evelynn brown remple v. dept of health and human services
DESCRIPTION
Interlocutory Appeal of Denial for Stay at Merit System Protection Board. Document spells out violations of federal and state law, whistleblower retaliation, fraud, waste, abuse, mismanagement and dangers to public health and safety. Locked in the vacuum of the isolation chamber. Change of duties. Prohibited Personnel Practices.TRANSCRIPT
United States of America
Merit Systems Protection BoardWestern Regional Office
EVELYNN BROWN REMPLE, ) Docket NumberAppellant, ) SF-1221-08-0562-S-1
)v. )
) MOTION FOR CERTIFICATIONDEPARTMENT OF HEALTH AND ) OF INTERLOCUTORY APPEAL AND HUMAN SERVICES, ) (5 C.F.R. §§ 1201.91-1201.93)
AGENCY. )
INTRODUCTION
On July 17, 2008 Hon. LuNell Anderson issued an order denying Appellant’s request for
a stay finding that “appellant has not yet shown that there is substantial likelihood that she will
prevail on the merits of her claim of reprisal for whistleblowing.”
For the reasons stated herein, including but not limited to the irrefutable evidence that
Stan Koutstaal was on notice of Appellant’s whistleblower activities prior to May 16, 2008, we
respectfully submit that Appellant has shown that there is a substantial likelihood that she will
prevail on the merits of her claim of reprisal for whistleblowing and seek immediate relief for the
retaliatory substantial change in her duties mandated by the May 16, 2008 (Exhibit A) letter from
Mr. Koutstaal.
ARGUMENT
I. THE MAY 16, 2008 LETTER CONSTITUTED A SUBSTANTIAL CHANGE IN DUTIES AND THUS A PERSONNEL ACTION.
Appellant is a Federal Program Officer charged with the duty of oversight of the
Runaway and Homeless Youth program ensuring that grantees are in compliance with terms and
conditions of their respective grant awards. This has included significant contact with grantees
to confirm their information, onsite monitoring, answering technical questions, handling
emergencies such as wild fires, responding to inquires and ensuring program performance goals
are met in a timely manner.
The Agency’s May 16, 2008 letter ordered appellant to cease all contact with grantees
stating in pertinent part, “you are hereby ordered not to contact any of the grantees that are/were
assigned to you for any reason” and “[y]ou are prohibited from contacting grantees in any
manner.” The author, Stan Koutstaal, goes on to explain that discussions with grantees via an
intermediary are also prohibited. The May 16, 2008 letter contains a subject line entitled “Direct
Orders/ Temporary Assignment to Other Duties.” Additionally, the letter includes the statement,
“[y]ou are hereby assigned ‘other’ duties, as specified herein.” Stan Koutstaal then specifies that
the “other” duties are a review and comparison of the Awarding Agency Grants Administration
Manual (AAGAM) and the HHS Grants Policy Statement (GPS) and that a report is to be
written. Mr. Koutstaal then states that other than contact with Team Leader Bill Clair, appellant
is ordered to have no contact with other federal staff without obtaining advance approval from
Bill Clair or Stan Koutstaal.
The Agency’s argument that the May 16, 2008 letter does not constitute a personnel
action under 5 U.S.C. § 2302(a)(A) rings hollow. Mr. Koutstaal’s own characterization of the
purpose of his letter (Exhibit A--“Reassignment to other duties” and “You are hereby assigned
‘other’ duties, as specified herein”) contradicts the agency’s subsequent argument that the May
16 letter did not constitute a significant change in Appellant’s responsibilities. It is clear from
Mr. Koutstaal’s own writing that Appellant had been maintaining significant contact with
grantees assigned to her and that she was in possession of working files pertaining to these
grantees (Exhibit A-“You are hereby ordered to immediately surrender all working files and
any/all other documentary information related to these grantees.”). Therefore, the May 16 letter
removes her from these regular duties that involve contact with grantees and maintenance of
working grantee files and orders her to perform “other” duties which essentially amount to a
needle in a hay stack research assignment within the vacuum of an isolation chamber wherein
she is explicitly prohibited contact with anyone other than Stan Koutstaal and Bill Clair. The
new duties assigned appellant the enormous task of reading literally thousands of pages of
documents including the CFR, OMB Circulars, AAGAM, ACF GAM, public policy documents
looking for discrepancies and then writing a report within a very short and unreasonable
timeframe. This assignment does not appear to have a useful purpose.
Not only has appellant clearly established that the May 16, 2008 letter substantially
changed her duties from actively managing grants and oversight of RHY grantees to an esoteric
research assignment, she has also established that the change was intended to be punitive in
nature based on the stated blatant goal of restricting freedom of speech and communication by
isolating appellant from any and all colleagues other than Bill Clair and Stan Koutstaal.
II. APPELLANT HAS DEMONSTRATED SHE WILL LIKELY PREVAIL ON THE MERITS IN HER CLAIM OF WHISTLEBLOWER REPRISAL
A. STAN KOUTSTAAL HAD ACTUAL KNOWLEDGE OF APPELLANT’S WHISTLEBLOWER STATUS
In addition to the substantial change in duties mandated by the May 16 letter, appellant
has further shown that Stan Koutstaal, the author of the May 16, 2008 letter, had actual
knowledge of appellant’s whistleblower status. On or about July 14, 2008 appellant submitted
copies of four letters from appellants’ counsel to the Agency to the Board in support of her
motion for stay along with a copy of appellant’s own email/letter to Stan Koutstaal dated January
23, 2008. Moreover, three of the letters from appellant’s counsel were issued to the Agency prior
to May 16, 2008 on the following dates: January 23, 2008, February 7, 2008 and April 28,
2008. Two of these letters were emailed directly to Stan Koutstaal (January 23, 2008, February
7, 2008). The April 28, 2008 letter was sent to Richard K. Waterman, Chief Counsel, DHHS,
Region IX.
The letters contain the following excerpts which are useful in assessing Stan Koutstaal’s
knowledge of appellant’s whistleblower activities prior to his May 16, 2008 letter to appellant:
1) As your (sic.) aware, Ms. Brown Remple has filed several EEO complaints regarding your discriminatory treatment of her. Additionally, she has repeatedly invoked her rights under the Whistleblower Protection Act to no avail. (January 23, 2008 email to Mr. Koutstaal and Mr. Clair from counsel). (Exhibit B).
2) You are again taking disciplinary action against me in reprisal and retaliation for filing EEO Complaints and Whistleblowing activity. (January 23, 2008 email to Stan Koutstaal from Appellant). (Exhibit C).
3) You are once again on notice, that you and your agency are continuing your course of retaliation against Ms. Brown Remple in violation of federal law, including but not limited to the Federal Whistleblower Protection Act and the No Fear Act. (February 7, 2008 email to Stan Koutstaal. ) (Exhibit D).
4) I am writing to you on behalf of Ms. Brown Remple. She has retained me because she is being harassed in retaliation for whistleblowing. In a nutshell, she is an extremely well-qualified employee of the DHHS who has uncovered and reported fraud and non-performance of grantees in the runaway youth shelter program. Her reward for doing so has been unrelenting harassment with the obvious goal of driving her out. (April 28, 2008 letter from Richard Rogers to Richard K. Waterman, Chief Counsel, DHHS, Region IX). (Exhibit E).
Mr. Koutstaal and counsel for the agency certainly had an opportunity to respond to these
letters if there were any questions, comments or desired clarification. However, no one from the
Agency, including Mr. Koutstaal, responded to any of the letters.
For unknown reasons, there is no reference to the letters submitted to the Board on or
about July 14, 2008 in the Board’s order denying appellant’s motion for stay. Regardless, there
is overwhelming evidence that Stan Koutstaal had actual knowledge of appellant’s
whistleblowing activities. The Agency’s recent claim that Stan Koutstaal lacked knowledge of
appellant’s whistleblowing activities defies credulity. Accordingly, the Administrative Judge’s
conclusion that appellant did not meet her burden of establishing that Stan Koutstaal had
knowledge of appellant’s alleged whistleblowing activities is unsupported.
B. BASED UPON THE CLOSENESS IN TIME OF APPELLANT’S ONGOING WHISTLEBLOWER DISCLOSURES BEGINNING IN SEPTEMBER 2007 AND THE LETTERS TO MR. KOUSTAAL AND THE AGENCY, APPELLANT HAS SHOWN THAT HER WHISTLEBLOWING ACTIVITIES WERE A CONTRIBUTING FACTOR IN THE PERSONNEL ACTION
An appellant may show that her whistleblowing activities were a contributing factor to a
personnel action through circumstantial evidence such that the official taking action against the
employee knew of disclosures and that the personnel action occurred within a period of time
such that a reasonable person could conclude that the disclosures were a contributing factor to
the personnel action. See Powers v. Department of the Navy, 69 M.S.P.R. at 155 (1995); 5
U.S.C. § 1221(e).
In the instant case, there is direct and circumstantial evidence supporting the conclusion
that appellant’s whistleblowing activities were a contributing factor. Appellant’s Whistleblower
Stay Request initially filed June 30, 2008 included an explanation that appellant engaged in
whistleblower activity by reporting gross fraud, gross waste, gross abuse and gross
mismanagement to the Inspector General of the Agency beginning in September 2007.
Additionally, appellant filed an EEOC complaint outlining her claim of reprisal based on both
discrimination and whistleblowing activities. This investigation remains in progress.
In her stay request, appellant also described that since the end of September 2007, the
Agency has engaged in numerous acts of retaliation or reprisal including, but not limited to
creating a hostile work environment, subjecting appellant to disparate employment conditions,
refusing two requests for reassignment, refusing alternative dispute resolution, soliciting negative
comments from co-workers and non-compliant grantees. This activity was followed by the
letters previously discussed (Exhibits B-E) requesting relief from the Agency’s reprisal. These
letters ranged from January 2008 to the last letter dated April 28, 2008. Stan Koutstaal’s May 16
letter changing appellant’s duties from grants management and oversight to a research project
was sent just slightly over two weeks after the last letter to the Agency requesting relief from
reprisal.
The ongoing pattern of reprisal beginning in the Fall of 2007 just after appellant’s
September 2007 whistleblower disclosures culminating in the issuance of the May 16 letter,
certainly create a suspicion strong enough to warrant a finding that a reasonable person would
conclude that the appellant’s protected disclosure was a contributing factor under 5 U.S.C.
§1221(e).
III. A STAY SHOULD BE GRANTED BECAUSE THE ISSUE PRESENTED IS OF SUCH IMPORTANCE THAT IS REQUIRES THE BOARD’S IMMEDIATE ATTENTION
An Administrative Judge may certify an interlocutory appeal if she determines that the
issue presented “is of such importance to the proceeding that it requires the Board’s immediate
attention.” 5 C.F.R.§ 1201.91. An administrative Judge may only certify a ruling for
interlocutory appeal if the record shows:
(a) The ruling involves an important question of law or policy about which there is
substantial ground for difference of opinion; and (b) An immediate ruling will
materially advance the completion of the proceeding, or the denial of an immediate
ruling will cause undue harm to a party or the public. 5 C.F.R. §1201.92.
The question of law or policy at issue in the instant case begins with whether the
federal government must comply with State Licensure laws and local laws in overseeing
compliance of grantees caring for runaway and homeless youth with the terms and
conditions of grant awards including federal grants policy statement, federal agency
policies such as the AAGAM rules, and other rules and regulations such as those
promulgated by the Office of Management & Budget, Code of Federal Regulations.
The question of law or policy at issue then expands to the duties of federal employees.
Specifically, the question really becomes whether the obligation to the duties of federal service
duties are higher than obeying orders from management which would by necessity place the
employee in the position of being complicit in the gross fraud, gross waste, gross abuse and
gross mismanagement.
The circumstances surrounding appellant’s situation are such that she discovered a
number of grantee compliance problems including a grantee who was accepting money even
though they had no building and were housing no runaway and homeless youth. Other
circumstances include the following:
On or about June/July 2007, appellant brought to light her concerns about a government
agency, (City), that was an RHY grantee. On January 22, 2008, appellant again expressed her
concerns that the City was passing through almost all of the grant award money to a non-profit
agency. City used a pass through contract to task a nongovernmental organization that was
actually carrying out the program including, writing the reports, answering questions, holding the
licenses, etc. The government grantee performed none of the work to justify the expenditure of
government funds provided to them by their withholding approximately $3,500.00 per year of a
$100,000 grant award. This situation was of concern since more than a substantial amount of the
money awarded was being handed over with little to no oversight by the City. Appellant wanted
to get things in order so that the program goals and grant award could be achieved in a manner
that was not questionable. At that time, there was no record of any documentation that City and
YMCA had any type agreement/contract on record at ACF. This was of great concern because
City was not responding to inquiries and the Agency did not know who was running the program
or how much money had been drawdown by City. Through her efforts, appellant obtained a copy
of the new pass through contract from City. Upon her review of the contract, appellant read that
it released City from all liabilities and all responsibilities. Betty White, fiscal specialist, was
given a copy of the contract, shared appellant’s concerns, and did not know what to do with this
type of arrangement. Appellant and Ms. White decided the best course of action would be to
bring the matter to the attention of Daphne Weeden, Director of Discretionary Grants,
Washington D.C. Headquarters. Ms. Weeden thanked appellant for sending the contract to her
electronically and promised to get back to appellant. It should be noted for the record, that
appellant spoke to Ms. Weeden and Division of Grants Policy staff in September of 2007 about
the contract and confirmed this was not an acceptable situation.
In the past, grants officer Pat Colonnese was difficult to work with, had taken only a few
grants management classes herself and knew little about the Awarding Agency Grants
Administration Manual (AAGAM). Appellant had been trained to use the AAGAM during her
work in Grants Policy and to answer questions of grants management. In addition, appellant had
successfully completed at least five (5) grants management classes and COTR training twice.
Ms. Colonnese and her staff often said that appellant was making them look bad because they
had not been through the training and were not applying the AAGAM principles.
Appellant suspects Ms. Colonnese was the person who informed management of her
efforts to resolve the problem with City. After Ms. Colonnese learned appellant had contacted
Daphne Weeden, she sent an email to Mr. Koutstaal suggesting he have Mr. Clair be apprised and
copied in on everything appellant did in the future.
The very next day (January 23, 2008) Mr. Koutstaal sent an email to appellant citing her
contact with Ms. Weeden about the City of Oceanside and imposed punitive controls and
restrictive procedures. Mr. Koutstaal’s email had the effect of preventing her from doing her job
because she was forbidden to do virtually anything without first clearing it through a male team
leader (Bill Clair) located over 2000 miles away in Chicago, Illinois. Specifically, she was
ordered to consult with and obtain approval from Mr. Clair before communicating telephonically
or electronically with any grantee or agency employee in another office regarding a grantee.
Appellant was also ordered to telephone Mr. Clair by 10:00 am each morning regarding all work
she was performing and to obtain advance approval if there was a need to deviate from this
schedule.
This turn of events was a complete reversal of the relationship between appellant and her
previous supervisors who frequently relied upon her and her relationships with Grants Policy and
Grants Management and appellant’s expertise to benefit FYSB. No other employee was being
treated in this punitive way. Over the course of several months and including November and
early December, appellant was complimented on my work by both Mr. Koutstaal and Mr. Clair.
However, there was a systematic attempt to keep appellant from discussing any problems with
upper management including now blocking her from reporting improprieties beyond the first
supervisory level. This created an extremely hostile working environment.
Another grantee was required to provide a minimum of four (4) beds for homeless or
runaway youths. Appellant found that they only had two (2) beds, both of which were only
available to boys. Their facility was a boys group home. There were no sleeping arrangements
for girls at the grantee’s location. Appellant was told by grantee that an agreement had been
made with another grantee to provide the two (2) beds needed for girls. However, when
appellant contacted this other grantee, they reported that the agreement with grantee was no
longer in effect. In sum, grantee was not only in violation of the minimum four (4) bed
requirement, but they were also receiving federal monies for which no services were being
rendered. This brought this grantee out of compliance and appellant was deeply concerned that
grantee could be violating the EEOC law.
About ten months went by without the grantee taking any corrective actions even though
appellant had requested plans to correct the deficiency, had several conference calls, and actions
aimed at achieving compliance. Since this collaborative approach was not successful, grantee
considered that the withholding of federal funds was a warranted approach. Appellant made
several requests for cooperation from Ms. Colonnese and Mr. Clair, however, they did nothing.
Appellant sent an email to grantee stating that she was requesting the Grants Officer place a hold
on their funding until they corrected the deficiency. Once again, Ms. Colonnese complained to
Mr. Clair and Mr. Koutstaal about appellant’s actions. However, ultimately the grantee realized
the gravity of the situation and immediately began working to correct the deficiency.
Subsequently, appellant received two (2) thank you letters to appellant for helping them.
Appellant was under the supervision of several officials since April 2007. Curtis Porter
alone became her supervisor after Stan Chappell threatened her in September 2007. When Mr.
Porter was appointed to take Karen Morrison’s position after she left in November 2007, Mr.
Koutstaal became her supervisor. In January 2008, Mr. Koutstaal sent appellant orders to report
to Mr. Clair each day, a non-supervisor. In April 2008 appellant made a second request for
reassignment to another supervisor because of the way she had been treated by Mr. Koutstaal and
Mr. Clair. To appellant’s knowledge, Mr. Koutstaal never forwarded any of her requests up the
chain of command as required by the Union/Management Agreement.
Between Fall 2007 and May 2008 Mr. Koutstaal threatened appellant on numerous
occasions with termination, however, appellant had acted within her job description and the
requirements of Federal Program Officers outlined in the AAGAM. Had she not taken actions
that were her duty and allowed the grantee problems to continue, she would have been complicit
in ignoring our ethical duties as federal employees and committed fraud. As discussed, supra,
letters were sent directly to Mr. Koutstaal and the Agency requesting them to cease their reprisal.
The foregoing examples of grantee compliance problems and the Agency’s retaliatory
responses are only the tip of the iceberg. However, it is clear that instead of focusing on how to
resolve grantee compliance problems, the Agency, including Stan Koutstaal, sought to silence
appellant so that they would avoid the consequences for allowing all kinds of grantee situations
to continue uncorrected in violation of applicable law, rules and regulations.
Therefore, an immediate ruling will advance the completion of appellant’s request for
stay and appeal by resolving the progressive disciplinary actions imposed against appellant for
raising questions of gross fraud, gross mismanagement, gross waste, gross abuse of authority and
danger to public health and safety. The denial of an immediate ruling will cause undue harm
to appellant because it remains clear that the Agency will continue, with impunity, to engage in a
pattern of reprisal for appellant’s whistleblower activities 5 C.F.R. §1201.92.
CONCLUSIONBased on the facts and arguments, the attached exhibits and the previous filings by
appellant, there is a substantial likelihood that appellant will prevail on the merits in her
whistleblower appeal. Further, we respectfully urge the Administrative Judge to certify an
interlocutory appeal because 1) an agency employee’s duty to perform their ethical duty in grants
management and oversight where the employee’s ethical duties are in conflict Agency’ orders is
an important issue or question of law; 2) an immediate ruling will materially advance the
completion of appellant’s claims; and 3) the denial of an immediate ruling will cause continued
undue harm to appellant who will continue to be subjected to the warrantless stripping of her job
duties and by the imposition of isolation from grantees and federal staff.
Date: July 26, 2008