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Tuesday, March 13, 2018

From Jenna Orkin

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On 3/1/18, the US Department of Labor (DOL) Administrative Review Board (ARB) issued a final decision in the whistleblower case of Dr. Cate Jenkins v. the Environmental Protection Agency (EPA).  This ARB decision affirmed the 4/15/15 recommended decision by a DOLAdministrative Law Judge (ALJ), which found that EPA fired Jenkins because of her whistleblowing regarding toxic dust from the collapse of the World Trade Center (WTC) on 9/11/01.  The ARB described Dr. Jenkins’ whistleblowing as follows:

Beginning in 2001, Jenkins made numerous disclosures and complaints alleging that the EPA engaged in improper laboratory testing, falsified a regulation governing exposure safety standards, and knowingly covered up the toxic properties of the dust emanating from the September 11, 2001 ("9/11") World Trade Center (WTC) disaster. The improper testing and cover-up, Jenkins claimed, contributed to excessive and harmful toxic dust exposures of WTC "First Responders" and others sufficient to later cause respiratory and other serious and debilitating disease. Jenkins disseminated these disclosures and complaints to her supervisors and others at EPA, to the EPA Inspector General's Office, members of Congress, and the Federal Bureau of Investigation, as well as to state officials, state elected representatives, law firms representing WTC First Responders, citizens, and the media. Her disclosures were posted on web sites and repeatedly quoted in the press and television broadcasts, and by members of Congress.
In 2010, EPA terminated Jenkins on a false charge that she made a death threat to her supervisor.  The final 3/1/18 ARB decision upheld the 4/15/15 ALJ finding that this claim was not credible, based on the demeanor and consistency of Jenkins’ testimony compared to that of her supervisor (Robert W. Dellinger), as well as the circumstantial evidence regarding the alleged threat also made it not credible.  (See p. 35 of the ARB decision.)
The ARB decision also affirmed the 4/15/15 ALJ default judgement in favor of Jenkins.  The default judgement was for the repeated and elaborate efforts by EPA lawyers to withhold and in some cases destroy evidence exonerating Dr. Jenkins.  The ARB decision found that the “misconduct engaged in by the EPA and its legal counsel in this case will simply not be tolerated.”  The ARB also found that sanctions were appropriate because “one should be able to expect better of public servants than that evidenced by the EPA and its lead counsel in this case.
During discovery, EPA withheld over 1000 key documents.  They were not produced until AFTER a hearing before the ALJ.  These post-hearing documents provided evidence of retaliatory animus by EPA over Jenkins’ whistleblowing.  But most importantly, they contained evidence refuting the earlier testimony of Agency witnesses during the hearing and depositions.  (While testifying, these witnesses may have thought the withheld documents would never surface.)  Further, EPA destroyed all the emails and other documents of the official who proposed Jenkins’ termination (Maria Vickers, Deputy Director of the Office of Resource Conservation and Recovery (ORCR)).  This was not only a violation of federal records laws, but also a violation of Agency procedures once litigation efforts started (litigation hold).
In other words, Jenkins won her case not only because the alleged death threat was found not to be credible, where the real reason was retaliation for whistleblowing, but also because EPA had engaged in such “egregious misconduct” during discovery so as to severely prejudice Jenkins’ case.  
Dr. Jenkins expressed her hope that this case is finally over and her appreciation for the support she received over the past 8 years: “I could never have finished this journey without the tireless support of my attorneys at the Public Employees for Environmental Responsibility (PEER).”  She also said that the current laws are woefully inadequate to protect whistleblowers.  Very few win out of those who file cases.  Most do not even file cases, because there is a strict 30-day limit from the time retaliation took place, which is unreasonable.  As a result, people are discouraged from whistleblowing in the first place.
Dr. Jenkins is the only federal employee to have won two whistleblower suits against an agency over two different issues of public concern.  Her first whistleblower decision (5/18/94) found EPA retaliated because of Jenkins’ disclosures on EPA’s and industry’s misuse of data on dioxins (affecting Vietnam veterans and others exposed to dioxins in Agent Orange).  In recent court filings in her WTC toxics whistleblower case, the agency stated: “EPA concedes that Appellant [Dr. Jenkins] is a notorious whistleblower …”  The EPA attorney also testified that Dr. Jenkins had violated no ethics rule by her disclosures to Congress, the IG or FBI, saying only that they were “problematic” to EPA.  Dr. Jenkins has never leaked any internal information, much less confidential or secret information, in any of her disclosures.
The following are key excerpts from the 3/1/18 ARB final decision, followed by a list of links relevant to this case:



[page 14]

[T]he post-hearing discovery revealed … the Principal Deputy Assistant Administrator for 0SWER (Mr. [Barry] Breen) would be required because it was revealed that he was far more involved as a high-level EPA official in responding to Jenkins's protected disclosures (suggesting evidence of institution-wide retaliatory motive) than he had lead Jenkins to believe in his original deposition
[F]urther deposition and discovery pertaining to Dellinger would be required because documents produced after the hearing revealed that Dellinger was much more involved in responding to Jenkins's protected activities than he previously admitted


… the need to re-depose a Mr. Breen, Principal Deputy Assistant Administrator for OSWER, in light of revelations that he was far more involved in responding to Jenkins's protected disclosures than he had admitted in deposition …



But as the ALJ further noted, Frazier's affidavit did not address the question of why no litigation hold was placed on Vickers's email inventory. Id. Nor did Frazier address preservation of Vickers's emails pursuant to the Federal Records Act (FRA) that required the preservation of records of departing government officials, and which the EPA admitted (through Ms. Washington, counsel for the EPA) required that a substantial volume of Vickers's emails be preserved.


The EPA ignores the fact that the ALJ found that Vickers's emails and backup tapes were intentionally destroyed, which in and of itself supports the inference that the destroyed records were relevant to Jenkins's claim. When evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance.



Independently of the inference drawn by the ALJ that the EPA did not have a legitimate, non-pretextual reason for dismissing Jenkins (i.e. that Jenkins did not utter a profane death threat to her supervisor, Dellinger, on May 3, 2010), the ALJ found that "the facts and testimony already in the record also support my finding that the Complainant did not make this threat."


The ALJ' s credibility determinations were based on their respective demeanors, the ALJ "found the Complainant to be fully credible on this issue, and her testimony consistent and forthright. In contrast, I found Mr. Dellinger to be evasive and equivocal in his testimony in general, and on this issue in particular."

In support of her determination that Dellinger's testimony about the alleged threat lacked credibility, the ALJ additionally considered the circumstances surrounding Dellinger's report of the alleged death threat, including Dellinger' s stated reason for his delay in reporting the alleged threat, and "evidence and testimony at the hearing support[ing] an inference that Mr. Dellinger was being coached by Mr. Winick." D. & 0. at 41. "[T]he circumstances surrounding Mr. Dellinger's report of this threat," the ALJ stated, "cast significant doubt on whether it actually occurred." Id. at 40. The ALJ cited several things, including: the fact that although Dellinger spoke with attorney Winick by telephone on the day of the alleged incident, and emailed him more than once in the days immediately following, Dellinger did not mention the alleged death threat to Winick; the fact that Dellinger did not immediately report the alleged threat to any of his supervisors or managers, in person, by phone, or by email; the fact that Dellinger testified that on May 3rd, shortly after the alleged threat, Jenkins twice came to his office, was "nice as pie," and that during these visits Dellinger did not once ask her to clarify or confirm what she had allegedly said to him; and the fact that Dellinger said nothing about any threat to management or anyone else at EPA until May 10, 2010
The ALJ found Dellinger's reason for waiting so long to report the alleged threat unconvincing, which the ALJ also noted conflicted with Rudzinski's initial understanding for Dellinger's delay based on what Winick had originally told her.  Further undermining Dellinger's credibility in the ALJ's estimation, as previously mentioned, was evidence and hearing testimony of others supporting, in the ALJ's opinion, "an inference that Mr. Dellinger was being coached by Mr. Winick."


Here, the Board will uphold the ALJ's determination finding Jenkins's testimony concerning the alleged death threat credible because it is internally consistent, coherent, and plausible. Moreover, the Board does not find Jenkins's testimony contradicted by external evidence, despite the EPA's assertions to the contrary.


In sum, the ALJ had ample opportunity upon hearing (and seeing) the testimony of Jenkins and Dellinger, after comparing that testimony to prior deposition testimony and other evidence of record as noted, to determine which witness was more worthy of credence. The ALJ's conclusion that Jenkins was credible on the issue of the alleged death threat and that Dellinger's testimony was evasive and equivocal in general and with regard to the alleged threat in particular does not conflict with a clear preponderance of the evidence. Nor, as previously discussed, are the ALJ's credibility determinations inherently incredible or patently unreasonable in light of the ALJ's thoroughly detailed exposition of the evidence supporting her decision.



EPA misconduct specifically cited by the ALJ included not only Respondent's "willful fail[ure] to preserve Ms. Vickers' emails when she retired, despite the fact that there was pending litigation in which her testimony could play a key role," id. at 23, but also "Respondent's failure to produce literally thousands of documents before the hearing," id. at 10, and "Respondent's lengthy course of willful misconduct during the protracted prosecution of this claim."
"I have no doubt," the ALJ concluded, "that Respondent's repeated failures to fully respond to the Complainant's discovery requests, and to comply with my discovery orders, were deliberate and willful."
It is abundantly clear that the ALJ's finding that the EPA willfully and deliberately engaged in discovery misconduct is supported by the substantial evidence of record.


The ALJ found it "fair to consider that the extensive and blatant flouting of the rules of discovery, and repeated violation of my Orders, was done, not by a private litigant, but by an agency of the United States." D. & 0. at 38. Citing the EPA's "lengthy course of willful misconduct during the protracted prosecution of this claim,"
The Board agrees with the ALJ that one should be able to expect better of public servants than that evidenced by the EPA and its lead counsel in this case.
The Board affirms the ALJ's invocation of deterrence as an additional basis for the entry of a default judgment against the EPA. The EPA' s continued non-compliance with discovery requests and at least five court orders directing it to search emails of specific individuals and justify withholding of documents in privilege logs, non-compliance that forced the ALJ to suspend hearing in this case pending even further discovery, covered an expanse of more than two and one-half years. Moreover, the EPA's misconduct did not just begin the moment discovery commenced in this case, it began even earlier with its failure to place a litigation hold preserving Vickers's email records.


The EPA's argument simply has no merit. ALJ decisions are published. Moreover, the matter is now before the Administrative Review Board, whose affirmation of the ALJ's ruling will surely send a signal to government and private-sector parties alike who appear before Department of Labor administrative law judges that the level of discovery misconduct engaged in by the EPA and its legal counsel in this case will simply not be tolerated.


3/1/18 DOL ARB Final Decision, Jenkins v. EPA, retaliation for World Trade Center toxics whistleblowing

4/15/15 DOL ALJ Recommended Decision, Jenkins v. EPA, retaliation for WTC toxics whistleblowing

5/18/94 Secretary of Labor (Robert Reich) Final Decision, Jenkins v. EPA, retaliation for whistleblowing on dioxins in Agent Orange

2001-2008, Jenkins’ disclosures on EPA’s WTC toxic dust misrepresentations

9/10/16 admission by former EPA head Christine Todd Whitman she was wrong to say 9/11 air safe
Wikipedia - Health effects arising from the September 11 attacks

Public Employees for Environmental Responsibility (PEER)

9/8/11 PEER press release on Petition to change EPA regulation to protect First Responders and others from corrosive dust

9/8/11 PEER/Jenkins 9/8/11 Petition to change EPA corrosivity regulation hazard levels

12/7/16 PEER/Jenkins comments on EPA’s tentative denial of our Petition to protect First Responders

9/8/06 CBS interview of Dr. Jenkins