after Complainant had transferred to the Information Management Branch. (EPA 118, p. 1). Mr. Robbins chose Mr. Napier and Ms. Harrell because both possessed current contract officer's warrants which circumvented the need to go to EPA headquarters for purchase approval. (EPA 118, p. 1). Because the detail was only for three to four months, it was practical to chose Mr. Napier and Ms. Harrell because to chose a candidate without a current warrant would increase the paper-work delays. (EPA 118, p. 1). Furthermore, Mr. Robbins was familiar with Ms. Harrell and Mr. Napier, was pleased with their past performances, pleased with their abilities to assume leadership positions, and both had acted as managers in Mr. Mill's absence. (EPA 118, p. 1). Introduction of an outside employee was impractical because Mr. Robbins already had two employees in the branch that met the requirements. (EPA 118, p. 1). Mr. Robbins denied ever having knowledge of Complainant's protected activity. (EPA 118, p. 1-2).

   On October 16, 2000, Mr. Mills selected Anita Wender to fill one of two positions as a contract specialist for which Complainant had applied on August 1, 2000. (EPA 76, p. 1). Complainant was one of only three "highly qualified" applicants referred for consideration on the list for one of those positions, and she was one of the remaining "highly qualified" applicants to fill the other position, but, Mr. Mills did not choose any candidate to fill the second spot. (EPA 76, p. 1-2). Ms. Wender served for eighteen years in Human Resources at various agencies including: the Office of Personnel Management, Housing and Urban Development, Department of Labor, and the Navy. (CX 15 C, p. 1). Ms. Wender obtained a B.A. in Sociology and a M.A. in Environmental Studies. (CX 15 C, p. 1). Complainant testified that Ms. Wender, a person with over twenty years of service in personnel, was not as qualified for the position. (Tr. 2265-67). Mr. Mills related that he picked Ms. Wender over Complainant because she had four years of contracting experience at HUD. (Tr. 1715).

   Keith Mills selected Fran Harrell and Jeffery Napier on March 5, 2001, for the contract specialist (GS-13) position for which Complainant had applied on February 2, 2001. (EPA 61, p. 1). Complainant was one of five candidates referred for consideration. (EPA 61, p. 1). The duties of the person selected for the detail included serving as the lead senior contract specialist responsible for managing a team of contracting officers and specialists in the procurement of complex projects. (EPA 79, p. 1). Additionally the selected candidate would provide expertise and guidance on interpreting contract terms, cost and pricing, negotiating and on how to apply regulations. (EPA 79, p. 1).

   On March 13, 2001, Mr. Mills did not select any candidate for the GS-9 contract specialist position. (EPA 88, p. 1). Complainant was not listed as either a "highly qualified" or as a "qualified" candidate. (EPA 88, p. 1-2). On July 25, 2001, Mr. Mills selected Sharonita Byars for a detail in the Procurement Section. (EPA 84, p. 1). Complainant was one of six candidates referred for consideration. (EPA 84, p. 1). The detail lasted for 120 days and the purpose was to perform review and analysis on assigned procurement requirements. (EPA 85, p. 1). Specifically, the selected candidate would review performance specifications and statements of work to make recommendations concerning whether they are written to obtain maximum competition. (EPA 85, p. 1). Other duties included: performing cost/price analysis on analyst on all procurement actions less than $500,000, prepare contract documents, and monitoring work progress. (EPA 85, p. 1). After Mr. Mills selected Ms. Byars, Complainant filed a whistleblowing complaint alleging retaliation after winning a remand before the ARB and being denied the job in favor of a secretary.

   Ms. Byars application packet reflects that she was a GS-9 executive staff assistant since May 1995. (EPA 86, p. 1). Ms. Byars had received a degree in business management in 1990 from Atlanta Metro College, and her experience included soliciting real estate contracts, vice president of a joint venture, reviewing statements of work at a cable communications company, and she was a quartermaster in the National Guard. (EPA 86). Complainant was not picked for this detail because the detail was for someone to do lower-graded contract work and learn the system. (Tr. 1713-14).

K. Medical Records and Testimony

   Complainant testified that she was always in good health until she started having problems with Mr. Mills in 1993. (Tr. 2182). Subsequently, Complainant was diagnosed with irritable bowel syndrome, gastritis, anxiety disorder and aggravated asthma, all of which she related to workplace stress. (Tr. 2183). Secondary to her anxiety disorder, Complainant noticed memory deterioration and the inability to maintain a train of thought. (Tr. 2185). The anxiety disorder also affected her speaking skills because she felt that every time she opened her mouth she would be attacked and criticized. (Tr. 2185). Complainant uses her background in psychology to help deal with the stress. (Tr. 2186).

   As a result of her working conditions, Complainant also experienced a dramatic increase in her blood pressure. (Tr. 2209-10). Stress caused Complainant difficulty with her jaw because she clenched it under pressure. (Tr. 2212). Complainant acknowledged other areas of stress in her life, such as giving birth and staying on bed rest while pregnant - activities that Complainant described as "good stress." (Tr. 2541-43). Complainant alleged many of the same symptoms during the latter part of the year 2000 in connection with hypothyroidism. (Tr. 2547-48; CX 10, p. 41). Complainant explained, however, that the symptoms were related to stress and not hypothyroidism because her condition did not go away with the use of medication. (Tr. 2550). Complainant also acknowledged that her previous job in the Procurement Section caused her stress, but when she returned to her former job, she expected to work reasonable hours. (Tr. 2571-72).

   On January 20, 2002, Dr. Daniel Patterson, a psychiatrist, performed an evaluation of Complainant. (CX 50 A, p. 1). Complainant related to Dr. Patterson that she was passed over for promotions within the EPA, accused of inappropriate dealings with a contractor, "shunned" at work, and put on display. Id. Complainant also alleged that because of her activity she was idled in her current job, but had won an award within the past year for her work in the Information Management Branch of the EPA. Id. As a result of ongoing litigation, Complainant reported that she suffered from constant stress, aggravation of her irritable bowel syndrome, and aggravation of her arthritis. Id. Additionally, Complainant related that she was constantly anxious, had difficulty sleeping, had frequent headaches and suffered from an inability to relax. Id. at 1-2.

   In Dr. Patterson's opinion, Complainant had no significant psycho-pathology that would have predated her employment with the EPA in 1989. (CX 50 A, p. 2). Complainant's work was "both her vocation and avocation." Id. Dr. Patterson directly related the stress and strain of her treatment at EPA and the resultant legal proceedings to a generalized anxiety disorder and aggravation of her irritable bowel syndrome. Id.

   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). A complainant has thirty days from the time of the employment action to file a complaint. 29 C.F.R. § 24.3(b) (2001). To establish a prima facie case of discrimination under Whistleblower statutes, the complainant must show by a preponderance of the evidence that:

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).

A. Contention of the Parties

   Complainant argues that the record established direct evidence of discriminatory intent as reflected by: the issuance of a "gag order;" destruction of documentary evidence; referring Complainant for an OIG investigation that effectively black-listed her; providing the OIG with false data; refusing to disclose the results of the OIG investigation; and deviating from established investigative procedures. Respondents had direct knowledge of Complainant's protected activity stemming form Complainant raising concerns about Superfund environmental regulations, procedures, policies and practices in 1993 on the Southeastern Superfund site. Direct evidence of retaliation includes: reassignment; requesting premature documentation, making false accusations of assisting a contractor; misstating indemnification and federal facilities issues concerning Bechtel; conducting an illegal investigation by an EPA attorney; fabricating falsehoods (interfered in others business, disciplinary record); never checking Complainant's personnel file; accusing her of large cost overruns; accusing her of misrepresentation; accusing her of co-authoring a paper for a superfund conference without permission; issuing a warning letter the day before an OSHA investigation; and accusing her of not preparing a profit analysis as directed by her supervisor. Complainant contends that her actions both sincere and were heroic.

   Complainant further alleges that she was subject to a hostile work environment as reflected by: idling; shunning; undermining her authority; keeping her in the dark on work related issues; putting her on display in the library for eighteen months; issuing a "gag order;" denying pay increases and job promotions; removing her flexiplace; publically searching and confiscating things in Complainant's cubicle without making an inventory then failing to return the items; pressuring her to dispose of discoverable evidence; denying training and permission to attend conferences; name calling, inadequate investigation of grievances; prohibiting access to contract files; denying leave to comply with discovery requests; placing her in a position to be the scapegoat for problems with computer contractor's time and funds; demanding that she turn over potentially discoverable evidence; making hostile remarks and circulating disinformation about her case to colleagues; and by making hostile comments in a FOIA meeting. As a remedy Complainant seeks reinstatement, back-pay, compensatory and punitive damages, and affirmative action.

   Respondent EPA first argues that argues that the continuing violation theory does not apply to Complainant's claims falling outside the thirty day filing period. Specifically, Complainant should be barred from asserting claims that occurred more than thirty days before April 8, 1998, the time of Complainant's first whistleblower complaint. Considering events prior to that date is not proper because Complainant did not prove that her non-selection and incidences occurring in the Information Management Branch were related to events that took place in 1995 regarding the North Cavalcade site and other alleged protected activity. Similarly, Complainant failed to show a pattern of discriminatory conduct. There is no evidence of a discriminatory policy or practice because Complainant failed to establish that Mr. Mills's non-selection, which occurred three years after her alleged protected activity, was related to her protected activity since Mr. Mills had no knowledge of the scope of the OIG investigation and did not initiate the OIG investigation. Mr. Barrow purposefully tried to avoid information concerning the OIG investigation so that Complainant could have a clean slate in his department. Likewise, Complainant's non-selection and

Information Management Branch incidences were not related to a series of retaliatory events considering that the alleged acts of retaliation in 1998 are different that the alleged acts of retaliation in 1995, and Complainant's transfer to the Information Management Branch and the suspension of her contracting warrant were permanent decisions. Mr. Mills did not select Complainant for contracting positions because of any alleged protected activity, rather her non-selection was based on prior missed deadlines, her opinionated badgering of other employees, general contentiousness and refusal to accept management decisions.

   Neither is equitable tolling available to consider claims occurring prior to her first complaint because Complainant was never misled or prevented by Respondents from asserting her rights, and her unfair labor practices claim, alleging retaliation for union activity, did not raise the precise claim in another statutory forum. Furthermore, Respondent EPA asserts that Complainant failed to show a hostile work environment because: Complainant failed to prove the Office of Regional Counsel and OIG investigations, as well as her non-selection, were in retaliation for protected activity; failed to show that the alleged discriminatory acts were pervasive and regular; failed to show that she suffered any detrimental effects or that a reasonable person would be detrimentally affected because Complainant failed to prove any monetary loss or damages, failed to establish her medical condition is linked to her work environment; and Complainant failed to show that respondent superior liability exists.

   Second, Respondent EPA contends that Complainant failed to show any materially adverse action based on her alleged protected activity. Specifically, Respondent EPA argues that the Office of Regional Counsel inquiry and the referral to the OIG concerning Complainant's actions regarding the North Cavalcade site was not materially adverse and that the statement that Complainant had a "long history of disciplinary problems" did not result in any tangible job detriment. Similarly the failure to notify Complainant about the results of the OIG investigation was not an intentional act. Likewise, Respondent EPA asserts that the revocation of Complainant's warrant, the written warning, the suspension of flexiplace and the non-selection were not motivated by a retaliatory animus. There is simply no nexus between Complainant's alleged protected activity and any alleged adverse employment action. Finally, Respondent EPA asserts that Complainant is not a credible witness in light of many inconsistencies in her testimony and in the record.

   Respondent OIG contends that this proceeding is nothing more than an attempt by Complainant to obtain job reassignment, a promotion, and a large sum of money on a claim that she is a whistleblower. Respondent OIG further argues that the OIG investigation of Complainant did not constitute actionable adverse employment action because: the investigation was authorized by the Inspector General Act of 1978; an OIG investigation does not inevitably lead to some other materially adverse consequence since an investigation is simply a fact-finding mission; the OIG did not recommend that the Agency take any adverse action; and Complainant suffered no formal disciplinary action as a result of the investigation. Respondent OIG contends that the fact that it did not affirmatively advise Complainant of the investigative findings was not actionable adverse action because Complainant is not entitled to a notice of the OIG's investigative findings, and there is no evidence showing how the lack of notice resulted in a tangible job consequence. Furthermore, Respondent OIG contends that its delay in processing Complainant's FOIA request is not actionable adverse action because delay does not constitute an action related to the compensation, terms, condition, or privileges of employment. Likewise, Respondent OIG argues that Complainant's claim of hostile work environment lacks foundation because Complainant failed to establish that the hostile working environment, if any, was pervasive and regular. The investigation, the non-

disclosure of the investigative report, and the FOIA delay were separate activities by separate components within the OIG and no action was taken in concert with EPA Region 4.

   B(1) Complainant

   Respondent EPA attacked Complainant's credibility citing contradictory statements in the record: 1) Complainant stated that she did not know the OIG cleared her of any wrongdoing until the OIG complied with her FOIA request in 1998, but Complainant had signed an affidavit in February 1996 stating that the OIG had cleared her; 2) Complainant accused EPA of transferring her out of her career field, but offered no credible explanation for saying that she wanted to get out of "the department;" 3) Complainant told OIG investigators that she was authorized to work flexiplace over several days when her time card showed that she was only authorized to work one day on February 13, 1995; 4) Complainant stated that she contacted Region 6 as a concerned taxpayer but offered no explanation as to why she identified herself as a Region 4 contract officer; 5) Complainant alleged that she was "idled" and had no work to do, but testified that she often worked at home on things that she does not get paid for; 6) Complainant complained about not being paid overtime, but asserted her rights to be on EPA premises after hours; 7) Complainant claims to be entitled to "trash" copies of documents contractors send to EPA and alleged that they constituted "personal" property that EPA stole from her; 8) Complainant alleged a hostile work environment, but was given a well-attended baby shower after filing her second whistleblower complaint; 9) Complainant does not keep regular time and attendance; and 10) Complainant alleged that she did not have a private office, calling it the "computer's office" but she asserted her right to store personal documents there.

   Contrary to Respondent EPA's assertion, I find that Complainant made a credible witness and that the above inconsistencies are adequately explained in the record. First, Complainant explained the statement in her February 1996 affidavit supporting her unfair labor practices charge by stating she did not know if the OIG investigation had completed but she knew that she had provided adequate documentation to clear her of any wrongdoing; and she inferred that she was cleared without having any hard evidence because Region 4 had a copy of the report since the summer of 1995 and neither the OIG or the EPA had undertaken any criminal or administrative action. (Tr. 2203-05, 2313, 2331-32; EPA 121, p. 5). Second, while Complainant did request a transfer out of the Procurement Section in her September 16, 1993 union grievance, she never requested reassignment to the Information Management Branch on March 13, 1995, as ordered by Mr. Waldrop. (EPA 25, p. 1; EPA 51, p. 1). Third, while Complainant was only authorized to work one day of flexiplace on February 13, 1995, her statement to OIG investigators that she worked several days of flexiplace is explained by the fact that Complainant intertwined personal time with flexiplace time so that one day's work was spread over several days. (Tr. 2438-39; CX 11 C(4)(a-c); OIG 1, p. 202).

   Fourth, Complainant testified that she did not contact Region 6 as a contract officer, rather, in explaining to officials in Region 6 about the contract specifications giving rise to an impossibility of performance, she had to detail the events at the Southeastern Superfund Site where she was a contracting officer. (Tr. 2171-72, 2436; EPA 20, p. 1). Fifth, Complainant explained her statement that she was "idled" in the Information Management Branch, but worked on things she was not paid for by stating that issues would arise on her day off and she would deal with the problem even though she was not scheduled to work. (Tr. 530, 2509-10). Sixth, I find nothing inconsistent with Complainant complaining about not being paid overtime and asserting her right to be on EPA premises after hours.

   Seventh, Complainant explained that she often kept a copy of an official agency document for future reference. (Tr. 2238-39). Whether these documents were "personal" as a matter of law has no bearing on Complainant's credibility. I have no doubt that Complainant thought the documents were personal property and her subjective belief explains her comment that Respondents "stole" her property. Eighth, while Complainant alleges a hostile work environment, she explained that things at work gradually improved with time so that by 1998 when she had her baby shower some people were having civil conversations with her and while she is still shunned by some it is not nearly as bad as when she was under the OIG investigation in 1995. (Tr. 2487-88). Ninth, Complainant explained that she does not keep regular time and attendance because Mr. Barrow allows flexibility in her attendance to compensate for work she does at home. (Tr. 2483-84). Finally, Complainant was allowed to use a private office to use a voice activated computer because of her disability. (Tr. 966-67). Pursuant to a union agreement Complainant was to perform all other work in a cubical but Mr. Barrow thought that would be inefficient so he allowed Complainant to stay in the office. (Tr. 968-70). Thus, I find Complainant's statement consistent because officially the office is only for the use of the voice activated computer, but unofficially Complainant uses it as her personal work space. Accordingly, I find that Complainant adequately explained the above inconsistencies and I find that Complainant is a credible witness.

   B(2) Gary Fugger

   Protected activities that "touch on" the subjects regulated by the pertinent statutes includes statutory protected activity of commencing, testifying or assisting in a proceeding under the statute, 29 C.F.R. § 24.2(b)(1-3) (2002), or by engaging in other acts to further the purpose of the statute. See Macktal v. Chao, 286 F.3d 822, 825 (5th Cir. 2002) (finding in an ERA case that an expression of an intent to file an complaint was protected activity); Dobreuenski v. Associated Universities, Inc., 96 ERA 44, p. 9 (ARB June 18, 1998) (participating in a television report about alleged leakage or radioactive waste); Carson v. Tyler Pipe Co., 93 WPA 11 (Sec'y Mar. 24, 1995) (protecting internal safety complaints); Conley v. McClellan Air Force Base, 84 WPC 1 (Sec'y Sept. 7, 1993) (protecting external safety complaints); Immanuel v. Wyoming Concrete Industries, Inc., 95 WPC 3 (ALJ Oct. 24, 1995) (distributing leaflets at a company picnic raising environmental concerns). While 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 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).

   Here, Complainant alleges that she engaged in numerous protected activities:

   To the extent that Complainant voiced concerns to co-workers and management about Superfund environmental regulations, analytical procedures, policies, and practices that wasted funds, and created impossibility of performance issues that retarded the environmental cleanup of the Southeastern Superfund site in 1993, I find that Complainant engaged in protected activity in furthering the purpose of the pertinent environmental statutes. See Nathaniel v. Westinghouse Hanford, Co., 91 SWD 2 (Sec'y Feb 1, 1995). Likewise, I find that interfering in bidding process for the North Cavalcade Superfund Site to change the analytical methodology and performance standards in an attempt to eliminate an impossibility of performance issue that would retard the environmental cleanup was also a protected activity. See id.

   Similarly, Complainant's letters to members of Congress concerning the OIG investigation of her that was opened, in part, because of her involvement in the North Cavalcade Superfund site, constitute protected activity because Complainant was both complaining about faulty analytical methodology used in adopting unattainable performance specifications and complaining about Respondents' retaliation against her. See e.g. (CX 12 D, p. 4) (writing to Senator Coverdell that Complainant was merely trying to protect the government and superfund from poor scientific methodology). Filing whistleblowing complainants and taking environmental concerns to the media are both protected activity. See 29 C.F.R. § 24.2(b)(1) (2002); Dobreuenski v. Associated Universities, Inc., 96 ERA 44, p. 9 (ARB June 18, 1998).

   Finally, I find that sending information to Congress regarding possible FOIA violations by Respondent EPA, concerning the destruction of e-mail back-up tapes in February 2000, constituted protected activity. Although Complainant never showed what information was on the backup e-mail tapes and how the destruction of that information specifically violated the purpose of the environmental statutes under which she seeks protection, the fact that the tapes were maintained in the Information Management Branch for EPA Region 4, preponderates the conclusion that some of the information would relate to concerns about environmental contaminants. See Tyndall v. U.S. Environmental Protection Agency, 95 CAA 5 (ARB June 14, 1996) (finding that complaining about interference in an OIG investigation of improprieties in awarding a contract to study acid rain was protected activity because interference with the investigation could lead the EPA to rely on studies that understated the effects of acid rain); Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec'y May 18, 1994) (noting that employee protection provision are construed broadly), Cf. Niedzielski v. Baltimore Gas & Electric Co., 2000-ERA-4 (ALJ July 13, 2000) (finding that complaining about insufficient resources to develop an NRC examination for employees entrusted to run a nuclear power plant did not rise to the level of protected activity).

D. Adverse 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) (2002). 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). To be actionable, 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); Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066 (ARB Aug. 28, 2001). To be adverse action, the activity must result in a tangible job consequence that a reasonable person

significantly altered duties constitutes adverse employment action. See Kocsis, 97 F.3d at 885 (job transfer).

   Regardless of how Mr. Waldrop construed the meaning of the "gag order," Complainant believed that it prohibited her form speaking to anyone about her case and curtailed her First Amendment rights as memorialized in the March 15, 1995 e-mail to Mr. Waldrop. (CX 42, p. 1). Mr. Waldrop never corrected Complainant's interpretation of the "gag order." (Tr. 1921-24). Subjecting Complainant to an administrative order that curtailed her liberty constitutes a materially adverse employment action. See Connecticut Light & Power Co., 85 F.3d 89, 94-95 (2nd Cir. 1996) (restricting an employees ability to cooperate with administrative and judicial bodies through a gag order constitutes adverse action and is against public policy).

   Also, Respondent EPA took boxes of materials from Complainant's work station and turned some of the material over to the OIG. (Tr. 2231-34; OIG 15, p. 2). Having managers confiscate property and turn it over to the OIG was outside the normal course of business. (Tr. 373-74, 721, CX 51, p. 1-2). Merely depriving Complainant of access to her work by itself, however, does not rise to level of a materially adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (concluding that having property stolen and the resultant anxiety, without more, do not constitute ultimate employment decisions and are therefore not actionable adverse action). Unlike Mattern, there is more than a mere deprivation of property by co-workers in this case. Rather, the confiscation of Complainant's property was done on the same day that she was informed of the OIG investigation against her and told to report to her new position on the following work day. The confiscation of her property affected the terms, conditions and privileges of her employment because Complainant was not issued a receipt for the property taken from her and she alleged that she needed the information to defend the allegations the OIG was investigating. Depriving an employee of documents necessary for a defense, without an accounting, could result in a criminal conviction and a resultant loss of job, and thus, it materially affects the terms conditions and privileges of employment. See Wideman, 141 F.3d at 1456 (recognizing disagreement with Mattern and adopting a rule in the Eleventh Circuit that adverse employment actions do not have to result in an ultimate job consequence).

   Likewise, I find that opening an OIG investigation by itself is a materially adverse employment action. See Marcus v. U.S. Environmental Protection Agency, 96 CAA 7, p. 38 (ALJ Dec. 15, 1998) (stating in dicta that an OIG investigation would appear to constitute adverse action if motivated by a retaliatory animus). In Hoffman v. Rubin, 193 F.3d 959, 964 (8th Cir. 1999), however, the Eighth Circuit came to a different conclusion. In that case, Hoffman, the plaintiff in a Title VII action, alleged that his employer retaliated against him for supporting a co-workers sexual harassment and discrimination claims. Id. at 960. The EEO office determined that all of Mr. Hoffman's retaliatory claims were time barred with the exception of his employer's attempt at criminal prosecution for his activity in the Outlaws Motorcycle Club. Id. at 962. Eventually, Mr. Hoffman filed suit in federal court where he learned through discovery that he was under investigation for leaking information to the Outlaws. Id. The district court ruled, inter alia, the Mr. Hoffman failed to present evidence of adverse employment action. Id. at 963. The Eighth Circuit agreed that a criminal investigation was not adverse employment action because an investigation is a preliminary and not a final decision, Mr. Hoffman was never aware of the investigation until discovery, and Mr. Hoffman presented no

evidence that the investigation was responsible for any change in the terms, conditions, and privileges of employment. Id. at 965. The Eighth Circuit further cautioned against "approving a rule of law that would make wrongful a criminal investigation not conducted by the employer and supported by at least some evidence." Id.

   The OIG investigation of Complainant is easily distinguishable. Apart from the fact that the Eight Circuit only finds ultimate employment decisions actionable, see Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997), a rule not adopted in the Eleventh Circuit, the case is distinguishable on its facts. First, Complainant knew on March 10, 1995, the same day EPA managers held a group meeting with an OIG agent outlining the allegations against Complainant, that she was under investigation for criminal wrongdoing. (Tr. 2178-79). Second, the investigation was performed by the employer and not an outside entity in as much as EPA Region 4 and the Office of the Inspector General both serve under the EPA Administrator and Deputy Administrator. Third, the fact that the OIG investigation was not a final decision, did not keep the OIG investigation form having final effects on the terms conditions and privileges of employment. Mr. Waldrop reassigned Complainant to a different branch within the Office of Policy and Management during the pendency of the investigation. (EPA 51, p. 1; EPA 121, p. 5). Also, "in view of the investigation" Mr. Waldrop decided to make Complainant's transfer to the Information Management Branch permanent even though he found no basis for administrative action. (OIG 3, p. 1). Accordingly, under the facts of this case, I find that opening on OIG investigation constituted an adverse employment action materially affecting the terms conditions and privileges of employment.

   D(3) Failure to Disclose Results of OIG Investigation

   Third, I also find that Respondents' refusal to disclose the results of the OIG investigation to Complainant constituted adverse employment action. An official OIG investigation was opened on March 20, 1995 and Complainant was in regular contact with OIG agents, Congressional members and Region 4's management about the pendency of her suit, its progress, and the investigative report. See supra Section II, part E-F. Respondent OIG promised on May 18, 1995 and again on October 18, 1995, in regards to two separate FOIA requests, that it would send Complainant portions of the investigatory as soon as the investigation was completed. (OIG 18, p. 1; OIG 19, p. 1). No personnel from Region 4 or the OIG ever told Complainant that the OIG criminal investigation was finished by June 22, 1995, or that Region 4 determined that there was no basis for administrative action on March 28, 1996. (Tr. 2188). Failing to disclose the results of the investigation deprived Complainant of information necessary to contest her transfer out of her career field, and Complainant testified that holding the investigation over her head prevented her from applying to other jobs because of the unresolved criminal investigation. (Tr. 2230). The chilling affects of an OIG investigation were well documented in the record and the OIG has a policy to handle employee investigations as quickly as possible because "it is not a good thing to have this type of cloud over someone's head for any extended period of time." (Tr. 809).

   D(4) Putting on "Display," "Shunning," and Job Placement

   Fourth, I do not find that putting Complainant on "display" in the library and "shunning" her, without more, constitutes an adverse employment action because Complainant has made no showing that such activities resulted in a "serious and material change" in the terms, conditions, or privileges of employment. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (holding that hostility from fellow employees does not constitute an ultimate employment decision and thus is not adverse employment action); Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1039 (7th Cir. 1998) (providing that shunning may constitute and adverse

employment action when it causes a material harm); Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 968-69 (8th Cir. 1999) (shunning by co-workers is not adverse employment action).

   Following the meeting of March 10, 1995, Complainant was assigned to the supervision of Jack Sweeny in the Information Management Branch. (OIG 3, p. 1). Complainant related that upon her reassignment she was put on display in the library. (Tr. 2203). The physical space was not bad, but Complainant stated that her reassignment sent a message to all other employees that she was a leper and nobody was to speak with her. (Tr. 2203). Contrary to Complainant's assertions, the current manager of the branch testified that everyone in the Information Management Branch had worked in library at one time. (Tr. 964). The facility was crowded and only two or three private offices existed for employees with everyone else stationed in cubicles. (Tr. 964). Rebecca Kemp, who managed FOIA personnel, testified that her office was in the library. (Tr. 2623, 2626). All new branch employees were first stationed in the library due to a lack of space, and from time to time other employees had work stations in the library. (Tr. 2623-24). Complainant stayed in the library about eighteen months before the Information Management Branch moved locations and she moved into a private office. (Tr. 2212, 2215-16).

   Complainant related that Mr. Mills and Mr. Jamison had called Complainant's former project officers and informed other employees that Complainant had committed a criminal act and no one should to speak to her. (Tr. 2204-05). Employees only spoke to Complainant out of the sight of their managers to avoid guilt by association. (Tr. 2208). On February 2, 1997, Complainant reported that Waldrop remarked in a joint counsel meeting that he had better leave when he saw Complainant because she was "trouble." (CX 24, p. 1). Although Complainant was not happy about her work space location and she testified that she was "shunned" I do not find that these facts rise to the level of a "serious and material" change in the terms conditions and privileges of employment to constitute an adverse employment action.

demanding of GSA on July 8, 1998, that an EPA ADA representative be appointed on a committee; going directly to GSA demanding more handicap spaces; making representations on behalf of the agency on behalf of persons with disabilities when she was not the official representative on official duty time; involving herself with the AFC Peoples With Disabilities Advisory Counsel; and using loud and offensive language toward other employees. (Tr. 1741, 2723; EPA 103, p. 3-4).

   Mr. Barrow could not recall Mr. Waldrop ever asking him to sign a memo relating to any other employee. (Tr. 541). Interestingly, the written warning was issued to Complainant one day before she was scheduled to meet with an OSHA investigator about her whistleblowing complaint. (Tr. 1735). Complainant was not given a chance to defend her actions or show documentation before she was issued the written warning letter. (Tr. 2260, 3018). Even if all the allegations in the written warning were false, the written warning does not constitute adverse employment action because it specifically states that it is not disciplinary action and I find that it did not constitute a "serious and material" change in the terms, conditions, or privileges of employment. See Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066 (ARB Aug. 28, 2001) (finding that a memorandum of reprimand that amounts to a mere scolding without any following disciplinary action does not rise to the level of adverse action).

   D(6) Denial of Promotion Through Non�Selection

   Generally, an employer is free not to hire any individual as long as that non-selection is not based on a discriminatory motive forbidden by law. Frady v. Tennessee Valley Authority, 92-ERA-19 (Sec'y Oct. 23, 1995), citing, Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993)(slip op. at 10). Accordingly to establish that a failure to select Complainant for the positions she applied for constituted adverse employment action, Complainant must show that:

1. Complainant was qualified for such a position,
2. That despite Complainant's qualifications she was rejected, and
3. That Respondent continued to seek and/or select similarly qualified applicants.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See also Samodurov v. General Physics Corp., 89 ERA 20 (Sec'y Nov. 16, 1993) (applying framework established by McDonnell Douglas Corp. to whistleblowing actions based on non-selection).

   Regarding the jobs Complainant applied for on July 17, 1997 (procurement specialist), November 5, 1997, (procurement specialist), August 1, 2000 (two positions as a contract specialist), and January 19, 2001, (contract specialist), no selection was made among the candidates and Complainant made no showing that the positions remained open after she was rejected. Hasan v. Florida Power & Light Co., ARB No. 01-004 (ARB May 17, 2001). Thus, Complainant failed to show that her non selection for these positions constituted adverse employment action.

   For the procurement specialist position that Complainant applied for on November 5, 1997, Mr. Mills selected Jeffery Napier on March 2, 1998. (EPA 63, p. 1). Complainant was one of five "highly qualified" applicants for the position. (EPA 63, p. 1). Likewise Complainant was rated "qualified" based on her May 8, 1998 application for a contract specialist position for which Mr. Mills selected Charles Hays on July 27, 1998. (EPA 66, p. 1-2). Complainant was also among the list of names referred for consideration for the detail she applied for on June 23, 2000 for which Mr. Robbins selected Jeffery Napier and Fran Harrell on September 1, 2000. (EPA 75, p. 1). When Mr. Mills hired Anita Wender on October 16, 2000, Complainant was one of only three "highly qualified" applicants. (EPA 76, p. 1-2). Complainant was one of five candidates referred for consideration based on her February 2, 2001 application, but Mr. Mills hired Fran Harrell and Jeffery Napier on March 5, 2001. (EPA 61, p. 1) Finally, Complainant was one of six candidates referred for consideration based on her May 24, 2001 application for a detail position that Mr. Mills gave to Sharonita Byars on July 25, 2001. (EPA 84, p. 1). Accordingly, Complainant established that she was subject to a materially adverse employment action in not being selected for the above positions for which she was qualified and rejected in favor of another candidate.

   D(6) 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). Unlike adverse employment action a tangible job detriment is not a required element in a hostile work environment case. Id. at 92, n.93. Accordingly, to prove the existence of a hostile work environment, in the Eleventh Circuit, a complainant must show:

Miller v. Kentworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). See also Rojas v. Florida, 285 F.3d 1339, 1344 (11th Cir. 2002) (stating that to establish hostile working environment a plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.") (citation omitted).

   Here, there is no dispute that Complainant belongs to a member of a protected group under the environmental whistleblowing laws. To show unwelcome harassment Complainant points to the following acts by Respondent EPA:

1) Removal of Complainant from the Southeastern and Bechtel contracts in August and October 1993, demotion from a contract officer to a contract specialist and assignment to a detail in the Grants Section, and removal of another contract in May 1994 citing the fact that Complainant was detailed to Grants;

2) Making notations in the Southeastern contract concerning Complainant's performance and not allowing Complainant to defend her actions in the file while subjecting her to excessive scrutiny and criticism;

3) Denial of a promotion through a desk audit in December 1993 due to the fact that management had reassigned Complainant's contracts to other workers;

4) Extending Complainant's assignment to Grants in July and November 1994 intending to remove Complainant form all contracting matters;

5) Initiating an OIG investigation in March 1995, without giving Complainant a chance to defend her actions, making false statements to the OIG investigator, and misleading her into believing the OIG investigation was still open until October 1998 when the U.S. attorney had declined prosecution in June 1995 and the case was officially closed in May 1996;

6) Issuing a "gag order" not to speak about her case with other employees, denying her access to the contract file room;

7) Confiscating and stealing her the materials in her work space and turning some of that material over to the OIG without an inventory or an accounting;

8) Transferring Complainant out of her career field and into the Information Management Branch in March 1995, making that reassignment permanent in March 1996, and providing her with a job she was not qualified to perform;

9) Ostracizing Complainant by putting her on display in the library for eighteen months in the Information Management Branch and assigning her "make work;"

10) Shunning Complainant in the Information Management Branch;

11) Placing Complainant in a job that she was not qualified to perform, with work assignment managers that refused to work with Complainant and preferred to go behind her back to get authorization for their activities;

12) Issuing a written warning for her activities with the AFC Peoples with Disabilities Advisor Counsel in August 1998;

13) Subjecting Complainant to a "din of hostile remarks" in a February 2000 Information Management Branch Meeting after Complainant leaked information to Congress regarding destruction of EPA records; and

14) Removal of flexiplace in March 2000 and May 2001, taking photographs of her office, searching and confiscating items from her office.

   Further evidence of a hostile working environment was presented through the testimony of EPA contractor, Robert Place. He personally witnessed behavior of other employees that undermined Complainant's behavior and he witnessed other employees make obscene gestures toward Complainant when her back was turned. (Tr. 275-77). Mr. Place stated:

   Nobody wants to talk about her at the EPA. Go ask somebody at the EPA about Sharyn Erickson. You won't get much of a response. They just acknowledge that she exists at all. (sic). It's not natural. Somebody - - somebody in the EPA organizational structure is managing that. It's not normal for a group of human beings when you put them in a common work environment for them to gang up against one and shun them. Brutal. . . . Avoiding her, not communicating with her not keeping her informed, I mean, it's absolutely bizarre. I mean, I went in there and pulled an employee off the task. She didn't even know there was a problem.

(Tr. 348-49).

   Complainant further alleges that Respondent EPA continued to exhibit a hostile attitude toward her during this litigation by: denying her access to documents during discovery; blacklisting her by calling her "paranoid;" attempting to subject her to a "gag order," bringing a disqualification motion against her attorney, and making a "bad faith" settlement offer.

   To show that the harassment was severe or pervasive enough to alter the terms and conditions of employment to create a discriminatorily abusive working environment a complainant must show more than that she was merely unwelcome at work. Rojas v. Florida, 285 F.3d 1339, 1344 (11 Cir. 2002) (finding that treating an employee "cooly" and making her feel "unwelcome" is not sufficient to establish hostile work environment). Cf. Smith v. Esicorp, Inc., 93 ERA 16 (Sec'y March 13, 1996) (stating that no tangible psychological injury is required to show hostile work environment). "In evaluating the objective severity of the harassment, we consider, among other factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Miller v. Kentworth of Dothan, Inc., 277 F. 3d 1269, 1276 (11th Cir. 2002) (citing Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997). Furthermore, harassment is severe and pervasive only if it meets both subjective and objective tests. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). "Harassment is subjectively severe and pervasive if the complaining employee perceives the harassment as severe and pervasive, and harassment is objectively severe and pervasive if a reasonable person in the plaintiff's position would adjudge the harassment severe and pervasive." Johnson v. Booker T, Washington Broadcasting Services, Inc., 234 F.3d 501, 509 (11th Cir. 2000). No single factor is controlling, however, because the court should focus on the totality of the circumstances rather than isolated incidences. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). To be actionable, derogatory epitaphs must be permeated with discriminatory intimidation, ridicule, and insult, and be more than an occasional comment. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2284, 141 L. Ed. 2d 662 (1998).

   In determining whether Respondent EPA's treatment of Complainant was pervasive and regular, I note that once Complainant was demoted, detailed, and reassigned away form her chosen profession in contracting, the work she performed in the new position/detail cannot form the basis of a continuing hostile work environment because hostile work environment concerns her individual treatment and not the nature of the new work. English v. General Electric Co., 85 ERA 2 (Sec'y Feb 13,1992). However, I find that Respondent EPA's failure to inform Complainant about the results of her OIG investigation and of its failure to find any basis for administrative action constitutes a continuing act of hostile work environment directed at Complainant. This act began on March 10, 1995, the date Complainant's managers began an OIG investigation into Complainant's activities based, in part, on false assertions, subjected Complainant to a "gag order" without explaining its parameters, and removed Complainant form her career field; and it continued until February 1, 2000, the date EPA Region 4, responded to Complainant's FOIA request regarding the OIG investigation. (Tr. 2188; OIG 2, p. 1-2; CX 12 X(2), p. 1). The severity of this conduct was well documented at trial with Agent Dashiell recognizing the detrimental effect on an employee of a pending OIG investigation and stating that the OIG tried to resolve investigations as quickly as possible because "it is not a good thing to have this type of cloud over someone's head for any extended period of time." (Tr. 809). The conduct detrimentally affected Complainant because it helped to deprive her of the means to contest her transfer to the Information Management Branch, it chilled her ability to apply for another government job, and

the uncertainty helped to create anxiety and stress as documented by Dr. Patterson. (Tr. 2230; CX 50 A, p. 1). The chilling affect of having an OIG investigation hanging over one's head would interfere with Complainant's job performance. Agent Mullis testified that he thought the OIG investigation was referred to him because management was attempting to put controls on Complainant's activities. (Tr. 425-28). Living with the nagging doubt about whether one would be subject to criminal and/or administrative action, which could result in a loss of liberty and means of economic support, is sufficiently severe and pervasive on both a subjective and an objective basis.

   As discussed, supra, Section III, Part D(2), removing Complainant from contracting and placing her in the Information Management Branch constitutes adverse action in its own right. While the work she performed cannot for the basis for a hostile work environment, English v. General Electric Co., 85 ERA 2 (Sec'y Feb 13,1992), the Court may consider the pervasive actions of Ron Barrow in keeping her in the position as an Information Resources Coordinator. What was pervasive and regular was Mr. Barrow's refusal to remove her from that job, when he knew that she was not qualified to perform the job as intended in the position description, when contractors had specifically asked him to remove Complainant due to her lack of knowledge, when Complainant asked for different work, and when he did not affirmatively end the practice of having work assignment manages come to him for authorization. (Tr. 295, 506-07, 516, 2225, 2936, EPA 102, p. 2).

   Understanding that Complainant's management wanted to put some controls into effect regarding Complainant's behavior, sheds light on other acts of harassment undertaken by Complainant's managers. For example, management's harassment of Complainant included: removing Complainant from the Southeastern and Bechtel contracts in August and October 1993, demoting her to a contract specialist and then transferring her to the Grants Section where management intended to permanently keep Complainant out of contracts. Issuing a "gag order" and denying Complainant access to the contract file room, and taking documentation form her work space furthered the purpose of informing Complainant that her activity would not be tolerated and helped to reestablish control by management. Eventually, Complainant ended up with a job in the Information Management Branch that she was not qualified to perform and upper management let Mr. Barrow know that Complainant was not to be removed from that position. (Tr. 264). When Mr. Waldrop saw that Complainant was beginning to overstep her bounds again in 1998 concerning her participation in the AFC Peoples with Disabilities Advisory Counsel, he attempted to control Complainant's activity again by issuing a written warning letter.

   Similarly, Complainant established that her day to day work as the Information Resources Coordinator subjected her to pervasive and regular harassment that altered the terms and conditions of employment to create a discriminatorily abusive working environment. Her job description provided that she was responsible for analysis and troubleshooting with regards to the delivery of contractor services and the position required technical computer expertise. (Tr. 978, 2220-21; EPA 102, p. 2). Even crediting Mr. Barrow's assertion that Complainant need only have a general knowledge of approximately one-hundred computer software packages used by the Agency, Complainant testified that she was only generally familiar with two software programs. (Tr. 979, 2935, 2953-61). Mr. Place testified that he had never met another point-of-contact personnel with less knowledge, and he had personally asked Mr. Barrow to remove Complainant from the position. (Tr. 263). The fact that Complainant was the point of contact for all computer contractors and did not know what

was going on made EPA Region 4 a "dysfunctional" organization from the perspective of computer contract workers. (Tr. 268). Mr. Place discharged several of his employees who were unwilling to work with Complainant and unwilling to work in the environment at the EPA. (Tr. 275-76).

   Complainant had several work assignment managers that worked under her who had the technical knowledge to perform the actual tasks and they were supposed to report to Complainant regarding all computer work EPA contracted out. (Tr. 515). The work assignment managers did not help Complainant perform her job, however, because they continued to go behind her back in attempts to get contractors to undertake personnel actions, and attempted to circumvent Complainant by going directly to Mr. Barrow, who had the same authority as Complainant. (Tr. 275, 515-16, 2223, 2936). Mr. Barrow testified that he tried to discourage such behavior but could not stop it, and he attempted to make sure that Complainant had already cleared the proposed action. (Tr. 516, 2225, 2936). Mr. Place personally observed hostility directed toward Complainant in the from of eye rolling, shunning, and ugly gestures. (Tr. 267, 279, 314, 347-49).

   As management of contractor services was an everyday part of Complainant's job, the hostility directed toward her was frequent. While the severity of the conduct in rolling the eyes, shunning and making ugly gestures may not be severe and may constitute merely offensive utterances, the impact that the conduct has on Complainant's work is severely damaging. Lacking the technical knowledge to understand what needs to be done on her own, Complainant must rely on the knowledge of her work assignment managers. Complainant cannot adequately perform her job when she is not informed about what was happening. A reasonable person, deprived of the information necessary to perform one's job adequately would find the hostility directed toward Complainant objectively severe and pervasive.

   I do not find that other instances of hostility that Complainant cites rises to the level of a severe or pervasive action that alters the terms and conditions of employment to create a discriminatorily abusive working environment. Specifically, the evidence elicited at trial failed to establish that Complainant was put on display and ostracized in the library for eighteen months on her reassignment to the Information Management Branch. Rather, everyone in the Information Management Branch had worked in library at one time, and all new branch employees were first stationed in the library due to a lack of space. (Tr. 964, 2623-24). From time to time other employees had work stations in the library. (Tr. 2623-24). The facility was crowed and there were only two or three private offices for employees with everyone else stationed in cubicles. (Tr. 964). Rebecca Kemp, who managed FOIA personnel, testified that her office was in the library. (Tr. 2623, 2626). When the branch moved locations in 1996, Mr. Barrow provided Complainant with one of the few private offices to accommodate her carpal tunnel disability. (Tr. 966-67).

   Similarly, I find insufficient evidence to establish that Complainant was subjected to a "din of hostile remarks" in a February 2000 branch meeting regarding her Congressional leak about the destruction of E-mail backup tapes. FOIA specialist, Marilyn Brinson, merely stood up and stated that she wished that the person who initiated the Congressional inquiry would speak with the FOIA office before going to Congress. (Tr. 1051, 2635, 2766, 2774-75). Complainant stated that nobody identified her by name. (Tr. 3031-32). Complainant specifically remembered Rich Shekel, Ron Barrow and Rebecca Kemp, among the dozen meeting attendees, making comments that concerns should be kept internally. (Tr. 3032-33). Both Ms. Kemp and Mr. Barrow testified that no one at the meeting was openly hostile and they related that Complainant was never singled out. (Tr.1051-52, 1060 2635, 2682). This one incident involving FOIA personnel, even if employees were openly hostile toward Complainant and management did nothing to say that Complainant's activities were

   D(7) Blacklisting, Stigmatization and "Bad Faith" Settlement Offer

   Complainant finally asserts that Respondent EPA's conduct during discovery constituted an adverse employment action by blacklisting her, stigmatizing her and by attempting to have her accept a "bad faith settlement" offer. Specifically, Complainant alleges that an EPA attorney called her "paranoid" during discussions with the Court, and that the Respondents' settlement offer constituted an illegal "gag order"

   The fact that an EPA attorney called Complainant "paranoid" does not constitute a serious and material change in the terms conditions or privileges of employment which is necessary to find an adverse employment action. Furthermore, even considered in the light of a hostile working environment, it is not enough to allege that an EPA attorney had a negative reaction to Complainant caused by communications with Respondents, rather, the Complainant must show that the blacklisting remark contributed to a hostile work environment. Varnadore v. Oak Ridge National Laboratory, 92 CAA 2, p. 6 (ARB June 14, 1996). I do not find that the "paranoid" comment, made by a person who did not work in the same office as Complainant, was severe, frequent, or unreasonably interfered with Complainant's job performance. A reasonable person under the circumstances would not find the comment severe and pervasive.

   Likewise, Respondents' settlement offer does not constitute adverse employment action. Tough negotiating does not equate to bad faith retaliation and the institution of a "gag order" provision does not automatically violate public policy or constitute an adverse employment action. Rudd v. Westinghouse Hanford Co., 88 ERA 33, p. 82-83 (ALJ March 15, 1996) (finding tough negotiating does not equate to bad faith retaliation), approving settlement ARB Nos. 99-023, 99-028, p. 8 (April 18, 2002) (declining to adopt ALJ's findings that the "gag order" in the settlement contradicted public policy and constituted an adverse employment action). Although the settlement agreement, which provided for Complainant's early retirement and a confidentiality agreement, would constitute a material change in the terms conditions and privileges of employment, it was not an adverse action because it required Complainant's consent at arms length negotiations when Complainant was represented by an attorney. Also, Complainant rejected the settlement agreement. Likewise, the settlement agreement failed to constitute an adverse employment action in the context of hostile work environment. A settlement offer is not a frequent occurrence; is not physically threatening, humiliating, or an offensive utterance; and does not interfere with an employees job performance.

E. Knowledge of Protected Activity

   The employer must have actual or constructive knowledge of a complainant's protected activities before the employer can be held liable for violating environmental whistleblowing laws. 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 in the Southeastern contract with OHM in 1993 to resolve impossibility of performance issues. Mr. Waldrop, Jamison, and Springer as well Ms. Harris and Maxwell all had knowledge of Complainant activities in the Southeastern contract, knowledge of Complainant's course of action with the contractor Bechtel, and knowledge of her interference in 1995 in the Region 6 North Cavalcade superfund site because they were all privy to the report prepared by Leslie Bell detailing those activities and they initiated the OIG investigation based on those facts. Jack Sweeny knew that Complainant was transferred to the Information Management Branch pending an OIG investigation. Ron Barrow

knew that Complainant's removal from contracts was pursuant to a grievance and that he could not remove her from her present position. In 1998, Mr. Barrow had actual knowledge that Complainant was a whistleblower after Complainant informed him of that fact. Respondent OIG had knowledge of Complainant's protected activity because it conducted the investigation into Complainant's activities and it was the recipient of Congressional inquiries concerning the propriety of the investigation. Accordingly, all of Complainant's supervisors, at some point in time, had knowledge that Complainant had engaged in protected activity.

F. Adverse Employment Action Motivated by Protected Activity

   An employee can prevail in showing that adverse employment action was motivated by protected activity where there is direct evidence of discrimination. TWA v. Thurston, 469 U.S. 111, 121 (1985); Walker v. Prudential Property & Casualty Insurance Co., 286 F.3d 1270, 1274 (11 Cir. 2002). Direct evidence of discrimination is evidence that "will prove the particular fact in question without reliance on inference or presumption." Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). Such "evidence must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question." Id.

   In the absence of direct evidence of discrimination, a complainant makes out a prima facie case of retaliation by showing he or she is a member of a protected class, that he or she engaged in protected activity, that the respondent took adverse action, and that the respondent had knowledge of his or her protected activity. The threshold for establishing a prima facie case is low and the amount of evidence needed to "infinitely less than what a directed verdict demands." Saint Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2751, 125 L. Ed. 2d 407 (1993). The burden then shifts to the respondent to produce legitimate nondiscriminatory reasons for taking the adverse employment action. Reeves v. Sanderson Plumbing, 530 U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000); Walker v. Prudential Property & Casualty Insurance Co., 286 F.3d 1270, 1274 (11 Cir. 2002). C. f. 42 U.S.C. § 5851(b)(3)(B) (2002) (stating that in ERA cases the employer must show by "clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence" of any protected activity); Dysert v. United States Secretary of Labor, 105 F.3d 607 (11th Cir. 1997). The respondent's burden is one of production and not of persuasion. Reeves, 530 U.S. at 142-43. Once the respondent offers legitimate nondiscriminatory reasons for taking the adverse employment action, the complainant has the opportunity to show that the respondent's reasons for the adverse employment action are not worthy of credence, but the complainant still maintains the burden of establishing discrimination by a preponderance of the evidence should the respondents asserted reasons be discredited. Hicks, 509 U.S. at 517-18.

   Once the respondent offers a legitimate nondiscriminatory reason for taking adverse employment action, the presumptions and burden shifting disappear and the complainant is left with the ultimate burden of persuasion by a preponderance of the evidence to show that the respondent's actions were motivated by a retaliatory animus. Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 516 (explaining that the complainant's burden to attack the legitimate nondiscriminatory reasons set forth by the respondents merges with the ultimate burden of persuading the court that the complainant is the victim of intentional discrimination). A complainant may meet the ultimate burden of

persuasion through circumstantial evidence. Bartlik v. Tennessee Valley Auth., 88 ERA-15 (Sec'y April 7, 1993), aff'd sub. nom. Bartlik v. U.S. Dept of Labor, 73 F.3d 100 (6th Cir. 1996). When using circumstantial evidence, however, the complainant must show intentional discrimination. Leveille v. New York Air Nat'l Guard, 94-TSC-3 (Sec'y Dec. 1, 1995).

   Complainant argues that dual motives analysis is not appropriate because there is direct evidence of retaliation against Complainant for engaging in protected activities. Complainant argues that: she is a credible witness; Respondents' deleted and back dated portions of Ms. Bell's memorandum outlining allegations against Complainant; EPA did not justify the commencement of an OIG investigation, and commenced the investigation on mistaken assumptions that blacklisted Complainant; EPA did not take administrative action on the OIG's referral within the requested thirty days; Mr. Waldrop subjected Complainant to a "gag order," and did not clarify his order after receiving Complainant's correspondence questioning its scope; and evidence produced at trial showed that Mr. Waldrop did not like Complainant.

   Contrary to Complainant's assertions, I do not find direct evidence of retaliatory intent because to find discriminatory intent based on the above actions requires inference and presumption. No evidence in the record unequivocally states that Respondent's retaliated against Complainant because of her protected activity. Accordingly, I find that engaging in a dual motive analysis is appropriate.

   Because this case was fully tried on the merits, I find it appropriate to combine a full analysis of Complainant's prima facie case of retaliatory animus with Respondents' burden to show legitimate nondiscriminatory reasons for undertaking adverse employment action with Complainant's ultimate burden of persuasion. See Adjiri v. Emory University, 97 ERA 36, p. 6 (ARB July 14, 1998) (stating that it is not necessary to go through the burden shifting analysis once the respondents show a legitimate nondiscriminatory reason for undertaking a personnel action, rather the question is whether the complainant prevailed on the ultimate question of liability); Ilgenfritz v. United States Coast Guard Academy, 99 WPC 3 (ALJ March 30, 1999).

    F(1) Demotion to Contract Specialist, Reassignment of Bechtel and Southeastern Contracts, Detail to the Grants Section, and Denial of Promotion Through a Desk Audit

   Although I found the Complainant's demotion to a contract specialist, the reassignment of her contracts and her detail to the Grants Section to be adverse employment action, I do not find that the actions were motivated by a retaliatory animus. Mr. Mills reassigned the Southeastern contract in 1993 because he had a dispute with Complainant over how to document the contract file. The fact that Complainant identified a performance specification in the contract that gave rise to an impossibility that could have cost the government millions of dollars was irrelevant to Mr. Mills's actions. Mr. Mills merely voiced concern about documenting a $500,000 increase in the price of the contract and questioned Complainant's after hours conversations with the contractor and the fact that the price increase was purposefully set at less than $500,000 to avoid the need for an audit. (Tr. 2125; EPA 1, p. 1-2). After Complainant became upset, and sent an inflammatory e-mail on June 17, 1993, inferring that Mr. Mills had called her stupid and had bombarded her with insulting comments, Mr. Mills stated that he was getting involved in the contract to see what was happening. (EPA 2-5).

   Mr. Mills requested that Complainant do a profit/fee analysis in June, 1993, and Complainant did not comply with that request until August 26, 1993, and then she only wrote that preforming the detailed analysis that Mr. Mills wanted was unnecessary. (Tr. 1482, 1664; EPA 12, p. 1). Mr. Mills directed Complainant to redo the analysis and on September 7, 1993 Complainant partially complied by performing the analysis but not putting it in a memo format as Mr. Mills directed. (Tr. 2127; EPA 14, p. 1). When Complainant argued with Mr. Mills over his requirements a third time, Mr. Mills informed Complainant on October 20, 1993 that he was now the contracting officer and Complainant was the contracting specialist. (Tr. 1488; EPA 20, p. 1). There is no showing that Mr. Mills demoted Complainant and reassigned the contract because Complainant had voiced concerns about Superfund regulations, analytical procedures, policies, and practices that wasted funds, and created impossibility of performance issues with regard to Superfund cleanup site. Rather, I find that Complainant's demotion to a contract specialist and the reassignment of the Southeastern contract were a result of a dispute over how to document contracting files and Complainant's insubordination in refusing to follow a simple order by her supervisor simply because she did not think the requirement was necessary.

   Likewise, I do not find that the reassignment of the Bechtel contract in October 1993, was in retaliation for protected activity. On August 30, 1993, Mr. Mills articulated three faults with Complainant's handling of the file: 1) Complainant discussed her opinion on indemnification issues with Bechtel - an agency issue that must be coordinated with headquarters; 2) Complainant took a position on indemnification applied in Region 9 and made it apply to Region 4 without any legal opinion; and 3) Complainant negotiated with Bechtel on issues that did not agree with the EPA position and lied to her supervisors that Region 9 supported her position. (EPA 13, p. 1-2). Also, prior to reassigning the Bechtel file, Complainant had filed a FLRA grievance against Mr. Mills, which was the only grievance Mr. Mills ever had filed against him. (Tr. EPA 25, p. 1-2). Regardless of whether Mr. Mills understood the distinct issues of indemnification and federal facilities in the Bechtel contracts with EPA, and regardless of whether Complainant asserted a correct position on the Bechtel issues, Mr. Mills believed Complainant was mishandling the contract. Complainant did not present sufficient evidence to show that the reassignment of the Bechtel contract was in retaliation for her protected activity in regards to the impossibility of performance issue in the Southeastern contract.

   Determining that Complainant's contracts were not reassigned because her supervisors were retaliating for environmental protected activity compels the conclusion that Complainant's denial of promotion through a desk audit was not motivated by a retaliatory animus for engaging in protected environmental activity. Management denied Complainant a promotion through a desk audit on the basis that she did not have sufficient work to warrant the increase in pay. (Tr. 2284; EPA 39-40). Finally, failing to show that the Southeastern and Bechtel contracts were reassigned based on retaliation for protected activity, Complainant failed to establish by a preponderance of the evidence that her detail to the Grants Section was motivated by a retaliatory animus. Far from being retaliatory, one of Complainant's tasks was to review all of Region 4's contracts to ensure that no other contract had an impossibility of performance issue similar to that of the Southeastern contract. (Tr. 2164).

   F(2) Cancelling Contract Warrant, Job Transfer, OIG Investigation, "Gag Order," and "Stealing"

   Respondent EPA asserts that managers in the Grants and Procurement Section referred Complainant's involvement in the North Cavalcade site to the Office of Regional Counsel for possible ethics violations. (Tr. 81). This initial inquiry by the Office of Regional Counsel was proper because it had the duty to advise the deputy regional administrator about ethical problems. (Tr. 82). Ms. Bell's "investigation" revealed a series of potential problems dating back to 1993, and her memorandum ended up in the hands of an OIG agent who sent the report to Mr. Waldrop. Mr. Waldrop arranged a meeting with Complainant's management as well as Ms. Harris from the Office of Regional Counsel before officially referring the matter to the OIG based on the appearance of impropriety. (Tr. 1769-70, 1875, 1890, 1910, 2178-79). Agent Mullis testified that he thought Region 4 had acted properly in referring the case to his office for investigation. (Tr. 746-47). Because there was an appearance that Complainant was abusing her position in the Grants Section, Mr. Waldrop reassigned Complainant to the Information Management Branch during the pendency of the OIG investigation instructing her that she would no longer need her contract warrant and that she should no longer discuss contracting matters. Thus, Respondent EPA asserted legitimate nondiscriminatory reasons for its actions.

   Respondent EPA's retaliatory animus is evidenced by its attempt to bias the OIG investigation by providing false information to the OIG investigator, and in failing to clarify the meaning and scope of Mr. Waldrop's instruction not to have discussion about contracts. (OIG 1, p. 14; EPA 51, p. 1). Specifically, at a joint meeting with the OIG agents, Mr. Waldrop, Ms. Harris, Ms. Maxwell, Mr. Jamison, and Mr. Springer informed the OIG agents that Complainant had a "long history of disciplinary problems." (OIG 1, p. 14). Complainant related that she had never been disciplined in her entire government career. (Tr. 2111). Mr. Mills related that Complainant had no history of disciplinary problems and he was unaware of how anyone could have made such an assertion. (Tr. 1581, 1896-99). Ms. Maxwell, Mr. Jamison and Mr. Springer were all Complainant's supervisors and they did nothing to correct the misstatement. Mr. Waldrop testified that the remark was inappropriate because it was not a correct statement, and he acknowledged that the statement would influence how the OIG would look into the investigation. (Tr. 1900, 1917). Furthermore, Mr. Waldrop stated that as the former Chief of Human Resources, he knew that EPA Region 4 only had five or six employees who fit the category of having a "long history of disciplinary problems" and Complainant was not one of those employees. (Tr. 1918).

   Similarly, a retaliatory animus is evident when Mr. Waldrop failed to clarify his order not to speak about contracts. Complainant testified that she was under the impression that she was not to speak to anyone. (Tr. 2179). Complainant turned to Ms. Harris about the legality of the order, and Ms. Harris responded: "I suggest you do what they said." (Tr. 2180). Mr. Waldrop testified that the context of his instruction not to speak was not a universal "gag order," but was in relation to the suspension of her contracting warrant. (Tr. 1923). Concerned about the scope of the "gag order," Complainant sent an e-mail to Mr. Waldrop on March 15, 1995, stating that she thought it was "totally wrong and illegal that [she was] not allowed to say anything to anyone." (CX 42, p. 1). Complainant was concerned about her First Amendment rights, and her ability to defend herself from management's charges. (CX 42, p. 1). Mr. Waldrop did not respond to Complainant's e-mail. (Tr. 1921-23). In hindsight, Mr. Waldrop would have responded to explain that she was not under any type of gag order. (Tr. 1924).

   Accordingly, Mr. Waldrop's and Complainant's managers' failure to affirmatively correct a known misstatement to the OIG investigator that Complainant had a long history of disciplinary problems shows retaliatory animus. Mr. Waldrop acknowledged that such a false statement would likely negatively impact the course of the OIG investigation. Likewise, I find that Mr. Waldrop had an affirmative duty to explain the scope of his order to have no discussions about contracts in light of Complainant's e-mail that demonstrated her belief that it curtailed her First Amendment rights. These two factors show that Respondent EPA intended to retaliate against Complainant for breaking the chain of command and interfering in another Region's contract without authority.

   F(3) Refusal to Disclose Results of the OIG Investigation

   Respondent EPA and Respondent OIG actions in failing to disclose the results of the OIG investigation of Complainant were motivated by retaliatory animus, for different reasons, because Complainant engaged in protected activity. Complainant asserted that Respondents' actions in not disclosing the results of the investigation were done for the purpose of controlling her activities so that she would no longer break the chain of command in unilaterally interfere in other peoples business. Respondent EPA asserts that its failure to inform Complainant was merely a breakdown in communication between Complainant's managers. Mr. Waldrop assumed that Jack Sweeny, Complainant's manager at the time the U.S. attorney declined prosecution in June 1995, and at the time the investigation was closed following Mr. Waldrop's administrative action in March 1996, would have informed Complainant. (Tr. 1774). Mr. Sweeny did not testify at trial. When the adverse employment action is a failure to act, a breakdown in management communication is a legitimate nondiscriminatory reason for taking adverse employment action.

   Respondent OIG asserts that it did not disclose the results of the OIG investigation because it was not the policy of the OIG and it expected the party's management to inform them of the investigative results. (Tr. 399). Additionally, Respondent OIG asserted that it did not comply with Complainant's two FOIA requests, despite its promise that it would do so once the investigation was closed, because the FOIA office was chaotic, demoralized, and the office had one FOIA specialist whose regular duties were personnel security and processing. (Tr. 915-17, 920). Eventually, the OIG obtained an experienced FOIA personnel who re-discovered Complainant's FOIA request and the OIG's promise to provide her with information on October 2, 1998. (Tr. 921; OIG 20, p. 1). Upon discovery of the omission, the OIG sent an apology letter and complied with Complainant's request on October 2, 1998. (Tr. 922-23; OIG 20, p. 1). Thus, Respondent OIG presented a legitimate nondiscriminatory reason for taking adverse employment action in that Complainant's request for information fell through the cracks because of an administrative oversight.

   Complainant established by a preponderance of the evidence that Respondent EPA's failure to disclose the results of the OIG investigation were motivated by a retaliatory animus based on her protected activity in interfering in the North Cavalcade Superfund contract. On April 27, 1995, Senator Sam Nunn wrote to John Hankinson inquiring about the OIG investigation on behalf of Complainant. (CX 12 L, p. 1). Mr. Hankinson responded to another inquiry from Congressman Newt Gingrich on August 3, 1995. (EPA 57, p. 1). Complainant also spoke directly with Mr. Peyton asking when she could obtain a copy of her investigative report. (Tr. 2053-54). On September 14, 1995, Complainant sent a FOIA request for her investigative report to EPA Region 4, addressed to Mr. Hankinson. (OIG 21, p. 1). On September 15, 1995, the OIG sent Region 4 a copy of the investigative report. (OIG 10, p. 2). Mr. Waldrop concluded on March 28, 1996 that there was no basis for administrative discipline, but in light of the OIG investigation he made Complainant's reassignment to the Information Management Branch permanent. (OIG 3, p. 1). I find that Respondent EPA had an obligation to timely inform Complainant of the results of the OIG investigation and to inform her that there was not any basis for administrative discipline. The circumstances preponderates a finding that EPA's actions were retaliatory in an effort to keep Complainant under control, to keep her out of contracting and to prevent her engaging in similar behavior such as jumping the chain of command and unilaterally interfering in the Region 6 contract.

   Similarly, I find that Complainant established by a preponderance of the evidence that Respondent OIG had a retaliatory motive in taking adverse employment action against her by not timely disclosing the results of its investigation. Complainant repeatedly contacted Agent Fugger about the pendency of her case and repeatedly asked for a copy of the investigative report. (Tr. 2882-84, 2926-27, 2973). On April 15, 1995, Senator Coverdell wrote a letter to Mr. Martin at the OIG's office asking that a clarification of the OIG's findings be sent to his office. (CX 12 H, p. 1). On April 26, 1995, Complainant sent the OIG a continuing request under the Freedom Of Information Act. (OIG 17, p. 1). Although it denied her request on May 18, 1995, the OIG office promised that it would send her all portions of her file once the investigation was completed. (OIG 18, p. 1). On May 1, 1995, inquiries form Senator Coverdell were forwarded to the OIG field office. (CX 12 N, p. 1). Mr. Peyton also stated that he requested that the OIG office keep him informed of the investigation, but he never received any statement. (Tr. 2067-68).

   Meanwhile, Complainant contacted OIG Desk Officer Gary Fugger in Washington, D.C. (Tr. 2878). In response to her Congressional complaints, Complainant testified that Mr. Fugger told her that she had better not try to do "anything else" stating that the OIG's office could keep the investigation open indefinitely. (Tr. 2188-89). Mr. Fugger also related to Complainant that she had better not take any more actions because her contact with Congressmen had not done her any good. (Tr. 2189-91). Mr. Fugger, predictably, denied making such statements and denied being aware of any Congressional inquiries. (Tr. 2888, 2898). On October 18, 1995, the OIG responded to Complainant's second FOIA request and again promised to send her any documents that it could released once the case was closed. (OIG 19, p. 1). Finally, on January 25, 1996, Senator Sam Nunn admonished the OIG that he had not received a response to his inquiry concerning Complainant. (CX 5, p. 1).

   Although I find no evidence of collusion between Region 4 and the OIG, I find that the evidence preponderates that the OIG retaliated against Complainant for going to members of Congress concerning the OIG investigation, which concerned her protected activity in interfering with the North Cavalcade Superfund contract. Mr. Dashiell acknowledged that the overall responsibility for answering Congressional inquiries rests with the OIG and the inquiries are given a high priority. (Tr. 856, 861, 866, 937). Indeed, the role of the OIG is "to provide a means for keeping . . . Congress fully and currently informed." www.epa.gov/oigearth/role.htm (visited September 5, 2002). Agent Mullis testified that Complainant should have been made aware of the results of the OIG investigation after the U.S. attorney declined prosecution in June 1995 and the case was referred for administrative action. (Tr. 399). In light of multiple Congressional inquires, the OIG's role in responding to Congress, and the two separate promises by the OIG under FOIA to disclose information once the case was closed, I do not find the OIG's excuse of an "administrative oversight" is credible. Based on the record as a whole, I find that the evidence preponderates that the OIG retaliated against Complainant for going to Congress. Only after the FOIA office came under new management did the OIG correct its mistake and send Complainant the investigative report on October 2, 1998, over three years form her first FOIA request and over two years form when the investigative file was officially closed.

   F(4) Placing Complainant in a Job as the Information Resources Coordinator

   Having determined that Respondent EPA acted with a retaliatory animus with it attempted to influence the OIG investigation by providing false information and by allowing Complainant to believe she was subject to a "gag order," her transfer to the Information Management Branch, which was part of the same series of events, is also retaliatory for her protected activities. Complainant, however, was transferred to the Information Management Branch in March 1995, and it was not until September 1996, that Complainant became the Information Resources Coordinator. (EPA 51, p. 1; EPA 78, p. 4). Complainant argued that her transfer to the Information Management Branch and the jobs she performed was all part of a scheme by management to keep her out of contracting in retaliation for her protected activity. Respondent EPA asserted a legitimate nondiscriminatory reason for Complainant's transfer and for assigning her the job of as the Information Resource Coordinator. Namely, her transfer was pursuant to the pending OIG investigation that concerned improper acts in contracting, and the Information Resource Coordinator job, a GS-12 position, became available after her initial transfer to the Information Management Branch at a time when Complainant was also a GS-12 and free to do the work.

   Based on the record as a whole, I find that keeping Complainant in the position of the Information Resources Coordinator, after management became aware that she was not qualified, preponderates that Respondent EPA had a continuing retaliatory animus based on her activities in 1995. The position description mandates that Complainant is responsible, inter alia, for analysis and troubleshooting with regards to the delivery of contractor services. (Tr. 2220; EPA 102, p. 2). More specifically, the job required technical computer expertise because Complainant was responsible for solving computer problems. (Tr. 978; 2220-21). Mr. Barrow did not expect Complainant to become a programmer but he expected a familiarity with the approximately one-hundred basic software packages used by the Agency. (Tr. 2953-55, 2958-61). Complainant did not know anything about computers, and Mr. Place related that Complainant was the only point-of-contact personnel in his experience who did not have considerable experience in computing. (Tr. 263, 2222). Mr. Place raised his concern with Mr. Barrow, asking him to replace Complainant because her lack of knowledge made the work environment dysfunctional. (Tr. 263). Mr. Place's understanding was that Complainant was the point-of-contact because Mr. Barrow had nothing to do with her assignment and he could do nothing to change it. (Tr. 264).

   F(5) Denial of Promotion Through Non-Selection

   Based on the record as a whole, I do not find that Complainant's non-selection for jobs in the Procurement Section was motivated by a retaliatory animus. Complainant alleged that Mr. Mills and Mr. Robinson refused to hire her for a job in contracting when she was the most qualified applicant. On one particular occasion, Mr. Mills chose a person whose background was in human resources and on a second occasion, Mr. Mills chose an executive assistant over Complainant. Respondent EPA asserted legitimate nondiscriminatory reasons for Complainant's non-selection. Namely, other applicants either had the right "temperament, " were more highly qualified, their selection served administrative efficiency, the selected candidate was familiar, did quality work and was trusted, or was selected because the position was intended for a lower level employee to gain contracting experience.

   Viewing the position descriptions and the application for the positions in the record, I cannot say that Complainant was more qualified to perform contracting jobs than Jeffery Napier, Fran Harrell or Charles Hays. Complainant even admitted that Charles Hays was likely more qualified to perform the job as a contract specialist. (Tr. 2265, 2268). In contrast to Complainant, Jeffery Napier and Fran Harrell were already in contracting, both had a warrant, and both had an MBA. (EPA 72-73). Complainant's background was in criminal justice and psychology, hardly areas that involve such areas as accounting, business, finance, purchasing, management, and quantitative methods. (Tr. 2092-93; EPA 77, p. 2).

   Mr. Mills recognized, however, that Complainant has more contracting experience than Ms. Wender whom he selected for a GS12/13 contract specialist position. (Tr. 1714). Mr. Mills testified that he remembered Complainant's past behavior which included insubordination, abusive language, and inability to work with others. (Tr. 1689, 1714). With regards to Mr. Mills's selection of Sharonita Byars, there is no dispute that Complainant has more contracting experience than Ms. Byars who was a ten-year executive assistant. (EPA 86, p. 2). The vacancy notice for the position, however, provides that the "selecting official may select form any employee expressing an interest." (EPA 85, p. 1). Mr. Mills testified that Complainant was not a suitable selection because the work entailed lower graded clerical type duties. (Tr. 1713-14). Accordingly, I find that Respondent EPA offered legitimate nondiscriminatory reasons for Complainant's non-selection, and with the presumptions and shifting burdens falling from the case Complainant is left with the ultimate burden of persuasion by a preponderance of the evidence.

   Based on the record as a whole, Complainant fails to show that Respondent EPA's reasons for not selecting her for a contracting position are pretextual or that Respondent would not have taken the same adverse employment action in the absence of any protected activity. As early as 1994, there was a concentrated effort by Complainant's management to remove her from the Procurement Section and contract management. On September 16, 1993, Complainant had requested a transfer from the supervision of Mr. Mills. (EPA 25, p. 1). That request was denied on January 4, 1994. (EPA 30, p. 1). Nevertheless, Complainant was removed from her contracting duties to work on a detail in the Grants Section in July 1994, and that detail was extended in September 1994. (CX 11 C(3)(a-c)). Ms. Maxwell stated that the September detail was intended to remove Complainant from all contracting matters. (OIG 1, p. 4). Thus, at this early date there was an apparent motivation by Complainant's supervisors to keep her out of contracting. Complainant was also pursuing FLRA grievances against Mr. Mills during this time period. See supra, Section I, part 4. As determined supra, Section III, Part F(1), the motivations of Complainant's supervisors in detailing Complainant away form contracting was not to retaliate against Complainant for protected activity in environmental whistleblowing.

   Evidence showing a retaliatory animus does not begin until 1995, as a result of her protected activity in interfering in the Region 6 North Cavalcade Superfund contract, when Complainant was "temporarily" transferred from the Procurement and Grants Section to the Information Management Branch by Mr. Waldrop, who also suspended her contracting warrant. (EPA 50, p. 1; EPA 51, p. 1). Mr. Waldrop had prior conversations with Mr. Mills concerning Complainant and consulted with Ms. Maxwell and Mr. Springer about Complainant's activities. (Tr. 1533-36, 1577-78; OIG 1, p. 14). Mr. Waldrop specifically told Complainant that she was not to have any discussions about contracts, no contact with EPA contractors and no access to the contract file room. (EPA 51, p. 1). Rather than transfer Complainant back into the Procurement Section after he determined that there was no basis for administrative discipline, Mr. Waldrop made Complainant's reassignment to the Information Management Branch permanent without ever telling her that the permanent assignment was not administrative discipline. (Tr. 1773-74; OIG 3, p. 1). Mr. Waldrop testified that he decided on permanent reassignment because there was a new branch chief that welcomed her assignment, a position was open, and there were no "clouds" over her head. (Tr. 1764-65). He felt that the reassignment was in everyone's best interest because he knew that Complainant had disputes with her former supervisor in contracts and such reassignments were common to end those disputes. (Tr. 1765-66). Mr. Waldrop opined that conciliation and mediation were not options because the manager-employee relationship had broken down too much making a resolution impossible. (Tr. 1771). In other words, he made a decision to permanently keep Complainant out of contracting work because she was a trouble maker who broke the chain of command, who was outspoken and who acted unilaterally. Complainant was trouble and to keep her from doing more damage, such as her unilateral interference in the North Cavalcade contract, he wanted to keep Complainant away from contracts. It is a logical inference that Mr. Mills knew, either through management discussions, or by reviewing Complainant's job application that upper management decided to keep Complainant out of contracting, and as a lower level manager, Mr. Mills would be expected to follow the decisions of his supervisors.

   Mr. Mills, however, was not part of the management team concerned with Complainant's interference with the North Cavalcade contract in 1995, and he was not involved in the initial referral to the OIG for investigation. Rather, I find it more plausible that Mr. Mills retaliatory motive, if any, stemmed from Complainant's filing of grievances against him and his apparent inability to exercise management authority over Complainant. Mr. Mills simply did not want to work with a person who had specifically requested as a remedy in her FLRA complaint that she no longer work under his supervision. Therefore, I find that Complainant failed to establish by a preponderance of the evidence that Mr. Mills's non-selection of her was motivated by a retaliatory animus for her engagement in protected activity.

   F(6) Hostile Work Environment

   As discussed supra, Section III, Part 7, Complainant was the subject of an adverse employment action in the form of a hostile work environment. First, because Respondent EPA refused to disclose the results of the OIG investigation forcing Complainant to live with the nagging doubt about whether she would be subject to criminal and/or administrative action which could result in a loss of liberty or means of economic support. Not disclosing the results of the investigation acted as a control mechanism for management to curtail Complainants predisposition to be outspoken, to go outside the chain of command and act unilaterally. Depriving Complainant of information concerning the OIG investigation provided a means to keep Complainant from contesting her removal from

contracting and provided a means to keep Complainant in the Information Management Branch. Mr. Place testified that both Mr. Barrow and Mr. White stated that management could not remove Complainant form her job as the Information Resources Coordinator because she was a whistleblower. (Tr. 264, 269).

   Respondent EPA offered no legitimate nondiscriminatory reason for subjecting Complainant to a hostile work environment, rather, Respondent EPA argued that there was no hostile work environment. Nonetheless, Complainant must still establish by a preponderance of the evidence that the hostile work environment was motivated by a retaliatory animus for engaging in protected activity. See Hicks, 509 U.S. at 517-18. Based on Complainant's prima facie showing of retaliation, and the Court's holdings management's actions in: not disclosing the OIG investigation, placing Complainant in a job that she was not qualified to perform, and in not ameliorating the work conditions perpetuated by her work assignment managers, I find that the evidence preponderates a finding that this instance of hostile work environment was motivated by a retaliatory animus.

   The hostile work environment perpetuated by the work assignment managers in refusing to work with Complainant in her job as the information resource coordinator, however, was not motivated by a retaliatory animus. There is no evidence that any work assignment manager knew of Complainant's protected activities. Rather, the motivation of the work assignment managers likely stemmed from Complainant's ignorance about contracting and her difficulty in communicating with other employees as related by Mr. Barrow. (Tr. 983-86).

G. Timeliness of Complaints

   A whistleblowing complaint alleging discrimination under federal employee protection statutes must file a complaint within thirty days of the occurrence of an adverse employment action 29 C.F.R. § 24.3(b) (2002); Erickson v. United States Environmental Protection Agency, ARB No. 99-095, p. 4-5, n.4 (ARB July 31, 2001). "Strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980); Prybys v. Seminole Tribe of Florida, 95 CAA 15 (ARB Nov. 27, 1996) (stating that the brief filing period in environmental whistleblowing was the mandate of Congress and the limitations cannot be disregarded because it bars what might otherwise be a meritorious case). Discrete acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. National Railroad Passenger Corp. v. Morgan, 536 U.S. - -, 122 S. Ct. 2061, 2072-73 (2002); United Air Lines Inc., v. Evans, 431 U.S. 553, 558 (1977) (finding that acts falling outside the prescriptive period may constitute relevant background evidence where current conduct is at issue).

   Prescriptive periods are, however, subject to equitable doctrines such as estoppel, tolling and waiver. Morgan, 122 S. Ct. at 2076. Equitable estoppel focuses on whether the employer misled the complainant, and thereby, caused a delay in filing a complaint and equitable tolling focuses on whether a complainant was excusably ignorant of his or her rights. Prybys v. Seminole Tribe of Florida, 95 CAA 15 (ARB Nov. 27, 1996). Equitable tolling is also available when a complainant files a timely complaint raising issues sufficient to state a cause of action under environmental whistleblowing laws, but files the complaint in the wrong forum. Biddel v. Department of the Army, 93 WPC 9 (ALJ July 20, 1993). Also, unlike discrete acts, hostile work environment claims by nature are a continuing violation without any single act necessarily being actionable in its own right. Morgan, 122 S. Ct. at 2074.

   Outside of hostile work environment claims, the Supreme Court ended the continuing violation theory developed by the lower courts to boot strap adverse employment actions into the prescriptive period. Morgan, 122 S. Ct. at 2072-73. In particular, the Ninth Circuit had developed a theory whereby an employer commits a "serial violation" if the alleged employment actions occurring before the statutory time limit are sufficiently related to those occurring within the statutory time limit and the acts are more than isolated, sporadic and discrete. National Railroad Passenger Corp. v. Morgan, 232 F.3d 1008, 1015 (9th Cir. 2000). The Court determined that the "serial violations" theory contradicted the plain language of the statute which provided that a complaint "shall be filed" within the statutory prescriptive period. Morgan, 122 S. Ct. at 2070. A discrete retaliatory act "occurs" on the day it happens and the complaint must be filed within the statutory time frame based off the happening of that event. Id. at 2070-71. Thus, discrete retaliatory acts are not actionable if time barred even when they are related to acts that fall within the prescriptive period. Id. at 2072. On the other hand, the determination of when a hostile work environment adverse employment action "occurs" is by definition continual and may "occur" over a period of years, and a single act of harassment may not be actionable on its own. Id. at 2073. "Provided that an act contributing to the claim occurs within the filing period, the entire time period of hostile environment may be considered by a court for the purposes of determining liability." Id. at 2074.

   Complainant filed her first complaint on April 8, 1998, alleging hostile work environment and other retaliatory acts by Respondent EPA for her activity that: "expos[ed her] supervisors' lack of knowledge about both legal/contractual and scientific issues, [that] threatened to open up demonstrated problems with EPA's regulations and analytical methods to public scrutiny through the courts" in relation to the Southeastern Superfund contract and her later interference in the Region 6, North Cavalcade Superfund contract. The April 8, 1998 complaint was filed after Complainant received notification that she was denied a promotion on March 10, 1998. Additionally, Complainant alleged retaliation on behalf of Respondent OIG for keeping a criminal investigation pending over her head and denying her FOIA request for the investigative report.

   On September 1, 1998, Complainant filed a second whistleblowing complaint alleging retaliation in the form of a continuing hostile work environment, the issuance of an August 5, 1998 written warning, and denial of promotion. This was followed by a third whistleblowing complaint on February 20, 2000, alleging a continued hostile work environment and post-complaint retaliation. Specifically, Complainant alleged that she was subjected to a "din of concerted hostile remarks by EPA employees" after an Information Management Branch meeting where remarks were directed at a "supposedly unknown person who �leaked' memos to a Congressional committee regarding destruction of e-mail by EPA to foil FOIA requesters." On May 19, 2000, Complainant filed a fourth whistleblowing complaint alleging retaliation in the form of a denial of flexiplace on April 20, 2000 and May 9, 2000.

   On July 19, 2000, Complainant filed a fifth whistleblower complaint alleging a continuing hostile work environment in the form of denying Complainant paid leave for work on her whistleblowing litigation, ex-parte contacts, threatening insubordination for not returning documents to work, directing Complainant to turn over copies of documents that are potentially discoverable evidence circulating information and disinformation about Complainant's whistleblower litigation to Complainant's colleagues, and engaging in surveillance of Complainant's office which Complainant first learned of on June 22, 2000.

   Complainant's supervisors had knowledge of her protected activity and although Respondents articulated legitimate non-discriminatory reasons for taking the adverse employment action, the evidence preponderates that Respondents were motivated by a retaliatory animus in: canceling Complainant's contract warrant, transferring her to the Information Management Branch, initiating on OIG investigation, issuing a "gag order," "stealing" Complainant's work documents, failing to disclose the results of the OIG investigation, continuing to keep Complainant in a position as the Information Resources Coordinator, and subjecting her to a hostile work environment.

   Damages for environmental whistleblowing are provided by statute: WPCA, 33 U.S.C. § 1367(b) (providing that the Secretary may order the party committing the violation to take "affirmative action to abate the violation as the Secretary deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee . . . to his former position with compensation."); SWDA, 42 U.S.C. § 6971(b) (same); CERCLA, 42 U.S.C. § 9610(b) (same); CAA, 42 U.S.C. § 7622(b)(2)(B) (providing the Secretary may order that the violator take affirmative action to abate the action, reinstatement with the original terms, conditions, and privileges of employment, and compensatory damages); and SDWA, 42 U.S.C. § 300j-9(i)(2)(B) (providing that the Secretary may order affirmative action to abate the violation, reinstatement to the complainant's former position together with the terms, conditions, and privileges of his employment, compensatory damages, and "where appropriate, exemplary damages."). Accordingly, Complainant is limited by statute in her recovery to affirmative action, reinstatement, compensatory damages, and exemplary damages if appropriate. See DeFord v. Secretary of Labor, 700 F.2d 281, 289-90 (6th Cir. 1983) (finding that the Secretary cannot order any type of relief that the Secretary deems appropriate, rather the Secretary is limited to the formulation of a complete and proper remedy without the creation of novel benefits), abrogated on other grounds in McDaniel v. U.S., 970 F.2d 194, 196-97 (6th Cir. 1992) (referencing DeFord's discussion of FECA).

A. Reinstatement

   An employees reinstatement to his or her former job is a favored remedy for whistleblowing discrimination. As Judge Vance form the Eleventh Circuit stated:

   When a person loses his job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored. Yet at the same time, there is a high probability that reinstatement will engender personal friction of one sort or another in almost every case in which a public employee is discharged for a constitutionally infirm reason. Unless we are willing to withhold full relief form all or most successful plaintiffs in discharge cases, and we are not, we cannot allow actual or expected ill-feeling alone to justify nonreinstatement. We also note that reinstatement is an effective deterrent in preventing employer retaliation against employees who exercise their constitutional rights. If an employer's best efforts to remove an employee for unconstitutional reasons are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights.

Allen v. Autagua Count Board of Education, 685 F.2d 1302, 1306 (11th Cir. 1982). See also Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322 (11th Cir. 1999) (same).

   Reinstatement is required in lieu of front pay absent a showing that a normal working relationship is impossible or that the employee has an actual medical risk that prevents performance of the former job. Creekmore v. ABB Power Systems, Inc., 93 ERA 24, p. 3 (Dep. Sec'y April 10, 1996). A Court should only reinstate an employee to a higher position if the record supports a finding that the employee is qualified and would have received a promotion in the absence of protected activity. Pecker v. Heckler, 801 F.2d 709, 712-13 (4th Cir. 1986).

   Here, Mr. Mills stated that he would be able to work with Complainant just as he would any other employee and reinstatement to the job she held prior to March 1995 is the appropriate remedy. Although Complainant was on a detail from the Procurement Section to the Grants Section and demoted to a contract specialist on the Southeastern contract, her regular duties were as a contract officer in the Procurement Section. Reinstatement as a contract officer entails reinstatement of all the terms, conditions, and privileges of employment, thus, Complainant is entitled to have her former contracting warrant reinstated.

   Complainant attempted on several different occasions to obtain a promotion from a GS-12 to a GS-13 prior to March 1995 - the date Respondent EPA began retaliating against Complainant for engaging in protected activity - but was unsuccessful. Complainant was twice denied a desk audit promotion to a GS-13 after she had conflicts with Mr. Mills over how to document a file and he reassigned her work. In seeking a promotion based on competitive selection, however, Complainant was ranked as "highly qualified" or "qualified" for GS-13 positions. Had Complainant stayed in the Procurement and Grants Sections, instead of working as the Information Resource Coordinator which had no promotion potential, I find that she would have received a promotion to a GS-13. Thus, I find that Respondent EPA must reinstate Complainant as a GS-13 contract officer.

   In the alternative, should both Respondent EPA and Complainant agree that reinstatement is not the desired remedy, Complainant is entitled to front pay, at the GS-13 level, and service credits so that Complainant will have thirty years of government service and be eligible for the same retirement package as if she had worked for the government for thirty years.

B. Back Pay

   Having determined that Complainant is entitled to a promotion to a GS-13, I find that the effective date of that promotion is March 10, 1995. Complainant is entitled to timely step increases form March 10, 1995 to the date this Order is issued. Complainant is also entitled to interest on the amount of overdue back pay calculated in accordance with the rate employed by the United States District Courts under 28 U.S.C. § 1961.

C. Compensatory Damages

   "Compensatory damages are designed to compensate discriminatees not only for direct pecuniary loss, but also for such harms as impairment of reputation, personal humiliation, and mental anguish and suffering." Hobby v. Georgia Power Co., ARB No. 98-166 (ARB Feb. 9, 2001). Although a complainant may support his claim for compensatory damages with medical and psychiatric experts, it is not required. Mosbaugh v. Georgia Power Co., 91 ERA 1 (Sec'y Nov. 20, 1995). A complainant need only show that he suffered mental pain or suffering that was caused by his employment. Crow v. Noble Roman's, Inc., 95 CAA 8 (Sec'y Feb. 26, 1996). Even if the complainant had other sources of stress outside his employment, the employer must still compensate the complainant for aggravating the preexisting stress. Doyle v. Hydro Nuclear Services, 89 ERA 22 (ARB Sept. 6, 1996). No upper limit exists in awarding compensatory damages, but the ALJ should make such awards with reference to awards in other discrimination related statutes, including Title VII. Leveille v. New York Air National Guard, ARB No. 98-079 (ARB Oct. 25, 1999). Accordingly, a review of recent awards in discrimination decisions is instructive in determining what Complainant is entitled to under the facts of this case.

   In Smith v. Esicorp, ARB No. 97-065 (ARB Aug. 27, 1998), the ARB reviewed a number of cases awarding compensatory damages for emotional distress:

   Van der Meer v. Western Kentucy University, ARB Case No. 97-078 (ARB Dec., Apr. 20, 1998). The ARB awarded Van der Meer $40,000 because he suffered public humiliation and the respondent made a statement to a local newspaper questioning Van der Meer's mental competence.

   Gaballa v. The Atlantic Group, 94-ERA-9, p. 5 (Sec'y Dec., Jan 18, 1996). Gaballa had been blacklisted, and testified that he felt his career had been destroyed by the respondent's action. The Secretary reviewed the compensatory damages awards for mental and emotional suffering made in a number of cases, which ranged form $10,000 to $50,000, and awarded Gaballa $35,000.

   Creekmore v. ABB Power Systems energy Services, Inc., 93-ERA-24, p. 25 (Dep. Sec'y Feb. 14, 1996). The Deputy Secretary awarded Creekmore $40,000 for emotional pain and suffering caused by a discriminatory layoff. Creekmore showed that his layoff caused emotional turmoil and disruption of his family because he had to accept temporary work away from home and suffered the humiliation of having to explain why he had been laid off after 27 years with one company.

   Michaud v. BSP Transport, Inc., ARB No. 97-113, p. 9 (ARB Oct. 9, 1997). The ARB awarded $75,000 in compensatory damages where evidence of major depression caused by a discriminatory discharge was supported by reports by a licensed clinical social worker and a psychiatrist. Evidence also showed foreclosure on Michaud's home and loss of savings.

   Smith v. Littenberg, 92-ERA-52, p. 7 (Sec'y Dec., Sept. 6, 1995). The Secretary affirmed the ALJ's recommendation of award of $10,000 for mental and emotional stress caused by discriminatory discharge where Smith supported his claim with evidence from a psychiatrist that he was "depressed, obsessing, ruminating and ha[d] post-traumatic problems."

   Blackburn v. Metric Constructors, Inc., 86-ERA-4, p. 5 (Sec'y Aug. 16, 1993). The Secretary awarded Blackburn $5,000 for mental pain and suffering caused by discriminatory discharge where Blackburn became moody and depressed and became short tempered with his wife and children.

   Bigham v. Guaranteed Overnight Delivery, ARB No. 96-108, p. 3 (ARB Sept. 5, 1997). The ARB awarded Bigham $20,000 for mental anguish resulting form discriminatory layoff.

   Lederhaus v. Paschen, 91-ERA-13, p. 10 (Sec'y Oct. 26, 1992). The Secretary awarded Lederhaus $10,000 for mental distress caused by discriminatory discharge where Lederhaus showed he was unemployed for five and one half months; foreclosure proceedings were initiated on his house; bill collectors harassed him and called his wife at her job, and her employer threatened to lay her off; and his family life was disrupted.

   In Addition to the cases mentioned in Smith, I note the following cases:

   In Martin v. Department of the Army, ARB No. 96-131, p. 17-18 (ARB July 30, 1999), the ARB affirmed an award of $75,000 for severe emotional distress when the complainant had several years of counseling, and symptoms of fatigue, malaise, depression, difficulty sleeping, bronchial irritation, suicidal thoughts and low self-esteem due to stress that was related in part to the employer's retaliatory acts.

   In Pickett v. Tennessee Valley Authority, 2001 CAA 18, p. 52-53 (ALJ Feb. 7, 2002), the ALJ determined that $5,000 in compensatory damages were warranted when the complainant did not show actual damage but the respondent harmed the complainant's reputation in a publication. The ALJ noted that a small compensatory amount was appropriate considering the limited intensity, severity and duration of the complainant's distress.

   In Beliveau v. Naval Underseas Warfare Center, 1997 SWD 1 (ALJ June 29, 2000), the ALJ recommended an award of $50,000 in compensatory damages for emotional distress. Complainant had presented expert testimony, but the ALJ found that it was of limited probative value. In setting the amount of the award, therefore, the ALJ looked at cases in which amounts were awarded for emotional distress without expert evidence in support. He then set the amount at the high end of that range ($20,000 to $50,000) because, despite the limited weight given to the expert's opinion, it was more probative than a complainant's mere conjecture.

   In Hobby v. Georgia Power Co., ARB No. 98-166 (ARB Feb. 9, 2001), the ARB adopted the ALJ's recommendation for $250,000 in compensatory damages based on the fact that the respondent subjected the complainant to a series of minor slights that were a precursor to much larger problems. The complainant experienced difficulty in finding work in his chosen profession, experienced emotional distress due to depleted finances, and suffered from a loss of reputation. After complainant's termination, his career was largely destroyed.

   In Miglore v. Rhode Island Department of Environmental Management, 99 SWD 1, p. 52 (ALJ Aug. 13, 1999), the ALJ recommended compensatory damages in the amount of $400,000 based upon the complainant's mental anguish, adverse health consequence, and damage to her professional reputation. The ALJ noted that this award was higher than any other award previously awarded by an administrative law judge, but found that the case presented a fact scenario so severe as to warrant significant compensatory relief. The complainant presented a compelling case of repeated and continuous discrimination and retaliation that compromised her mental health, and professional reputation.

   In this case, Respondents' left Complainant to suffer the lingering doubt, of whether the OIG investigation would result in a loss of liberty and/or means of economic support, from May 15, 1996, to October 2, 1998. Respondent EPA also permanently transferred Complainant out of her career field, subjected her to a hostile working environment, and allowed her to suffer in a position that she was not fully qualified to perform while she attempted to manage personnel who refused to work with her. Complainant's psychiatrist causally connected Complainant's stress to Respondent EPA's retaliatory activities and Complainant testified as to how the stress adversely affected her health. Accordingly, I find compensatory damages in the amount of $50,000 is appropriate.

D. Affirmative Action

   Complainant requested numerous forms of equitable relief. By statute the Secretary of Labor has authority to take affirmative action to abate violations of environmental whistleblower laws. WPCA, 33 U.S.C. § 1367(b); SDWA, 42 U.S.C. § 6971(b); CERCLA, 42 U.S.C. § 9610(b); CAA, 42 U.S.C. § 7622(b)(2)(B); SDWA, 42 U.S.C. § 300j-9(i)(2)(B). On May 15, 2002, President Bush signed the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002 into law. Pub. L. 107-174, 116 Stat. 566 (107th Cong.), amending 5 U.S.C. § 2301 et seq. The "No Fear" Act requires federal agencies to "be accountable for violations of anti-discrimination and whistleblower protection laws." H.R. 169 (May 15, 2002). In part, the new Act calls for written notification of the rights and protections available to Federal employees, an annual accounting to Congress for the agency's actions, and a public posting of complaints filed with the agency.

   I find that the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002 partly addresses Complainant's need for equitable relief. Respondent EPA shall abate its retaliatory conduct by removing Complainant from her current job and reinstating her as a contract officer. Respondents' abated their retaliatory act of non-disclosure of results in the OIG investigation once Complainant had actual knowledge and proof that she was cleared of any wrongdoing.

   I also find that Complainant is entitled to a thirty day notice posting in a public place within the Procurement and Grants Sections. The notice shall contain a short summary of these proceedings, specifically providing that: 1) Complainant attempted to prevent government waste and abuse by informing officials in Region 6 that a Superfund contract set for bid contained defective performance specifications; 2) Complainant actions were appropriate and commendable; and 3) as a result of Complainant's actions, she was transferred form her career field, investigated by the OIG, and not informed that neither the OIG nor EPA Region 4 found any basis for criminal or administrative discipline. The notice shall also contain an affirmative statement that EPA Region 4 recognizes that environmental whistleblowing is an important federally protected activity, that it shall make every effort to ensure that those who engage in environmental whistleblowing are not retaliated against, and that it recognizes that those who engage in whistleblowing activity are not obligated to follow the chain of command.

E. Exemplary Damages

   The SDWA permits the imposition of exemplary damages when appropriate. 42 U.S.C. § 300j-9(i)(2)(B). Exemplary damages are appropriate "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). Exemplary damages serve to punish illegal conduct, deter its repetition and are set according to the degree that the respondent's conduct is reprehensible. BMW v. Gore, 517 U.S. 559, 568, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). Factors in determining whether punitive damages should be awarded and in what amount include: 1) The degree of the defendant's reprehensibility or culpability, 2) the relationship between the penalty and the harm to the victim caused by the respondent's actions, 3) the sanctions imposed in other cases for comparable misconduct. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 523 U.S. 424, 434-35, 121 S. Ct. 1678, 1684-85, 149 L. Ed 2d 674 (2001) (citations omitted). Other courts found punitive damages appropriate in the following cases:

   In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that compensatory damages for stress caused by the Respondent's having deliberately created a hostile work environment for the Complainant were warranted in the amount of $10,000. The ALJ also concluded that the Respondent "intentionally put [the Complainant] under stress with full knowledge that he was a cancer patient recovering after extensive surgery and lengthy chemotherapy" and recommended an award of $20,000 in exemplary damages.

   In Jayco v. Ohio Environmental Protection Agency, 1999-CAA-5 (ALJ Oct. 2, 2000), the ALJ recommended an award of exemplary damages of $45,000, based on his finding that Respondent referred an allegation of theft to the state police related to a meal voucher submitted by Complainant based on an intent to harm Complainant's investigatory function and his reputation. The ALJ earlier in the opinion found that the dispute over the meal voucher was, at most, over a de minimus amount of money and an innocent error by Complainant, and that the extraordinarily harsh suspension of Complainant, who had a good work record, and referral of the matter to the state police (which declined to investigate as the amount in dispute was less than $10) could only be explained as retaliation for Complainant's protected activity.

   In Leveille v. New York Air National Guard, ARB No. 98-079, ALJ Nos. 1994-TSC-3-4 (ARB Oct. 25, 1999), the ALJ recommended that punitive damages be denied, finding that when Respondent made two negative references about Complainant in response to reference checks, it did not act with reckless or callous disregard of Complainant's rights. The ARB agreed and adopted the ALJ's recommendation, finding that the record did not show that the persons who had given the negative references did so with the purpose or intent to harm Complainant or with reckless disregard for her rights.

   In Sayre v. Alyeska Pipeline Service Co., 1997-TSC-6 (ALJ May 18, 1999), the ALJ recommended an award of $5,000 in punitive damages where he found that both Respondents intentionally discriminated against Complainant because she engaged in protected activity, and Complainant was harassed, lost her job, and suffered mental and emotional stress as a result. The ALJ moderated the recommended punitive damage award because he found that the alleged statements concerning future discrimination were unclear at best, and because of the mitigating fact that Complainant was eventually rehired.

   In Pickett v. Tennessee Valley Authority, 2001 CAA 18, p. 52-53 (ALJ Feb. 7, 2002), the ALJ determined that the respondent acted egregiously in intentionally degrading the complainant, casting aspersions on his honesty, blacklisting, and discouraging future employment relations. The duration and frequency of respondent's environmental violations was not significant, however, and awarded $10,000 in exemplary damages.

   In Lambert v. Fulton County Georgia, 253 F.3d 588 (11th Cir. 1002), the Eleventh Circuit upheld an award of $50,000 in compensatory damages and $225,000 in punitive damages when white employees alleged the county managers and EEO officer discriminated against them because of their race in failing to ameliorate a hostile work environment that was present form 1995 to 1996.

   In U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600 (11th Cir. 2000), the Eleventh affirmed a punitive damage award of $100,000 when the employer acted in reckless indifference to the rights of pregnant employees by terminating their employment. The $100,000 award was the maximum allowed under the cap set in 42 U.S.C. § 1981a(b)(3)(B).

   I find that Respondents' conduct in not disclosing the results of the OIG investigation and Respondent EPA's conduct in permanently transferring Complainant out of her career field, subjecting her to a hostile working environment, and allowing her to suffer in a position that she was not fully qualified to perform while she attempted to manage personnel who refused to work with her was reprehensible. I also note that Respondents' behavior took place over a long period of time. Based on a review of the above cited cases, and the facts in this case, I award punitive damages in the amount of $225,000.

F. Attorney's Fees and Costs

   Attorney's fees are available to the prevailing Complainant as authorized by statute. SDWA, 42 U.S.C. § 300j-9(i)(2)(B); WPCA, 33 U.S.C. § 1367(c); SWDA, 42 U.S.C. § 6971(c); CAA 42 U.S.C. § 7622(b)(2)(B); and CERCLA 42 U.S.C. § 9610. No award of attorney's fees for services rendered on behalf of the Complainant is made herein since no application for fees has been made by the Complainant's counsel. Counsel is hereby allowed thirty (30) days form the date of service of this decision to submit an application for attorney's fees. A service sheet showing that service has been made on all parties, including the Complainant, must accompany the petition. Parties have twenty (20) days following the receipt of such application within which to file any objections thereto.

       CLEMENT J. KENNINGTON
       ADMINISTRATIVE LAW JUDGE

   NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W. Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief, Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).