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 32 of 34

adverse action, but rather an action motivated by the need for Jenkins to understand and adhere to EPA's communications policy.

Finally, Jenkins' allegation that the October 29, 1991 performance rating of "fully successful" rather than "outstanding" was an adverse action cannot be supported. Jenkins contends that this rating was based solely on her non-adherence to communications policy. However, Petruska testified credibly that the evaluation was based on a number of factors, including adherence to communications policy (TR 1600-01). Subsequent to the addition of the communications policy criteria to her performance standards, Jenkins again violated the communications policy by publicly discussing the Monsanto investigation (CX 324). Therefore, rating her performance on that criteria as "unsatisfactory" was reasonable (CX 334). Furthermore, Jenkins' ratings in most other performance areas for that evaluation were "fully successful" rather than "outstanding." Therefore, a "fully successful" evaluation was not an adverse action because it was based accurately on Jenkins' performance during this period.

C. Conclusion

In sum, complainant has failed to prove that the respondents discriminated against her due to activity protected under the any of the six environmental statutes. Any adverse actions taken against the complainant from 1987 to 1991 were taken for legitimate business reasons and were not retaliatory. Therefore, it is recommended that this case be dismissed in its entirety.

RECOMMENDED ORDER

On the basis of the foregoing, it is recommended that the case of Dr. Cate Jenkins be dismissed in its entirety.

JEFFREY TURECK 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-

[Page

4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 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).

[ENDNOTES]

-'This case also arises under the Clean Air Act, Safe Drinking Water Act, Water Pollution Control Act, Comprehensive Environmental Response, Compensation and Liability Act, and Toxic Substances Control Act. The Solid Waste Disposal Act is also known as the Resource Conservation and Recovery Act (RCRA).

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

NYC-WTC 000125969