Dr. Judith L. Vaitukaitis, DAB No. 1589 (1996)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT: Dr. Judith L. Vaitukaitis
Docket No. A-96-51
Decision No. 1589

DATE: July 12, 1996

RECOMMENDED DECISION

On June 23, 1995, the Office for Protection from Research
Risks (OPRR), National Institutes of Health (NIH), issued
a report that included among its determinations a finding
that Dr. Judith Vaitukaitis, in her capacity as Director,
National Center for Research Resources (NCRR), Intramural
Research Program (IRP), NIH, took adverse actions
constituting reprisal under the Animal Welfare Act (AWA)
and its implementing regulations against Dr. Ellen Mary
Wilson, a Veterinary Medical Officer in the Veterinary
Resources Program (VRP), NCRR, for reporting violations
of the AWA. 1/ On August 8, 1995, Dr. Vaitukaitis
appealed the findings and recommendations of the OPRR
report to the Deputy Director of NIH.

On December 12, 1995, NIH requested that this Board
review the OPRR finding against Dr. Vaitukaitis and issue
a recommended decision to the Deputy Director, NIH. The
Board accepted the appeal and proposed that the case be
processed under the Board procedures at 45 C.F.R. Part
16. Neither party objected to the Board's hearing the
appeal under those procedures; both parties submitted
briefs and documents, but neither requested an
evidentiary hearing pursuant to 45 C.F.R. § 16.11.

Dr. Vaitukaitis sought to have the OPRR Final Report,
including the recommendations, rescinded in its entirety.
OPRR responded that the scope of the Board's review
should be confined to the OPRR finding of reprisal, found
in the first section of the OPRR Report. According to
OPRR, the other four sections of the OPRR Report concern
the NIH animal care and use program, and do not relate to
the finding of reprisal or affect Dr. Vaitukaitis
personally. 2/ OPRR maintained that the relief sought
by Dr. Vaitukaitis, that the Board order NIH to rescind
the entire OPRR Report, is therefore beyond the scope of
this proceeding.

For the reasons discussed below, we recommend to the
Deputy Director, NIH, that Dr. Vaitukaitis be found not
to have engaged in acts of reprisal against Dr. Wilson.
Accordingly, we recommend to the Deputy Director, NIH,
that the part of the OPRR Report dealing specifically
with Dr. Vaitukaitis be withdrawn. We agree with OPRR,
however, that it is beyond the scope of this inquiry to
consider the remainder of the OPRR Report.

The OPRR Report found that a reasonable person would
conclude from the temporal relationship of a researcher's
complaint to Dr. Vaitukaitis about Dr. Wilson and Dr.
Vaitukaitis' subsequent adverse personnel actions against
Dr. Wilson that the adverse actions were a reprisal
against Dr. Wilson for reporting the researcher for
violations of the Animal Welfare Act. However, the
record before us does not a support a conclusion that
reprisal occurred in this case because there is no
evidence that Dr. Vaitukaitis knew, at the time of the
adverse actions, that Dr. Wilson had reported the
researcher's AWA violations. Furthermore, we find that,
under the criteria set forth in the Whistleblower
Protection Act (WPA), the record indicates that the
adverse actions that Dr. Vaitukaitis proposed to take
against Dr. Wilson were based on Dr. Wilson's management
abilities and style and were not prompted by the
researcher's complaint to Dr. Vaitukaitis about Dr.
Wilson. In fact, the evidence shows that Dr. Vaitukaitis
ordered the adverse actions against Dr. Wilson prior to
the researcher's complaint to Dr. Vaitukaitis about Dr.
Wilson.

Statutory and Regulatory Background

As relevant here, the AWA provides:

(d) Training of scientists, animal technicians, and
other personnel involved with animal care and
treatment at research facilities

Each research facility shall provide for the
training of scientists, animal technicians, and
other personnel involved with animal care and
treatment in such facility as required by the
Secretary. Such training shall include instruction
on--
* * *

(4) methods whereby deficiencies in animal care
and treatment should be reported.

7 U.S.C. § 2143(d)(4).

The regulation promulgated to implement this statute
contains the following provision:

(4) Methods whereby deficiencies in animal care
and treatment are reported, including
deficiencies in animal care and treatment
reported by any employee of the facility. No
facility employee, Committee member, or
laboratory personnel shall be discriminated
against or be subject to any reprisal for
reporting violations or standards under the
[AWA].

9 C.F.R. § 2.32(c)(4).

Factual Background

Dr. Ellen Mary Wilson, D.V.M., a Veterinary Medical
Officer in the Commissioned Corps of the Public Health
Service (PHS), was hired on February 24, 1992, as Chief,
Rodent and Rabbit Unit, Research Animal Branch, VRP,
NCRR, in the 14B North facility. Dr. Wilson was
responsible for ensuring adequate veterinary care for all
animals in the facility, and ensuring that the facility
animal care and use activities were conducted in
compliance with the AWA and applicable PHS and NIH
policies. Dr. Wilson supervised 16 employees, 14 of whom
were animal care support staff responsible for taking
care of the animals and cleaning the equipment.

Dr. Wilson's immediate supervisor was Dr. Edwin Jeszenka,
Chief, Rodent and Rabbit Section; her second-level
supervisor was Dr. Robert Carolan, Chief, Research Animal
Branch (RAB); her third-level supervisor was Dr. Marlene
Cole, Director, VRP; her fourth-level supervisor was Dr.
Judith Vaitukaitis, Director, NCRR.

Prior to Dr. Wilson's appointment as Chief of the 14B
North facility, the American Association for the
Accreditation of Laboratory Animal Care (AAALAC)
accreditation team had conducted a site visit at NIH and
concluded that the 14B North facility needed considerable
improvement in animal care procedures to receive AAALAC
accreditation. On becoming Chief of the 14B North
facility, one of Dr. Wilson's main responsibilities was
to bring the facility into compliance with applicable
animal care and use policies to address the AAALAC
concerns so as to enable the entire NIH IRP to receive
AAALAC accreditation. It was generally recognized that
the 14B North facility was in a deplorable condition and
that firm leadership would be needed to rectify the
situation. Dr. Wilson needed to improve the conditions
in the 14B North facility quickly, as an AAALAC
reaccreditation site visit was scheduled for July 26-29,
1993. 3/

On October 15, 1992, Dr. Wilson issued a memorandum to
one of her employees regarding the employee's alleged
inappropriate conduct. The employee responded with an
October 20, 1992 letter to Drs. Jeszenka, Carolan, and
Cole, and to Ms. Brenda Watts, VRP Administrative
Officer, and Ms. June Thornton, the NCRR EEO Officer.
Dr. Vaitukaitis' Exhibit (Ex.) A. 4/ In the letter,
the employee made numerous complaints about how Dr.
Wilson treated her and other employees in the 14B North
facility, primarily alleging a lack of respect by Dr.
Wilson for the employees.

On January 7, 1993, Ms. Watts and Ms. Thornton wrote a
memorandum to Dr. Cole. Ex. B. This memorandum
apparently resulted from a meeting held in late 1992,
with Drs. Cole and Carolan and Ms. Watts and Ms. Thornton
present, to discuss conditions in the 14B North facility.
Dr. Cole requested Ms. Watts and Ms. Thornton to
investigate the situation in the 14B North facility and
provide a report of their findings and recommendations.
While acknowledging positive feedback from employees
relative to new work procedures and techniques
implemented by Dr. Wilson, the January 7, 1993 memorandum
cited numerous employee complaints about Dr. Wilson,
including her use of derogatory remarks and demeaning
gestures to employees. Id. at 3. The memorandum made
several recommendations, including hiring a Facility
Manager and requiring Dr. Wilson to attend courses on
employee relations skills. Id. at 4. 5/ The
memorandum found consensus among the employees that the
work environment at the 14B North facility could be
described as "hostile and intimidating," resulting in low
employee morale. Id. at 2. The report concluded that
the situation in the facility "can at best be described
as volatile and having an `unhealthy attitudinal climate'
with tension building daily." Id. at 4.

In a March 11, 1993 letter to Dr. Cole, Ms. Watts wrote
that she had been visited by three employees from the 14B
North facility who had several complaints about Dr.
Wilson's supervisory style. Ex. E. These complaints
included Dr. Wilson pointing her finger into a young
employee's face and telling him to "get to it" and
telling another employee in a loud tone "do it right
now." Dr. Wilson was also alleged to have carried off
the clipboard containing the employee sign-out sheets so
that employees either had to wait for Dr. Wilson to
return or leave without signing out. When the employees
left without signing out, Dr. Wilson admonished them for
doing so. Id. at 2.

In June 1993, an Equal Employment Opportunity (EEO)
Hotline was established at NIH to receive EEO complaints.
Between June 11 and July 30, 1993, a six-week period
prior to the AAALAC site inspection, four complaints
about Dr. Wilson from her employees were received on the
hotline.

In June 1993, Dr. Mark Smith began working in the 14B
North facility as the Principal Investigator of an
experiment. Dr. Smith's protocol had been previously
approved by the National Institute of Mental Health
(NIMH) Animal Care and Use Committee (ACUC). The NIMH
ACUC is the committee responsible for approving research
protocols in the NIMH, and ensuring that those protocols
meet AWA requirements.

On July 14, 1993, Dr. Wilson sent a memorandum to the
NIMH ACUC, alleging that Dr. Smith and his research team
had engaged in a number of activities that raised
concerns about the appropriate use of research animals.
Ex. H. Among the incidents reported by Dr. Wilson were
untrained personnel conducting procedures on animals and
the euthanasia of 40 rats.

On August 16, 1993, the NIMH ACUC sent Dr. Smith a
memorandum. Ex. K. The ACUC found that Dr. Wilson's
complaints regarding conduct of procedures by members of
Dr. Smith's research team were entirely justified. The
memorandum admonished Dr. Smith for not adhering to
animal research regulations and requested him to take a
course, "Using Animals in Intramural Research." Dr.
Smith was warned that further violations of his research
protocol or failure to take the course could lead to
temporary or permanent suspension of the protocol.

In a September 29, 1993 E-mail to Dr. Carolan, Ms. Watts
stated her concern about the situation in the 14B North
facility because of complaints that "the Unit Chief is
negative, unresponsive, condescending and uncooperative
with certain members of the staff." Ex. L. Ms. Watts
continued that she herself and other members of the
administrative staff had suffered similar treatment from
Dr. Wilson who "has alienated us to the point that we
hesitate to deal with her." Id.

On October 4, 1993, Ms. Watts sent an E-mail to Dr.
Carolan stating that Dr. Vaitukaitis "is serious about
reassigning Dr. Wilson as soon as possible." Ex. M. In
an October 5, 1993 E-mail to Dr. Cole, Dr. Carolan
discussed options for Dr. Wilson's reassignment. Ex. N.
(The contents of these two E-mails are discussed in
greater detail below.)

On October 15, 1993, Dr. Smith wrote a memorandum to Dr.
Vaitukaitis, in which he detailed problems he had
experienced in dealing with Dr. Wilson. Ex. O. Dr.
Smith complained about Dr. Wilson's interactions with
principal investigators, NIH staff, and students. Dr.
Smith alleged that Dr. Wilson had harassed him and his
colleagues, creating "an adversarial relationship between
the veterinary supervisors and the principal
investigators." Id. Dr. Smith attributed Dr. Wilson's
hostility to a long-standing grudge she had against one
of his colleagues. Dr. Smith stated that he tolerated
Dr. Wilson's conduct for the sake of finishing his
experiment, but that he could no longer tolerate "Dr.
Wilson's continued humiliation and intimidation of the
students." Id. Dr. Smith further stated that he
believed that the 14B North facility had ceased to be an
excellent veterinary resource at NIH because of Dr.
Wilson's "unprofessional conduct" and her behavior which
was "an embarrassment, especially when directed at
impressionable students who are guests at NIH." Id. Dr.
Smith stated that he would never work at Dr. Wilson's
facility again, but that he was informing Dr. Vaitukaitis
of the situation because he believed that "it is unfair,
and perhaps even dangerous, to the NIH community for [Dr.
Wilson's] behavior to continue unchecked." Id.

On October 20, 1993, Dr. Vaitukaitis convened a meeting
with Dr. Carolan, Dr. Jeszenka, June Johnson Thornton,
EEO/Human Relations Officer, NCRR, and Jane Leitch,
Intramural Program Manager, NCRR, to discuss Dr. Smith's
memorandum and problems in the 14B North facility. At
the meeting Dr. Vaitukaitis orally directed Dr. Carolan
to reassign Dr. Wilson to another position within NCRR.

On October 22, 1993, Dr. Vaitukaitis learned of the four
EEO Hotline complaints about Dr. Wilson.

On October 27, 1993, Dr. Vaitukaitis wrote a memorandum
to Dr. Carolan. Ex. P. The memorandum stated that it
was a follow-up to the October 20 meeting regarding Dr.
Smith's complaint about unacceptable "interpersonal
behavior." Dr. Vaitukaitis wrote in the memorandum that
at the meeting she shared with Dr. Carolan her "concern
over the barrage of complaints that continue to erupt
because of Dr. Wilson's lack of good human
relations/people skills." The memorandum noted that the
NCRR EEO Officer had received a number of complaints in
the past year about Dr. Wilson's behavior and disrespect
towards people and that in the week since the meeting Dr.
Vaitukaitis had received four complaints from the NIH
Hotline alleging problems with Dr. Wilson's interactions
with people. Dr. Vaitukaitis wrote that Dr. Wilson's
behavior has had an adverse effect on the VRP staff and
the facility's users. Dr. Vaitukaitis then directed Dr.
Carolan to take action regarding Dr. Wilson:

As I stated in our meeting, I want you to provide a
written plan of action by the close of business
November 1. It should outline the steps you intend
to take to relieve Dr. Ellen Mary A. Wilson of
supervisory responsibilities and to reassign her to
another function. . . . In addition, a written
reprimand should be given to Dr. Wilson, since
informal counseling by both you and Dr. Jeszenka has
not been effective.

Also on October 27, 1993, Dr. Vaitukaitis wrote a
memorandum to Dr. Smith, in which she thanked Dr. Smith
for sharing his concerns about "the lack of interpersonal
skills shown by the leadership staff of the 14B North
facility." Ex. Q. Dr. Vaitukaitis assured Dr. Smith
that action was being taken to correct the situation,
adding that "[i]t is imperative that quality service and
customer satisfaction be as important as maintaining an
AAALAC accredited program." Id. Dr. Vaitukaitis then
apologized to him, his staff, and his student for "the
lack of professionalism displayed by Dr. Wilson." Id.

On November 5, 1993, Dr. Wilson wrote a memorandum to the
Director of NIH. Ex. T. Dr. Wilson alleged that Dr.
Vaitukaitis, relying on a "maligning, unsubstantiated
letter of reprisal" from Dr. Smith, had taken retaliatory
actions against her for having reported Dr. Smith's AWA
infractions to the ACUC. Dr. Wilson wrote that --

Dr. Vaitukaitis' irresponsible decision making,
indiscriminate directives, and injudicious written
documentation that action is being taken against me
in response to a letter of reprisal, places the
National Center for Research Resources in clear and
direct violation of the [AWA] Regulations . . . Her
actions demonstrate an alarming lack of
understanding of the [AWA] and the Public Health
Service Policy on the Humane Care and Use of
Laboratory Animals, or indicate direct intent on her
part to subvert the NIMH [ACUC] and the Facility
Veterinarian.

Id. at 2. Alleging that the precedent set by Dr.
Vaitukaitis will have a "chilling effect on the
fulfillment of veterinary responsibilities," Dr. Wilson
requested that an investigation be undertaken into this
matter. Id.

In February 1994, Dr. Wilson resigned her position at
NIH, rather than accept the reassignment and reprimand.

The Investigations

In response to Dr. Wilson's November 5, 1993 claim of
reprisal under the AWA, the Office of Intramural Research
requested the NIH Animal Research Advisory Committee
(ARAC) to form a subcommittee to investigate Dr. Wilson's
allegations. The subcommittee met on December 21, 1993,
and subsequently contracted with an independent fact-
finder, Mr. Hugh Duffy, to investigate the matter. In a
report dated March 15, 1994, Mr. Duffy examined the
allegations and a series of personnel issues involving
Dr. Wilson's supervisory capabilities, and concluded that
there was no reprisal. Ex. X. Mr. Duffy's report
concluded:

As to the reassignment directive from Dr.
Vaitukaitis, it is clear from the documentary record
that she had been dealing with the numerous
personnel problems caused by Dr. Wilson for a
significant period of time, and thus the receipt of
Dr. Smith's memorandum was simply another in a
series of related incidents. I therefore conclude
that there was no connection between the reporting
of complaints of violations of the Animal Welfare
Act by Dr. Wilson and the adverse action taken
against her by Dr. Vaitukaitis.

Id. at 11.

On March 28, 1994, the ARAC subcommittee issued its final
report to the Chair, NIH ARAC. Ex. Y. The report
reviewed the Duffy report and other additional
documentation, and concluded:

[T]here is no credible evidence in this case for a
violation of the Animal Welfare Act. This judgment
is based on the documentary evidence of serious and
persistent problems with Dr. Wilson's supervisory
activities. These problems seem entirely
commensurate with the decision to reassign her to a
different function. The only evidence to support
the claim that her reassignment was in reprisal for
her actions with regard to Dr. Smith is the timing
of Dr. Wilson's reassignment. However, this
evidence is in our view outweighed by the long
history of supervisory problems that antedated the
dispute with Dr. Smith. . . Dr. Smith's complaint
may well have played a role in the timing of the
action taken, but, in context, it appears to be only
one of many factors that entered into the decision
and clearly not the sole reason for it.

Id. at 3-4 (emphasis in original).

On April 29, 1994, Dr. Nelson L. Garnett, Director,
Division of Animal Welfare, OPRR, acknowledged receipt of
the ARAC investigation in a letter to Dr. Michael
Gottesman, Acting Deputy Director for Intramural
Research. Ex. Z. Dr. Garnett wrote that OPRR found the
ARAC investigation "to be seriously lacking both
procedurally and substantively." Id. at 1. 6/ Dr.
Garnett wrote that, accordingly, OPRR was proceeding with
its own investigation with outside consultants with
experience in the evaluation of laboratory animal
programs and administration.

OPRR engaged three outside consultants to conduct an
investigation. Instead of one collaborative report, each
of the consultants submitted his or her own report to
OPRR. Ex. AA. The first report, dated August 31, 1994,
found no evidence that Dr. Wilson had suffered reprisal
as a result of her reporting violations of the AWA. The
report noted that Dr. Wilson's charge of retaliation
rested on the assertion that Dr. Smith's October 15
memorandum was the cause of Dr. Vaitukaitis' acts of
reprisal against Dr. Wilson. The report found
"compelling evidence" that Dr. Wilson's reassignment was
being discussed weeks prior to Dr. Smith's memorandum and
that Dr. Vaitukaitis' motives for removing Dr. Wilson
were based on Dr. Wilson's "difficult management style
that led to serious conflicts with staff and
investigators." At 25 - 26.

The second report, dated September 18, 1994, found no
documentation to support the view that Dr. Wilson's
supervisory performance was the cause of her reassignment
and reprimand. In the absence of such documentation, the
report concluded that "Dr. Wilson suffered adverse
personnel actions as a result of the proper performance
of her duties under the Animal Welfare Act." At 17.

The third report, dated January 4, 1995, found that there
was little documentation of Dr. Wilson's management style
and her treatment of her employees. The report further
found that the timing of Dr. Vaitukaitis's October 27
memorandum to Dr. Carolan regarding the reassignment and
reprimand of Dr. Wilson "was so close to the memo from
Dr. Mark Smith that it was clearly a factor in Dr.
Vaitukaitis's decision and inevitably raises the question
of reprisal." At 7. The report found the investigation
by the ARAC subcommittee to have been inadequate, relying
too much on the Duffy report: "A careful investigation
by this subcommittee would have found that there was, at
a minimum, an appearance of reprisal if not reprisal
itself." At 8.

Thus, the outside consultants employed by OPRR, while
examining the same documentary record and jointly
interviewing the individuals involved in this dispute,
came to different conclusions as to whether Dr. Wilson
had suffered reprisal by Dr. Vaitukaitis under the AWA.

The OPRR Report

On March 15, 1995, OPRR issued a pre-release copy, or
draft, of a report entitled, "Evaluation of Compliance
with the Public Health Service Policy on Humane Care and
Use of Laboratory Animals at the National Institutes of
Health, Intramural Research Program." Ex. CC. On June
23, 1995, OPRR issued its Final Report. Ex. FF. The
Final Report was, for the most part, identical to the
March 15, 1995 draft report, except that a preface was
added to address concerns raised by the NIH Legal
Advisor.

The stated purpose of the OPRR Report was to determine
whether Dr. Wilson had been the object of punitive
actions in retaliation for her legitimate performance of
duty. Id. at 1. The OPRR Report declared that "OPRR is
responsible for evaluating allegations of noncompliance
with the Public Health Service Policy on Humane Care and
Use of Laboratory Animals." Id.

The OPRR Report stated that Dr. Wilson's complaint
concerned alleged violations of the employee protection
provisions of the AWA and its implementing regulations
set forth at 9 C.F.R. § 2.32(c)(4). The OPRR Report
noted that this regulation is often referred to as the
"whistleblower" provision of the AWA, but that it is
separate and distinct from the WPA. Id.
The OPRR Report made findings in five areas, first and
foremost the treatment of Dr. Wilson. The OPRR Report
faulted the ARAC subcommittee for its position that a
finding of reprisal must be based on proof that the order
for adverse action was solely in retaliation for Dr.
Wilson's reporting of Dr. Smith and for its consideration
of whether Dr. Vaitukaitis intended to commit a reprisal.
Id. at 6. Instead, the OPRR Report stated that under
the WPA reprisal could be found from "only the
establishment of a temporal relationship between the
protected activity and the adverse action, and whether a
reasonable person would conclude that the protected
activity played a contributory role in the initiation of
the adverse action." Id.

The OPRR Report concluded that Dr. Wilson had suffered a
reprisal, in the context of the animal welfare
regulations and PHS policy, finding that "[t]he temporal
relationship, contributory cause, and `reasonable person'
tests for establishing reprisal have been met." Id. at
8. The OPRR Report stated:

Independent of the legal and technical
determinations regarding the term "reprisal", it is
clear that poor administrative judgement on the part
of the Director, NCRR, resulted in punitive actions
against the complainant and harm to the program of
animal care and use.

Id.

The OPRR Report then recommended that the following
actions should be taken:

o the October 27, 1993 memoranda from Dr.
Vaitukaitis to Drs. Carolan and Smith, and the
November 30, 1993 and May 13, 1994 memoranda from
Dr. Vaitukaitis to the Acting Deputy Director for
Intramural Research must be rescinded. 7/
o a written apology should be extended to Dr.
Wilson, along with the opportunity for
reinstatement.
o Dr. Vaitukaitis must receive specific training in
the federal statutes covering whistleblower
protection and protection of federal employees
against reprisal. Additionally, Dr. Vaitukaitis
must attend specific formal training on the NIH
animal care and use program, with a plan and
schedule for attending such training, acceptable
to OPRR, presented.
o the appropriate body should make a separate
determination whether a reprisal has occurred in
the context of the federal WPA or other federal
statutes.

Id. at 8 - 9.

As stated above, the Final Report contained a preface
that was largely devoted to addressing concerns the NIH
Legal Advisor expressed about the draft report. In two
memoranda dated May 19, 1993 (Exs. DD and EE) to the
Director of OPRR, the NIH Legal Advisor had expressed his
opinions about the draft report and offered
recommendations as to what organization should examine
accusations of reprisal under the AWA. 8/ The NIH
Legal Advisor examined the AWA and the PHS Policy on
Humane Care and Use of Laboratory Animals. He concluded
that it appeared that, although there is no official
delegation from the Secretary of DHHS, the Assistant
Secretary for Health, or the NIH director, OPRR has
authority to evaluate compliance with the PHS Policy, and
thereby with the AWA. Ex. EE at 3 - 4. In spite of this
conclusion, the NIH Legal Advisor recommended that OPRR
consider waiving its authority to make a determination of
reprisal under the AWA --

in favor of a decision by the appropriate
authorities under personnel policies and the
Whistleblower Protection Act. It is questionable
whether the PHS Policy provides an effective
mechanism for handling allegations of reprisal. The
PHS statute and policies focus on handling
allegations of violations of the AWA that affect
animal treatment and care, not protection of
employees responsible for animal care. The groups
charged with assessing violations, particularly the
IACUC, have expertise in animal care issues, rather
than personnel issues. However, the issues of
whether the AWA was violated, and whether the
employee was correct in reporting such a violation,
are not relevant to the determination of whether
reprisal occurred. Reprisal is essentially a
personnel issue, and must be assessed independently
of the issue of compliance with the animal care
requirements of the AWA and the PHS Policy.
Expertise in animal care issues is not critical to
evaluating an allegation of reprisal under the AWA.
Rather, expertise in personnel management and or
law is needed.

Id. at 4 - 5 (emphasis added). The NIH Legal Advisor
then suggested that the Office of the Inspector General,
the Office of Special Counsel, or the Assistant Secretary
for Personnel might be a more appropriate body to review
charges of reprisal and that the Civil Service Reform Act
and the WPA "provide a much more orderly and complete
procedure for handling allegations of reprisal than the
AWA regulations." Id. at 5. The NIH Legal Advisor
concluded his remarks by recommending that "OPRR defer to
existing personnel mechanisms in assessing allegations of
reprisal for reporting violations of the AWA, rather than
attempting to use incomplete procedures established under
PHS Policies for assessing violations that affect animal
care." Id. at 6. 9/

As for the specific findings in the draft report that
there had been a reprisal by Dr. Vaitukaitis against Dr.
Wilson, the NIH Legal Advisor questioned why the
background section of the report did not discuss certain
events, including personnel actions taken by Dr. Wilson,
problems with and complaints by her staff, and two EEO
investigations of complaints by Dr. Wilson and her staff.
Ex. DD at 1. The Legal Advisor also faulted the draft
report for failing to identify the consultants used by
OPRR to investigate the complaint and to state whether
the consultants have any legal or personnel expertise.
As to the first allegation in the report that Dr
Vaitukaitis had committed an act of reprisal, the NIH
Legal Advisor noted that the report fails to give a
definition of reprisal or clarify the standards by which
a reprisal is judged. The NIH Legal Advisor further
noted that the report does not explain OPRR's conclusion
that the criteria for establishing reprisal under the WPA
have been met, or the authority it relied upon to draw
legal conclusions interpreting the WPA. The NIH Legal
Advisor also questioned OPRR's administrative authority
to recommend such administrative actions as requiring Dr.
Vaitukaitis to rescind her memoranda and suggesting the
reinstatement of Dr. Wilson.

Dr. Vaitukaitis' Arguments

Dr. Vaitukaitis challenged the OPRR Report and its
conclusion that Dr. Vaitukaitis committed acts of
reprisal against Dr. Wilson, on both procedural and
factual grounds.

First, Dr. Vaitukaitis contended that the procedures used
by NIH as a whole, and OPRR in particular, to investigate
and determine whether Dr. Wilson was a victim of reprisal
were improper. Dr. Vaitukaitis asserted that OPRR lacked
the legal authority to determine issues of reprisal under
the AWA, as the regulation cited by OPRR, 9 C.F.R. §
2.32(c)(4), lacks any mechanism for addressing
allegations of whistleblower reprisal. Dr. Vaitukaitis
thus reasoned that any issue of whistleblower reprisal
arising under 9 C.F.R. § 2.32(c)(4) must have been
intended to be resolved under the provisions of the WPA.
Instead, Dr. Vaitukaitis argued, the proper procedures
for investigating and determining whether Dr. Wilson
suffered reprisal are set forth in the Whistleblower
Protection Act of 1989, as amended, 5 U.S.C. § 2302(b).
The WPA provides that the Merit System Protection Board
shall order corrective action if an employee has
demonstrated that a disclosure described under section
2302(b)(8) was a contributing factor in the personnel
action taken against the employee. 10/
Dr. Vaitukaitis maintained, therefore, that the OPRR was
not the appropriate body to investigate Dr. Wilson's
claim of reprisal, and that it lacked authority and
expertise to analyze and resolve this issue.
Instead of using the procedures established by Congress
in the WPA to determine allegations of reprisal, Dr.
Vaitukaitis argued, NIH and OPRR created ad hoc
procedures that were unnecessary and unfair. Dr.
Vaitukaitis maintained that OPRR elected to ignore the
recommendations of the NIH Legal Advisor that questions
of reprisal should be handled through either the Office
of the Inspector General, the Office of the Special
Counsel, or the Assistant Secretary for Personnel
Administration's office. Dr. Vaitukaitis further
contended that OPRR's continuation of the reprisal
investigation even after the Duffy report and the ARAC
subcommittee concluded no reprisal had occurred
demonstrated a "results oriented" bias by OPRR in favor
of Dr. Wilson and against Dr. Vaitukaitis.

Second, Dr. Vaitukaitis argued, in the alternative, that
if this Board should decide that allegations of reprisal
under the AWA should not be adjudicated under the WPA,
the legal standards which apply to the WPA should be
followed to determine if Dr. Vaitukaitis subjected Dr.
Wilson to reprisal. The WPA provides that a personnel
action following a protected disclosure does not
automatically constitute a reprisal:

Corrective action under paragraph (1) may not be
ordered if the agency demonstrates by clear and
convincing evidence that it would have taken the
same personnel action in the absence of such
disclosure.

5 U.S.C. § 1221(e)(2).

Dr. Vaitukaitis argued that OPRR disregarded a factual
history that established that her proposed reassignment
and reprimand of Dr. Wilson were based on problems with
Dr. Wilson's poor management style which had resulted in
numerous complaints from Dr. Wilson's employees and other
NIH staff, and were not the result of Dr. Wilson
reporting violations of the AWA. In fact, Dr.
Vaitukaitis denied, at the time of the proposed
reassignment and reprimand, any knowledge that Dr. Wilson
had reported Dr. Smith for animal care and use
violations.

In support of her position, Dr. Vaitukaitis referred to a
series of incidents which Dr. Vaitukaitis contended
reflected on Dr. Wilson's poor management style,
supported by documentary evidence in the record before
us. Dr. Vaitukaitis asserted that, despite the fact that
she was four supervisory levels above Dr. Wilson and that
it was unusual for complaints about a facility
veterinarian to reach her level, she was "consistently
and repeatedly" hearing complaints about Dr. Wilson from
numerous individuals. Reply Ex. A, Declaration of Judith
Vaitukaitis, 7. Dr. Vaitukaitis further asserted that
she first told Dr. Carolan to reassign Dr. Wilson to a
non-supervisory position in the summer of 1993, orally
instructing him to do so twice in August 1993 and once
again in September 1993. Id. 10. Dr. Vaitukaitis
declared that she put the October 27, 1993 instruction to
Dr. Carolan to reassign Dr. Wilson in writing because Dr.
Carolan had previously disregarded her earlier, oral
directives to reassign Dr. Wilson. Id.

Dr. Vaitukaitis explained that her decision to reprimand
Dr. Wilson as well as reassign her resulted from her
learning on October 22, 1993 of the four EEO Hotline
complaints. Id. 12. Dr. Vaitukaitis declared that she
"ordered a reprimand be issued to Dr. Wilson because I
wanted to underscore my displeasure with Dr. Wilson's
treatment of her employees." Id. Dr. Vaitukaitis
declared that her decision to reprimand Dr. Wilson was
based on a belief that "Dr. Wilson knew there was a
serious problem with her management and interpersonal
skills; additionally, she was given assistance to try to
improve her skills in those areas over quite a long
period of time, and yet Dr. Wilson refused to modify her
behavior." Id.

As to the specific charge that Dr. Smith's October 15
memorandum precipitated her decisions to reassign and
reprimand Dr. Wilson, Dr. Vaitukaitis declared that Dr.
Smith's October 15 memorandum "somewhat affected" her
decisions concerning Dr. Wilson. Id. 16. Dr.
Vaitukaitis further stated, however, that when she
received Dr. Smith's memorandum, she contacted Dr. Cole's
office to determine whether there had been any particular
problems with Dr. Smith. Id. 11. Dr. Vaitukaitis
declared:

I was told that Dr. Smith had had problems with the
NIMH ACUC, but I was never told that Dr. Smith had
any problems with Dr. Wilson. Nor was I told that
Dr. Wilson was the individual who reported Dr. Smith
to ACUC because of animal care and use concerns. I
did not know of the connection between Dr. Wilson
and Dr. Smith at the time I orally ordered Dr.
Carolan to reassign Dr. Wilson on October 20, 1993.
I did not know of the connection between Dr. Wilson
and Dr. Smith at the time I ordered Dr. Carolan, in
writing, to reassign and reprimand Dr. Wilson on
October 27, 1993.

Id. Dr. Vaitukaitis declared that she did not become
aware of the interactions among Dr. Smith, Dr. Wilson,
and the NIMH ACUC until OPRR issued its draft report on
March 15, 1995. Id.

In further support of her contention that Dr. Wilson's
reassignment was planned prior to Dr. Smith's October 15,
1993 memorandum and that the reassignment was due to Dr.
Wilson's poor supervisory skills, Dr. Vaitukaitis cited
two E-mail messages. An E-mail message from Ms. Watts to
Dr. Carolan, dated October 4, 1993, includes the
following:

Dr. Cole met with Dr. V today and has asked that I
relay this message to you. Dr. V is serious about
reassigning Dr. Wilson as soon as possible. She
considers the handling of this situation by
management to have been ineffective to date.
Contrary to your feedback from the meeting with her,
Dr. V feels that the situation with Ellen has not
been resolved.

Ex. M.

An E-mail message from Dr. Carolan to Dr. Cole, dated
October 5, 1993, includes the following:

2. Reassignment of Dr. Wilson. Last week I
proposed an option for the reassignment of Ellen
that from my point of view, looks win-win all the
way around.

Ex. N. The message then lists potential reassignments
for Dr. Wilson: a position developing a VRP pharmacy, a
unit chief in the RAB, or placing another staff
veterinarian into Dr. Wilson's position and placing Dr.
Wilson into that staff veterinarian's former position.
Regarding this last option, Dr. Carolan wrote that --

this would place Ellen in a significant role as a
Unit Chief . . . . This solution would not address
what Dr. V is most concerned about, Ellen's
management style.

Id. (Emphasis added).

Discussion

At the outset, we consider it critical to set forth the
focus of our inquiry. The issue before us is not whether
Dr. Wilson was a competent veterinarian; indeed, the
record before us contains numerous references to the
value and quality of Dr. Wilson's work for the NCRR as
head of the 14B North facility. Nor is the issue before
us whether Dr. Vaitukaitis followed NIH personnel
procedures in disciplining Dr. Wilson or whether Dr.
Wilson has any other recourse for the adverse actions, a
proposed reassignment and reprimand. Nor is it relevant
to our inquiry whether the researcher violated the AWA or
whether Dr. Wilson's conduct merited or warranted the
adverse actions. Rather, the sole question before us is
the narrow issue whether Dr. Vaitukaitis engaged in
reprisal against Dr. Wilson because Dr. Wilson reported
violations of the AWA.

In considering this question, we conclude that:

o OPRR had the legal authority to evaluate Dr. Wilson's
allegation of reprisal.

o A reasonable person would not conclude from the
temporal relationship of Dr. Smith's memorandum and Dr.
Vaitukaitis' adverse actions against Dr. Wilson that Dr.
Vaitukaitis had retaliated against Dr. Wilson for her
reporting of Dr. Smith's AWA violations.

o Under the standards set forth in the WPA and court
decisions, there was no reprisal here, since Dr.
Vaitukaitis has shown that she would have taken these
personnel actions in the absence of Dr. Wilson's report
of AWA violations.

Our rationale follows.

1. OPRR had the legal authority to evaluate Dr. Wilson's
allegation of reprisal.

As discussed more fully above, Dr. Vaitukaitis contended
that OPRR lacked authority to investigate and determine
whether Dr. Wilson was a victim of reprisal. Dr.
Vaitukaitis argued that the procedures established by
Congress in the WPA should have been used.

OPRR contended that it has the legal authority to
determine issues of reprisal under the AWA and its
implementing regulations. OPRR maintained that the
Public Health Service Policy (PHS Policy) on Humane Care
and Use of Laboratory Animals requires all institutions
engaging in PHS-conducted or supported animal research to
comply with the AWA and the pertinent regulations.
According to OPRR, the PHS Policy authorizes OPRR to
evaluate NIH compliance with the PHS Policy, and thereby
with the AWA and its implementing regulations, including
the provision regarding reprisal. OPRR did contend,
however, that in performing its analysis in this case it
used the WPA as a model.

We agree with the OPRR and the NIH Legal Adviser that,
although there is no official delegation from the
Secretary of DHHS, the Assistant Secretary for Health, or
the NIH director, OPRR has authority to evaluate
compliance with the PHS Policy, and thereby with the AWA.
See Ex. EE at 3 - 4. Dr. Wilson's complaint
specifically referenced the AWA; thus, according to the
PHS Policy, OPRR's evaluation of the complaint under AWA
regulations was appropriate.

As for Dr. Vaitukaitis's contention that the WPA must be
used to resolve any reprisal allegation under the AWA
regulations, we find that there is no reference to the
WPA in the AWA, the implementing regulation or the
preambles issued by NIH in adopting the regulation. OPRR
claimed to have used the WPA as a model, but it was
unclear what it meant by that since, as the NIH Legal
Counsel noted, the OPRR Report failed to give a
definition of reprisal or clarify the standards by which
a reprisal is judged. However, since we conclude that
there is no basis for finding reprisal using either the
OPRR Report's analysis or the WPA analysis, we need not
resolve the question of whether the WPA is incorporated
into that regulation.

2. A reasonable person would not conclude from the
temporal relationship of Dr. Smith's memorandum and Dr.
Vaitukaitis' adverse actions against Dr. Wilson that Dr.
Vaitukaitis had retaliated against Dr. Wilson for her
reporting of Dr. Smith's AWA violations.

The premise of the OPRR Report was that the close
temporal relationship between Dr. Smith's October 15
memorandum and the October 20 meeting at which Dr.
Vaitukaitis directed that Dr. Wilson be reassigned would
lead a reasonable person to conclude that Dr. Vaitukaitis
had retaliated against Dr. Wilson because Dr. Wilson had
reported Dr. Smith for AWA violations. We find that the
facts in the record before us do not support this
premise.

Our review of the OPRR Report and the extensive record in
this proceeding 11/ shows that OPRR focused almost
exclusively on the temporal relationship between Dr.
Smith's memorandum and the October 20 meeting in which
Dr. Vaitukaitis directed Dr. Carolan to reassign Dr.
Wilson. OPRR assumed that Dr. Vaitukaitis knew that Dr.
Wilson had reported Dr. Smith for AWA violations and that
Dr. Smith's memorandum was complaining about Dr. Wilson's
report. OPRR therefore reasoned that Dr. Vaitukaitis'
subsequent adverse actions against Dr. Wilson were a
retaliation for her report.

Dr. Vaitukaitis affirmatively stated that she had no
knowledge of such a report until long after she initiated
the personnel actions. OPRR has never produced any
evidence contradicting Dr. Vaitukaitis' sworn statement
to that effect. There is nothing in the record before us
that any of the documentation directly relating to Dr.
Wilson's report of AWA violations by Dr. Smith was ever
communicated to Dr. Vaitukaitis. Dr. Wilson's July 14,
1993 memorandum to the NIMH ACUC (Ex. H) does not bear
any indication that a copy of it was ever sent to Dr.
Vaitukaitis. Likewise, the NIMH ACUC's July 19, 1993
memorandum to Dr. Smith (Ex. I) does not indicate a copy
was sent to Dr. Vaitukaitis, although it does bear a
handwritten notation that a copy was sent to Dr. Wilson.
An August 13, 1993 memorandum to Dr. Wilson from the
NIMH ACUC (Ex. J) thanking her for the July 14
memorandum, and an August 13, 1993 memorandum to Dr.
Smith from the NIMH ACUC (Ex. K) sanctioning him for a
lack of concern towards AWA standards similarly do not
contain any reference that Dr. Vaitukaitis was informed
of their contents. Moreover, OPRR did not show that, as
part of her responsibilities, Dr. Vaitukaitis would have
been informed of Dr. Wilson's report. Thus, there is no
paper trail whatsoever that could lead one to conclude,
contrary to her sworn statement, that Dr. Vaitukaitis
knew, at the time of the adverse actions, that Dr. Wilson
had reported Dr. Smith for AWA violations.

Furthermore, we consider it critical to note here that in
his October 15 memorandum to Dr. Vaitukaitis, Dr. Smith
at no time mentioned his purported AWA violations, the
fact that Dr. Wilson had brought the charges, or his
censure by the NIMH ACUC. Rather, Dr. Smith's memorandum
was restricted to the difficulties he had interacting
with Dr. Wilson and Dr. Wilson's treatment of his
colleagues and students. Specifically, Dr. Smith stated,
"Though I followed their (NIMH ACUC's) stipulations to
the letter, Dr. Wilson continued to harass me and my
students." Ex. O. This is significant because it
undercuts OPRR's assumption that Dr. Smith's difficulties
with the NIMH ACUC stemming from Dr. Wilson's complaint
prompted him to write the memorandum. Moreover, we
question why Dr. Smith waited two months after the NIMH
ACUC action to complain to Dr. Vaitukaitis about Dr.
Wilson if the impetus for the memorandum, as asserted by
OPRR, was Dr. Wilson's reporting him for AWA violations.
Rather, Dr. Smith's memorandum can reasonably be seen as
one more indication to Dr. Vaitukaitis that Dr. Wilson
had difficulty interacting with people, in this case a
researcher who was a "customer" of NCRR's services.

Thus, we determine that a reasonable person would not
conclude from the temporal relationship of Dr. Smith's
memorandum and Dr. Vaitukaitis' proposed adverse actions
against Dr. Wilson were a retaliation against Dr. Wilson
for her reporting Dr. Smith for AWA violations.

3. Under the standards set forth in the WPA and court
decisions, there was no reprisal here, since Dr.
Vaitukaitis has shown that she would have taken these
personnel actions in the absence of Dr. Wilson's report
of AWA violations. 12/

The WPA provides that a personnel action following a
protected disclosure does not automatically constitute a
reprisal:

5 U.S.C. § 1221(e)(2). Thus, since Dr. Vaitukaitis urged
OPRR and the Board to adopt WPA standards, she provided
extensive evidence in support of her contention that it
was Dr. Wilson's poor performance as a supervisor that
precipitated Dr. Vaitukaitis' adverse personnel actions.
Although OPRR rejected the suggestion that it was bound
to follow WPA case law, it is clear from its report that
OPRR believed that if it was established that Dr.
Vaitukaitis intended to take the adverse actions
independent of Dr. Smith's memorandum, OPRR should
determine that there was no reprisal. Consequently, we
analyze the evidence in light of WPA standards to
determine whether Dr. Vaitukaitis would have taken the
same personnel actions against Dr. Wilson in the absence
of her report.

OPRR's investigation was not conclusive on that fact.
One of the three individuals OPRR hired to investigate
the incident concluded that Dr. Vaitukaitis' motives for
removing Dr. Wilson were based on Dr. Wilson's "difficult
management style." Yet in its Final Report, OPRR made no
mention whatsoever of this consultant's conclusion.

The two other consultants concluded that there was little
documentation of Dr. Wilson's management style and that
the absence of such documentation, coupled with the
timing of the proposed reassignment and reprimand so
shortly after Dr. Smith's October 15 memorandum, led to,
at a minimum, an appearance of reprisal.

We do not know if the OPRR consultants who concluded that
Dr. Vaitukaitis had engaged in acts of reprisal had
available to them the extensive documentary evidence in
the record before us relating to complaints about Dr.
Wilson's management style. 13/ One of those
consultants stated that the accounts of the incident,
used by Mr. Duffy and the ARAC subcommittee, were
provided by Dr. Vaitukaitis and by other NIH officials
and failed to include "any primary data; they were all
derivative reports that presented conclusions but
included no evidence in support of those conclusions."
Ex. AA, September 18, 1994 Report at 14.

In rejecting Dr. Vaitukaitis' defense and evidence
supporting her contention that she reassigned and
reprimanded Dr. Wilson because of Dr. Wilson's management
style, OPRR made the following points:

-- the January 7, 1993 memorandum from Ms. Watts and
Ms. Thornton to Dr. Cole was not presented as a
criticism of Dr. Wilson's management style, but
rather was aimed at improving all levels of
management and staff understanding at the 14B
North facility; additionally, Dr. Wilson had no
knowledge of the memorandum.
-- the personnel actions taken by Dr. Wilson against
various employees in the 14B North facility
received the support and approval of her
immediate supervisors and were justified in
official personnel records;
-- Dr. Wilson received excellent performance
evaluations during the period at issue;
-- the EEO Hotline complaints are irrelevant to this
inquiry as Dr. Vaitukaitis did not learn of them
until after she directed that Dr. Wilson be
reassigned; and
-- the October 4 and 5 E-mail messages contained no
evidence that a reassignment of Dr. Wilson was
supportable or that Dr. Wilson had ever been told
to change her management style.

All of the above points might be relevant if Dr. Wilson
had filed a grievance based on a prohibited personnel
practice for the actions proposed by Dr. Vaitukaitis. To
challenge the adverse actions of reassignment and
reprimand, however, Dr. Wilson elected not to file such a
grievance, but to allege reprisal under the AWA. For
purposes of resolving an allegation of reprisal, however,
all the points raised by the consultants and OPRR are
irrelevant to the key issue before us: whether, as
alleged by Dr. Wilson and OPRR, Dr. Vaitukaitis took
action against Dr. Wilson because she reported Dr.
Smith's AWA violations.

Contrary to OPRR's assertion that there was no
documentary basis for Dr. Wilson's reassignment because
of her lack of knowledge of complaints and her exemplary
performance record, a closer examination of the evidence
before us supports Dr. Vaitukaitis' position that it was
Dr. Wilson's poor "people skills" that led to the adverse
actions. For example, in its Final Report and its brief
before us, OPRR made several references to the fact that
Dr. Wilson had received "highly laudatory performance
evaluations" to refute any assertion that Dr. Wilson's
poor job performance was the cause of Dr. Vaitukaitis'
adverse actions. While Dr. Wilson's performance
evaluations would normally be considered irrelevant to
the question of reprisal for the reasons discussed above,
there is evidence in the record before us that requires
further examination of Dr. Wilson's performance
evaluation as it bears on Dr. Vaitukaitis' assertion that
it was Dr. Wilson's management style that prompted the
adverse actions of reassignment and reprimand.

Dr. Wilson's Commissioned Officers' Effectiveness Report
(COER) for the period July 1, 1992 - June 30, 1993, her
last evaluation before the events in controversy here,
was executed by her immediate supervisor, Dr. Jeszenka.
OPRR Ex. H. Section III of the COER listed 15 areas to
be evaluated on a rating system with grades of "A" to
"E," with "A" being the lowest rating and "E" the
highest. Dr. Wilson received an "E" in 13 areas and a
"D" in the other two areas.

Further information on how Dr. Wilson's COER was
developed is contained in the record in the form of a
personal journal kept by Dr. Jeszenka. OPRR Ex. P, Ex.
BB, Attachment A. Dr. Jeszenka's handwritten journal
entry of June 9, 1993 details his review with Dr. Wilson
of her COER, including how he attempted to give her a "C"
in one area, "ABILITY TO WORK WITH OTHERS." 14/ Id.
at 1. The journal states that Dr. Wilson became upset at
this, refusing to sign the COER and running into Dr.
Carolan's office. Id. at 2. The journal entry for June
10, 1993 details Dr. Jeszenka's meeting with Dr. Carolan
to review Dr. Wilson's COER. The journal details that
Dr. Carolan told Dr. Jeszenka that a "C" rating in any
category meant that the individual could not be promoted
for five years and that the individual's "career is
literally over." Id. June 10, 1993 entry at 1. The
journal entry continues with Dr. Jeszenka willing to
change the rating to a "D" because he never intended to
ruin anyone's career. Id. at 4. The journal entry then
states, "I protested that this would not solve my problem
of an employee that constantly aggravates other people
including investigators, ICD veterinarians, as well as
employees." Id. at 4-5.

Dr. Wilson's final COER, acknowledged as having been
received by her on June 11, 1993, contains two categories
where an original rating has been blacked out and an "E"
rating inserted, with the initials of Dr. Jeszenka and
the date "6/11/93" alongside. These two categories were:
6. ABILITY TO WORK WITH OTHERS, and 12. SUPERVISORY
SKILLS.

Thus, while Dr. Wilson's "final" performance evaluation
was, in the words of the OPRR report, "highly laudatory,"
there is evidence in the form of Dr. Jeszenka's journals
that Dr. Wilson's immediate supervisor had serious
misgivings about her ability to work with others and her
supervisory skills, the very areas of concern Dr.
Vaitukaitis asserted were the reasons for the proposed
reassignment and reprimand of Dr. Wilson. We find it
disingenuous of Dr. Wilson to claim under these
circumstances that she was unaware of problems with her
supervisory style. In addition, the record shows that
Dr. Jeszenka orally informed his supervisor, Dr. Carolan,
the individual Dr. Vaitukaitis ultimately ordered to take
disciplinary action against Dr. Wilson, that Dr. Jeszenka
continued to have problems with Dr. Wilson's performance
as a supervisor. Id. at 1.

The record also establishes that Dr. Vaitukaitis was
acutely aware of problems arising from Dr. Wilson's
supervisory style. The NCRR EEO Officer stated that she
discussed complaints about Dr. Wilson's supervisory style
during her regularly scheduled meetings with Dr.
Vaitukaitis. Ex. W at 2. Dr. Cole and Dr. Carolan were
repeatedly told to counsel Dr. Wilson on proper
supervisor behavior. Vaitukaitis Declaration, 8.

OPRR also argued that the four EEO Hotline complaints
should be considered irrelevant to this proceeding, since
Dr. Vaitukaitis did not become aware of them until
October 22, 1993, after the October 20 meeting in which
she directed Dr. Carolan to reassign Dr. Wilson.
However, the OPRR Final Report, in discussing the two
October E-mail messages, noted that the E-mails did not
reference any possible reprimand of Dr. Wilson, only her
reassignment. Ex. FF at 8. Thus, the EEO Hotline
complaints are relevant because they provide an
explanation for Dr. Vaitukaitis' October 27 directive to
Dr. Carolan to not only reassign Dr. Wilson, but also to
reprimand her. After the October 20 meeting, Dr.
Vaitukaitis learned for the first time of the four
earlier Hotline complaints about Dr. Wilson. A
reasonable interpretation to be drawn is that Dr.
Vaitukaitis was further concerned by these additional
complaints, leading her to direct that a reprimand
against Dr. Wilson also be issued. In fact, one of
OPRR's own consultants arrived at this very conclusion,
that the EEO Hotline complaints were "an inciting cause
for a change in [Dr. Vaitukaitis'] attitude and approach"
toward the problem with Dr. Wilson." Ex. AA, August 31,
1994 Report at 21.

Notwithstanding this consultant's view, the OPRR Report
unreasonably discounted exculpatory evidence supporting
Dr. Vaitukaitis. Nowhere is this more evident than in
the OPRR Final Report's view of the October 4 and 5 E-
mail messages.

The OPRR Final Report, while acknowledging that the two
E-mail notes indicated that Dr. Wilson's reassignment may
have been under consideration by Dr. Vaitukaitis prior to
the receipt of Dr. Smith's October 15, 1993 memorandum,
nevertheless concluded that there was little support for
such a move by the VRP upper management and no support
for any punitive actions. Ex. FF at 7. The OPRR Report
declared that the E-mail notes "contained no evidence
that reprimand or a reassignment with negative career
implications was supportable and no evidence that the
complainant had ever been told to modify her management
style." Id. at 8. The OPRR Report noted that the
official record showed that the complainant had received
"highly laudatory" performance evaluations in the
preceding two years and had been recognized as having
played a key role in achieving AAALAC accreditation for
the NIH IRP. Id.

In this proceeding OPRR continued this approach, faulting
the E-mail messages for not mentioning any reprimand of
Dr. Wilson and for failing to explain the extent of Dr.
Vaitukaitis' knowledge of Dr. Wilson's management style,
or the basis for Dr. Vaitukaitis' concerns. OPRR Br. at
11.

Once again, this demonstrates that OPRR misunderstood and
continues to misunderstand the issue before it. It is
irrelevant, for the purposes of determining whether Dr.
Vaitukaitis' actions constituted reprisal, whether the E-
mail notes contained "no evidence that reprimand or a
reassignment . . . was supportable and no evidence that
the complainant had ever been told to modify her
management style." Ex. FF at 7. Nor is it relevant that
Dr. Wilson had received excellent performance
evaluations. Those allegations, if true, would be
germane to the question of whether Dr. Vaitukaitis
properly followed NIH procedures for disciplining an
employee, but that is not the issue OPRR should have
examined.

The salient fact is that the E-mail messages are
uncontrovertible evidence that Dr. Vaitukaitis was
planning adverse actions against Dr. Wilson in the weeks
prior to the event--Dr. Smith's memorandum--that OPRR
concluded was the triggering event to Dr. Vaitukaitis'
alleged reprisal against Dr. Wilson. In order to reach
the conclusion that Dr. Vaitukaitis, as a result of Dr.
Smith's memorandum, retaliated against Dr. Wilson, the
two consultants and the OPRR Report strain to ignore the
obvious import to be drawn from the October 4 and 5 E-
mails: Dr. Vaitukaitis intended to reassign Dr. Wilson
at least 11 days before Dr. Smith even sent his
memorandum to Dr. Vaitukaitis complaining about Dr.
Wilson. The E-mail messages establish that Dr. Wilson's
reassignment, whether justified and supportable by
adequate documentation or not, was being planned before
Dr. Smith wrote his memorandum. Furthermore, Dr. Carolan
in the October 5 E-mail specifically states that Dr.
Vaitukaitis' greatest concern was Dr. Wilson's
"management style."

Thus, even if OPRR had been able to mount a plausible
case that Dr. Vaitukaitis did have knowledge of the
disclosure, Dr. Vaitukaitis could have refuted the
allegation of reprisal by demonstrating "clear and
convincing evidence" that she would have taken the same
adverse actions against Dr. Wilson if she had not known
of the disclosure. 5 U.S.C. § 1221(e)(2). The October 4
and 5 E-mail messages are such convincing evidence since
they show that Dr. Vaitukaitis intended to reassign Dr.
Wilson prior to her receipt of Dr. Smith's memorandum.
15/ Dr. Vaitukaitis's discovery of the four EEO Hotline
complaints on October 22 provide a reasonable explanation
for Dr. Vaitukaitis' decision to also reprimand Dr.
Wilson.

We therefore find that, even if OPRR had utilized and
properly applied the standards of the WPA to this case,
the conclusion would have been that Dr. Vaitukaitis did
not commit an act of reprisal against Dr. Wilson.

Conclusion

For the reasons discussed above, we recommend to the
Deputy Director, NIH, that the section of the OPRR Report
relating to Dr. Vaitukaitis be withdrawn and that Dr.
Vaitukaitis be found not to have engaged in any type of
retaliatory action against Dr. Wilson.

____________________________
Cecilia Sparks Ford

____________________________
Donald F. Garrett

____________________________
M. Terry Johnson
Presiding Board Member

APPENDIX

Acronyms used in this decision

AAALAC American Association for the Accreditation of
Laboratory Animal Care
ACUC Animal Care and Use Committee
ARAC Animal Research Advisory Committee
AWA Animal Welfare Act
COER Commissioner Officers' Effectiveness Report
EEO Equal Employment Opportunity
IACUC Institutional Animal Care and Use Committee
IRP Intramural Research Program
NCRR National Center for Research Resources
NIH National Institutes of Health
NIMH National Institute of Mental Health
OPRR Office for Protection from Research Risks
PHS Public Health Service
RAB Research Animal Branch
VRP Veterinary Research Program
WPA Whistleblower Protection Act

* * * Footnotes * * *

1. As we have found the use of numerous acronyms
unavoidable in this decision, we have compiled a list of
those used and attached them as an appendix to this
recommended decision.
2. The other concerns in the OPRR Report
included: the adequacy of the NIH IRP [the ARAC
subcommittee] investigation; whether the administrative
environment within NIH IRP was supportive of an
individual attempting to require compliance with federal
law and policy; the presence of poor communications
within NCRR; and the lack of an accurate description in
the NIH IRP Assurance of the actual lines of authority
and responsibility for the program of animal care and
use.

As these other stated concerns involve perceived
institutional problems and do not directly relate to the
issue before us of whether Dr. Wilson suffered reprisal
from Dr. Vaitukaitis, we do not discuss these concerns.
3. The 14B North facility did pass the AAALAC
site inspection, enabling the entire NIH to receive
AAALAC accreditation, for which Dr. Wilson and 10 other
veterinarians received a PHS Unit Commendation Medal.
4. Unless otherwise specifically noted, all the
further cited exhibits were submitted by Dr. Vaitukaitis.
5. Dr. Wilson subsequently attended a course
entitled "Effective Communication" on March 30 through
April 2, 1993.
6. The procedural deficiencies cited included the
lack of evidence of a full Institutional Animal Care and
Use Committee consideration and endorsement of the
subcommittee's investigation and report, and the lack of
a chronology of events and an assurance that copies of
all documentation reviewed during the course of the
investigation were submitted to OPRR. The substantive
deficiencies cited included: an inappropriate narrowing
of the scope of the investigation, specifically a
shifting of the focus of the investigation from
compliance with the AWA and PHS policy to an emphasis on
whether supervisory difficulties existed with Dr. Wilson;
and conclusions being drawn without sufficient
documentary evidence.
7. The November 30, 1993 memorandum appears in
the record at Exhibit H to OPRR Exhibit P. It is a four-
page memorandum from Dr. Vaitukaitis setting forth a
history of problems the employees in the 14B North
facility had with Dr. Wilson's management style.

The May 13, 1994 memorandum appears in the record at
Exhibit K to OPRR Exhibit P. It is a four-page
memorandum from Dr. Vaitukaitis, with numerous
attachments, in response to a May 5, 1994 memorandum from
the Acting Deputy Director for Intramural Research
requesting documentation in a number of areas involving
Dr. Wilson.
8. We discuss the comments of the NIH Legal
Advisor in detail because his remarks on the draft report
and how a complaint of reprisal should be investigated
and evaluated were cited extensively by Dr. Vaitukaitis
in support of her position. Also, the comments of the
NIH Legal Advisor represent an independent interpretation
of the OPRR Report.
9. Based on our analysis of the OPRR process, we
most definitely concur with the NIH Legal Advisor's
recommendations.
10. As relevant here, the WPA provides that--

any employee who has authority to take, direct
others to take, recommend, or approve any personnel
action, shall not, with respect to such authority--

* * *

(8) take or fail to take, or threaten to take or
fail to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) a 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 and
safety,
if such disclosure is not specifically
prohibited by law . . .

5 U.S.C. § 2302(b)(8).

11. The record in this appeal fills five large
accordion folders. Many of the exhibits supplied by the
parties, and in particular OPRR, however, pertain to
events that occurred after the alleged reprisal. These
include, for example, the reactions of various NIH
officials to the alleged reprisal. As such, they are
irrelevant to our inquiry. We consider relevant only
those exhibits pertaining to events that occurred prior
to the alleged reprisal, the investigations of the
alleged reprisal, including the reports resulting from
those investigations, and "post-event" statements from
key individuals in the dispute. Regarding the latter,
these statements are relevant only to the extent they are
inconsistent with earlier statements made by the
individuals, so as to call into question the individuals'
credibility.
12. We note that one of the elements necessary
to establish a violation of the WPA is that the acting
official took, or failed to take, the personnel action
against the aggrieved employee because of the protected
disclosure. Eidmann v. Merit Systems Protection Board,
976 F.2d 1400, 1407 (Fed. Cir. 1992). Thus, Dr.
Vaitukaitis' lack of knowledge of the whistleblowing
activity would also be a defense under the WPA. Since we
already find that Dr. Vaitukaitis intended to take the
personnel actions in the absence of Dr. Wilson's report
of AWA violations, we do not discuss this point any
further.
13. For example, it is apparent that the
consultants did not have access to Dr. Jeszenka's journal
describing, as discussed in greater detail below, how he
attempted to give Dr. Wilson in her performance
evaluation "C" ratings relating to work interaction and
supervisory skills and how Dr. Wilson protested these
ratings.
14. A "C" rating is described: "This level
indicates fully acceptable performance. Most officers,
including many successful candidates for promotion,
should fall within this group."
15. Although it is not necessary under the AWA
to prove a motive for a reprisal, we also question
whether the incident of Dr. Smith's AWA violation was of
such consequence that it would have led Dr. Vaitukaitis
to commit a reprisal against Dr. Wilson. Dr. Smith's
main violation of the AWA, letting a student without
clearance from the NIMH ACUC conduct experiments on
animals, was apparently relatively innocuous in that it
was resolved quickly, as the NIMH ACUC in its sanction of
Dr. Smith agreed that the student could now be considered
"qualified." Ex. K. Without in any way attempting to
denigrate this violation of the AWA, we fail to see how
Dr. Vaitukaitis had any personal stake in this incident
that would have led her to commit a reprisal, if she had
known of Dr. Wilson's whistleblowing activity, against
Dr. Wilson.