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 24 of 34

For the purposes of this decision, it will be assumed that the complainant's activities were protected and that the Environmental Protection Agency was aware of the complainant's activities. Therefore, this decision will discuss only the next two elements required for complainant to meet her initial burden. First, whether adverse actions were taken against the complainant, and second, if adverse actions were taken, whether they were in retaliation for the complainant's having engaged in protected activity.

"An adverse action is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997). Clear examples of adverse employment actions include dismissal, demotion, or an involuntary transfer to a less desirable position. See Mandreger v. Detroit Edison Co., 88-ERA-17 (Sec'y, March 30, 1994); Nichols v. Bechtel Constructors, Inc., 87-ERA-44 (Sec'y, Oct. 26, 1992); English v. General Electric Co., 85-ERA-2 (Sec'y, Feb. 13, 1992). Monetary loss is not required. See Boytin v. Pennsylvania Power and Light Co., 94-ERA-32 (Sec'y, Oct 20, 1995).

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Complainant contends that she was subjected to five adverse actions that precipitated the filing of the original April 11, 1987 complaint. These actions include: 1) removal from the wood preserving issues/option paper in September 1987, 2) removal from the wood preserving listing project in September 1987, 3) denial of a within-grade increase in November 1987, 4) being given an unsatisfactory performance evaluation in November 1987 and 5) a March 1988 elevation of an unsatisfactory evaluation to "satisfactory," rather than "exceeds expectations."

a. Removal from Wood Preserving Options Paper and Listing Project

The record contains ample evidence that Jenkins' protected activities, such as writing letters to Congress, were not the reason for the adverse actions taken against her in September through November of 1987. While it was permissible for Jenkins to write letters to Congress and to her supervisors expressing her concern over the regulatory course that was being explored, her refusal to address certain

issues in her work assignments that her supervisors instructed her to address was not acceptable. Jenkins certainly was under no obligation to support ideas she disagreed with, however, she did have an obligation to follow her supervisors' instructions to address certain issues in the options paper. For example, Jenkins' supervisors wanted her to address the stigmatization issue. While Jenkins acknowledged in her testimony that stigmatization is a "genuine concern" (TR 148), she refused to address this issue in the paper because she believed it had "nothing to do with the criteria for listing hazardous wastes" (CX 32 at 5). This was not her decision to make.

Jenkins' position was clearly frustrating to her superiors. She was repeatedly asked to address certain issues in the paper and she repeatedly refused to do so. Straus believed that her draft of the paper was "biased" and lacked a "fair analysis" and he asked her to write the paper again. Jenkins refused again on the grounds that she believed that analyzing the stigma issue as it related to listing wastes was illegal and wanted to ask the Office of General Counsel for their opinion on the issue. Lowrance, the division director of the Office of Solid Waste, was frustrated by Jenkins' position as well. Lowrance testified that she did not think it appropriate to contact the Office of General Counsel at that point because OSW was only examining options and the OGC eventually reviews all final regulatory proposals. She made comments on a memo by Jenkins that "it is not illegal to consider programmatic policy factors" and even wrote "This is silly -- what is in an options paper is a policy

file://A:\Dismissed.html 12/21/01

NYC-WTC 000125961