NYC Law Department memo on WTC document preservation, 2002

NYC 9/11 Public Portal Document

Jenkins v. U.S. Environmental Protection Agency, 88-SWD-2 (ALJ July 10,1998) Page 25 of 34

call - not a legal one" (CX 39). Jenkins' supervisors felt that her drafting of the options paper never adequately addressed the stigma issue and had other problems, and ultimately removed her from the project (CX 43).

The events that led to Jenkins' removal from the wood preserving project illustrate her inability to relate to others in her workplace and to follow the instructions of her supervisors if she disagreed with them. These are problems that continued throughout the time period concerning this case. Her approach to her work on the options paper and the listing

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project reveals Jenkins' belief that she was right, her supervisors were wrong, and therefore she need not heed the instructions she was given. To say the least, this does not facilitate a good working relationship. All of her supervisors at this time - Scarberry, Straus, and Lowrance -- gave Jenkins extensive feedback on the options paper and were quite generous in providing her numerous opportunities to re-draft the paper so that it would address the options they felt needed to be add- essed. Lov.rance, who is an attorney, teaches classes at Catholic University's law school, and, IT ore importantly, was the top supervisor in OSW, informed Jenkins that simply addressing issues in a paper, which is not a final regulatory proposal, was not illegal. Lowrance testified credibly that she believed and continues to believe that "policy work and technical work should be done looking at a broad array of options and variables in the agency" (TR 1710). This is a point Jenkins failed to understand, as she continued to insist, even at the hearing, that addressing the stigma issue in the Options paper was illegal.

Most, if not all, employees disagree with their supervisors at some point in their careers. During the many opportunities Jenkins was given to re-draft the paper, she could have, at any point, addressed the issues she was instructed to by her supervisors and formally noted her disagreement with their position. Instead, she refused to address these options at all. Jenkins' refusal to write the paper in a manner consistent with her supervisors' instructions caused a significant delay in developing the regulatory package. In order to alleviate that delay and facilitate the process, she was removed from the paper and the project. This removal '’’as not in retaliation for any protected activity, but rather was based on her refusal to address issues that her supervisors ordered her to examine. That type of refusal is not protected by any of the environmental whistleblower statutes. Furthermore, the record clearly demonstrates that Jenkins' participation in protected activities during this period — for example, writing letters to Congress — in no way precipitated her removal from the paper or the listing project. Rather, her removal was precipitated by her own refusal to perform the work required of her.

b. Denial of Within-Grade Increase, Unsatisfactory Performance Evaluation, and Change in Performance Evaluation

The ^-nial of Jenkins' within-grade increase and her unsatisfactory performance evaluation were based on many of the same reasons that she was removed from the wood preserving paper and project, namely her poor performance. Scarberry's memo addressing the denial of the salary increase explained that he expected a "GS-13 professional... to be able to work independently and come up with a satisfactory product...." (CX 65 at 1). The memo continued, stating:

I have to give you specific work instructions, and your products have to be rewritten with substantial revisions in order to be acceptable. Your work is generally completed late, and I

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

NYC-WTC_000140222