U.S. EPA is attempting to fire a longtime whistle-blower for the second time, characterizing the senior chemist as an intimidating employee who once threatened to kill her supervisor.
The charges are the same as those alleged more than two years ago, when EPA first fired Cate Jenkins. Jenkins appealed that dismissal to the federal Merit Systems Protection Board -- and won.
EPA reinstated Jenkins in May 2012 (Greenwire, May 7, 2012). But now the agency is starting the fight all over again, sending Jenkins a notice of proposed removal two weeks ago.
For more than a decade, Jenkins -- who worked in EPA's Office of Solid Waste and Emergency Response -- has accused EPA of purposely downplaying the toxicity of dust at the World Trade Center site after the Sept. 11, 2001, terrorist attacks. The agency, she says, falsified weak alkaline corrosivity standards that subjected first responders to dust particles that were so caustic they caused severe respiratory disabilities and death.
In 2011, Public Employees for Environmental Responsibility -- which is legally representing Jenkins -- filed a formal rulemaking petition demanding that EPA strengthen the standard (Greenwire, Sept. 8, 2011). That would alert future responders to wear special equipment to protect against lung and respiratory tract damage.
EPA has not yet responded. But it seems eager to refile its accusations against Jenkins, a move PEER argues is in violation of the MSPB's decision.
"These charges against Dr. Jenkins never made any sense but what makes even less sense is the EPA decision to re-bring them even before a decision has been made on her still-pending retaliation claims and in direct contradiction to the language of the MSPB order," PEER Senior Counsel Paula Dinerstein said in a statement.
MSPB ordered EPA to reinstate Jenkins in its 2012 decision, but it did so on procedural grounds, finding that the administrative judge who confirmed the firing had wrongly limited Jenkins' ability to present evidence and witnesses in her defense.
That decision allowed EPA to reinitiate the same charges -- with the requirement that Jenkins be given the opportunity to prove that the agency had retaliated against her as a whistle-blower.
According to PEER, Jenkins can't do that until the conclusion of two pending cases on her whistle-blower claims: one in front of MSPB and another at the Department of Labor. The MSPB case is an offshoot of her appeal to the original dismissal; it has been put on hold pending the conclusion of the DOL case, which is still in the discovery phase.
Thorn in EPA's side
For years, EPA has painted Jenkins as a difficult employee, suspending her in 2009 for two days for "discourteous, unprofessional, and bullying conduct toward colleagues," according to MSPB documents.
But the main allegation -- that Jenkins threatened to kill her supervisor -- is based entirely on the testimony of that supervisor, Robert Dellinger, who was then the director of the Materials Recovery and Waste Management Division.
Dellinger says the confrontation took place in Jenkins' cubicle when no one else was around. During the exchange, according to Dellinger, Jenkins used profanity and threatened to kill him.
The confrontation was over a memo clarifying Dellinger's decision not to pursue one of three charges that led to the two-day suspension.
Jenkins has denied the charge that she threatened Dellinger in the exchange, asserting that the allegations were manufactured as retaliation for her whistle-blowing. And PEER has pointed to the absurdity that a "petite childhood polio survivor" threatened her tall male boss.
"Appellant is 5 feet 4 inches, wears glasses with large lenses, weighs less than 120 pounds, and is known in the EPA office as physically weak. She had polio, and as a result uses a special stylus mouse keyboard that does not require accurate wrist-forearm movements, purchased by EPA to accommodate her minor disability," Jenkins' lawyers wrote in a 2011 "statement of facts" to the MSPB. "Mr. Dellinger is over 6 feet tall."
In a recent interview, Jenkins said that with more than 30 years at EPA, she could have simply retired rather than pursue a years-long battle that seems far from over. But she said she is motivated to clear her name.
"My name and what I have now has been seriously tainted by Robert Dellinger's false allegations," she said. "I want to take away the stain -- the filthy stain -- of his lies."
But even before that confrontation, Jenkins' relationship with the agency had been uneasy.
Most notably, Jenkins blew the whistle on Agent Orange two decades ago, alerting EPA's Science Advisory Board to manipulation in a study on dioxin from the Monsanto Chemical Corp. That led to the National Institute of Occupational Safety and Health deeming the Monsanto report invalid.
The Department of Labor later found that EPA had retaliated against Jenkins for her outspokenness, with one supervisor releasing a memo stating that she should be put in administrative position and "should not be involved with anything that puts her in direct contact with the regulated community or the public." Officials had also reassigned Jenkins and reduced her workload.
In 1992, DOL ordered EPA to reinstate Jenkins to her previous position, and noted that EPA officials at the time gave "begrudging respect" to Jenkins and her work.
A decade later, Jenkins was vocal in her assertion that EPA was downplaying asbestos contamination after the Sept. 11 terrorist attacks and recommended that Lower Manhattan be declared a Superfund site. A later report from EPA's inspector general found that the White House had pressured EPA to deem the air "safe" to breathe without sufficient data.
Battle of the senses
More recently, Jenkins has pursued a workplace fragrance ban -- an effort that has either alienated her from her colleagues or provided EPA with an excuse to prosecute her, depending on whom you ask.
In 2007, she had an incident with an IT technician that resulted in a call to the Federal Protective Service. According to Jenkins' "statement of facts," she asked the technician to leave three times because he was wearing "a heavy dose of perfume."
"At that point, Appellant was beginning to have an asthma attack, and took a plant spray water bottle and told the technician that it was poison and that she would spray him if he did not leave," Jenkins' lawyers wrote in MSPB documents. "The bottle contained only water."
A few years later, in 2009, Jackson pursued a workplace fragrance ban, sending an email to then-EPA Administrator Lisa Jackson, all EPA headquarters staff, and the EPA Health and Safety Unit.
The email -- titled "Op-Ed: Should EPA Institute a Workplace Fragrance Ban as Part of its Endocrine Disruptor Initiative?" -- contained references to support her contention that fragrances such as perfumes and colognes can lower testosterone levels in men and trigger allergies, among other things.
That didn't sit well with EPA management, who issued a warning. Jenkins has argued that the email and her efforts are protected disclosures under whistle-blower laws.
The latest battle began soon after, with EPA officials firing Jenkins in 2011 over her alleged confrontation with Dellinger.
Jenkins hasn't set foot in an EPA office since. Rather than reinstate her after the MSPB ruling, the agency put her on paid administrative leave and has kept her on it ever since.
To PEER, it shows determination at a high level to get rid of Jenkins. Jackson at least kept her eye on the case: Using her now-infamous "Richard Windsor" alias email account, the former administrator forwarded a news clip on Jenkins' successful appeal in 2012 to Deputy Administrator Bob Perciasepe.
Her accompanying comment: "Have you been briefed on this by Craig?"