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 29 of 34

In May of 19P9 Jenkins wrote a letter to Dellinger stating that she was overburdened by her workload.

As I told you on May 23, my first priorities will not be any HSWA listing work, but instead pursuing my EEO and DOL complaints. This means that any anticipated milestones that you set up must slip considerably, especially considering the fact that I will need to spend significant time with a District Court suit to force EPA to complete my EEO investigative file during the months of May, June, and July. Your assignment of the inordinate work load of both UDMH, methyl bromide, and chlorinated aliphatics becomes even more infeasible in light of these other duties.

CX 241. In light of the abc e evidence, I find that Jenkins was not subject to a period of "no duties" in the 1988-1989 period.

4. Merits of1990 -1991 AHegations

a. Removal from Solvents and UDMHII Listing Projects

The next adverse action asserted by complainant was her removal from the solvents and UDMH II listing assignments on August 30, 1990 (Compl. brief at 177). Assuming this was an adverse action, Jenkins cannot show that the motive for removing her was discriminatory. Jenkins claims that she was removed from this project because she raised the possibility of the presence of dioxins in solvents other than the four that had been listed by the contractor (CX 267). Petruska testified that confusion existed over the meaning of the HSWA and that he believed the statute meant for the EPA to conclude solvents listing work that had already commenced at the time of HSWA's passage (TR 1583). Jenkins disagreed strongly with this position in a memo (CX 270).

Petruska forwarded this memo to Scarberry and Abrams and asked if they had "any thoughts." Abrams replied, stating in part "[i]t depends whether we want to satisfy the HSWA statute or rnnke work for Cate with an unlimited budget for dioxin analysis" (CX 271). Jenkins prepared a $24 million proposed budget to study new solvents listings. Her supervisors responded to this proposal with statements such as "this is absurd" and "this is a farce" (CX 273 A). In a later memo concerning the solvents II project, Petruska stated we "don't need more data" and later informed Jenkins that she should focus ner work on the four solvents that had already been listed. Complainant wrote a July 25,1990 memo stating that the UDMH Listings, Olin Process should be tested for dioxins "in the absence of definitive data to rule out their presence" (CX 260). Her supervisors disagreed. Finally, on August 30,1990, Petruska told Jenkins that while she could continue work on the UDMH listing, she should stop work on UDMH II because "[w]e may take the position that given the lack of data on the Olin process, that this is not a HSWA listing" (CX 261).

For the purposes of this decision, even assuming that Jv^uKins’ actions regarding this project were protected and that removing her from the project was an adverse action, the EPA had legitimate, non- discriminatory business reasons to do so. First, the decision to list or not list a solvent was in many ways a political and a policy decision based on how HSWA was interpreted. Though Jenkins clearly believed, and continues to believe, that only her interpretation of HSWA was the proper one, alternate theories of what HSWA required were permissible and certainly not illegal. Jenkins' supervisors were ultimately responsible for deciding what initially should be listed, not her. Second, the only option

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

NYC-WTC_000140226