. a ECIAL .- U.S. OFFICE OF SPECIAL COUNSEL Report of Prohibited Personnel Practices OSC File Nos. and MEX-134 126 Investigation and Prosecution Division Attorney Complaints Umt Attorney September 16, 2013 By providing this report to the Department of Commerce (Commerce) for the sole purpose of aiding its determination of whether to take corrective or disciplinary action, the US, Office of Special Counsel (OSC) does not waive any protections or privileges that may apply to Minimization disclosed in the report or to the sources of that information. In addition, neither the renort nor the information contained herein may be disclosed to an}r individual not deemed essential to the determination of whether to take correetive or disciplinaly action, unless OSC consents in writing to such disclosure. Speci?cally, it is requested that Commerce not disseminate any information provided by 030 to the ect of?cials of this investigation to potential witnesses in any future litigation that may arise should this matter not be resolved informally. Moreover, if Commerce receives a Freedom of Information Act (FOIA) request to which this report is responsive, Commerce shall not rciease the report to the requester, but rather promptiy advise OSC of the POIA request and advise the FOIA requester that OSC witi provide a reply with respect to the report. Please contact OSC immediately and return this report if Commerce objects in any way to these conditions. Questions negartling this paragraph snonid be directed to OSC's Of?ce of General Connect at (202) 254 3600. REPORT OF PROHIBITED PERSONNEL PRACTICES OSC CASE NOS. Mal?124640 and BIA-134126 I. INTRODUCTION This Prohibited Personnel Practices Report (Report) contains the investigative ?ndings in Of?ce of Special Counsel File Nos. and These complaints were ?led on behalf of two former Department of Commerce, Of?ce of inspector General (01G) employees, hereatter referred to as John Doe i and John Doc 2, or collectively, the whistleblovvers.2 The compiaints ailege that the whistleblowers were coerced into signing separation agreements containing non?disparagement provisions preventing them from going to OSC, Congress, or the media in retaliation for'their perceived whistleblowing and engagement in the Equal Employment Opportunity (EEO) process. investigation uncovered strong evidence of retaliation warranting corrective and disciplinary action. Pursuant to 5 S. 1214 and 1215, OSC is charged with independently investigating p1 ohibited personnel practice retaliation cases and, if wananted seeking appropriate corrective and d1sc1plina1y action This investigation concerns three types whistleblower retaliation (5 2302(b)(8)), retaliation for the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation (5 U.S.C. 23 and taking a personnel action in violation of a law, rule, or regulation implementing a merit system principle (5 U.S.C. 2302(b)(12)) (collectively, protected activity}. The non?disparagement provisions at issue essentially functioned as ?gag clauses? which prevented the whistiebiowers from making protected disclosures to OSC, Members of Congress, or the media. The use of gag clauses to chill empioyees from engaging in further whistleblowing runs directly counter to the purpose and intent of the Whistleblower Protection Act. While the Department of Commerce, at request, ensured that going forward the gag provisions would not be enforced, the willful retaliation in this case warrants additional action to discipline the wrongdoers and to deter future retaliation. Agency of?cials must be held accountable for committing especially retaliation for engaging in protected activity. This Report summarizes investigative and legal ?ndings in these cases. OSC provides this Report to assist the Department of Commerce and the Department of Commerce 018 in determining the appropriate corrective and disciplinary action in these matters. OSC is not waiving any protections or privileges that may apply to the information included in this Report or the sources of that information. I OSC investigates allegations of prohibited personnel practices and is authorized to seek corrective action ?om the Merit Systems Protection Board to remedy abuses of the merit system, and to initiate disciplinary action against civilian government officials who commit prohibited personnel p1 actices In establishing OSC, Congress emphasized mandate to protect whistleblowers. 8. Rep. 95? 969, at 24 (1978), reprinted 1a 1978 U. C. ANN 2723, 2746. 2 John Doc 1 ?led the complaint identi?ed as OSC File No. MA~13vli26. John Doc 2 is considered a primary witness in this investigation. Due to the sensitivity of these cases, John Doc 1 and John Doc 2 have requested that they not be identi?ed by name in this report. 2 The evidence demonstrates that the whistleblowers were coerced into signing the separation agreements at the heart of this case. Moreover, the record shows that management knew that both employees had engaged in protected activity, and several witnesses described the employees as ?perceived whistleblowers? who were trying ?to report the abuse? within the OIG. The two primary management of?cials involved in the separation agreements were Richard C. (?Rick?) Beitel, Principal Assistant inspector General for Investigation and Whistleblower Protection (PAIGI), and Wade Green, Chief Counsel to the 016. Beitei and Mr. Green engaged in retaliatory acts after being informed that the whistleblowers had obtained new positions outside of the GIG. In short, Wade Green and PAIGI Beitel worked together to ensure thatthe whistleblowers would leave the 01G on Mr. Green's and Beitel?s? terms??quietly and with no recourse to make protected disclosures about the 01G. After the whistleblowers found jobs at other federal agencies, Beitcl drafted unfounded, failing performance appraisals as leverage to get the employees to sign separation agreements. While there were numerous departing 01G employees in 2011, only the were issued failing interim appraisals or presented with separation agreements containing non-disparagement clauses, indicating that these actions were taken because of protected activity and/or perceived whistleblowing. Mr. Green drafted the separation agreements and negotiated the gag clauses. OIG management used its authority, including the threat of failing performance ratings and delayed release dates, to effect these separation agreements. in return, the employees gave up their right to make disclosures to OSC, Congress, or the .media and they withdrew their pending EEO complaints an d/ or Freedom of inform ation Act (FOIA) requests. The whistleblowers would not have signed such agreements if not for the retaliatory and coercive acts by management. Section ll sets forth the relevant facts OSC gathered in its investigation. Seetion provides a legal analysis of the alleged in this matter. Section IV sets forth- recommendations regarding the respective culpability of the two subject of?cials. Finally, Section concludes this report. 11; SUMMARY OF RELEVANT FACTS A. Background Todd Zinser was appointed Inspector General of the Department of Commerce (Commerce) on December 26, 2007, following Senate con?rmation. His appointment succeeded Johnny Frasier, who resigned from the position after concerns of ?scal improprieties and whistleblower reprisal were raised by Congress and-08C. Prior to 1G Zinser?s arrival, the OIG was fragmented betWeen employees who supported IG Frasier and those who were involved in the investigations concerning his alleged wrongdoing. Several members of 1G Frasier?s senior staff, including his Chief Counsel and Assistant Inspector General for Investigations (AIGI), left the OIG within the fit st two years of 16 Zinser? tenule. 1G Zinser ?lled several of the 01G Senior Executive Service (BBS) positions with former colleagues from the Department of Transportation, Of?ce of Inspector General (DOT OIG), where he was employed from 1991 to 2007. Because these selections- involved unusual circumstances and were effected with little transparency, many 01G employees and witnesses in 080?s investigation believed the selections violated the merit system principles. One of these selections was the hiring of Rick Beitel in October 2009 for a temporary detail ?om and his late] selection for the Principal Assistant Inspectm General for investigation and Whistleblower Protection (PAIGI) position in or around June 2010 3 . B. Protected Activity and Adverse Actions This section provides the signi?cant facts relating to the reprisal allegations, arranged in approximate chronological order. 1. Protected Activim a. JohnDoel 1. EEO: John I ?led an EEO complaint with - - i- - . on or around June 14, 2011 In his complaint he alleged d1sc1 unlnatron based on age and disability. - forwarded a summary of John Doc 1 allegations to 1G Zinser, PAIGI Beitel, and Mr. Green on or aiound June 30, 2011 In her email she explamed that John Doe 1 was in the ?info1mal or pro-complaint? EEO process. On 311 1, 2011, M1. G1 een f01 welded if?" June 30 2011 e?mail to 1G Zinser, . nd PAIGI Beitel. He asked them to review John Doc 1? complaint and to provide him with their recollection of events so that he could formulate a response on behalf of the 01G. 4 3 Rick Beitel accepted a detail to Commerce OIG, in part because of an ongoing EEO complaint filed against him at the DOT 01G. During PAIGI Beitei?s detail, 1G Zinser petitioned 0PM for another SE3 position. The request claimed that PAIGI Beitel would create a whistleblower protection division for the 010. From 2009 to the present, no designated staff has been hired for whistleblower protection1 and these duties are collateral to PAIGI Beitel?s function as the PAIGE. Nevertheless, the hiring was a non- competitive transfer, and OSC did not ?nd that this selection violated any of the 4 it is unusual for an agency to provide a written response at the informal stage of the EEO process. 4 testi?ed that lG Zinser ?made disparaging comments? about John Doc 1 ?ling an EEO complaint and that he believed that IG Zinser was ?angry? that John Doe I ?led the complaint Beitel testified that ?theie was mutual consensus that the complaint had no merit? Filing an EEO complaint IS piotected. activity under 5 2302(b)(9) 2. 011.41 Reguest: On August 9, 2011, John Doc 1 submitted a FOIA request to Mr. Green. in his request, John Doe i asked for copies of all documents relating to the hire of an independent computer forensics ?rm, which was tasked with identifying and searching the e-mail ?les of OIG employees in June 01 July 2011 John Doc 1 was eoncemed that the forensics ?rm was hired through a sole- -souice contract and believed that 1esponswe documents to his FOIA request would potentially implicate lG Zinser, . Beitel, and/or Mr. Green 111 Federal Acquisition Regulation (FAR) violations or Violations of other laws, rules, or 1egulations b. dawn; I. EEO.- ln or around June 2011, John Doc 2 drafted an EEO complaint alleging discrimination based on age, race, and veteran status. in the draft complaint, he reported ?a pattern of abusive conditct and hostile management practices directed towards [him] and other OI [Of?ce of Investigation] managers.? He speci?cally discussed hiring iniproprieties, mismanagement of Beitel?s Of?ce of Special investigations and concerns about a ?rearms investigation. Although John Doe 2 did not tile his EEO complaint, Mr. Green testi?ed that he knew that JohnD 2 ?had an 1nf01 inal complaint]. .if not, he had a threatened one, lthink. if: -- additionally testi?ed that he discussed a draft complaint with 1G Zinser, M1 G1 con and possibly Beitel He was unsure if it was an EEO complaint 01 a complaint to the Council of the inspectors General on Integrity and Ef?ciency (CIGIE). 2. FOIA Reguest: John Doc 2 submitted a document request in or around July 2011 for documents related to an acquisition of W5 fully?automatic submachine guns (MP5) and the OiG?s Special Purpose Firearms policy. The OIG Of?ce of Counsel (0C) refused to comply with this request. The following month, through his attorney, John Doe 2 submitted a 01A request for these documents, including various drafts of the SPF policy and e-mail communications between himself and several 01G supervisors and attorneys related to the drafting and supervisory/counsel review process for that policy. John Doe 2 requested documents that he-helieycd would show that he did not unilaterally change the SPF policy to circumvent the prior 01G approval process, John Doc 2 testi?ed that he submitted the draft SPF policy to counsel in 2009 for review. John Doe 2 believed that it was an abuse of authority by 01G management to hold him responsible for changes to the SPF policy that were reviewed by 01G counsel and more senior OIG management of?cials, and that the requested documents would support this belief. 3. Draft CIGIE Complaint: In or around May 2011, John Doc 2 drafted a CIGIE complaint and provided a copy to several co-worlcers for their review and com The complaint concerned his belief that 16 Zinser, Mr. Green, Beitel, and 25:9: 1 ere ?engaged 1n a pattern of abusive conduct toward employees, favoritism and p1 ohibited personnel practices in the discipline hiring and selection of mana other employees Although this complaint was never submitted to CJGTE, 2?s d1 aft EEO complaint or dra? CIGIE complaint with JG Zinser, Mr. Green, and possibly PAIGI Beitel c. John Doe I and John Bee 2 were Perceived Whistfeblowers John Doe 1?s and John Doe 2?s participation in the above activities led to the perception that they were whistleblowers. When asked whether he/she would describe John Dec 1 and John Doe 2 as perceived whistleblovvers, a witness responded, ?[Y]eah absolutely, yeah.? The witness further testified that ?everybody knew that there were all kinds of different avenues that they [John Doe I and John Doe 2] were trying to go down to report the abuse.? The witness noted that these avenues included EEO complaints. The witness testi?ed that he/she believed that PAIGI Beitel and others? ?went apoplectic? when John Doe I ?led a FOIA re nest based on the of?ce atrnOSphere the day the FOIA request was ?led. a Senior Analyst with the OIG, also testi?ed that he would describe John Doe I and John Doc 2 as perceived whistleblowei and that non?disparagement language was added to their separation agreements to keep them quiet. 2. PAIGI Baits! and Wade Green Refused to Provide Timely Release Dates to the Wristlebtowers John Doc 1 and John Doc 2 both accepted positions outside of the 01G in August 2011 01G Senior Human Resources (HR) Specialist, e-mailed Beitel on August 12, 2011, concerning John Doc 1 acceptanee of a position at another fedei a1 agency In his e?mail, he told Beitel that the agency had requested an August 23, 2011, release date, and asked Beitel approved _th eleasedate or wanted to ountel? W1th a different date PAIGI Beitel forwarded e-mail to 1G Zinser, .. . Assistant Inspector General for Administration (AIG), and Mr Green later that. day Mr Green immediately responded that 01G ?invokes our 30 day right.? Several days later, on August 15, 2011, Beitel e-mailed John Doe 1?s ?rst? levei and second? level supe1viso1?,s .. I I I them that John Doe 1 had accepted a position with another federal agency and that he would be ?coordinating with HR and QC on the release date; same with John Doe 2 5 - esponded that he had already spoken with John Doe and - 016 HR Specialist, and had approved John Doe l? 5 request for an August 27, 201 1, release date based on John Doe 1? 3 minimal wo1kload. Beitel then 1eplied that he? ?just asked to hold off for the time being pending internal cooidination.? Beitel later forWaided the email chain to - Supervisor. for providing John Doe with a release date before obtaining PAIGI Beitel?s approval. In her August 15, 2011, e-mail to AIG Leiphait, . explained that had app1 oved the August 27, 2011, release date, and that she was used to ?oalhn the immediate super viso1 for the release date. She additionally testified that, prior to John Doe l, the release date process did not require SES approval or involvement. On August 29 2011 SE her staff, including . .-. that John Doe 2 gets a release date, HR staff needs to let Wade Green know ASAP before proceeding with further action? -- testi?ed that she was relaying requests from the front office and that she assumed that they were considering some sort of action if 0C was involved However, other 01G employees being investigated by OC were given ielease dates Without SES interference. In fact, another 01 supervisor was being investigated by CC for alieged? Government Owned Vehicle (GOV) violations. This supervisor did not engage in any protected activity or make protected disclosures. His release date was not delayed by Mr. Green or Beitel. The OC Was also investigating an OI Special Agent for her alleged role in the acquisition of Glock hand guns and shotguns. This employee did not engage in protected activity or make protected disclosures. Her release date was not delayed by Mr. Green or Beitel 3. The Wkistleblowers Were Issued Editing Interim Performance Appraisals On August 24, 2011, almost two weeks after oho Doe 1 informed the OIG that he had obtained a new position, PAIGI Beitel presented John Doe 1 with a failing interim performance appraisal. The regular performance cycle ended on September 30, 2011. PAIGI Beitel rated John Doc .1 as a ?Level 1? performer, with a total score of 115/ 500 points. The following month, again weeks after John Doe 2 informed the that he had obtained new employment, Beitel gave him a failing interim performance appraisal. He was also rated a ?Level 1? performer with a total score of 100/500 points. Unacceptable perfor,rnance such as a ?Level 1? rating can be cause foi removal unde1 5 C. R. Pa1t 752 or placement on a Performance Imp; ovement Plan (PIP) under 5 .R. Part 432. The evidence indicated that in 2011, despite the high number of departing employees, only the whistlehlowers were issued failing interim appraisals. in fact, no other departing employee received any appraisal at all, much less a career?threatening failing appraisal. Thus, issuing a rating to ?a departing employee outside of the regular rating cycle was highly unusual. As noted in section below, PAIGI Beitel, who was aware of the whistleblowers protected activity, aelmowledged that he was primarily responsible ?01 coming up with the idea to issue failing 1nte1 on ratings to the whistleblowers. a. 2011 Interim Failing Rating is {hzfoanded 1. Summary Rating Narratives Did Not Accurately Describe Whistleb lowers Performance for the .2010 20] 1 Performance Period a. John Doe I: In the interim failing appraisal, in his summary rating narrative for John Doe l, PAIGI Beitel discussed alleged performance de?ciencies that occurred ?in the current and previous rating periods.? The majority of these alleged de?ciencies involved John Doe 1?s failure to timely close four investigations. PAIGI Beitel stated that John Doc 1 kept these cases open ?during current and previous rating periods? to justify his ?robust staffing level andKOI to avoid scrutiny from the upcoming CIGIE peer review.? Even though 1iohn Doc 1 credibi denied that this was his intention PAIGI Beitel included his . theory' in John Doe appraisal. PAIGI Beitel also cited John Doe l?s failure to ?properly use authorized system of records for case management (lG However, PAIGI Beitel knew that John Doe l?s unit?s primary focus was providing assistance to open investigations and that 10 was not used to track investigation support. In fact, Beitel directly received John Doe l?s weekly spreadsheet of work performed. This spreadsheet was created to track. his work in lieu of 18 CIRTS. PAIGI Beitel also cited John Doc 1 for not providing his spreadsheet to DC for legal review. However, Beitel never instructed John Doe to submit his spreadsheet to OC prior to his August 24, 2011, interim rating, even though he had received a copy of the weekly spreadsheet for several months. Finally, PAIGI Beitel held John Doc 1 responsible for not being timely placed on a performance plan. He stated, [John Doc 1] thought he was not on an approved plan, - he should have asked his former supervisor to p1 ovide an approved plan and elevated the issue within 016 as necessa The evidence indicates that John Doe noti?ed his Previous supervisor, 3-5-55" I on several occasions that he was not on an approved performance plan, and reported to on May 26, 2011, that he did not believe he was on a ?signed plan despite asking for one several times.? He further noted that, although he was not on an approved plan, did give him a signed inid- -year review John Doe' I forwarded this email chain to PAIGI Beitel later that day, prior to PAIGI Beitel citing the lack of an approved performance plan as a basis for the failing interim appraisal Collectively, the evidence does not support any of the cited bases for the retaliatory interim appraisal issued to John Doc 1 after his announced departure from the 01G. b. John Bee 2: PAIGI Bcitel similarly discussed alleged performance de?ciencies that occurred outside of the performance period in his summary rating narrative for John Doc 2. His narrative concentrated on three areas: (1) the CIGIE peer review; OIG policies; and (3) the acquisition fully automatic submachine guns (MPSs). Speci?cally, PAIGI Beitel held John Doc 2 responsible for his alleged failure to track recommendations from the 2008 CIGLE peer review. PAIGI Beitel wrote that John Doc 2 was ?shirking what clearly were eventhough the record demonstrates that senior management never informed John Doc 2 that he was expected to track these recommendations. Accordingly, John Doe 2 was held responsible in a 201 interim performance appraisal for a duty that he was never instructed to perform and that was not included in his performance plan in any year following the 2008 CIGIE peer review. Moreover, since PAIGI Beitel contended that John Doe 2 should have performed these tracking functions beginning in 2008, the majority of these alleged violations occurred outside of the 2010-201 performance period, and should have not been included in the interim appraisal. PAIGI Beitel further claimed that John Doe 2?s Quality Assurance Review (QAR) report, drafted in preparation for the 2011 peer review, was de?cient because it stated that OIG was ?fully compliant? on several QAR entries without providing qua iifying notations. When John Doc 2 was questioned about these entries, the record indicates that he agreed to provide qualifying notations I a formei Department of .i nst1ce SAC hired by GIG on a temporary basis to prepare for the 2011 peer review, testif ed that John Doc 5 QAR had identified de?ciencies, but that the real problem was laclc of direction from 01G management. In addition, the interim failing performance appraisal cited John Doc 2 for failing to accurately report an 01G recoveiy. However, the recoveiy took place in a previous performance period, and John Doc 2 ?3 prior performance appraisals, which occurred prior to his protected activity, did not address this issue. The interim failingperformance appraisal cited John Doc 2 for not conducting a revision of the 016?s Government Owned Vehicle (GOV) policy. The record indicates that he was never tasked with conducting such a revision by his chain of command, and PAIGI expected the revisions to be done ma spams by John Doc 2. Beitel concentrated most of his critique in the failing interim appraisal on John Doe 2?s role in the OlG?s acquisition ofMl?Ss and his revision of 016 policy related to that acquisition. Speci?cally, Beitel cited John Doc 2 for acquiring the MPSS without lG approval, and for deleting the requirement for IG approval from the OIG policy. However, the evidence indicates that OIG management was aware that John Doc 2 informed his ?rst~level supervisor about the acquisition, and thus reasonably assumed that his management apprOpriately noti?ed IG Zinser. PAIGI Beitel attributed all responsibility for the MP5 acquisition and policy change to John Doe 2, even though several other employees were involved. in what became a highly charged matter in the OIG, the lowest level employee involved was held accountable in an interim failing appraisal for an issue that other managers knew of and for which they held greater responsibility. Finally, both of these events occurred in 2009, well outside of the 2010? 20 ll performance period. CollectiVely, the evidence does not support any of the cited bases for the retaliatory, interim appraisal issued to John Doc 2 after his announced departure from the OIG. 13. Rick Beiiel was Primarily Respon??ible for Interim Performance Appraisals Although signed the whistleblowers? interim performance appraisals, the weight of the evidence shows that PAIGI Beitcl was primarily responsible for drafting and 15311ng the interim appraisals . . . testi?ed that PAIGI Beitel wrote the inteiim appraisals. Although he did not disagree with PAIGI Beitel?s assessment of the Whistleblowers pe1for1nance, he felt the ratings were ?harsh.? He further testi?ed that he signed the appraisals as the approving of?cial, and believed that, as the approving of?cial, his role was to defer to the rating of?cial?sjudgment. He testi?ed that he ?recognized that he had little to no power or authority to do anything? concerning the treatment of the whistleblowers, and that he was ?actively looking for another job. 2" additionally testi?ed that, in retrospect, he felt he could have? ?come out stronger? in disagl eeing with PAIGI Beitel interim performance ratings for the PAIGI Bcitei testi?ed that both he and that the interim appraisals were appropriate, and that the issuance of the appraisals was ?our idea, but i certainly take a measure of ownership oftha He further testi?ed that ?it was a decision obviously that I made you know, I prepared it, signed i 2. The Summaiy Rating Na?'an'ves are not Based on the Whistleblowers Performance During the 2010-2011 Performance Period The Code of Federal Regulations provides that ?a rating of- 1ecmd shall be based only on the evaluation of actual job performance for the designated appraisal period See 5 HR 430. 208(a)(l). As mentioned above, the ma} 01 1ty of the whistleblowers alleged performance issues cited in PAIGI Beitel?s summary narratives occurred outside of the 2010-2011 appraisal period. All of the cited cases in his summary narrative for if) - John Doc 1 were investigated and resolved during prior appraisal periods some as early as 2006 and were not reviewed and rated during those periods, prior to John Doe 1?s protected activity. Similarly, many of the issues raised in Beitel?s summary narrative for John Doc 2 occurred in previous rating periods including the MP5 acquisition and associated policy change and were not reviewed and rated dtu' 1ng those periods and p11o1 to John Doe 2?s protected activity A key witness familiar with the OIG rating process testi?ed that 01G senior staff ?constantly do performance appraisals for things that happen outside of the performance period particularly during this period when they?re trying to nail people on stuff.? The witness further testi?ed that PAIGI Beitei did so in an effort to discourage employees from reapplying to the 016 or to deter legal action. The Witness testi?ed that PAIGI Beitel speci?cally told himiher that he would ?write this really negative appraisal and We?ll put it in our drop ?le so that if anything happens where [the employee] sues as or whatever the case may be, we can bring. [it] out.? OSC found this witness highly credible. 3. There Was No Legitimate Basis to Issue the Whistleblowers Interim Per?rmance Appraisals Although one witness estimated a seventy percent 01G employee attrition rate from May 2011 to December 2012, of the departing employees only the whistleblowers were given ?interim? or ?close?out? performance appraisals. PAIGI Beitel testi?ed that he and - . to write interim performance appraisals for the whistlebloweis because the Of?ce of Personnel Management (0PM) 01G peer review team was coming in and there were a ?number of de?ciencies that the various OIG senior management, senior leadership reviews had disclosed and identified? and that it was ?something that we needed to memorialize appropriately.? This testimony appears disingenuous because several employees, including one - manager, who were also described as poor performers were not given interim appraisals when they left OIG. More significantly, PAIGI Beitel drafted John Doe 1?s and John Doe 2?s failing performance appraisals after they gave notice that they were leaving the OIG. If there were le- itimate concerns about the whistleblowers performance, PAIGJ Beitel and/or should have addressed these de?ciencies when they oecunwed and/or should have taken steps to place John Doc 1 and John Doc 2 on PIPs. Moreover, since interim appraisals are not typically included in employees Official Personnel Folders (OPFs), providing John Doc 1 and John Doc 2 with interim appraisals would not effectively warn new employers of their alleged performance de?ciencies. 4. The Mt?srieblowers Have Historically Been 1 and Carr-early Are - Highly Rated Federal Employees . For the majority of their extensive government careers, the whistlehlowers have received the highest numerical rating, ?Level or ?Outstanding? performance reviews. John Doc 1 was consistently rated 5 00/ 5 00 1. the highest rating possible under the ll performance system. Under John Doe 1?s and John Doe 2?s ratings dropped but never below a ?Fully Successful? level. Before departing the 01G In or around May 2011, :55 elements, providing that he was performing his assigned duties well provided John Doc 2 with a mid?year piogi ess 1ev'1ew on or around April26, 2011, also rating him as performing at Level 3 or higher on all critical elements. These mid-year progress reviews were issued only four months before PAIGI Beitel?s interim appraisals, and prio stlehlowers protected activity. PAIGI Beitel asseited that he did not endorse reviews, but provided no credible basis for issuing the interim appraisals to the whistleblowers and no other departing OIG employees. Since leaving OIG for other federal agencies, the whistlehlowms have been again rated as ?Level 5? or ?Outstanding? employees, and have received 500/500 total performance points. 4.17m Whistlebfowers Executed Separation Agreements in Order to Letrve the GIG with Clear: Records Mr. Green placed Undue pressure on the Whistleblowers to sign separation agreements before-they could be released from their OIG positions. Even though numerous employees left the 01G for positions with other federal agencies during this tirneframe, the whistleblowers were the only OIG employees presented with separation agreements6 and were coerced into signing the agreements under the threat of interim failing performance appraisals. The separation agreements, which Mr. Green and his staff drafted, reviewed, edited, and negotiated required John Doc 1 and John Doc 2 to withdraw their FOIA requests and John Doe 1?s EEO complaint and to agree to release their rights to future ?administi ative relief before the EEO, Merit Systems Protection Board (Board), and Congress. The sepa1at1on agreements additionally contained the non-disparagernent plovisionsrgag clauses at issue. These provisions provided that John Doc 1 and John Doc 2 could not: [D?sparage the Agency 1'11 any communications 1?0 any person. or entity, including but not limited to Members of Congress and their sta?: the O?ice of Special Counsel, and the media. However: nothing in this Agreement 1111111 prevent, prohibit or inmair [John Doe I and John Doe 2] ?om responding truthfully to dimer questions posed to him in writing or 1'11 the course ofaformal hearing before any legisfarive, executive, orjuci?iciai body. (Emphasis addeaD. 6 An CC employee, Employee X, executed a ?settlement agreement? containing similar non-disparagement language in 2011. A discussion of this agreement is located on page 14 of this Report. 12 in exchange for Withdrawing their EEO complaints and/or FOIA requests, releasing their rights for any future administrative relief, and waiving their rights to contact Members of Congress andior the media or ?le complaints with OSC, John Doe I and John Doe 2 received release dates to leave the and guarantees that their new agencies would not see their failing interim performance appraisals. Beitel and Mr. Green made it clear that if they did not execute separation agreements, their new agencies would be provided with copies of the failing interim appraisals, which could potentially devastate their careers as federal employees. or. The Non?Disparagement Provisions Prevented the Wistleblowers From Making Protected Disclosures to OSC, Congress. or the Media Both John Doe and John Doc 2 testi?ed that they interpreted the non? disparagement provisions in their separation agreements as prohibiting them from ?ling complaints with OSC, Congress, or the media. John Doe 1 testi?ed that his separation agreement ?says that I?m not allowed to ?le any complaints or anything like this.? As reason for not ?ling a complaint with OSC, he testi?ed, ?even though I ?rmly believe thatl had grounds to do so, didn?t ?le a complaint] because I believe and I still, and I still do to some extent, that my hands are tied and I could not come to and ?le a complaint because of that stupid separation agreement.? John Doe 2 testi?ed that ?the day I went in to sign that separation agreement I had never been more soared in my life.? He explained that he believed the separation agreement prevented him from ?ling - complaints and that ?it wasn?t worth the risk of bringing [complaints to OSC 01' ljust saw them coming after me.? Wade Green testi?ed that the non~disparagernent provisions did not interfere with the employees? Whistleblowing rights because those rights are something that ?everybody knows you have and that can?t be interfered with.? He further testi?ed that disparagement is ?different from whistleblowing,? because it is ?about truthfulness, veracity,? and stated that this de?nition of disparage. is ?common in the 16 community." Mr. Green did not define diSparage in the separation agreements, however, and made no effort to explain to John Doc 1, John Doe 2, or their respective counsels, that it was not the intention to prevent them from blowing the whistle. In contrast, the evidence indicates that Mr. Green intended to prevent the whistleblowers from contacting Congress or the media, or from ?ling complaints with OSC. Mr. Green?s stated understanding of the scope of the non-diaparagement language is not supported by the text of the provision when read in its entirety. The secOnd half of the non-diSparagement provision, states: However, nothing in this Agreement shall prevent, prohibit or impair [John Doe I and John Doe 2] ?ora responding truthfally to direct questions posed to him in writing or in the course of a formal hearing before any Zegislol'z've, executive, or judicial body. '13 This section carves out instances when John Doe and John Doc 2 would be allowed to contact Congress, OSC, or the media under the terms of the agreement. By speci?cally listing parameters for permissible contact with these bodies, it indicates that all other contact, including making protected disclosures, is prohibited under the agreement. Second, Mr. Green provided no evidence to suggest that his stated de?nition of ?disparage? was commonly used Within the 01G, or necessary to include in the Whistleblowers? separation agreements. In fact, a former 0C employee directly contradicted the de?nition put forth by Mr. Green, testifying that ?disparage? is a ?negative statemen that ?does not have to be false.? Moreover, Mr. Green offered no credible basis to conclude that either John Doc 1 or John Doc 2 had made any false accusations against the 01G. To the contrary, Witnesses consistently described the whistlebiowers as men of integrity. Mr. Green presented no evidence suggesting a need to insert the non?disparagernent provision into the agreement, even if it was limited to untrue statements? in contrast, as described above, the whistieblowers had engaged in protected activity. The weight of the evidence suggests that Mr. Green?s intent was to prohibit further protected activity, rather than inaccurate statements. Third, the non?disparagernent provision was extremely important to Mr. Green. Indeed, the evidence shows that he insisted that the non-disparagernent provisions remain in the separation agreements. The non-disparagement language was initially drafted for Use in a settlement agreement between the DIG and another employee who engaged in protected activity (Employee This agreement was negotiated between Mr. Green and Employee X?s attorney. Employee attorney removed the non-disparagement language twice, and both times, Mr. Green reinserted it. Mr. Green testi?ed that he ?certainty put [the non~disparagernent provision] in there? and ?probably required that it stay in there as a negotiation point.? Signi?cantly, Mr. Green also removed a provision drafted by Employee X?s attorney, which would have allowed for his client ?to ?le an EEO or Special Counsel complaint.? Accordingly, the weight of the evidence suggests that the scope of the agreement precluded protected activity, such as an EEO or Special Counsel complaint, and not only statements. Finally, Mr. Green demonstrated a motive to chill protected communications by whistleblowers. To illustrate, in an e-mail to dated November 17, 2010, Mr. 7 It is worth noting that under 5 U.S.C. 2302(1))(8), a disclosure does not need to be accurate in order- to be protected. This subsection of the statute provides that, for a disclosure to be protected, an employee or applicant must ?reasonably believe? that he or she is disclosing a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and speci?c danger to public health or safety. Accordingly, a false or incorrect disciosure could be protected if the employee or - applicant had a reasonable belief that the disclosure was true, based on their professional opinion or experience. Therefore, even if ?disparage? is de?ned as a false, untruthful or inaccurate statement, the non- disparagement provisions in the whistleblowers? separation agreements wouid stiil- prevent them from making law?ii protected disclosures to 080 and others. 8 This settlement agreement is not speci?cally discussed herein because it differs greatly from those in the separation agreements at issue. For example, Employee agreed to a $25,000 buy~out payment and was allowed to retire eariy with a clean record. in addition, the 01G produced substantial evidence going back severai years that Employee had Eegitimate performance problems. 14 Green stated the importance of protecting IG Zinser?s and the reputations, and provided advice on how to manage 01 employees. He told '51? -- - If there is one thing you can ?x in. your ?rst-year it would be to improve how 01 plays With others. It woaid be one thing if they just sey-destrueted?but it won?t be that clean. When they hit that wall at 100 MPH it will spiask on [Todd Zinser] the OIG as an. agency, and at! our reputationsmand we never would have had an opportunity to stop or mitigate the damage because we have no visibility into It is nryjob to safeguard the Client?om these events?and I Witt. The evidence indicates that Mr. Green inserted non-disparagement provisions into the whistlebiowers? separation agreements because, as OI employees, he was concerned that they would damage 1G Zinser?s reputation, his reputation, and the 01G. b. The Wistlebiowers Were Given Separation Agreements Because The}: Engaged in Protected Activity Three 01 managers were identi?ed as having performance de?ciencies in 2011. Each of these managers was being investigated by the 0C for aileged violations of the SPF and/or GOV policies. Nevertheless, only talc inanagersm?John Doe i and John Doe engaged in protected activity. Unlike the whistlehlowers, the third manager, who did not engage in protected activity or whistlebiowing, was not required to execute a separation agreement containing a nomdisparagement provision and was not given a failing interim performance appraisal before his departure from the agency. Because ail three ofthese managers had alleged performance issues?and were being investigated for purported infractions, the only difference between them was that the third manager was not a perceived whistlebiower and did not engage in any protected activity. The fact that the non~disparagement provisions speci?cally list Congress, the media, and OSC,_further shows that Mr. Green intended to prevent John Doe I and John Doe 2 from whistiehlowing. in addition to an 01G, the main avenues for federal employees to make protected disciosures are through OSC, Congress, or the media By preventing the whistieblowers from initiating contact with these bodies, it appears that Mr. Green intended to interfere with the whistieblowers? ability to make disciosures against the 01G. c. PAIGI Beitel and Wade Green Appear to Have Coordinated on the Provisions afthe Separation Agreements PAIGI 'Beitel provided John Doe 1 with John Doe 1?s interim performance appraisal on August 24, 2011, the same day that Mr. Green presented him with the separation agreement. As discussed above, Beitel decided to give John Doe 1 an interim performance appraisal after he learned that John Doe 1 had accepted a position with another federal agency. PAIGI Beitel presented John Doe 2 with his failing interim 15 performance appraisal on September 16, 2011, the same day that John Doc '2 left the 016 for a position with-another agency. Section 3 of John Doe l?s separation agreement provides that, in consideration for agreeing to the non~disparagement provision and allowing the to advertise to fill his position, the OIGagrees ?to refrain from placing any copies of the close out appraisal completed upon [John Doe 1?s] separation from the in his Of?cial Personnel File.? The 01G further agreed to ?effectuate [John Doe 1?s] transfer from his position in 016 on August 28, 2011 to permit him to enter onto duty in a new federal position on that day.? Without these provisions, John Doe 1 would have little to no incentive to sign the separation agreement. - John Doe 2?s separation agreement, executed on September 6, 2011, mirrored John Doe Like John Doe 1, John Doe 2 agreed to the nonndisparagement provision in exchange for an earlier release date and a guarantee that the 01G would not take adverse action against him. John Doe 2?s agreement also contained an additional term in Section that the 016: would ?reflect that any transfer by [John Doc 2] from the Agency to another agency will be re?ected as voluntary and for personal reasons and to process all relevant personnel actions so that [John Doe 2?s] transfer out of the Agency is reflected as ?Voluntary and for personal reasons? or its equivalent.? Although John Doe 2 received his failing interim appraisal after he had executed his separation agreement, these terms reveal PAIGI Beitel?s and Mr. Green?s intention to take action against John Doe 2 if he refused to Sign the agreement. These actions could not be taken Without coerdination between Mr. Green and Beitel. PAIGJ Beitel denied coordination between himself and Mr. Green. However, he testi?ed, and Wade loiew that we were planning to do these appraisals,? and that ?[the appraisals] went through our Office of Counsel? for review and comment. Beitel testi?ed, ?Wade Green] did ask that we get him a copy of the interim rating. Actually his of?ce had reviewed it [the interim rating] along with, later, subsequently, [John Doe He further testi?ed, ?he [Mia Green] did ask to have a copy of it [John Doe l?s interim appraisal] once it was done.? Mr. Beitel additionally acknowledged that John Doe 1?s interim appraisal and the separation agreement work together and were ?contemporaneous.? The fact that the separation agreements and failing interim performance appraisals were issued contemporaneously indicates that the appraisals were used to compel the whistleblowers to sign the separation agreements containing the non?disparagement provisions. d; Wade Green Did Not Provide the Whistleblowers? Separation Agreemems to the Of?ce ofGenerai Coronal for Legal Review Commerce Em lo ment and Labor Law Division, Office of General Counsel (OGC), and OGC, testi?ed that, prior to December 2012, their of?ce reviewed and approved every settlement agreement 16 entergd into on behalf of Commerce, including settlement agreements involving the 01G. Both and testi?ed that Mr. Green did not submit John Doe 1?s and John Doe 2?s searation agreements to OGC f01 legal review per standard practice. In fact, and -- - testi?ed that they ?rst 1eceived John Doc 1 sepa1 when agreement horn the Commerce Office of Civil Rights in or a1 ound November 2012., and learned of John Doe 2?s sepai at1on agreement during investigation. To thei1 knowledge, John Doe 1?s and John Doe 2?s separation agreements were the ?rst legal ag1cernents entered into by the OIG Without OGC approval or concurrence. Mr. Green testi?ed that John Doe 1?s and John Doe 2?s separation agreements were not routed through OGC ?because it was based on the template that OGC had approved for [a previous settlement agreement] and I felt that was good enough.? The referenced settlement agr cement had key diffe1ences with those signed by the whistleblowers. It involved an employee who was already on a PLP, and 1eceived fair consideration for entering into the agreement, to include a $25,000 vbluntary buy-out and early retirement. In contrast, as discussed, the whistleblowers only received timely release dates and notice that their new employers would not be given copies of their failing interim performance appraisals. The only similarity between the agreements was the non-disparagement provision, which, as previously discussed, was originally drafted by Mr. Green for inclusion in Employee X?s settlement agreement. In addition, the non?disparagement provision in Employee X?s settlement agreement diffeled from the provisions in John Doc 1 and John Doc 2? separation agreements, because it also prohibited the 016 from ?dispa1aging the employee Although both leviewed and signed Employee settlement agreement, they both testi?ed that, to their knowledge, OGC had never in its practice included such non?dispa1agement provisions in any Commerce settlement agreement Both testi?ed to then belief that such provisions could chill whistieblowing. They further testified that Mr. Green did not use the OGC settlement agreement template. est1f ed that he was ?dumbfounded? that the non-disparagementplov131on was 111 Employee X?s settlement agreement and that he signed it as an OGC department representative. He believed it was an oversight and should not have been included in any Commerce settlement agreement. 9 OGC derives its authority to review all settlement agreements on behalf of the agency from Department of Commerce Department Organization?Order 1045, which describes the Office of General Counsel.- Mr. Guenther testi?ed that he has always relied on Section 4.01.b, which delegates to the General Counsel responsibility for ?[t]he preparation; or examination for legal. form and e?ect, of all legal instruments, such as contracts, c00perative agreements, leases, licenses, and bonds, entered into by the Department,? to support the requirement in at his of?ce must concur in settlement agieements' and resolution agreements. 17 e. PAIGI Beirei and Wade Green Signed John Doe I ?s and John Doc 2 ?3 Separation Agreements - Beitel signed the whistleblowers? separation agreements as ?Management Official,? and Mr. Green signed the agreements as ?Counsel to the Inspector General.? By signing the agreements, PAIGI Beitel and Mr. Green represented that they reviewed the agreements and agreed to the terms. and 1G Zinser did not sign the agreements. 1G Zinser testi?ed that, prior to investigation, he had not reviewed the whistleblowers? separation agreements and Was unaware of the non-diSparagement provisions contained within them. testi?ed that he first learned of the whistleblowers? separation agreements during investigation. Both Mr. Green and Beitel testi?ed that they neither discussed the terms of the separation agreements with 1G Zinser, nor showed him a copy of the agreements. LEGAL ANALYSIS There is compelling evidence of whistieblower retaliation warranting corrective action for John Doc 1 and disciplinary action against PAIGI Beitel and Mr. Green.10 A. Legal Standard: 5 U.S.C. 2302(b}(8) and It is a prohibited personnel practice to take or threaten to take a personnel action against an employee because of any disclosure of information that the employee ?reasonably believes? evidences a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and speci?c danger to public health or safety. 5 U.S.C. 2302(b)(8). It is also a prohibited personnel practice to take or threaten?to take a personnel action against any employee or applicant for employment because of: the ?ling of an appeal, complaint, or grievance right granted by law, rule, or regulation; testifying for or otherwise lawfully assisting any individual in filing an appeal, complaint, or grievance right granted by law, rule, or regulation; or (3) cooperating with or disclosing information to the Inspector General of an agency or the Special Counsel. 5 U.S.C. 2302038). B. Burden of Proof for Corrective and Disciplinary Action Corrective Action To prove violations of 5 U.S.C. 2302(1))(8) or of the Whistleblower Protection Act (WA) warranting corrective action, OSC must demonstrate with preponderant evidence that: a protected disclosure of information was made or the employee engaged in protected activity; (2) the proposing or deciding of?cials had actual or constructive knowledge of the protected activity; (3) of?cial(s) with authority to take, 1? Although intrestigation demonstrated evidence of whistlebiowcr retaliation against John Doc 2, he did not formally ?le a complaint with CBC, and therefore, OSC cannot seek corrective action on his behalf. 18 recommend, or approve a personnel action tool: or threatened to take personnei actions;:1 and (4) the protected disclosure or protected activity was a contributing factor in the personnel action at issue. See Eidmann Merit Sys. Prof. Bet, 976 F.2d 1400, 1407 (Fed Cir. 1992) (explains and Section 101(b)(1) of S. 743, the Whistleblower Protection Enhancement Act of 2012 (Pub. L. 112-199) (amending 5 U.S.C. i221(e)(1) to apply to cases involving protected activity under Once OSC establishes a primafacie case ofwhistleblower reprisal, the burden shifts to the agency to prove by clear and convincing evidence that it would ?have taken the same action absent the disclosure. Whitmcre v. Dep ?t chabor, 680 F.3d 1353, 1364 (Fed. Cit-2012). Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a ?rm belief as to the allegations sought to be established. It is a higher standard of proof than preponderance of the evidence, and as the Federal Circuit pointed out in th'mzore, ?is reserved to protect particularly important interests in a limited number of cases.? 5 C.F.R.. Whitmore, 630 F.3d at 1367. 2. Disciplinary; Action in any case in which the Board finds that an employee has committed a under 5 U.S.C. 2302(b)(8) or (B), (C), or (D), the Board may impose disciplinary action if it ?nds that the activity protected under these sections was a signi?cant motivating factor, even if other factors also motivated the decision, for the employee? 5 decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates by a preponderance of the evidence that the employee wouid have taken, failed to take, or threatened to take or fail to take the same personnel action in the absence of such protected activity. Section 106 of S. 743, the Whistieblower ?rotection Enhancement Act of 2012 (Pub. L. 112?199) (amending 5 U.S.C. 1215(a)(3)). - C. Establishment of Prime Fecr'e Cases of Reprisal 1. Protected Activity John Doc 1 ?led an EEO complaint on or around June 14, 2011, which constitutes protected activity under 5 U.S.C. 2302(b)(9). He also submitted a request on or around August 9, 201 i, for documents concerning alleged computer surveillance in possible violation of FAR regulations. The evidence also shows that PAIGI Beitel and Mr. Green viewed John Doe I as a possible or perceived whistleblower under 5 15.8.0. 2302(b)(8) because the FOIA requested information could potentially implicate 1: PAIGE Beitel and Mr. Green both exercised the personnel action authority required under 5 U.S.C. 23020903) and ?2 The Board has held that, if the evidence establishes that subject of?cials wouid have taken the personnel action in the absence of the protected disciosu res, the signi?cant factor test cannot be met. See genera?)- Specz?a? Counsel v. Cosfefic, '75 M.S.P.R. 562, 611 (1997). 19 1G Zinser, PAIGI Beitel, andfor Mr. Green. in wrongdoing if, for example, regulations - were not followed, as the whistleblowers reasonably believed. John Doc 2 submitted a document request in July 2011 and a FOJA request in August 201 lfor documents or other information concerning the MP5 acquisition and SPF policy. As with John Doe 1?s FOIA request, these requests concerned Sensitive issues - that John Doe 2 reasonably believed could inculpate IG Zinser, Beitel andfor Mr. Green in misconduct. John Doe 2 also drafted an EEO complaint and a complaint in or around June 2011. These FOIA requests and draft complaints gave the appearance that John Doe 2 was concerned about issues at the GIG and had either engaged in, or was considering engaging in, protected activity. The perception of?whether an employee is a whistleblower is suf?cient to establish engagement in protected activity. King Dep ofthe Army, 116 M.S.P.R. 689, 695 4596 (2011). The Board found that whether a perceived whistleblower ?made a protected disclosure'is immaterial,? and focused instead on whether the agency perceived the employee to be a whistleblower, 126., whether agency of?cials appeared to believe that the employee engaged or intended to engage in whistlebiowing activity. Id. He1e, the lecord ls replete with evidence showing that Mr Green, PAJGI Beitel, JG Zinsei, and perceived John Doc 1 and John Doe 2 as Whistleblowers based on the substance of their FOIA 1equests and EEO complaints. As discussed above, several witnesses described them as ?perceived whistieblowers This perception is further . demonstrated by the inclusion of the gag clauses in theii separation agreements and the requiIernents that the},r withdraw their FOIA requests and EEO complaints. 2. Knowledge I Shortly after receiving John Doc 1? EEO complaint, G1 een on June 30, 2011, to notify him of the complaint and to invite him to provide a written response Even though John Doc 1 EEO complaint was in the informal stage, Mr. Green fo1warded e-mail to JG Zinser, and PAJGI Beitel?v the named subject officiais 1n the complaint?and asked them to ?formulate [their] recollection of the events described? in order to ?respond'on bheaif of the Agency.? . Accordingly, Mr. Green, PAIGI Beitel, 1G Zinser, and all had knowledge of John Doe 1?s engagement in protected activity. Although John Doe 2did not file his draft EEO complaint or submit his draft CIGIE complaint, esti?edthat he discussed a draft complaint of John Doe 2 with Mr. Green, 1G ster, and PAIGI Beitel. Mr Green ?n ther testi?ed that he believed that John Doc 2 had either ?led an informai EEO complaint or had threatened to do so This testimony indicates that, even though he did not actually ?le his EEO complaint or submit his CIGIE complaint, 01G management viewed him as a perceived whistleblower. In addition, as OIG Chief Counsel, Mr. Green processed all agency FOIA requests. He testi?ed that he had knowledge of John Doe 1?s and John Doe 2?s FOJA requests, and 20 that his office sent out 01A search requests to individuals identi?ed as potentially having responsive documents or information. A key witness testi?ed that Beitel and others ?went apoplectic? when John Doc 1 ?led a FOIA request. Thus, the evidence indicates that Mr. Green and Beitel had knowledge of the FOIA requests. 3. Personnel Actions Were Taken Against John Doe I and John Doe 2 Because of Their Perceived Wris?eblowing end/er Engagement in Protected Activity The evidence clearly shows that John Doe 1?s and John Doe 2?s EEO complaints and/or perceived whistleblowin signi?cantly factored into the personnel actions OIG management took or threatened. a. at! fag littering Performance Appraisals The failing interim performance appraisals, as chapter 43 performance evaluations, constitute personnel actions under 5 U.S.C. 23 or at a minimum, threatened personnel actions. As discussed above, PAIGI Beitel issued John Doc 1 and John Doc 2 failing interim performance appraisals in conjunction with their separation agreements. These appraisals were drafted and issued after OIG management learned that John Doc 1 and John Doc 2 had accepted positions with other federal agencies. The timing and content of these appraisals shows that they did not re?ect PAIGI Beitel?s honest assessment of their performance. Both employees had received outstanding performance evaluations in previous years, and had recently received satisfactory appraisals. Neither had been placed on a PIP. The failing appraisals were issued neither at the usual time nor in the usual manner. The unfounded failing appraisals re?ected that, despite recent satisfactory performance, John Doe and John Doc 2? 5 performance had suddenly dropped to failure in every element. Beitel issued the whistleblowers failing interim performance appraisals approximately one month after they engaged in protected activity, tie. engaging in the EEO process and/or submitting requests potentially implicating 01G management in wrongdoing. The law presumes that a disclosure is a contributing factor in a personnel action when theo?icial who took or recommended the action had knovvledge of the protected disclosure and took the personnel action within a period of time that would lead a reasonable person to conclude that the disclosure was a contributing factor. Reid v. Merit Sys. Prot. Bd, 508 F.3d 674, 678-79 (Fed. Cir. 2007). The Board has held that a connection exists between a disclosure and a personnel action even in cases Where the personnel action occurs more than a year after the disclosure. See lumen v. Dep ?t of Veterans a?airs, 112 M.S.P.R. .280, 283-4 (2009) (personnel action occurred 15 months after disclosure); Dept ofArmy, 89 M.S.P.R. 589, 626-27 (2001) (personnel action occurred 18 months after disclosure). Here, based on the lmowledge-timing test, the whistleblowers meet the contributing factor standard. The failing performance ratings were issued approximately one month -21 after John Doc 1 and John Doc 2 ?led EEO complaints and/or submitted FOIA requests. Accordingly, the protected activity was a contributing factor in the retaliatory ratings. 5 U.S.C. l22l(e)(i). b, Non-Disporogemenr Provision/Gog Classes The separation agreements? non-disparageinent provisions constitute a personnel action under 5 U.S.C. 2302(a)(2)(A)(Xi). As set forth below, the provision signi?cantly . changed the whistleblowers? ?duties, responsibilities, or working conditions.? Speci?cally, it is a fundamental condition of federai employment that an employee has a right, and an ethical duty, to report wrongdoing to appropriate authorities. See Whistleblower Protection Act of 1989,-Pnb. L. No. 10142, See. (1989) (purpose of the WPA is ?to strengthen and improve protection for the rights chederoi employees, to prevent reprisals, and to help eliminate wrongdoing within the (emphasis added); 5 C.F.R. l) (2012) (Employees shell disclose waste, fraud, abuse, and corruption to appropriate authorities?) (emphasis added); see also E.0. 12674, See. Contractualiy requiring an employee to give that ?indamental right, or not to perform that required duty, constitutes a ?signi?cant change in duties, responsibilities, or working conditions? within the meaning of 5 U.S.C. (de?ning ?personnel action?). The legislative history of the 1994 WPA amendments indicates that the term ?any other signi?cant change in duties, responsibilities, or working conditions? should be interpreted broadly, to include ?any harassment or discrimination that could have a chilling effect on whistiehlowing or otherwise undermine the merit system.? Corarmbias 12. Social Sec. Admin, 113 M.S.P.R. 533, 15 all (citing 140 Cong. Rec. H11, 421 (daily ed. Oct, 7, 1994) (statement of Rep. McCloskey); Roach v. Department ofrhe Army, 82 M.S.P.R. 464, 11 24 (1999)). The non-disparagement provisions in John Doe 1?s and John Doe 2?s separation agreements have a chilling effect on whistleblowing. Under the per se knowledgeftimin test, the whistleblower?s perceived whistlebiowing was a contributing factor in Mr. Green? issuance of the separation agreements. Mr. Green, who coerced the whistlehlowers into signing the separation agreements, had knowledge of their protected activity and presented the separation agreements in close temporal proximity to their protected activity. ?3 Federal employees also have a statutory obligation to report criminal wrongdoing by other employees to the Attorney General. 28 U.S.C. 5350)) (2012). in addition, there are a variety of other statutes and regulations th at mandate particular types of reporting andlor reporting by certain categories of employees. See, eg, 43 CPR. 3104?? (2011) (Violations of the Federal Acquisition Regulation); 31 U.S.C. 135 1, 1517(1)) (2012) (violations ofthe Antide?ciency Act); 38 CPR. 1.201 (2011) (employee?s duty to report violations of Veterans Affairs laws or regulations); 45 ORR- ?i302 (2011) (employee?s duty to report violations of fraud, waste or abuse in programs of the Department of Health and Human Services); 40 U.S.C. ?li (2006) (General Services Administration). 22 c. Pense Retaliation Non~disparagement provisions/ gag clauses have been deemed per se retaliation in analogous circumstances. For example, as discussed in ?Enforcement Guidance on non~waivable employee rights under Equal Employment Opportunity Commission (EEOC) enforced statutes?: . Agreements that attempt to her individuals ?'om ?ling a charge or assisting in a Commission investigation run. afoul of the anti?retaliation provisions because they impose a penalty upon those who are entitled to engage in protected ?activity under one or more of the statutes enforced by the Commission. By their very existence, such. agreements have a effect on the willingness and ability of individuals to come forward with information that may be of critical import to the Commission as it seeks to advance the public interest in the eiimination ofanlauf?ii ernpioyment discrimination. Enforcement Guidance, EEOC Notice No. 915.002 (April it), 1997), avaiiable at (emphasis added). EEOC has consistently recognized in federal sector cases that an agency?s restraint of or interference with the EEO process, including attempts to chill EEO activity through prior restraint, constitutes per se retaliation for protected EEO activity even though no personnel action has been. taken and no protected activity has occurred. For example, in Jasper v. Runyon, the Postmaster stated generally at a supervisors? meeting that too many managers were ?ling EEO complaints and that these ?lings would do the managers no good. The Commission found that such a statement would have a potentially chilling effect on the ?ling of EEO complaints. Based on its duty to insure the integrity of the EEO process, the Commission found that the Postmaster?s statement constituted per se retaliation. Jasper v. Runyon, EEOC Request No. 05920370, 1992 WL 1374793, at *4 (Aug. 7, 1992).14 - OSC reasonably believes that an agency?s prior restraint or interference with whistleblowing and/or going to OSC constitutes per se retaliation under 5 U.S.C. 23 02(b)(8) andior and thus a prohibited personnel practice. The non- disparag'ement provisions in the separation agreements on their faces constitute a prior restraint against a signing employee?s whistleblowing and/or going to OSC. Moreover, '4 See aiso ?onahne v. Hoider, EEOC Appeal No. 0120973 68 0, 2009 WL 591063, *1 (Feb. 26, 2009) (?ndin per se reprisal where manager made statements at rpeeting that employees had the right to challenge his recent assignments and ?could ?le grievances or EEO complaints, but they will lose?); Bensing v. Danzig, EEOC Appeal No. 01970742, 2000 WL (Oct. 3, 2090) (supervisor?s objections to employee?s contacts with EEO office and union representatives constituted per se repris a1); Simpson v. Robin, EEOC Request No. 05930570, 1994 WL 1841189, *5 (March 11, 1994) (agency policy that precluded employee from serving in acting supervisory capacity solely because employee was an EEO counselor constituted per se reprisal); More v. Widnaii, EEOC Appeal No. 01941344, 1996 EEOPUB LEXIS 263 7, *18 (June 27, 1996) (folding unlawful interference Where supewisor attempted to dissuade witness from testifying in EEO matter by calling her to private meeting in smoking area and stating that it was ?in [her] best interest not to get 23 since the non?disparagernent provisions aiso restrain or interfere with a signing employee?s exercise of the right to petition Congress, the agreements also constitute a per se violation of 5 U.S.C. 2302(b)(12), and thus a prohibited personnel practice. As the Second Circuit reasoned in similar circumstances: ?Although the act of inducing an employee to relinquish his rights as provided by the {Energy Reorganization Act] through means of a settlement agreement is less obvious than more direct action, such as termination, it is certainly aimed at the same objective: keeping an employee quiet.? Connecticut Light (E: Poitier v. Secretory ofLabor, 85 F.3d 89, 95-96 {1.5 (2d Cir. 1996) (affirming Dep?t of Labor ruling that act of offering settlement agreement which would restrict individual from reporting uniawfui conduct to the government violated anti? retaiiation provision of Energy Reorganization Act of 1974). Here, the evidence demonstrates that Mr. Green included the non?disparagement provisions in the whistlebiowers? separation agreements with the specific intention of keeping the whistieblowers quiet. He drafted the separation agreements that clearly provided that the whistleblovvers? new employers would receive copies of their failing interim performance appraisals unless they agreed to waive their rights to make disclosures to OSC, Congress, and the media. I). OIG Cannot Meet its Rebuttal Burden In order to rebut a prz'mofocte case of reprisal under 5 U.S.C. 2302(b)(8), the OIG must show by ?clear and convincing? evidence that it would have issued John Doe 1?s and John Doe 2?s failing interim performance appraisais and executed separation agreements containing non~diSparagernent provisions even if they had not engaged in protected activity. The ?clear and convincing? evidentiary standard imposes a high burden on the agency that is difficuit to satisfy. In Whitmore, the Fedora} Circuit quoted the following from the WPA legislative history: ?Clear and convincing evidence 1? is a high burden of proof for the Government to hear. It is intended as sachfor Mo reasons. First, this burden. of proof comes into play oniy-ifthc employee has established by a preponderance of the evidence that the whistleblowing was a contributing factor in the action in other words, that the agency action was ?tainted. Second, this heightened burden of proof required of the agency also recognizes that when it comes to proving the bosisfor an agency is decision, the agency controis most ofthe cords the drafting of the documents supporting the decision, the testimony of witnesses who porticzpoted in the decision, and the records that could document whether similar personnel actions have been taken in. other cases. In these circumstances, it is entirely appropriate that the agency bear a heavy burden to justy?) its actions. The evidence demonstrates that the OIG will not be able to meet this high burden. First, the 01G will not be able to show that John Doe 1?s and John Doe 2?s interim performance appraisals werejusti?ed. As discussed in section above, PAIGI Beitel decided to draft and issue the interim performance appraisals after John Doe 1 and - 24 John Doe 2 gave notice that they had accepted positions with other federal agencies. They were the only departing 01G employees given ?interim? or ?close-out? appraisals, despite the fact that numerous employees left the in 2011. The appraisals were, in part, based on events that occurred outside of the performance period, and the ratings do not appear to be based on their actual performance, especially considering the fact that they were given satisfactory progress reviews less than four months earlier. Moreover, Beitel?s testimony that the interim appraisals were drafted to explain the 01?s alleged issues to the peer review committee is not credible, in that several reports had already been drafted by himself and 0 address these alleged concerns. The 01G has also asserted that John Doe I and John Doc 2 were representedby counsel when they executed their separation agreements and that they willingly entered into the agreements. Whether John. Doe and John Doe 2 were represented by counsel, however, does not by itself establish that the agreements were not coercive. To prove coercion, John Doc 1 and John Doc 2 must show that: (1) they involuntarily accepted the terms of the agreements; (2) circumstances permitted no other alternative; and (3) such circumstances were the result of coercive acts. See Kent v. Dep ?13 ofthe Air Force, 2013?3 034, 2013 WL 1352582, *2 (Fed. Cir. April 5,2013); Candelaria v. US. Postal Service, 31 M.S.P.R. 412, 413 (i986). Here, there is suf?cient evidence to establish that the 016 coerced John Doe and John Doc 2 into signing the separation agreements. First, the evidence indicates that John Doc 1 and John Doc 2 involuntarily accepted the terms of the separation agreements. The Federal Circuit has noted that the most probative evidence of involuntariness is the length of time between the employer? alleged coercive act and the action. Terbarz v. Department of Energy, 216 F.3d 1021, l024 (Fed. Cir. 2000).15 Here, Mr. Green provided John Doc 1 with his separation same day Beitel gave him his failing interim performance appraisalmjust four days before he 'was expected to begin his new position at a different federal agency. John Doc 2 received his separation agreement before receiving his failing interim performance appraisal; however, the terms of his agreement denote that he would not be given a timely release date, that 016 would potentially tell his future employer that his departure from 016 was not voluntary, and that some adverse action 'would likely be taken against him if he failed to sign the separation agreement. He received his failing interim performance evaluation on his last day with OIG. Next, the complainants had no alternative but to sign the agreements. If they did not sign them immediately, their release dates to their new employers would be postponed, and their new employers would receive the failing performance appraisals. Potentially, the new employers had the option of rescinding the employment offers. Additionally, if the whistleblowers chose not to sign the agreementsand instead challenged the failing appraisals, the agency made clear its intent to postpone the release dates and issue the failing appraisals. Unlike in Kent, where the employee remained free 15 While Terban involves retirement, it has also been cited in cases involving settlement agreements. See Parrot: v. riderifSys. Prof. Bd., 519 F.3d l328, 1334 (Fed. Cir. 2008). 25 to refuse to sign a settlement agreement and insist on a ruling by the administrative judge on his removal, John Doc 1 and John Doc 2 would have suffered immediate, negative consequences if they refused to sign the agreements. Id at Finally, the failing interim performance appraisals and the separation agreements were thetesult-of coercive acts. In Bowie v. US. Postal Sam, the Board held that ?a threatened action by an agency is ?pureiy coercive?. if an employee can show that the agency knew or should have known that the reason for the threatened action could not be substantiated.? Bowie, 72 42, 44 (1996) (threatened removal in settlement discussion before the Board) (citing Schultz v. United States Navy, 810 F.2d 1133, li36- 37 (Fed.Cir.l987) (employee?s resignation was involuntary where agency improperly denied leave and threatened adverse action for . in this case, Mr. Green told John Doc 1 and John Doc 2 that if they entered into the separation agreements, the would agree not to provide their new employers with copies of their failing interim performance appraisals. He further threatened that if they refused to sign the separation agreements, the 016 would not provide their requested release dates, and would instead hold them at for the maximum time allowed, despite the fact that they had minimal work to perform and no outstanding projects. Equally signi?cant, the failing interim performance appraisals were unfounded. Prior to these appraisals, John Doc 1 and John Doe 2 worked at the agency for many years and had never received appraisals below ?Fully Successful?. Their performance at the time these failing appraisals were issued was-at least at the ?Fully Successful? level. The OIG knew that it could not substantiate the failinginterim appraisals. In addition, the ratings were issued out of cycle. It is not the OlG?s common practice to issue ?interim? or ?close-out? ratings before an employee leaves the agency. In fact, no employee, with the exception of John Doc 1 and John Doc 2, has received a close?out appraisal. The evidence shows that the failing performance appraisals were presented to John Doe i and John Doc 2 solely to coerce them into signing the separation agreements, and thus, prevent them from engaging in further protected activity. in addition, the 01G did not have a legitimate reason to threaten to postpone John Doe l?s and John Doe 2?s release dates. The evidence shows that there was no reason to require John Doc 1 and John Doc 2 to remain at the agency. They no longer had work to complete and would be lingering at the agency with nothing to do. PAIGI Beitei did not assert that he or anyone at the OIG was considering postponing the release dates for some legitimate reason, such as the need for John Doe I and John Doc 2 to complete an assignment. Where an agency?s action does not have a solid or substantial basis in personnel practice or principle it is an unj usti?able coercive act. See Michael Rosicos v. the United States, 549 .2d 1386 (Fed. Cir. (where there was no acceptable good- rationale for employee?s reassignment, the was a coercive act 16 The Board has applied Schultz in the context of a settlement agreement. See Merriireazher v. Department of?'dnsporration, 64 M.S.P.R. 365, 371 (1994), ajf?d, 56 F.3d 83 {Fed.Cir.1995) (last chance agreement). 26 and employee?s subsequent retirement was involuntary); Corona); v. Oj?ce of Administration, 57 M.S.P.R. 667 (1993) (employee?s retirement was involuntary where the reassignment preceding retirement had no solid or substantial basis in personnel management or management principles). The failing interim performance appraisals and threats to postpone the whistleblowers? release dates have no substantial basis in personnel practice or principle, and are thus coercive acts. Lastly, the whistleblowers were targeted for disparate treatment. A similarly situated employee who did not engage in protected activity was not issued a failing interim performance appraisal or a- separation agreement when he departed the 01G during the same time period. Accordingly, for all of these reasons, the DIG cannot meet its burden of showing by ?clear and convincing? evidence that it would have issued John Doc 1 and John Doc 2 failing interim performance appraisals and separation agreements, absent their perceived whistleblowing or participation in protected activity. E. Signi?cant Factor Burden?Mosaic of Retaliation investigation uncovered compelling evidence of a pattern of retaliation against the complainants for whistleblovving, perceived whistleblowing, and engaging in protected activity. Evidence showing a pattern or ?convincing mosaic? of retaliation can be used to prove the signi?cant factor element in a retaliation case. Such mosaic includes pieces of evidence that ?[wjhen taken as a whole, provide strong support if all [pieces] point in the same Cramp v. Dep ?r of Veterans A?airs, 114 M.S.P.R. 224, 229-230 (2010). As a general rule, this mosaic has been de?ned to include three general types of evidence: (1) evidence of suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of retaliatory intent might be drawn; (2) evidence that employees similarly situated to the appellant have been better treated; and (3) evidence that the employer?s stated reason for its actions is pretextual. Rhee r. Dep ?t of reaswy, ll? M.S.P.R. 640, 653 (2012) (quoting Kohlar v. Department ofthe Navy, 108 M.S.P.R. 510, 515 (2008)). There is strong evidence of suspiciously close timing between John Doe 1?s and John Doe 2?s protected activity and the interim failing appraisals and separation agreements. John Doc 1 and John Doe 2 engaged in protected activity over a period of several months ??om May through September 2011. The whistleblowers were issued ?Level interim appraisals and presented with separation agreements containing non- diaparagement language in August and September 2011. The proximity between the protected activity and the agency?s actions is very closew?including actions taken within just days or weeks of the protected activity?giving rise to a strong inference of retaliation. In addition, John Doe and John Doc 2 were treated less favorably than a similarly situated employee. Like John Doe 1 and John Doc 2, another 01 manager was identi?ed as having performance deficiencies in 2011 and was being investigated by the 0C for alleged violations of agency policy. This manager, however, was not required to execute a separation agreement containing a non?disparagement provision and was not given a 27 failing interim performance appraisal before his departure from the agency. Unlike John Doe I and John Doc 2, this manager did not engage in protected activity. The only difference between these three 01 managers was that John Doc 1 and John Doe 2 engaged in protected activity. Moreover, there is evidence that the agency?s stated reasons for its actions are pretextual. The interim appraisals do not accurately describe John Doe 1?s and John Doe 2?s performance and primarily address issues outside of the 2010-201 1 appraisal period. In addition, PAIGI Beitel?s reasons for issuing the appraisals are pretextual. He testi?ed that one reason for issuing the failing interim appraisals was to explain de?ciencies to the OPM DIG peer review team. However, this explanation also seems disingenuous considering there were several other employees who were not similarly given interim appraisals when they left 01G, despite their poor performance. in sum, PAIGJ Beitel did not ?nd it necessary to document the poor performance of other departing employees who were not whistleblowers. The agency?s stated reasons for executing separation agreements containing non- disparagement language was also preteatual. Mr: Green testi?ed that he inserted the non~ disparagement language to prevent John Doe 1 and John Doc 2 from being untrathful about the 01G, not to prevent them from blowing the whistle. As noted above, there is no evidence that John Doc 1 or John Doc 2 were dishonest or deceitful; rather, witnesses consistently described them as men of integrity. in addition, while numerous employees le? the OIG for employment with other agencies, John Doc 1 and John Doc 2 were the only employees presented with separation agreements. it is suspect that Mr. Green was not concerned with preventing other allegedly poor performing employees from ?disparaging? the 01G. Here, the suSpicious timing, evidence that similarly situated employees were treated more favorably, and evidence that the agency?s stated reasons for its actions were pretextual demonstrates a convincing mosaic of retaliation. F. The Separation Agreements Violate 5 U.S.C. 2302(b)(12) as Violations of the Lloyd?LaFoiette Act It is also a prohibited personnel practice to take a personnel action if taking such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles. 5 U.S.C. 230262002). An employee?s right to petition Congress is protected under the LloydeLaFollette Act of 1912, 5 U.S.C. 7211. Several legislators explicitly cited ?gag rules? that forbade federal emplOyees to communicate directly with Congress on pain of dismissal as the reason for enacting the Lloyd~ - LaFollette Act. Bush v. Lucas, 462 U.S. 367, 382?84 nn.19-24 (1983). The non- disparagement provisions in the separation agreements, on their face, violate the Lloyd? LaFollette Act, and thereby 5 U.S.C. See 5 U.S.C. 23020:) (?This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to the Congress?). The Lloyd-LaFollette Act implements U.S.C. 2301(b)(9). 28 IV. I CULPABILITY OF RESPONSIBLE OFFICIALS AND RECOWATIONS There is compelling evidence that 01G management engaged in a series of adverse actions against the complainants in retaliation for their protected activity and/or perceived whistleblowing and to chill future whistleblowing. The evidence Shows that Mr. Green - drafted and/or reviewed, negotiated, and insisted on the inclusion ofthe non- disparagement language in the separation agreements. However, he did not, and could not, act alone. Without PAIGI Beitel?s failing interim performance appraisals, the agency would have lacked leverage to coerce the whistleblowers into signing the separation agreements, in which they waived their rights to make protected disclosures to OSC, Members of Congress, and the media. I Although there is inconsistent testimony regarding the involvement 'of Mr. Green, PAIGI Beitel, and other members of 01G senior management, the weight of the testimony and documentary evidence demonstrates that Mr. Green and PAIGE Beitel were the key players in drafting the separation agreements, signing the agreements, and issuing the failing interim performance appraisals, More signi?cantly, the evidence shows that Mr. Green and PAIGI Beitel manifested the strongest motive to retaliate against John Doe and John Doc 2. A. Wade Green he record is replete with evidence establishing that Wade Green retaliated against the whistleblowers. He admitted to drafting or directing that an 0C attorney draft the whistleblowers? separation agreements, and signing the agreements. He testi?ed that he drafted and/or reviewed the non?disparagement provisions, and that he insisted that they remain in the agreements. Importantly, in negotiating Employee X?s settlement . agreement upon which the non~disparagement provisions in the whistleblowers? separation agreements were based??he removed a provision drafted by Employee X?s attorney, which would have allowed for his client ?to ?le an EEO or Special Counsel complaint.? The evidence also shows that Mr. Green reviewed John Doe 1?s and John Doe 2?s failing interim performance appraisals before drafting the separation agreements, and included the provisions that the failing appraisals would not be provided to John Doe 1?s and John Doe 2?s future employers if they agreed to the terms of the agreements. Mr. Green also made clear to John Doc 1 and John Doc 2 that the would hold them for 30 days if they refused to sign the agreements?despite the fact that their workloads were minimal and there was no justi?cation to delay their release dates. The evidence demonstrates that Mr, Green was motivated to retaliate against the whistleblowers for two reasons: he wanted to protect lG Zinser, himself, and the OIG from potential damaging statements and he wanted the whistleblowers to withdraw their BBQ and FOIA requests. The documents sought from the requests could potentially implicate him and/or 1G Zinser or PAIGI Beitel in wrongdoing. 29 Mr. Green testi?ed that if OSC found a violation based on the separation agreements, he accepted responsibility for the violation due to his position as ?Chief Legal Officer.? As such, particularly for an Inspector General?s of?ce, Mr. Green would have been familiar with the WPA and should have prevented violations of the Act by the 01G. instead, the evidence shows that he used his position to draft separation agreements containing non?disparagernent provisions aimed at keeping whistleblowers quiet, and used retaliatory failing performance appraisals as leverage to compel the whistleblowers to sign the agreements. Based on the preceding, OSC recommends that Commerce take substantial disciplinary action against Wade Green. B. PAIGI Beitcl The record is also replete with evidence establishing that PAIGI Beitel retaliated against the whistleblowers by drafting their unfounded failing interim performance appraisals. The evidence indicates that he coordinated with Mr. Green on the separation agreements, Speci?cally, he dra?ed and provided Mr. Green with copies of their failing interim performance appraisals. in addition, he testi?ed that the interim appraisals and - the separation agreements work together and are ?contemporaneous.? Finally, in his capacity as an OIG management of?cial, he signed the separation agreements containing the non~disparagcment provisions. The evidence demonstrates that PAIGE Beitel was motivated to retaliate against the whistleblowers for their engagement in protected activity and/or their perceived whistleblowing. in particular, he was named as a subject of?cial in John Doe l?s EEO complaint, and, according to a key witness, Went ?apoplectie? when John Doc 1 submitted a FOIA request concerning sensitive documents that could potentially implicate him in wrongdoing. PAIGI Beitel?s behavior is particularly egregious based on his position as the 016?s expert on whistlehlower protection. He has worked on whistleblower issues for well over a decade, has received training on prohibited personnel practices, and was allegedly selected for an SES position at 01G in order to establish a Whistleblower protection unit. Based on this knowledge and experience, PAIGI Beitel was clearly familiar with the WPA and should have taken steps to prevent retaliatory actions. As-to the appropriate penalty for PAIGE Beitel, because he neither drafted nor was consulted on the non-disparagement provision, his involvement in the separation agreements was less than Mr. Green?s. Thus, OSC recommends that a- lower level of discipline be taken against Beitel. C. Todd Zinser and There is insuf?cient evidence to establish that 1G Zinser reviewed the separation agreements prior to investigation or was informed about the non-disparagernent 30 clauses. Wade Green testi?ed that he neither providedllG Zinsei' with a copy of the separation agreements, nor informed him? that the separation agreements contained non? disparagement provisions. PAIGI Beitel additionally testi?ed that Zinser was not involved with the drafting or issuance of the whistlebl?owers? failing interim performance appraisals. IG Zinser did not sign any of these documents, and OSC found no documentary evidence showing IG Ziaser?s knowledge or involvement with the whistleblowers? interim performance appraisais or separation agreements. Accordingly, OSC has insufficient evidence to seek discipiinary action against IG Zinser for a Violation ofS U.S.C. 2302(b)(8), or Similarly, OSC has insuf?cient evid cc establish that prohibited personnel practice Although I the whistiebiowcrs? interim performance appraisals, the evidence indicates that his rote 111 these appraisals was minor as compared to Beitel?s. Further, if credibly testified that he was unaware of the whistlebiowers? separation agreements prior to investigation. Although failed to protect the whistleblowers from retaliatory actions there 15 insuffierent evidence to seek discipiinary action against him for a violation of 5 U. S. 03(9) 01' (W12) V. CON CLUSIDN Congress included protection for whistieblowers in the Civil Service Reform Act to assure federal employees ?will not suffer if they help uncover and correct administrative abuses.? S. Rep. No. 95?969, at 8 reprinted in. 1978 U.S.C.C.A.N. 2723, 2730. In this matter, investigation uncovered willful, concerted acts of retaliation that necessitate disciplinary action. Holding management accountable for engaging in prohibited personnel practices is essential to assuring employees that they can blow the whistle or engage in other protected activity without fear of reprisal. Accordingly, and for the reasons set forth herein, the Department of Commerce should take appropriate disciplinary action against PAIGI Beitel and Mr. Green for their retaliatory actions in vioiation of U.S.C. 2302(b)(8), and 31