DOH/DEP asbestos fact sheet draft, 105 Duane Street

NYC 9/11 Public Portal Document

Jenkins v. U.S. Environmental Protection Agency, 88-SWD-2 (ALJ July 10, 1998) Page 23 of 34

have been, despite the fact that Jenkins testified that she missed the application deadline for that promotion (TR 1883-84). It may not be coincidental that complainant's aberrant work performance began at the time Scarberry became her supervisor.

• --It was clear from Jenkins' own testimony that she had difficulty getting along with her co-workers. Many of Jenkins' own actions contributed to the discordant office environment, including her surreptitious taping of conversations and phone calls which was eventually discovered (TR 247-48), her bringing media crews to the office to tape her opinion concerning controversial subjects (TR 759- 60), her demeaning description of her supervisor, Robert Scarberry, to others in the office (TR 1160- 61), her looking through support staffs in-boxes to collect data (TR 1245-55), her reading of papers left out on people's desks in their offices (id.), and her filing of numerous grievances and lawsuits. Jenkins' apparent lack of awareness that these actions, meritorious or not, could lead to a tense work environment lessens her credibility as a witness. Jenkins was and clearly continues to be very emotionally involved with this case. The longer she testified, the more rambling and accusatory her testimony became. She is so emotionally involved that she can not possibly be objective.

In sum, I find that her testimony was inherently unreliable, and absent corroborating evidence is insufficient to establish any controverted fact.

2. Merits of 1987 Allegations) t

Under the Solid Waste Disposal Act:

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[n}o person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter or under any applicable implementation plan, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter or of any applicable implementation plan.

42 U.S.C. § 6971 (a) (1994). The other environmental statutes under which complainant has filed this claim have similar employee protection provisions.

To prevail under the environmental whistleblower statutes, including the Solid Waste Disposal Act, a complainant must establish that: (1) the complainant engaged in protected activity, (2) the employer knew of the complainant's protected activity, (3) an adverse employment action was taken, and (4) the adverse employment action was motivated, in whole or in part, by the complainant's protected activity. See Dartey v. Zack, 82-ERA-2 (1983); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). If the complainant is successful in proving these points, the burden then shifts to the respondent to produce evidence that the adverse action was motivated by a legitimate, non-discriminatory reason. See Guttman v. Passaic Valley Sewerage Comm'rs v.

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