This complaint of unlawful prohibited personnel practices (“PPP”) by the Centers
for Disease Control and Prevention (“CDC”) against Dr. George Luber, Supervisory
Health Scientist, GS-601-15, is filed through counsel and requests an investigation by the
Office of Special Counsel (“OSC”). The alleged PPP, commonly known as “whistleblower
reprisal” or “whistleblower retaliation” is described at 5 U.S.C. § 2302(b)(8). Dr. Luber
requests a stay of a July 3, 2019 proposal to suspend him for 120 days by Dr. Patrick
Breysse, Director of the National Center for Environmental Health (“NCEH”), currently
pending before Ms. Shaunette Crawford, the deciding official and Executive Officer of
CDC, based on the following grounds.
CDC committed the following PPPs against Dr. Luber:
1. Preventing him from speaking to members of the public or the press in his
official capacity in or around January-February 2017;
2. Placement on administrative leave on or around March 19, 2018;
3. Conducting a retaliatory investigation;
4. Involuntary reassignment of Dr. Luber to a series of details unrelated to his
training and expertise from April 2018 to the present; and
5. Proposing Dr. Luber’s suspension for 120 days on July 3, 2019.
These PPPs were committed in retaliation against Dr. Luber’s protected disclosure of what
he reasonably believed to be a violation of law to Dr. Breysse and other management
officials of the NCEH in March 2018: the merging of the CDC Climate & Health Program’s
budget, staff, and resources into an unrelated branch of the NCEH, which would
impermissibly blend the $10 million line of funding appropriated by Congress for work on
climate change into an unrelated program focusing on asthma and air pollution. They
were also in retaliation for Dr. Luber’s repeated public disclosures about the threat to
1

 human health and public safety posed by climate change.
The second, third, and fourth PPP were also committed in retaliation against Dr.
Luber for his reporting to the public and to Congress in May 2019 of the unlawful
dissolution of the CDC Climate & Health Program, the diversion of its funds to nonclimate work, and the prior unlawful PPPs committed against him.

I. FACTUAL BACKGROUND
George Luber, Ph.D., is one of the nation’s preeminent climate scientists, and for
years was the head of the Climate and Health Program at the U.S. Centers for Disease
Control and Prevention (“CDC”), the United States’ sole program dedicated to climate and
human health, including adaptation research, public science diplomacy, cooperation with
the academic community, and partnership with city, state, and tribal governments to
mitigate the most severe impacts of climate change to public health. Dr. Luber was also
Co-Chair of the Climate Change and Human Health Interagency Workgroup at the U.S.
Global Change Research Program, a Convening Lead Author for both the 3rd and 4th US
National Climate Assessments’ Chapter on Human Health impacts from climate change, a
member of the American Anthropological Association’s Presidential Task Force on
Climate Change, and a lead author for the Intergovernmental Panel on Climate Change
(“IPCC”), Fifth Assessment Report. He is not only one of the nation’s best scientific minds,
but a world leader in climate research and public health practice. He has written over 50
journal articles and the definitive textbook on the subject. Dr. Luber has a 16-year record at
CDC with, until 2018, no proposed or actual disciplinary action, official reprimands, or
unsatisfactory performance reviews. His lowest employee evaluation was a 4.2/5 and his
average evaluation between 2012 and 2018 was 4.4/5.
In the days after the November 2016 presidential election, the Director of the CDC’s
National Center on Environmental Health (“NCEH”), under which the Climate and
Health program was organized, Dr. Patrick Breysse, and his Policy Lead Pam ProtzelBerman, summoned Dr. Luber to order him to cancel an upcoming event which he had
been organizing to be held at CDC in February 2017 about climate change, featuring
Former Vice President and climate activist Al Gore as Keynote Speaker. These managers
2

 expressed that they thought it would be politically unwise to have such a high-profile
conference about climate change weeks after the inauguration of President Trump. This
was not the only step taken by the Centers to downplay references to climate change
during the transition. At the same time Dr. Luber was being ordered to cancel the event in
late November 2016, the National Institute for Occupational Safety and Health (NIOSH)
deleted numerous mentions of “climate change,” links, and information from its website. 1
When NCEH told Dr. Luber to call off the climate event, it also asked him to personally
sign the letter cancelling it. Dr. Luber argued against the cancellation and flatly refused to
be the authority which executed it. Dr. Luber insisted this sudden about-face on an
existential issue would undermine the scientific integrity of the agency and the public’s
faith in the CDC and in climate science generally. Over his objection, CDC issued an
unsigned notice in December announcing the cancellation of the climate event. When
knowledge of the cancellation became public the next month, it rapidly became a national
story exemplifying the federal government’s preemptive retreat on climate issues before
President Trump came to power. 2 CDC made no denial was made of the claim that the
decision to terminate the meeting was a cynical calculation to placate the incoming
administration. 3 NCEH was eager to scrap any programs that the new Administration
might disapprove of.

See Chris Mooney, The mysterious disappearance of the phrase ‘climate change’ from a CDC
website, WASH. POST (Jul. 2, 2018), https://www.washingtonpost.com/news/energyenvironment/wp/2018/07/02/the-mysterious-disappearance-of-the-phrase-climatechange-from-a-cdc-website/.
2 See, e.g., Brady Dennis, CDC abruptly cancels long-planned conference on climate change and
health, WASH. POST (Jan. 23, 2017), https://www.washingtonpost.com/news/energyenvironment/wp/2017/01/23/cdc-abruptly-cancels-long-planned-conference-on-climatechange-and-health.
3 Brian Resnick & Julia Belluz, Sudden changes at the EPA, USDA, and CDC under Trump,
explained, VOX (Jan. 25, 2017) (“Georges Benjamin, executive director at the American
Public Health Association, was booked to be one of the keynote speakers at the event.
‘This was a preemptive decision on the part of CDC in light of the perspective of the new
administration toward climate change,’ he told Vox. ‘It is unusual to do this, but the
incoming administration has been so openly opposed to climate change work that it
seemed prudent.’”).
3
1

 While this critical media reaction to the cancellation of the conference was
inevitable, NCEH concluded, incorrectly, that it must have come from Dr. Luber. The
Center believed that Luber told the press that the meeting was cancelled for political
purposes, however Luber had no contact with the press about that cancellation. From then
on, Dr. Luber was then forbidden from speaking with the press. Until then, he had
received years of press calls and requests for comment as the planet’s leading expert on
climate change and public health. Since President Trump was inaugurated, he has made
no comments in his official capacity, and no members of the press have been permitted to
speak to him as a CDC scientist. The CDC press office bluntly told Dr. Luber that he
would never be cleared to speak to a reporter again.
Around this time, Dr. Luber was personally instructed by Director Breysse that in
any future meetings or public statements he should not use the words “climate change,”
and should instead use language like “extreme weather.” Scientific facts became a political
liability. Meanwhile, a false rumor developed within NCEH that Dr. Luber was the one
actually responsible for cancelling the conference. This undermined his credibility among
his staff and deflected blame from NCEH’s administrators. To many of his co-workers in
the office, he had been the popular and public face of climate science. They came to resent
him for an official retreat which he attempted to prevent.
Dr. Luber attempted to continue his work as before. In 2017 he was invited by the
National Geographic Channel to be a regular guest on their popular new program Mars,
which presents a fictionalized account of astronauts landing on Mars, featuring interviews
with public figures, scientists, and engineers, including Elon Musk, Andy Weir, Robert
Zubrin, and Neil deGrasse Tyson, about difficulties humans might face on a journey to,
and the colonization of, Mars. Dr. Luber was told by the CDC office of communications
that there was no way they would ever approve any appearances on the program. NCEH
administrators declared in no uncertain terms by email that “Luber will never be on
Mars[.]” This silencing of Dr. Luber violates both the CDC’s Scientific Integrity Policies

4

 regarding communications with the media 4
From February 2017 through March 2018, Director Breysse enlisted consultants
from PricewaterhouseCoopers to effectuate his preexisting plan to merge the small
Climate Change and Health program into the substantially larger and better-funded
Asthma Branch of NCEH. The newly formed branch was originally planned to be called
the “Asthma and Climate Health” Branch, but was ultimately dubbed the “Asthma and
Community Health” Branch to minimize the role of climate change in its mission. 5 Director
Breysse selected a chief for the newly formed Asthma and Community Health Branch, but
the chosen individual lacked the academic qualifications required to serve in that position.
In March 2018, lacking another qualified candidate, NCEH promoted Dr. Luber to
Acting Branch Chief. In that role Dr. Luber met with the consultants drawing up the
merging of the Climate & Health Program with the Asthma branch. On review of those
plans, Luber told them that the $10 million budget for the Climate & Health Program had
been explicitly appropriated by Congress, and that the merging would cause
impermissible “blending” of those funds: any person paid from the climate budget who
supported asthma activities would be diverting funds earmarked for climate work to
another program with its own separate funding line. 6 Dr. Luber argued that it was

CDC, GUIDANCE ON SCIENTIFIC INTEGRITY at 15 (2016), available at
https://www.cdc.gov/od/science/docs/CDCSIGuide_042516.pdf. That policy states:
In compliance with the Code of Conduct for CDC Media Relations Employees
policy for Release of Information to News Media, CDC media relations
employees are to be honest and accurate, respond promptly, and promote the
free flow of scientific and technical information. In its communication with the
public and the news media, CDC is committed to openness, free exchange of
information and data, accuracy, timeliness, and responsiveness. Further, CDC
offers the widest practical and appropriate dissemination of information about
public health research, science, programs, and recommendations. In keeping
with the desire for a culture of openness, CDC employees may, consistent with
this policy, speak to members of the press about their work.

4

See Branch description at https://www.cdc.gov/asthma/community-health/about.htm.
Note that the word “climate” does not appear on this page.
6 See, e.g., Conference Rep’t for H.R. 6157, DEPARTMENT OF DEFENSE FOR THE
FISCAL YEAR ENDING SEPTEMBER 30, 2019, AND FOR OTHER PURPOSES, H.R. Rep.
5
5

 inevitable that he, as Acting Branch Chief, and other members of the Climate & Health
Program would have to divide their time by managing both Asthma work and Climate
Change work. This would go against the express will of Congress. Dr. Luber also raised
this concern with NCEH administrators, who did not respond to his concerns.
Ultimately the merger went forward. Dr. Luber found that he and other employees
formerly handling matters solely related to climate change had been scattered across the
much larger Asthma and Community Health Branch and were spending considerable
amounts of their time on asthma work, while their salaries continued to be paid by monies
appropriated exclusively for climate change and public health.

A. Dr. Luber is Removed from NCEH and Placed on a Series of
Details
Dr. Luber was branch chief for less than a month. On March 19, 2018, NCEH
administrators called a meeting in which they informed him of “troubling” allegations
against him and placed him on administrative leave. The only allegation raised at that
time related to his failure to obtain written ethics approval for an outside activity, a book
he had co-authored between 2012 and its publication in 2015. The approval in question
had actually been obtained in paper form but had not been migrated to the CDC’s new
electronic database. Dr. Luber informed the NCEH leadership of this at the time, and
offered to produce the document from his personal hardcopy files in his office, but was
instead escorted out of the facility by security and placed on administrative leave.
His badge, phone, and credentials were revoked. Security personnel at the facility
he is permanently assigned to were ordered to place him on the BOLO (be on the lookout)
List of dangerous persons who should not be allowed on the grounds without prior
approval, and then only after a rigorous and publicly humiliating search. Because his
permanent office is in a building he is now prohibited from approaching, let alone

115–952, at 526-27, 115th Cong., 2d Sess. (Sept. 13, 2018),
https://www.congress.gov/115/crpt/hrpt952/CRPT-115hrpt952.pdf (appropriating
$10,000,000 for the NCEH Climate & Health Program, and $29,000,000 for Asthma, of the
$209,350,000 for all NCEH programs).
6

 entering, he can only retrieve materials or supplies from it under guard escort and with
prior approval by Breysse. Every time he has visited, he and his car have been thoroughly
searched for weapons in front of his colleagues, a degrading and humiliating experience.
Reportedly, Dr. Luber’s replacement in charge of the Asthma and Community Health
branch at CDC, Josephine Malilay, has ordered staff to not speak his name even in passing
because he was “toxic,” and told them that he was “gone for good.” Those instructions
were given at a general meeting of the Asthma staff. It is highly unusual to discuss
personnel matters on such a broad basis and before a final personnel action has been
taken.
Dr. Luber was detailed in April 2018 to another office within CDC handling
waterborne diseases, at the National Center for Emerging and Zoonotic Infectious Diseases
(NCEZID). 7 His detail was originally slated to last 120 days but after that period had
elapsed, paperwork was not completed to extend his detail or reassign him. He was then
detailed to the Office of Science in the Office of the Director of the CDC for 90-120 days,
and most recently detailed to the Office of Science within NCEH. None of these details
have involved the use Luber’s knowledge, skills, or experience. His primary job duty since
April 2018 has involved scientific review of manuscripts documenting lab research in
fields he is not professionally trained in. When Luber objected that the work he was being
assigned was outside of his expertise, he was told by his detail supervisor that they had
been instructed to keep Luber away from any matters relating to climate change and that
he should attend webinars on subject matter he was unfamiliar with.
Despite retaining his official title as a “’Supervisory’ Health Scientist,” he has not
supervised anyone since March 2018, rendering him incapable of fulfilling many of the
duties necessary for his performance evaluations. In fact, for much of his time on detail
assignment, paperwork was left incomplete for his detail and it was unclear who was even

Dr. Luber is unable to perform many of the duties in his position description as a
supervising researcher, because there is nobody for him to supervise. As a result, he lacks
productive duties to perform, and his upcoming employee evaluations will inevitably
suffer, which sets the stage for further collateral consequences from NCEH’s actions.
7
7

 responsible for completing his performance evaluations. A series of emails discussing the
ad hoc nature of his reassignments is attached as Exhibit A. Instead of supervisory
epidemiology, Dr. Luber was involuntarily assigned to perform cursory review of
laboratory reports far outside his scientific expertise.
Involuntary reassignment of unwanted climate change professionals has been a
common tactic for the Trump Administration to use to compel their resignations. The most
prominent example is that of Joel Clement, former director of the Office of Policy Analysis
at the U.S. Interior Department. He was reassigned from that role, in which he assisted
climate adaptation for endangered communities in Alaska, to an unrelated accounting
position. In July 2017 he filed a complaint with the Office of Special Counsel for
whistleblower retaliation supported by 13 law professors writing through the Georgetown
Law Center’s Institute for Constitutional Advocacy and Protection which led to an OSC
investigation. 8

B. Dr. Luber’s Proposed Removal
In October 2018, Dr. Luber received notice of proposed removal (“NPR”) from
Director Breysse. 9 No explanation was offered for the six-month long delay between the
report of “troubling allegations” and the NPR itself. The actual charges detailed in Dr.
Luber’s NPR consisted of:
1. Twenty-three Specifications of improper timekeeping related to time off for a class
he teaches at Emory University, the vast majority of which are easily disprovable
with documentary evidence he has provided, and the remainder of which are
tainted by a conflict of interest in the staff member assigned to him that handled
timekeeping, who had previously threatened to maliciously alter other employees

See Eric Katz, Interior’s High-Profile Whistleblower Gets a Boost From OSC and Legal
Community, GOVERNMENT EXECUTIVE (Aug. 25, 2017),
https://www.govexec.com/oversight/2017/08/interiors-high-profile-whistleblowergets-boost-osc-and-legal-community/140550/.
9 The proposed removal and Dr. Luber’s response (with appendices) have been attached as
Exhibits G and H, respectively.
8
8

 timesheet records in retaliation for ongoing disciplinary action against her relating
to consistently poor performance.
2. Three specifications of failure to obtain approval for outside activities, two of which
he did receive actual approval for, and the third based on barely inaccurate autofilling of a form (HHS-520) which had been accepted by his supervisor and the
departmental ethics official at the time -- because the dates for a course he was
teaching, provided in both a “date” field and a narrative description, did not match
up. At the time these forms were completed, the reviewing official recommended
approval of the outside activity and it was approved by the ethics office. The “date”
part of the form that contained the date information was filled out correctly, noting
that his class would be taught from fall 2017 through the end of the spring 2018
semester. The narrative box describing the activity, however, said he was seeking
clearance for a course to be taught in the fall of 2016 because its text was
automatically filled with the information he had submitted on the same HHS-520
from the previous year.
3. Four specifications of misuse of position, involving a) proper offers he made to
junior researchers who were yet-unpublished to co-author educational materials
with him for professional development purposes; b) spurious allegations related to
classes he did not, in fact, teach; c) coursework he developed jointly with Yale
University, and the approval of his supervisor, in response to a 2015 GAO
recommendation that the climate program develop a strategic plan regarding
communication pertaining to climate change; and d) a charge that Luber had
directed his subordinate, Kathryn Conlon, to be a guest lecturer for a course he was
not even teaching.
4. Three specifications of conduct unbecoming, based on a) an unfounded allegation
that he used government funds on a “fishing trip” in Alaska in 2016 that was
actually a site visit for new research facilities, made in the company of a local
funded collaborator; b) a related hearsay allegation that he had been “high” on that

9

 trip from an anonymous source who could not have had knowledge of such; 10 and
c) an allegation that he had passed out after binge drinking in his hotel on a visit to
a 2016 conference in Denver and slept through a speech he was supposed to deliver.
In fact, he had not been drinking, but had been given an incorrect draft schedule by
the organizer of the event which listed his speech as occurring on the next morning.
When he was called by his colleague, he arrived at the event within 45 minutes and
delivered his address normally.
Dr. Luber responded to each of these allegations through his then-counsel on
November 20, 2018. On December 13, 2018, the deciding official, Shaunette Crawford, sent
an email to Dr. Luber stating:
This email is to inform you that I am looking into the matters raised in Mr.
Luber’s response to the proposal to remove him from federal service. I will
provide you with any new or additional information I receive from the
proposing official. You will be given an opportunity to respond to what is
provided to me by the proposing official.
No decision on the proposed termination was reached, however. On December 17, 2018,
reporters from the New York Times made inquiries concerning the proposed action
against Dr. Luber and the changes to the CDC Climate Change and Health program. The
following evening, December 18, 2018, Mr. Breysse abruptly rescinded the removal in an
email to Dr. Luber:
This is to inform you that I have received your response dated November 20,
2018 regarding the ‘Proposal to Remove’ memo addressed to you on dated
October 22, 2018. After reading your response and thoughtful consideration,
I will rescind the ‘proposal for removal’ memo and provide you with a new
notice of disciplinary or adverse action in the future.

C. Dr. Luber is Wrongfully Denied Ethics Approval to Receive an
Award
In February, 2019, Dr. Luber was informed that the Hugh M. Hefner Foundation
The local collaborator, David Driscoll, submitted a letter attesting to both the purpose of
the site visit and to Dr. Luber’s good conduct on said trip which was included with
Luber’s response to the 2018 Proposed Removal.
10

10

 would be awarding him its First Amendment Award in a ceremony to be held at the
Newseum in Washington, DC on May 15, 2019. The award was established in 1979 “to
honor individuals who have made significant contributions in the vital effort to protect
and enhance First Amendment rights for all Americans.” 11 The award is granted to one
nominee per year from the areas of journalism, education, publishing, law, government,
and arts and entertainment. Judges for the award are drawn from prominent members of
civil society, and have included law professors, prominent journalists, and activists. It
consists of a plaque of negligible market value, $5,000 cash, and covers the costs of travel
and attendance.
On February 19, 2019, Dr. Luber, through counsel, submitted a request to the CDC
for ethics clearance in accordance with applicable statutes and regulations. An employee
may generally accept an award for public service or achievement, provided the award and
any item incident to the award is from a person or organization that does not have
interests that may be substantially affected by the employee's official duties. The Hugh M.
Hefner Foundation is not known to have any official business with CDC. On February 20,
Erik Svendsen, Director of the Division of Environmental Health Science & Practice within
the National Center for Environmental Health, informed Dr. Luber through counsel that
he should submit his request through the CDC’s EPATS system for ethics clearance, which
he did.
On March 6, 2019, the CDC informed Dr. Luber that his request for ethical clearance
for the award had been denied. A single sentence explanation reasoned “CDC's climate
change and health program is not closed.” The system-generated message was copied to
Josephine Malilay, who at that time held the position from which Dr. Luber had been
placed on administrative leave in March 2018, and who is believed to have been the
deciding official for the request.
On March 11, 2019, Dr. Luber emailed Svendsen and Director Breysse to inquire

See Hugh M. Hefner Foundation, Past Winners and Judges of the Hugh M. Hefner First
Amendment Awards (visited March 14, 2019),
https://www.hmhfoundation.org/winners-judges.
11

11

 about the scant reasoning behind the denial of his request. Svendsen informed Dr. Luber
by email that “it is my understanding that the award description noted the ‘closure of the
CDC’s climate and health program’. The CDC’s climate and health program is not closed. I
hope this helps.” Mr. Svedensen stated that he lacked further details about the EPATS
request, and Dr. Luber’s inquiry should be directed to the ethics office, which
administered the system. A call was arranged on March 13, 2019, with representatives
from the CDC ethics and general counsel’s offices, Dr. Luber, and PEER counsel to
determine the status of the ethics request. CDC ethics staff informed Dr. Luber and
counsel that they had no information about the factual or legal reasoning underlying the
denial of Dr. Luber’s request and would be contacting NCEH to determine why the Center
had denied the request. After a series of communications between Dr. Luber, counsel, and
CDC ethics officials through March 2019, Dr. Luber’s ethics request was approved on
April 5, 2019. This approval only came the day after an inquiry from a reporter from the
ATLANTA JOURNAL CONSTITUTION, who on April 4, 2019 had called the agency for comment
on a story he was preparing to publish. 12 A discussion of these events also appears in more
detail in Dr. Luber’s response to the proposed 120-day suspension at pages 33-35, attached
as Exhibit B. 13

D. Disclosures to Congress Concerning the CDC Climate Program
On January 7, 2019, shortly after Dr. Luber’s proposed removal was withdrawn,
counsel for Dr. Luber notified CDC that he was interested in pursuing a negotiated
settlement of his dispute with the agency. That letter also explained that if the agency
persisted in its unlawful retaliation and misuse of appropriated funds, Dr. Luber would be
forced to bring the matter to the attention of Congress. A copy of that letter is attached as

See Bill Torpy, Very hot indeed for CDC’s former climate change chief, ATLANTA JOURNALCONSTITUTION (April 8, 2019), https://www.ajc.com/news/local/torpy-large-very-hotindeed-for-cdc-former-climate-change-chief/zpwBYHYJK2Cle4P45CtgtI/
13 Exhibit B mistakenly states that Luber emailed Svendsen about the denial on March 6.
That email was actually sent on March 11, and Svendsen replied on March 12 as reflected
in this document.
12
12

 Exhibit C.
On April 12, 2019, Dr. Luber was contacted by the majority staff from the House
Committee on Oversight and Reform Subcommittee on Environment for his assistance in
planning hearings on the public health impacts of climate change. In April and May 2019
arrangements were made between Dr. Luber’s counsel and congressional staff for
members and committees with interests in the CDC Climate & Health Program for Luber
to hold discussions with them the week of May 15 when he would be in Washington, DC
for the First Amendment Awards. Because part of Dr. Luber’s initial internal objections
focused on misuse of appropriated funds by merging the Climate & Health Program into
the Asthma Branch, members of Congress and their staff focused on that concern.
Congressional wanted to know whether CDC was failing to respect Congress’s request to
spend $10 million on climate change and health research. Its concern was heightened
when viewed in context with the agency’s FY 2018, 2019, and 2020 budget requests, each of
which have sought to eliminate all funding for the climate program. 14
On May 15, 2019, Dr. Luber was awarded the Hugh M. Hefner Foundation’s First
Amendment Award, at which he delivered an address discussing his experience
attempting to protect the CDC Climate Change program. A transcript of his address is
attached as Exhibit D. 15 That address was viewed in person by members of Congress and
congressional staff, and was adapted into a video by the WASHINGTON POST. 16 Karen

See DEP’T OF HEALTH & HUM. SERVS., CTRS. FOR DISEASE CONTROL & PREVENTION, Fiscal
Year 2018 Justification of Estimates for Appropriation Committees 14-15, 31, 131 (2017),
https://www.cdc.gov/budget/documents/fy2018/fy-2018-cdc-congressionaljustification.pdf; Fiscal Year 2019 Justification of Estimates for Appropriation Committees 40
(2018), https://www.cdc.gov/budget/documents/fy2019/fy-2019-cdc-congressionaljustification.pdf; Fiscal Year 2020 Justification of Estimates for Appropriation Committees 42
(2019), https://www.cdc.gov/budget/documents/fy2020/fy-2020-cdc-congressionaljustification.pdf.
15 The address can also be viewed at https://youtu.be/MXRN8yQiyKA.
16 Trump's CDC wants to silence this climate change scientist, but he isn't going away,
WASHINGTON POST (May 22, 2019),
https://www.washingtonpost.com/video/editorial/opinion--trumps-cdc-wants-tosilence-this-climate-change-scientist-but-he-isnt-going-away/2019/05/22/81e111c5-02324d9c-9ea3-94e5bf5da8c6_video.html.
13
14

 Tumulty, a political columnist for the POST and a judge for the 2019 First Amendment
Awards, also published a column about Dr. Luber’s experience. 17
After delivering his address and receiving the award, Dr. Luber attended a series of
four in-person meetings with personal and committee staff in the House and Senate on
May 16 and 17, and attended an additional meeting by phone with Rep. Donna Shalala,
former Secretary of Health and Human Services under President Clinton, on May 23, 2019.
Those discussions included, inter alia, the history of the Climate & Health Program, Dr.
Luber’s experiences leading it, specific threats posed by climate change to public health
which the Program had faced in the past, how those threats were being exacerbated by the
diminished capacity of the post-merger Asthma & Community Health Branch to respond
to climate threats, the diversion of appropriations which took place during and following
that merger from climate work to asthma work, and Dr. Luber’s personal experiences of
retaliation and marginalization following his attempt to interrupt the unlawful dissolution
of the Climate & Health Program. Counsel for Dr. Luber had informed the agency in
January 2018 that seeking oversight by Congress would be a central component of his
representation. See Exhibit C.
On May 16, Dr. Luber, accompanied by counsel, met with personal staff for Sen.
Bernard Sanders, at which he discussed the work of the CDC Climate Change and Public
Health program and his personal experiences attempting to protect it from administrative
encroachment by NCEH leadership, including substantially all of the facts contained supra
this Complaint. Of particular interest was the allegation that funds allocated for climate
change were being used for non-climate purposes, particularly asthma, the branch of
NCEH with which the Climate program had been “merged.” A substantially similar
meeting was held later the same day with the minority staff of the Senate Committee on
Environment and Public Works. On May 17, 2019, Dr. Luber and counsel attended two

Karen Tumulty, The administration tried to muzzle this scientist on climate change. But he
won’t go away., WASHINGTON POST (May 22, 2019),
https://www.washingtonpost.com/opinions/the-administration-tried-to-muzzle-thisscientist-on-climate-change-but-he-wont-go-away/2019/05/22/66b0b684-7bd8-11e9-a5b334f3edf1351e_story.html?utm_term=.36544604db32.
14
17

 further meetings with committee staff for the House Committee on Energy & Commerce
and the House Select Committee on the Climate Crisis. Again, the subject matter and
concerns raised by committee staff were substantially similar to what has been discussed
in this document.
These discussions also sparked interest among members of Congress with a
background in public health and with the Department of Health and Human Services. On
May 23, 2019, counsel for Dr. Luber appeared personally for a meeting requested by
Congresswoman Donna Shalala, who served as Secretary of Health and Human Services
under President Clinton, which Dr. Luber attended by telephone. On June 7, 2019, counsel
for Dr. Luber responded to an inquiry by staff from Congresswoman Lauren Underwood,
who previously served as a senior advisor at the Department of Health and Human
Services under President Obama. These meetings led to congressional action, including the
introduction of legislation and the delivery of oversight letters to CDC, of which the
agency was aware.
As a result of this public whistleblowing activity and disclosures to Congress, Dr.
Luber has been approached by multiple other current CDC employees who have alleged
similar treatment by CDC center-level leadership who have offered their support and
encouragement, including the former chiefs of other branches which were merged as a
part of NCEH’s reorganization. Dr. Luber’s outreach to the House Energy & Commerce
Committee was at least partially responsible for a letter delivered July 30, 2019 from
Chairman Frank Pallone, Jr., to Robert Redfield, Director of the CDC, inquiring as to the
state of the Climate and Health Program and requesting a staff briefing by August 12,
2019. That letter is attached as Exhibit E. 18 As of the date of this filing, August 16, 2019,
CDC has not responded to that request. Furthermore, on July 18, 2019, Congresswoman
Underwood introduced H.R.3819, the Climate and Health Protection Act, which explicitly
remedied the concerns raised by Dr. Luber concerning the misuse of the Climate and

available at
https://energycommerce.house.gov/sites/democrats.energycommerce.house.gov/files/d
ocuments/CDC.2019.7.30..pdf
15
18

 Health Program’s appropriation for asthma and other work. 19

II.

DR. LUBER WAS RETALIATED AGAINST FOR ENGAGING IN
MULTIPLE PROTECTED WHISTLEBLOWER ACTIVITIES
Dr. Luber made multiple disclosures protected by 5 U.S.C. § 2302(b)(8) and §

2302(b)(12) for which he was retaliated against by the CDC. It is a prohibited personnel
practice to take or threaten to take a personnel action, including firing, detailing,
transferal, or demotion, against an employee, because of “any disclosure of information by
an employee . . . which the employee or applicant reasonably believes evidences (i) any
violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health or
safety.” 5 U.S.C. § 2302(b)(8). 20 A disclosure is protected if the employee shows he

The Act orders that “[t]he Secretary, acting through the Director of the Centers for
Disease Control and Prevention, shall continue to implement the Climate and Health
program carried out by the National Center for Environmental Health (or successor
program) . . . .” It also specifies that, with regard to blending of the program’s funding
with e.g., the Asthma Branch, “the Secretary, acting through the Director of the Centers for
Disease Control and Prevention, shall submit to Congress a written notification of any
transfer or reprogramming of funds to establish such a successor program.” Finally, the
Act includes an explicit prohibition on “transfer[ing] or reprogram[ing] by the Secretary to
carry out another program administered by the Secretary.”
20 "disclosure" means a formal or informal communication or transmission, but does not
include a communication concerning policy decisions that lawfully exercise discretionary
authority unless the employee or applicant providing the disclosure reasonably believes
that the disclosure evidences-(i) any violation of any law, rule, or regulation; or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(a)(2)(D).
A disclosure shall not be excluded from subsection (b)(8) because-(A) the disclosure was made to a supervisor or to a person who participated in an activity
that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i)
and (ii);
(B) the disclosure revealed information that had been previously disclosed;
(C) of the employee's or applicant's motive for making the disclosure;
(D) the disclosure was not made in writing. § 2302(f)(1)
19

16

 reasonably believed the disclosed information evidenced a violation of law, rule, or
regulation; gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); see also 5
U.S.C. §§ 1209.4(b) and 2302 (b)(8)(A)(ii). To establish “reasonable belief,” the employee
must only show that the matter disclosed was one which a reasonable person in his
position would believe evidenced one of the situations specified. The test, outlined in
Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153 (2000), asks
whether a disinterested observer with knowledge of the essential facts readily known to
and readily ascertainable by the employee could reasonably conclude that the actions of
the government evidence wrongdoing as defined by the Whistleblower Protection Act. See
also Wojcicki v. Dep’t of the Air Force, 72 M.S.P.R. 628, 632 (M.S.P.B. 1996) (citing Special
Counsel v. Eidmann, 49 M.S.P.R. 614 (1991) aff'd, 976 F.2d 1400 (Fed. Cir. 1992)), Horton v.
Dep’t of the Navy, 66 F.3d 279, 283 (Fed. Cir. 1995), cert. denied, 116 S. Ct. 1271 (1996)).
The employee must also show that the agency took the adverse personnel action in
retaliation for the protected disclosure. “Since direct evidence of a proposing or deciding
official's retaliatory motive is typically unavailable (because such motive is almost always
denied), federal employees are entitled to rely on circumstantial evidence to prove a
motive to retaliate.” Whitmore v. Dep't of Labor, 680 F.3d 1353, 1371 (Fed. Cir. 2012) (citing
McCarthy v. Int'l Boundary & Water Comm., 116 M.S.P.R. 594, 613 (2011)). Retaliatory
motivation may be inferred from a variety of factors, including proximity in time between
the employee's action and the adverse employment action, inconsistencies between the
proffered reason and other actions of the employer, disparate treatment of certain
employees compared to others employees with similar work records. See Sheehan v. Dep't
of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). Evidence of an employee's assertions of
misconduct by a supervisor can bear upon whether the supervisor has a motivation to
retaliate. Fellhoelter v. Department of Agriculture, 568 F.3d 965, 971 (Fed. Cir. 2009).

A. Dr. Luber’s Protected Disclosures
1. Violation of CDC Scientific Integrity Policy and (November 2016)
The first such disclosure was immediately following the November 2016 election,
17

 when Dr. Luber told superiors within the agency that the cancellation of the Al Gore
address would undermine the scientific integrity of the agency. This disclosure was that to
cancel the meeting would be in violation of an agency regulation regarding the rights of
agency staff to participate in public scientific fora, the CDC Scientific Integrity Policy. Dr.
Luber informed Dr. Patrick Breysse and his Policy Lead Pam Protzel-Berman during his
debate with them over the February 2017 conference that cancelation was an abuse of
authority, and would undermine the integrity of the agency, its public and scientific
reputation, and the agency’s own scientific integrity policy, which he understood to be
binding on the agency’s management and employees. 21 It also violated the CDC’s policy
document “SECURING APPROVAL FOR SPONSORSHIP OF CONFERENCES,” which
explains policy for approval of and attendance at CDC sponsored conferences. 22 CDC-GA1997-02 (revised 2008), available at https://www.cdc.gov/maso/policy/SecuringApproval-for-Sponsorship-of-Conferences-10-22-2007-c.pdf.
Additionally, even if he was not factually responsible, the agency perceived him to
be a whistleblower because of the assumption that he had told the press that the event was
canceled for political reasons, which would also be an abuse of authority and violation of
the scientific integrity and conference policies.
2. Threats Posed by Climate Change (continuously)
His second composite disclosure is made up of the many various instances in which
Dr. Luber communicated the grave risk to the public posed by climate change, “a
substantial and specific danger to public health or safety.” § 2302(b)(8)(ii). Those

See CDC, GUIDANCE ON SCIENTIFIC INTEGRITY 8, 14-17 (2016), available at
https://www.cdc.gov/od/science/docs/CDCSIGuide_042516.pdf (section on Public
Communications).
22 The policy is based on the following principles:
• Scientific meetings and conferences should be unbiased forums for exchange of
scientific information and consider the implications for public health.
• In the interest of promoting robust science, scientific meetings and conferences
should provide venues for open scientific discourse.
• Organizers of scientific meetings and conferences should provide a transparent
• process for selecting presentations based primarily on scientific merit.
21

18

 disclosures, which are too numerous to list, included:
•

Participation as lead author in the human health section of the 2014 National
Climate Assessment. See George Luber et al., “Chapter 9: Human
Health,” Climate Change Impacts in the United States: The Third National Climate
Assessment, U.S. Global Change Research Program, doi:10.7930/J0PN93H5,
2014.

•

Participation as federal coordinating lead author in the human health section
of the 2018 National Climate Assessment. See George Luber et al., “Chapter
14: Human Health,” Impacts, Risks, and Adaptation in the United States: Fourth
National Climate Assessment, Volume II. U.S. Global Change Research
Program, doi: 10.7930/NCA4.2018.CH14, 2018.

•

Public statements in support of CDC’s mission to assist state and local
governments build resilience against the impacts of climate change. See
Kristen Lombardi and Fatima Bhojani, An Army Of Deer Ticks Carrying Lyme
Disease Is Advancing And Here’s Why It Will Only Get Worse, HUFFINGTON POST
(Aug. 9, 2018), https://www.huffingtonpost.com/entry/an-army-of-deerticks-carrying-lyme-disease-is-advancing-and-heres-why-it-will-only-getworse_us_5b69b04fe4b0b15abaa74ea0. 23

•

Participation in the Emmy-winning climate change series Years of Living
Dangerously, in which he appeared as an expert Science Advisor on June 2,

23

The article states, in relevant part:

The only federal support for state and city health officials on climate change is
the CDC’s Building Resilience Against Climate Effects (BRACE) grant
program. George Luber, chief of the CDC’s climate and health program,
considers it “cutting-edge thinking for public health.” He intends to expand it
to all 50 states, but funding constraints have kept him from doing so.
Republicans in Congress have tried repeatedly to excise BRACE’s $10 million
budget, to no avail. Its average annual award for health departments has
remained around $200,000 for nearly a decade.
19

 2014 to discuss the human health effects of heatwaves caused by climate
change and the need for adaptation, stating “This is a threat that we should
take seriously, the one that I think can engage us in decisions so that we'll
help make a better world.” 24
•

Appearing at or the 2017 climate change conference hosted by Al Gore in lieu
of the original conference which was cancelled by CDC in February 2017. Dr.
Luber was not made available for comment by Bernadette Burden, a senior
press officer with the CDC, despite media requests. 25

While these activities did not engender retaliation under the last administration, the
new administration has a well-known policy of denying the public health implications of
climate change and preventing federal employees from speaking out about or working on
climate-related issues. 26 This hostility towards climate scientists is evidenced in this case
by the direction to Dr. Luber to not even use the words “climate change,” a rhetorical

http://theyearsproject.com/
Max Blau, The CDC climate change conference, scrapped after the election, is being resurrected
Thursday, STAT NEWS (Feb. 14, 2017), https://www.statnews.com/2017/02/15/cdcclimate-change-al-gore/; see also Anne Polansky, The Insanity of Self-Censorship: Climate
Change, Politics, and Fear-Based Decision-Making, GOV’T ACCOUNTABILITY PROJECT BLOG
(Apr. 4, 2017), https://www.whistleblower.org/blog/014604-insanity-self-censorshipclimate-change-politics-and-fear-based-decision-making (discussing how CDC’s “selfcensorship” of climate scientists and “political interference in the communication of
scientific findings crucial to informing policymakers and the public is literally a lifethreatening act of betrayal against current and future generations”).
26 See, e.g., Helena Bottemiller Evich, Agriculture Department buries studies showing dangers of
climate change, POLITICO (June 23, 2019),
https://www.politico.com/story/2019/06/23/agriculture-department-climate-change1376413 (USDA U.S. Global Change Research Program dropped “Global Change” from its
name in November 2016 and sidelines scientific inquiry into climate change, resulting in
departure of senior researchers); Robbie Gramer, Trump’s Shadow War on Climate Science,
FOREIGN POLICY (July 31, 2019), https://foreignpolicy.com/2019/07/31/trumps-shadowwar-on-climate-science-state-department-intelligence-analyst-resigns-white-housemuzzles-intelligence-assessment-climate-change-environment/ (State Department
intelligence analyst resigns after warning that the White House is systematically
suppressing science and objective analysis on how large a threat climate change is to
national security).
20
24
25

 chilling similar to the one at USDA where “[n]o one wanted to say climate change, you
would say 'climate uncertainty' or you would say 'extreme events.' Or you would use
whatever euphemism was available to not draw attention.” 27 Luber’s failure to comply
with what he understood to be an unreasonable and potentially unlawful order
engendered a retaliatory animus against him by the management of NCEH.
Therefore, Dr. Luber’s very public earlier work on the subject contributed to the
agency’s motivation to retaliate against him as an act of self-censorship. The public
statements made by Dr. Luber concerning climate change have been cited by outside
observers as improper grounds on which he might be retaliated against by CDC. Laura
Turner Seydel, an environmentalist who sits on the board of the Turner Foundation, a
sponsor of the cancelled 2017 Al Gore climate meeting, stated that CDC scientists may
be “scared by the wrath of Trump.” 28 Reporting on Ms. Seydel’s statements continued:
researchers like George Luber, an epidemiologist who’s participated in the
global warming documentary series, Years of Dangerously Living [sic], might be
deterred from speaking further about issues of climate and health. “George
Luber had done a very good job of describing the problem,” Seydel said. “He’s
been quiet for the past couple of years as he hangs in there like a loose tooth.”
These disclosures by Dr. Luber involved not only the ongoing threat posed by climate
change, but how it was exacerbated by the diminished capacity of the Climate & Health
Program to respond to it.
3. Diversion of Congressional Appropriations for Non-Climate Work (March
2018, May 2019)
The third disclosure was the misuse of agency funds specifically appropriated by
Congress for climate change work at CDC, which, by being merged into the asthma unit,
blurred the lines of appropriations in violation of the express will of Congress, and is both

Helena Bottemiller Evich, 'It feels like something out of a bad sci-fi movie', POLITICO (Aug. 5,
2019), https://www.politico.com/story/2019/08/05/ziska-usda-climate-agriculturetrump-1445271.
28 Max Blau, At a resurrected climate conference, concerns loom that CDC scientists may be
silenced, STAT NEWS (Feb. 16, 2017), https://www.statnews.com/2017/02/16/climateconference-cdc-scientists/.
21
27

 a violation of statute and “a gross waste of funds [and/or] an abuse of authority.” Id. This
disclosure was made to the management officials and consultants organizing the merging
of his program with the Asthma branch and to NCEH management including Director
Breysse, who proposed Dr. Luber’s removal in October of 2018 and his suspension in July
2019. He also made this disclosure in May 2019 to the audience of the First Amendment
Awards and to Congress.
4. Acceptance Speech for First Amendment Award (May 15, 2019)
The fourth disclosure was the address he delivered to the audience of the May 15,
2019 Hugh M. Hefner Foundation First Amendment Awards, in which he detailed the
threats of climate change, the agency’s abuse of authority and unlawful prohibited
personnel practices regarding his employment at CDC, and the CDC’s diminished
capacity to respond to public health threats posed by climate change as a result of its
management failures. See Exhibit D; Section I(D) supra.
5. Disclosures to Congress of Wrongdoing by NCEH Concerning Luber’s
Personnel Case and environmental threats to public health and safety (May
2019)
Finally, Dr. Luber engaged in multiple disclosures to Congress protected under 5
U.S.C. § 7211 and by extension § 2302(b)(8) and § 2302(b)(12). 29 On May 16 and May 17 Dr.
Luber met with representatives from the personal staff of Sen. Bernard Sanders, the
minority staff of the Senate Budget Committee, the minority staff of the Senate
Environment & Public Works Committee, the majority staff from the House Committee on
Energy and Commerce, and the majority staff of the House Select Committee on the
Climate Crisis, and on May 23 spoke by phone with Rep. Donna Shalala. In those meetings
Dr. Luber discussed the history of the Climate & Health Program, its work prior to
November 2016, the ways in which its work diminished and he was personally prevented
from speaking from November 2016 through March of 2018, the diversion of

“The right of employees, individually or collectively, to petition Congress or a Member
of Congress, or to furnish information to either House of Congress, or to a committee or
Member thereof, may not be interfered with or denied.”
22

29

 appropriations from climate work to unrelated work on asthma and indoor air pollution,

B. Dr. Luber’s Proposed Removal and Treatment between March
2018 and July 2019 was Based on a Retaliatory Investigation
Retaliatory motivation may be inferred from a variety of factors, including
proximity in time between the employee’s action and the adverse employment action,
inconsistencies between the proffered reason and other actions of the employer, and
disparate treatment of certain employees compared to other employees with similar work
records. See Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). Evidence of
an employee’s assertions of misconduct by a supervisor can bear upon whether the
supervisor has a motivation to retaliate. Fellhoelter v. Dep’t of Agriculture, 568 F.3d 965, 971
(Fed. Cir. 2009). “Those responsible for the agency's performance overall may well be
motivated to retaliate even if they are not directly implicated by the disclosures, and even
if they do not know the whistleblower personally, as the criticism reflects on them in their
capacities as managers and employees.” Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1370-717
(Fed. Cir. 2012) (citing Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1322-23 (Fed. Cir.
1999); Chambers v. Dep't of the Interior, 116 M.S.P.R. 17, 55 (2011) (finding motive to retaliate
because proposing and deciding officials were high level officials and the disclosures
“reflected on both of them as representatives of the general institutional interests of the
agency”); Phillips v. Dep't of Transp., 113 M.S.P.R. 73, 83 (2010) (finding that comments
generally critical of agency's leadership “would reflect poorly on” officials “responsible for
monitoring the performance of the field staff and making sure that agency regulations are
carried out correctly and consistently”)). Since direct evidence of a proposing or deciding
official's retaliatory motive is typically unavailable (because such motive is almost always
denied), federal employees are entitled to rely on circumstantial evidence to prove a
motive to retaliate. McCarthy v. Int'l Boundary & Water Comm., 116 M.S.P.R. 594, 613 (2011)
In this case, several factors provide circumstantial evidence of retaliatory motive.
While Dr. Luber’s proposed removal is no longer a currently proposed action, it is
relevant to demonstrate the retaliatory animus motivating NCEH and Director Patrick
Breysse’s personnel practices, as Breysse was the proposing official for both the proposed
23

 removal and the July 3, 2019 proposed suspension currently pending. NCEH provided a
list of the “troubling allegations” which necessitated Dr. Luber’s placement on
administrative leave, involuntary reassignment, and proposed removal in the sincewithdrawn notice of proposed removal. Several circumstances of Dr. Luber’s proposed
removal suggest that it and subsequent personnel actions based on the same grounds were
and are pretextual: 1) the long delay between the behavior cited in the NPR and the
issuance of that proposal; 2) the agency’s marginalization of Dr. Luber before issuing his
NPR, including the extreme measures of putting Dr. Luber on the BOLO list and searching
his car, only to lead to an NPR alleging time card violations and participation in entirely
legal and non-violent activities concerning climate change; 3) the delay between Dr.
Luber’s detailing and the delivery of the NPR and subsequent proposed suspension; 4) the
cursory nature of the analysis in the NPR and the proposed suspension; 30 and 5) its abrupt
withdrawal under public scrutiny. The petty and demonstrably false charges were easily
rebutted by Dr. Luber. Even if true, they are not of a nature to justify the treatment Dr.
Luber received, including as a potentially violent threat who could not safely be allowed
in his building and who might bring weapons to work; and cannot justify his removal
from federal service.
First, courts have long recognized that conduct which is cited well after the
employer was made aware of its occurrence is suggestive that the stated reason for a
termination was pretextual. An agency’s “delay in addressing its alleged concerns
undermines its claim that [the employee’s] behavior was unsafe or severe.” Peirick v. Ind.
Univ.-Purdue Univ. Indianapolis Ath. Dep't, 510 F.3d 681, 692-93 (7th Cir. 2007). The agency’s
“post hoc explanations, delay, exaggeration, and unusual conduct more than enough to
create a question of fact concerning the legitimacy of its explanations.” Id. Here, the agency
has relied on allegations of impropriety from as many as five years in the past, for which
Dr. Luber was never cited, warned, or otherwise aware of. Their combined resurrection
years after the fact suggests that the agency embarked on a fishing expedition for

See Exhibit B at 27-35 (discussion of whistleblower retaliation in response to proposed
suspension).
24

30

 wrongdoing to justify a wrongful termination.
Second, the agency marginalized and diminished Dr. Luber’s role in public
communications of CDC’s mission long before it took the step of detailing him in response
to the “troubling allegations” it claimed to have received in March 2018. Dr. Luber had
been working diligently as the public face of CDC’s research into threats to public health
posed by climate change, with numerous public appearances detailed supra as well as
outreach to universities to help design curricula to address the public health threats of
climate change. His outreach to Yale was one of the specifications cited in his NPR.
Despite his duty to engage with university researchers the climate change program
collaborated with on studies, and his public role in communications about CDC’s climate
program, he was forbidden from speaking to the press and was not permitted to make any
public statements after February 2017. This undermined the center’s communications
strategy, developed in concert with outside specialists after the 2015 GAO
recommendation to improve public messaging as a key part of the agency’s mission. 31 The
agency’s escalating attempts to silence Dr. Luber from February 2017 through his detailing
clearly demonstrate the retaliatory nature of and impermissible political influence upon
the personnel actions it took by detailing him and later proposing his removal.
Third, the long delay between his administrative leave, placement on the BOLO list
at the office building his permanent office is in, detailing, and his eventual receipt of a
demonstrably shallow proposed removal in 2018 and proposed suspension in 2019 is
indicative that the agency had to search for every conceivable justification for his removal
after it had already decided to remove him. This resulted first in a proposed removal
which failed to include supporting evidence or a discussion of the factors identified in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which was then
withdrawn, and another seven month delay before the agency served him with a proposed

GOV’T ACCOUNTABILITY OFFICE, HHS COULD TAKE FURTHER STEPS TO ENHANCE
UNDERSTANDING OF PUBLIC HEALTH RISKS, GAO-16-122, at 24-25 n.49 (Oct. 2015)
(specifically citing Dr. Luber’s work on the National Climate Assessment as the kind of
communicating through reporting and outreach which should be expanded upon).
25
31

 suspension in July 2019.
Finally, there is clear evidence that the ongoing investigation which led to both the
2018 and the 2019 proposed disciplinary actions was retaliatory in nature. The inciting
piece of evidence the agency based the opening of its investigation on and which led to Dr.
Luber’s placement on administrative leave in March 2018 was an email sent Friday, March
16, 2018 at 5:05 PM from Caroline St. Louis, to John Decker, John Tibbs, and Mattie
Gilliam, who subsequently led the investigation to find cause for Dr. Luber’s removal.
That email opened:
Recently, the Ethics and Compliance Activity was notified of alleged
violations of the standards of conduct by George Luber, an ONDIEH/ NCEH
employee and your subordinate. Mr. Luber, is alleged to have acted
inappropriately in his official capacity. Specifically, this office received a
complaint alleging that Mr. Luber engaged in an outside activity without prior
approval and directed a subordinate employee to use official time and
resources for a non-Government purpose.32
This email, which referenced a report about wrongdoing connected with publication of a
book 3 years prior, and which Dr. Luber had worked on 4 to 6 years earlier, came at the
end of the day on a Friday, just days after Dr. Luber had taken over leadership of the
newly formed Asthma and Community Health Branch and began raising objections to the
way the climate program’s appropriations were being blended with the former Asthma
branch. The book in question was one which he had received ethical clearance to work on
in 2012. 33
Retaliation may be demonstrated by the existence of a retaliatory investigation as
established in the MSPB’s decision in Russell v. Dep’t of Justice, 76 M.S.P.R. 317, 323-25
(1997), which held that “[w]hen . . . an investigation is so closely related to the personnel
action that it could have been a pretext for gathering evidence to retaliate, and the agency
does not show by clear and convincing evidence that the evidence would have been
gathered absent the protected disclosure, then the appellant [whistleblower] will prevail
on his affirmative defense of retaliation for whistleblowing.” Id. at 324. The Office of

32
33

CDC Evidence File for Charge 3 at 5, Doc. 2.
CDC Evidence File for Charge 3 at 16, Doc. 4.
26

 Special Counsel has added that “[r]etaliatory investigations can take many forms, such as
unwarranted referrals for criminal or civil investigations or overly scrutinized reviews of
time and attendance records.” 34 In both proposed actions, CDC based charges for
falsifying timesheets solely on matching up the dates of his course syllabus to the days he
took annual leave. It did not bother to verify whether the classes on the syllabus were
actually taught, and several charges which appeared in the 2018 proposed removal but not
the 2019 proposed suspension were easily disproven.
The evidence files prepared by CDC for the 2019 Proposed Suspension also
demonstrate that all of Dr. Luber’s former subordinates who provided testimony or
evidence against him did so in response to direct requests by NCEH to find any evidence
that could plausibly support any disciplinary charge against him: the very model of a
retaliatory investigation. In Kathryn Conlon’s March 22, 2018 email to Mattie Gilliam and
John Tibbs delivering such evidence, she opens “Per our discussion yesterday morning, I
looked into my emails and files about requests from George to give lectures in his Emory
class(es).” 35 She concluded “I think this is what you needed,” referencing her superiors’
request for incriminating information about Dr. Luber. Id. The retaliatory nature of this
investigation can also be inferred from the pay raises, promotions, or fellowship
extensions which were granted to former subordinates who agreed to testify against him. 36
Perhaps most tellingly, in one of the unsigned affidavits prepared in evidence
against Dr. Luber, Kathryn Conlon supposedly stated that “There's a culture of NCEH
protecting itself. When it comes down to it, people knew about George's inappropriate
behavior and it was ignored. I don't have a lot of faith in this system.” 37 While this

CAROLYN N. LERNER & JASON M. ZUCKERMAN, THE U.S. OFFICE OF SPECIAL COUNSEL’S
ROLE IN PROTECTING WHISTLEBLOWERS AND SERVING AS A SAFE CHANNEL FOR GOVERNMENT
EMPLOYEES TO DISCLOSE WRONGDOING at 6 (2014),
https://osc.gov/Resources/OSC's%20Role%20in%20Protecting%20Whistleblowers%20(519-14).pdf.
35 Evidence for Charge 4, doc 5 at 42
36 Saha, Evidence for Charge 4 at 106, 99. Conlon, March 23, 2018, Evidence for Charge 5,
Doc 6 at 19
37 Evidence for Charge 4 at 51 (emphasis added).
27
34

 statement was made in regards to Dr. Luber’s alleged inappropriate behavior, it is telling
that not only was this behavior not charged, but Dr. Luber has become a victim of the
“culture of NCEH protecting itself.” As the U.S. EEOC has recognized in the employment
discrimination context, where “evidence of wrongdoing was not simply unearthed during
an investigation [. . .], but was deliberately sought to retaliate against [an employee] and to
discourage similar charges” a reviewing court or official should limit the applicability of
that evidence. 38 Use of an illegal retaliatory investigation to gather evidence colors how an
adjudicator should consider that evidence, and “[a]n employer who chooses to wage a
retaliatory investigation must lose the advantage of equities that would, absent the
retaliation, favor that employer.”
If Dr. Luber’s alleged misconduct was so widely known, it should be explained by
the proposing official why no action was taken to provide guidance or training on any
misconduct during the six years that this proposal spans before escalating immediately to
proposing his removal in October 2018 and now proceeding with a request for a very
substantial suspension more than seven months later. The evidence presented by the
proposing official should also be viewed as highly suspect due to the nature of the
underlying investigation and the motive for retaliation against Dr. Luber by the proposing
official due to Dr. Luber’s reporting of the proposing official’s wrongdoing to Congress in
the intervening period.

C. CDC’s July 2019 Notice of Proposed Suspension was Retaliatory
On July 2, 2019, Dr. Luber was ordered to appear at the NCEH facility, which he
was otherwise barred from entering on security grounds. When he arrived on July 3, 2019,
he was personally given a hardcopy of a Notice of Proposed Disciplinary Action which
sought a 120-day suspension on similar grounds to the prior Notice of Proposed Removal,

EEOC Notice 915.002 (Dec. 14, 1995),
https://www.eeoc.gov/policy/docs/mckennon.html.
28

38

 attached as Exhibit F. 39 The Notice contained 5 charges:
1. Absence Without Leave: 15 specifications
2. Submitting Time/Attendance Records with Inaccurate Information: 15
specifications
3. Failure to Obtain Prior Approval to Engage in Outside Employment
Activities: 3 specifications
4. Misuse of Position — Creating the appearance of a Conflict of Interest: 3
specifications
5. Misuse of Official Time: 2 specifications
The charges were largely recycled from the charges which had been withdrawn in
December of 2018 under public scrutiny. The few modifications did not cure the proposed
disciplinary action’s retaliatory nature, but added new charges based on evidence
compiled as part of a retaliatory investigation conducted as a punitive response to Dr.
Luber’s whistleblowing activity.
The only substantive change was a diminution from “Falsification of
Time/Attendance Records” in 2018 to “Submitting Time/Attendance Records with
Inaccurate Information” in 2019. (emphasis added). The alleged mens rea was diminished
from “knowingly false, with intent to mislead” to “knew or should have known” for Dr.
Luber’s violation of timekeeping policies. To make up for this lessened severity regarding
the first charge, CDC added a second charge with 15 counts of “Absent Without Leave”
(“AWOL”), based on the same alleged conduct – teaching classes at Emory University, an
activity that was known to and approved by the CDC. These first two charges also share
the same 778 page evidence file, which does not delineate between which evidence is
presented to establish facts necessary to which charge. These charges are based entirely on
a reading of Dr. Luber’s Emory course syllabi. A full discussion of these and the
remaining charges and their retaliatory nature appears in Exhibit B, Dr. Luber’s response

The evidence files prepared by Dr. Breysse in support of his Proposal and the exhibits to
Dr. Luber’s Response are exceptionally voluminous and have been provided to OSC
separately from this document.
29
39

 to the proposed suspension and its associated exhibits.
The third charge related to Dr. Luber’s alleged failure to obtain prior ethics
approval for a book two books, GLOBAL CLIMATE CHANGE AND HUMAN HEALTH: FROM
SCIENCE TO PRACTICE (2015), and FOUNDATIONS OF GLOBAL HEALTH (2018), and to teach a
seminar at Emory University between January 15, 2018 and April 30, 2018, allegedly in
violation of 5 C.F.R. § 5501.106(d). As a part of CDC’s evidence file it included what
appears to be the ethics approval Dr. Luber had obtained for the 2015 volume, however
the image quality of the pdf provided by CDC is so poor as to be totally illegible in many
critical places, including several highlighted by the agency in yellow. The paucity of
evidence is striking given that the agency submitted 552 pages of evidence for Charge 3,
504 pages of which are reproductions of ethics training slideshows from the last decade.
At most, Dr. Luber is alleged to have failed to renew his annual ethics documentation for
his work on these books. This is a farcical charge considering the agency’s admissions that
it simply lost Dr. Luber’s ethics approval for the Emory course he taught in September
2015 which underlies the first specification of charges 1 and 2.
The supporting evidence for the fourth and fifth charges presented against Dr.
Luber is lacking in substance and much of it would be inadmissible before any court or the
MSPB 40 due to the overwhelming quantity of irrelevant and prejudicial content, including
unsubstantiated nebulous accusations of drug and alcohol abuse, “racist” and “sexist
jokes,” and other personal attacks that are unrelated to the charged conduct and more
easily understandable as character assassination. 41 Charge 4, regarding alleged misuse of

While the MSPB does permit the introduction of hearsay evidence that would be
excluded under the Federal Rules of Evidence, relevance remains a requirement for
admissibility.
41 See, e.g. Charge 4 Evidence File, Document 6, Adena Wright, sworn statement dated April
17, 2019. This document, which purports to summarize “to the best of my recollection” an
interview conducted more than two months prior on Feb. 12, 2019 with Kathryn Conlon, is
used as a delivery vehicle for introduction of an unsigned and undated affidavit credited
to the interviewee, labelled “Sworn Statement of Kathryn Conlon (Unsigned Draft)”
(emphasis added). It does not contain a transcript of the discussion, complies with none of
the formality requirements for affidavits or affirmations in GA Code § 24-9-902 or any
other known requirements, and suggests improper practices for preservation of evidence
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 position, implies that Dr. Luber pressured subordinates to give guest lectures in his
courses, but does not even provide a rule or provision of the Code of Federal Regulations
or CDC policy which Dr. Luber is alleged to have violated. Dr. Luber responds that he did
nothing improper but provided professional development opportunities for his
subordinates at their requests. Charge 5 claims that Dr. Luber encouraged subordinates to
use official time to work on a Yale University course and a book chapter, even though that
work was not part of their official duties. Dr. Luber asserts that the work was entirely
appropriate and part of these employees’ official duties.
The ugliness and personal nature of these charges are strong evidence of retaliatory
animus, in addition to a causal link between the charges and silencing an employee whose
job duties were politically unpopular.
CDC’s discussion of Dr. Luber’s conduct in its evaluation of the Douglas factors
which inform the reasonableness of a proposed disciplinary action is also troubling. The
agency argues that the negative notoriety the CDC has received is as a result of “his own
contacts with the press,” explicitly citing a column by Karen Tumulty in the WASHINGTON
POST titled The administration tried to muzzle this scientist on climate change. But he won’t go
away, 42 in its evaluation of Douglas factor 8. 43 First, this allegation is factually incorrect: Dr.
Luber was not consulted by Tumulty in her preparation of the article and his quotes were
taken from a public speech. Second, the speech was delivered while receiving the Hugh M.
Hefner Foundation’s First Amendment Award in recognition of his protected disclosures to
the same management team that now seeks to suspend him. This is explicitly retaliatory.
The Douglas Factor discussion also is used as a backdoor for Director Breysse to
include a large quantity of highly prejudicial and irrelevant material that alleges Dr. Luber
had a poor character, as detailed below. The Douglas evaluation does not require specific

or testimony. Similar concerns are repeated for every witness statement submitted by CDC
in this matter.
42 (May 22, 2019), https://www.washingtonpost.com/opinions/the-administration-triedto-muzzle-this-scientist-on-climate-change-but-he-wont-go-away/2019/05/22/66b0b6847bd8-11e9-a5b3-34f3edf1351e_story.html
43 Exhibit F at 9.
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 evidentiary support, as it is just an analytical exercise to demonstrate that the factors were
“considered” by the proposing official, so it is an improper vehicle to introduce what in
effect are new charges against Dr. Luber. Furthermore, the line at the bottom of each
evaluation checklist reads “I hereby certify that I have considered the twelve (12) Douglas
factors as indicated above (with my initial next to each factor) in making my penalty
determination.” None of the five Douglas Factor checklists were signed or initialed as they
were supposed to be.
The claim under factor 4 that “it has been reported that he has made derogatory
comments about women to the staff, disparaged employees in the presence of others, and
generally engaged in abusive conduct toward subordinates” does not cite to any specific
supporting evidence and is otherwise unsupported. If there were sufficient supporting
evidence, then Director Breysse would have included a charge related to such misconduct,
specifically “conduct unbecoming a federal employee” which would cover this kind of
alleged misconduct. Including it in the Douglas checklist allows the Proposal to make this
kind of inflammatory claim without having to provide legally sufficient (or any) proof,
and forces Dr. Luber into having to prove a negative, i.e. that he did not engage in conduct
about which no specifics are provided.

THE OFFICE OF SPECIAL COUNSEL SHOULD IMPOSE A STAY OF
THE PROHIBITED PERSONNEL PRACTICES ALLEGED BY THIS
COMPLAINT
In his August 8, 2019 response to the proposed suspension, Dr. Luber includes
specific discussion of the charges and why they are pretexts for retaliation, and asks that
the deciding official, Ms. Shaunette Crawford, to refrain from making a decision on the
proposal until the Office of Special Counsel had an opportunity to review this Complaint
and determine whether it would issue a stay. Pursuant to the Office of Special Counsel’s
Policy on Stays of Personnel Actions, petitioner George Luber, by and through
undersigned counsel, hereby requests a stay of the following actions until a final decision
is made regarding his employment: (1) his proposed suspension from employment, (2) the
restriction on his ability to speak with members of the media and the public in his official
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 capacity, and (3) his involuntary reassignment to duties unrelated to his official position as
a Supervisory Health Scientist.
OSC may request that an agency stay a personnel action against an employee when
(1) OSC has reasonable grounds to believe the agency took, or will take, a personnel action
constituting a prohibited personnel practice; and (2) absent a stay, the employee will be
subjected to immediate and substantial harm. 44 Evidence of CDC’s retaliatory motive thus
far indicates the high likelihood of imminent and substantial harm by Dr. Luber’s
suspension, and Dr. Luber suffers ongoing harm by involuntary reassignment and
restriction from making public comments in his official capacity. These practices have
resulted in and continue to cause his official exclusion from academic developments
related to climate change and public health, his inability to publish within his field, and
psychological harms from the anxiety caused by knowledge that any day could be his final
as a federal employee.
The evidence detailed above is sufficient for OSC to find reasonable grounds to
believe that a prohibited personnel practice has been committed “on the basis of
preliminary information.” Accordingly, since – absent a stay – Dr. Luber will be subjected
to immediate and substantial harm, OSC should request that CDC stay the pending
decision on his proposed suspension and other professional restrictions while OSC
investigates this matter further.

[signature and exhibit list on next page]

U.S. Office of Special Counsel’s Policy Statement on Stays of Personnel Actions, available at:
https://osc.gov/Resources/2015%20IPD%20Policy%20Statement%20Stays.pdf. OSC defines “reasonable
grounds” as “sufficient evidence for a reasonable person, with the same information and knowledge of the
applicable law, to believe that a prohibited personnel practice has been or will be committed.” Because a stay
is designed to provide OSC with time to conduct an investigation, OSC may request such a stay “on the basis
of preliminary information.” OSC “will promptly review the file” and will inform the complainant of its
decision “as soon as practicable.”
44

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 Respectfully Submitted,
Aug. 16, 2019

Kevin H. Bell, Esq.
Staff Counsel, Public Employees for Environmental Responsibility (PEER)
962 Wayne Ave., Ste. 610
Silver Spring, MD 20910
kbell@peer.org
(202) 265-7337

Attached Exhibits:
A. Detail Performance Review Ticket (August 2019)
B. Response to Proposed Suspension (August 2019)
C. Letter from Counsel notifying CDC of Representation (January 2019)
D. Dr. Luber’s Written Comments at the First Amendment Awards (May 15, 2019)
E. Oversight Letter from House Energy Committee (July 2019)
F. Proposal to Suspend (July 2019)
G. Proposed Removal (October 2018)
H. Response to Proposed Removal (November 2018)
Further evidence and exhibits supporting Exhibit B and Exhibit F have been delivered to
OSC by alternate file transfer services due to their exceptional volume.

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