10.30.15 Response to Proposed Removal-Greene-redacted

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LAW OFFICES

KALIJARVI, CHUZI, NEWMAN FITCH, P.C.

JUNE D.W. KALIJARVI

GEORGE M. CHUZI

ELAINE L. FITCH*

SUITE 610

1901 L STREET. N.W.

WASHINGTON. D.C. 20036

524 KINGSTREET

ALEXANDRIA. VIRGNIA 22320

VALERIE A. CHASTAIN

MARY E. KUNTZ

,

NINA Y. REN

202-331-9260

FAX:

1-866-452-5789

WWW. KC N LAW. COM

OF COUNSEL

ELIZABETH L. NEWMAN

RICHARD R. RENNER

°

FRANCINE

K. WEISS°*

October 30, 2015

OALSO ADMITTED IN VIRGINIA

*ALSO ADMITTED IN CALIFORNIA

LSO ADMITTED IN MARYLAND

ALSO ADMITTED IN OHIO

Peace Corps

BY EMAIL:

Re: ritten Reply to Notice of Proposed Rem oval for Kellie Greene

Dear :

I am writing on behalf of my client, Kellie Greene, to submit her response to the October

5, 2015, No tice of Proposed Rem oval. I am writing to address two primary co ncerns: 1) that this

proposed pen alty is a result of Ms. Greene's protected disclosures involving the Kate Puzey

Peace Corps V olunteer Act of 2011; and 2) that the proposed penalty of removal is too harsh a

penalty for wha t is alleged.

Ms. Greene cares deeply for Peace C orps volunteers. She has made her career on

advocating for victims of sexual assault and other violent crimes. N o doub t, her expertise in

victim advocacy w as what drew the A gency to retain Ms. Greene as the first Director of the

Office of Victim Advocacy ( OV A ). Since she became Director, Ms. Greene worked for and

worried over the w ellbeing of her volunteers. She has no prior disciplinary record. She has only

positive performance appraisals. In removing Ms. G reene, the Agency w ill be doing both itself

and its volunteers a great disservice.

I. THE AGENCY'S REASONS FOR REMOVING MS. GREENE ARE UNLAWFUL

The proposed removal contains direct evidence that the Agency's real reasons for

removing Kellie Greene are her persistent disclosures and her opposition to the Agency's failure

to fully comply with the Kate Puzey Act. For example, the Agency cites to activity that reflects

Ms. Greene's devotion to the volunteers as a basis for removing her: "frequent and demanding

communications, including emails in the evening and late night hours"; "inquired about routine

case management actions"; "contradicted or disagreed with staff plans of actions". Removal, p.



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1. It is illuminating that the Agency felt that Ms. Greene was wrong to ask questions about cases

to ensure Volunteer needs were being met", and it is further illuminating that the Agency

perceived these efforts as "micromanagement".

See, e.g.,

Aff., p. 7 ("Kellie

stated in so many ways that it was her right to ask questions about cases to ensure Volunteer

needs were being met. She was unable to acknowledge that this was perceived as

micromanagement ).

In addition, the Agency takes Security Specialist 's statements out of context.

For instance, the Agency quotes that Ms. Greene was m ore interested in winning the

argument than correcting a critical error in process or approach ; however, he specifies

immed iately thereafter that Wh ether that impression is correct or not, I cannot be certain, but it

was discussed on a num ber of occasions

when K ellie continued to argue against a policy

decision that had been settled by consensus week s before. Aff., p. 2 (emphasis

added). Blaming M s. Greene for continuing to insist on com pliance with the Kate Puzey A ct is

direct evidence of animus. If, as alleges, the policy decision has already been settled

weeks b efore, it would b e illogical to conclude that M s. Greene's continued fight against it

represents her desire to fight over an already lost battle for the sake of w inning. Ms. G reene was

fighting as a victim's advo cate to correct a critical error.

Further, the Agency quotes that Ms. Greene's subordinates were clearly

stressed about delivering negative information and being judged for it . Rem oval, p. 3.

How ever, had provided context in the preceding sentence that On these occasions,

or would vigorously advocate for the Volunteer's interests, but end up being

overridden du e to legitimate safety concerns or operational issues overseas.

While and

would accept an adverse decision with complete professionalism,

they did express to

me privately their concerns about how K ellie would react when she was told the outcome. They

were clearly stressed about delivering negative information to K ellie, and being judg ed for it.

Aff., p. 3 (emphasis added). Ms. Greene denies expressing judgm ent against her

subordinates; however, she do es view it as her responsibility as the Director of the Office of

Victim Ad vocacy to ensure that the Volunteer's interests were not subsumed by the A gency's

entrenched disinterest in volunteer safety. And, the Agency gives no credit to 's

statement that Kellie engaged in a single-minded pursuit to change how the Agency viewed

victim needs and victim behavior, and to change how d ecisions were made when they im pacted a

victim's potential recovery. Id., p. 1.

Notably, the Agency found that Regional Directors had so little trust in how [Ms.

Greene] w ould interact with Post staff that they insisted all communications go throug h the

Regional Directors".

Id.,

p. 2. Yet, the Kate Puzey A ct was enacted for the very purpose of

confronting the negligence and inaction at the Country D irector/Post level that resulted in the

death of M s. Puzey. Ms. G reene's position w as created to safeguard volunteer safety, not to

placate agency officials entrenched in the old w ay of sacrificing volunteer safety for the sake of

administrative convenience.

Of further note, the Agency hones in on "popularity with the agency

staff".

Id

admits that she instructed Ms. Greene to "be more cooperative", and in

so doing, reveals that her real concern is with protecting Agency managers from criticism, and



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not for vo lunteer safety. See, e.g., id,

p. 6. In fact, she admits that reassigning Ms. Greene out of

OVA "took a big stress off [her] life" and that "morale [in her office] soared." Id., p. 3. The

Agency itself concedes that

other offices at Peace Corps do not like working for you . Id.,

p.

6 (emphasis added). The Agency felt that Ms. Greene placed her "own private interests above

those of [her] team and the agency." Id.

Whistleblowers are no strangers to accusations of not

being team players,' and Ms. Greene's position was particularly prone to attack from other

offices within the agency because she was specifically tasked by Congress to remedy those

offices' past errors.

M s. Greene's protected disclosures are legion; she kept Agen cy manag ement apprised of

the numerous K ate Puzey Act violations and attempted to work w ith the agency to enforce

compliance.

The A gency's statements in its proposal are all strong indicators of the A gency's

animus against M s. Greene for enforcing the A ct and of its powerful desire to return to pre-Kate

Puzey A ct practices.

Under the federal W histleblower Protection A ct, 5 U.S.C, § 1221(e)(2) (see also, 5 C.F.R.

§ 1209.7(b)), when a federal employee sho ws that protected activity, such as disclosing

violations, refusing to p articipate in violations, and participating in proceedings, w as a

contributing factor in an adverse action, the agency cannot thereafter prevail unless it proves that

it would have taken the sam e adverse action by clear and conv incing evidence. See also 5 U.S.C.

§ 2302(b)(1), (8) and (9). The Supreme Court has impo sed the clear and convincing standard

only to protect interests that are far more precious than any property right.

Santosky v. Kramer,

455 U .S. 745, 758-59 (19 82) (termination of parental rights); see also,

e.g., Addington v. Texas,

441 U.S. 418, 424 (1979) (requiring interests more substantial than mere loss of money ). It is a

heightene d standard of proof that conced e[s] the possibility of error but ensure[s] that the

error is generally in one direction. Ralph K. Winter, Jr., The Jury and the Risk of Non-

persuasion, 5 Law & S oc'y Rev. 335, 339-40 (1971); cf. 4 William Blackstone, Com mentaries

*352 ( [B]etter that ten guilty persons escape, than that one innocent suffer. ). For employers,

this is a tough standard, and no t by accident. Congress appears to have intended that com panies

in the nuclear industry face a difficult time defending themselves.

Stone Webster Eng. Corp.

v. Herman, 115 F.3d 1568, 157 2 (11th Cir. 1997).

The Fede ral Circuit spoke to the reasons for this elevated burden on agencies in

Whitmore v. Department of Labor,

680 F.3d 1353 (Fed. C ir. 2012). There, the Federal Circuit

stated at p. 1377 that the law seek s to balance the pub lic interest of protecting whistleblowers

with an eye toward the inherent advantages agency management would otherwise have:

1

s Senator Grassley has often said, whistleblowers typically are treated like skunks at a

Sunday afternoon picnic." See

http://www.grassley.senate.govinews/conunentary/whistleblowers-pump-transparency

2

here is no requ irement for a w histleblower to specifically label her disclosures as such.



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The laws protecting whistleblowers from retaliatory personnel

actions provide important benefits to the public, yet whistleblowers

are at a severe evidentiary disadvantage to succeed in their

defenses. Thus, the tribunals hearing those defenses mu st remain

vigilant to ensure that an agency taking adverse em ployment action

against a whistleblower carries its statutory burden to prove— by

clear and convincing evidence— that the same adverse action

would hav e been taken absent the whistleblowing.

In Whitmore, the Court considered the employ ee's admission about the following co nduct:

Wh itmore put his foot in the way an d told Dubois that if he ever

spit on him again, he wou ld knock him into the basemen t. *** In

the hallway Whitmore encountered Dave Schmidt, director of

OSA, standing in a narrow passageway between a wall and some

filing cabinets. *** Whitmo re claimed Schmidt wo uld not allow

him to pass to Goddard's office. W hitmore then physically pushed

past Schmidt while yelling get out of my way, and possibly also

spit on Schmidt. Whitmore expressed that he was so angry he

could have just cold cocked [M r. Schmidt] right then and there

for blocking his way out of the area.

Even w ith this evidence, the Cou rt could not conclude that the agency wo uld have fired

Wh itmore without considering his protected activity. The Peace C orps has not alleged any

misconduct by M s. Greene anyw here near this level of seriousness. More pointedly here, the

Federal Circuit explained at p. 137 6 that:

Perhaps mo st glaringly absent from the A J's decision is any serious

discussion of the facts and circumstances surrounding h ow

Whitmore's whistleblowing in 2005 marked the beginning of his

increasingly strained relationships with OSH A o fficials, and how

his disclosures paralleled his increasingly poo r performance

reviews and adv erse personnel actions after decades of exceptional

service.

In December 2012 , Congress passed the W histleblower Protection Enhancement A ct

(WP EA) to clarify precisely this protection. 5 U.S.C. § 2302 (b)(8); Senate Report No. 112-155,

p. 4 ( the 1994 amend ments were intended to reaffirm the Com mittee's long-held view that the

W PA's plain language covers any disclosure[.] ). The 1994 H ouse Comm ittee report on the WPA

stated, "Perhaps the most troubling precedents involve the ... inability to understand that 'any'

means 'any.' The WPA protects "any" disclosure evidencing a reasonable belief of specified

misconduct[.]"

As to the manner of raising her concerns, the Secretary of Labor held that, [t]he right to

engage in statutorily-protected activity permits some leeway for impulsive behavior, which is



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balanced against the em ployer's right to m aintain order and respect in its business by correcting

insubordinate acts."

Kenneway v. M atlack,

1988-STA-20 (Sec'y June 15, 1996), slip op. at 3.

A key inqu iry is whether the employee has upset the balance that must be

maintained betwee n protected activity and shop discipline. The issue of

whether an em ployee's actions are indefensible under the circum stances

turns on the distinctive facts of the case.

Id (citations omitted).3

Dissenters and whistleblowers rarely win popu larity contests or Dale

Carnegie aw ards. They are frequently irritating and un settling. These

qualities, howev er, do not necessarily make their views wrong or

unhelpful, and the Supreme C ourt has concluded that it is in the public

interest and consonant w ith the First Am endmen t for them to express

opinions on su bjects of public concern w ithout fear of retaliation.

Cudahy, J., dissenting in

Greenberg v. Kmetko, 840 F.2d 467, 477 (7th Cir.

1988) (en banc)

See also Lajoie v. Environmental M anagem ent Systems, Inc.,

1990-STA-3 (Sec'y Oct. 27,

1992) (where a com plainant who has engaged in a protected activity also engages in spontaneous

intemperate conduct privately comm unicated over the telephone, the intemperate conduct does

not remove the statutory protection nor provide the respond ent with a legitimate,

nondiscriminatory reason for adverse action.);

NLRB v. Mueller Brass Co.,

501 F.2d 680, 685-6

(5th

Cir. 1974) (termination unjustified where employee called supervisor a damn liar and

invited him to step outside to settle matters because outburst was provoked).

In Trustees of Boston Univ. v. NLRB ,

548 F.2d 39 1, 393 (1st Cir. 1977) (citing NLRB v. M

B Headwear Co.,

349 F.2d 1 70, 174 (4th Cir. 1965)), the Court wisely understood the

interplay of an employer's animus and the employee's reaction. The Court explained:

The circumstances of P laintiff's alleged m isbehavior must be considered

in evaluating her conduct. . . . [Boss] provoked an angry respon se from

Plaintiff, and now seeks to use it to justify a termination. An em ployer

cannot provoke an em ployee to the point where she comm its such an

indiscretion as is show n here and then rely on this to terminate her

employm ent. [internal citation omitted.]

3 n

Moravec v. H C M Transp., Inc.,

90-STA-44 (Sec'y Jan. 6, 1992), the Secretary of

Labor found that the employee's impulsive behavior of hollering and shouting at supervisor

during a discussion about his com plaint was no t sufficient to justify discipline.

Moravec,

slip

op. at 8 10.

Martin v. Dep of the Army,

93-SDW -1 (Sec'y July 13, 1995) arose under the Safe

Drinking W ater Act (SDW A), 42 U.S.C. § 300 j-9(i). The protected activity consisted of

comp laints to supervisors and to the Arm y Inspector General about claimed v iolations of

SDW A. The Secretary found that the employee's conduct was disruptive, but not

indefensible under the circumstances. The employee conduct in

Wh itmore, supra,

was even

more egregious, yet the F ederal Circuit said it did not perm it the employer to engag e in

retaliation. Ms. G reene's conduct, in contrast, consists of emails which threatened no

violence, and contained no hollering at all.



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It would be ironic, if not absurd, to hold that one loses the protection of an

antidiscrimination statute if one gets visibly (or audibly) upset abou t discriminatory conduct.

Hertz v. Luzenac America, Inc.,

370 F.3d 1014, 1022 (10th Cir. 2004). It is equally unfair to

subject Ms. Greene to a hostile work env ironment, and then punish Ms. Greene for becom ing

upset about it. Here, the allegations against Ms. Greene do not arise to the levels in

Lajoie,

Whitmore,

or the

Boston Univ.

cases.

As to the persons and ch annels she chooses to send her con cerns to, Title VII's

prohibition against retaliation is not confined to situations in which the parties are engaged in

formal proceedings, but rather extends to forbid 'discrimination against applicants or employees

for attempting to protest or correct allegedly discriminatory conditions of employment.' Hearn

v.

R R

Don nelley Sons Co., 460 F. Supp . 546, 548 (N.D. Ill. 1978) quoting McDonnell

Douglas Corp. v. Green, 411 U .S. 792, 796, 93 S. Ct. 1817 (1973).

By w ay of comparison, Congress has given the Departmen t of Labor the responsibility to

adjudicate whistleblower retaliation claims und er more than 20 statutes.

4

The Department has

concluded that once the law protects a disclosure, it does not permit the im position of a chain of

comm and reporting requirement. In raising safety concerns, employees are under no obligation

to report their concerns to their supervisors.

Fabricus v. Tow n of Braintree, 97-CAA-14, D&O of

ARB, at 4 (February 9, 1999)5

(collecting cases); Talbert v. Washington Public Power Supp ly

System,

93-ERA -35, D& O of AR B, at 8 (Sept. 27, 1996) ( chain of comm and restrictions on

reporting concerns would seriously underm ine the purpose of whistleblower law ).

II. THE CASE LAW DOES NOT SUPPORT REMOVA L

In

Holligan v. USPS,

75 MSPR 372, 374 (1997), the appellant was accused of behavior

that "increased the potential for violence at the postal facility under [his] supervision". The

Board upheld the administrative judge's determination that the "maximum reasonable" penalty

was a 4-level demotion and reassignment rather than the Agency's 11-grade demotion and

reassignment.

Id.

at 373. In Gore v. VA,

68 MSPR 100 (1995),

rev'd on other grounds,

the

appellant was found, inter alia,

to have publically humiliated her subordinate. The Board

mitigated the Agency's 30-day suspension to a 15-day suspension. In

Hughey v. Dep't of

Treasury,

59 MSPR 480, the Board mitigated the Agency's demotion to a 30-day suspension. In

Johnson v. Dept of Justice,

65 M.S.P.R. 46, 49 (1994) the agency demoted the appellant after

discovering that he had made statements about a co-worker such as "dumb nigger", "porch

monkey", and "this looks like it was written by a nigger". In

Moultrie v. Dept of Navy, 65

M.S.P.R. 153, 161 (1994), the Board determined that removal was too harsh a penalty, even

though the appellant was found to have said that she would throw [her co-worker's] ass onto the

4 A list is available at: http://www.whistleblowers.gov/statutes_page.html

5 Available at

http://www.oalidol.gov/Public/WHISTLEBLOWER/DECISIONS/ARB

DECISIONS/CAA/

97CAA14C.HTM



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street , and white bitch , and even though the appellant had a prior disciplinary record that

included a 14-day suspension.

Regarding the Agency's allegations that Ms. Greene's actions amounted to the creation of

a hostile work environment (Removal, pp. 7-8), even if we conceded to all of the Agency's

factual allegations, which we do not, the Courts have repeatedly held that federal law does not

provide for a general civility code .

See Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

75 (Mar. 1998);

see also Lassiter v. Army, EEOC No. 0120122332, 2012 WL 5178399, at *4

(EEO C Oct. 10, 2012) (explaining that personality conflicts, general workplace disputes and

tribulations, trivial slights, and petty annoyances do not rise to the level of severe or

pervasive conduct necessary to establish a hostile work environment claim).

II. THE FACTS DO NOT SUPPORT REMOVAL

The bulk of Ms. Greene's factual disputes with the Agency's allegations are outlined in

the affidavit that she provided as part of the Agen cy's administrative inquiry in this matter. There

may be other factual disputes between Ms. G reene and the Agency's witnesses, which will be

addressed elsewhere. How ever, some facts bear emphasizing:

M s. Greene did not take over any of 's cases unless the volunteer asked to

be transferred from . This was often because the volunteer had complaints

about 's handling of his or her case.

Ms. G reene did not slam doors, did not snap or raise her finger in others' faces, and did

not turn away d uring conversations (unless it was to look up information relevant to the

conversation on her computer).

Ms. Greene did not state to that OVA was like a family and that you lash

out at those closest to you.

informed Ms. Greene that she was seeking therapy because of the

dysfunction present in the Agency. They conversed on this subject matter because M s.

Greene herself was seeking therapy due to the dysfunction present w ithin Peace Corps.

The Agency uses affidavit to accuse Ms . Green e of stating, He'll be

sorry he crossed me and See I told you he would be sorry . Ms. Greene did not make

these statements; and in fact, such statements are completely out of character for her.

N otably, affidavit is unsigned, despite b eing provided to her on J uly 1 2,

2015.

a. Specification 1

The litany of crimes that the Agency accuses Mr. Greene of committing, even if taken as

true, do not arise to miscondu ct.' Specifically, being a deman ding supervisor is not m isconduct.

6

o be clear, Ms. Greene vigorously disputes whether many

of the allegations in the

proposed removal actually occurred.



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Id,

pp. 1, 3. Micromanaging is not misconduct. Rem oval, pp. 1-2, 4. Taking action on a

subordinate's case is not misconduct. Id.,

p. 1. Frequent comm unication from a supervisor,

innately tasked with sup ervision of a subo rdinate, often in extremely sensitive situations is not

misconduct. Id,

p. 1. Contradicting prior actions of a subordinate is not m isconduct, even if it

causes the subordinate to waste time , if the prior action was inadequate or misguided.

Id, p. 1.

In fact, failing to co rrect a subordinate's error is far m ore likely to result in greater h arm, yet the

proposed rem oval shows no con cern over this issue.

Further, exercising discretion regarding w hich meetings a subo rdinate is to attend is not

misconduct.

Id,

pp. 1-2. Providing inconsistent guidance, while understandably p ossibly

frustrating for a sub ordinate, is not miscondu ct. This is especially so, as inconsistent guidance

frequently results from new inform ation or analysis that requires changing the approp riate course

of action. Id,

p. 2. Similarly, last minute taskings is not misconduct, and are often unavoidable

in a field such as victim's advocacy.

Id

In essence, specification 1 accuses Ms. Greene of being too devoted to the care of

volunteers. An em ail in the late evening and late night hours does no t constitute bullying. On the

contrary, it reflects a person who is comm itted to the wellbeing of volunteers. (This is

commonplace — and inevitable — in an organization that has employees worldwide and in

different time zones.) In addition, to inquire about case m anagement actions — even routine ones

— reflects a person wh o is concerned w ith the safety of volunteers. It is revealing that the Agency

seems mo re upset that Ms. Green e was double-checking that legal options were being properly

explained to victims, or whether the victims had been referred to counseling, than whether the

victims were in fact being adequately cared for, in line with the K ate Puzey A ct. Removal, p. 1.

These are critical moments for victims, and perhaps a be tter way of viewing M s. Greene's

actions might be through the old adage "it is better to be safe than sorry"

W oven througho ut is the recognition of M s. Greene's determination to protect volunteers

in the face of entrenched internal opposition to OV A's authority. For example,

stated, "I shared my fear that [Ms. Greene's]

tendency to fight so hard for change was perhaps

leading people to feel defensive...." Agency's Materials Relied Upon, Aff., p. 3

(emphasis added). The Agency characterizes Ms. Greene as being confrontational and

argumentative , and fails to see that the very nature of her position required Ms. G reene to

correct the Agency's prior practices, which had endan gered the safety of countless volunteers.

Fighting to create a safety-conscious culture within Peace C orps is not miscond uct.

Of particular concern is the Agency's accusation that Ms. Greene contradicted or

disagreed with staff plans of action in group em ails to staff and others outside of OVA . The

7

or example, a volunteer complained about , stating that

"was

unprofessional, insensitive, and dem onstrated incompetence

in her role as a victim's

advocate. Agen cy's Materials Relied Upon , p. 48 (April 20, 2015 Email from

to Kellie Greene re: FW : request to file complaint ).



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Kate Puzey Act did not create M s. Greene's position as a rubberstamp for the actions of others.

In fact, the A ct made clear that the Peace Corps' prior actions involving volunteers w ere

unacceptable, and had deadly consequences.

b.

Specification 2

Ms. Greene was appreciative that approached her about her concerns, and

so informed her. She stated to that she recognized that it takes courage to share

these concerns. The emails between M s. Greene and , not included in the Agen cy's

investigation, ought to bear this out, and we are requesting that the A gency find and include in

the official record these em ails.

c. Specification 3

states that Ms. Greene's "behavior reached its worst

surrounding a team

trip . Aff., p. 6. Yet, the behavior at issue here amounts to

failing to join , , and , for dinner or outside activities, and

being "quiet and cold".

Id.,

pp. 6-7. Ms. Greene recalls being quiet during the drive to and from

because she w as the driver and was focusing on d riving, and she recalls not joining

all the dinners and outside activities because she was feeling under the w eather. Contrary to the

removal's allegations, Ms. Greene did not slam a door on , nor did she verbally

attack .

Even if this specification accurately reflected the events of the trip, it does not

support a removal action; this is particularly true in light of conce ssion that this

was the w orst of Ms. Greene's behavior.

d. Specification 4

Emp loyees who participate in proceedings are entitled to exceptionally broad

protection."

Pettway v. American C ast Iron Pipe Co.,

411 F.2d 998, 1006 , n. 18 (5th Cir. 1969)

(Title VII retaliation claim). Federal emp loyees have such protection under 5 U.S.C. §

2302(b)(9), and this coverage "does not turn on the substance of an employee's testimony," and

retaliatory actions are prohibited regardless of how unreasonable an employer finds the

testimony.

Kubicko v. Og den Logistics Services,

181 F.3d 544, 554 (4th Cir. 1999);

U.S. v.

Glover,

170 F.3d 41 1 (4th Cir. 1999).

Wh en an employee, such as Ms. Greene, makes disclosures to management of

time and attendance an d other performance issues, those are also protected as

opposition to retaliation, even though the em ployee mad e some of those disclosures in response

to a mana gement inquiry.

Accord, Crawford v. Metropolitan Governm ent of Nashville and

Davidson County, 555

U.S. 271 (2009) (Title VII case which addressed only the oppo sition

clause and n ot the participation clause). In

Pettway,

the Fifth Circuit held that p rotections for

participation in a p roceeding (there, Title VII) apply regardless of the merits of the underlying

proceeding.

See also Payne v. McLemore's Wholesale Retail Stores,

654 F.2d 1130, 1138-39



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(5th Cir. 1981); Wya tt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (no requiremen t that

underlying cha rge be reasonable).

The m eeting described in this specification, i.e., participating in an internal proceeding, is

thus protected. During this meeting, specifically asked Ms. Greene for a response,

and specifically assured her that this was considered a safe space and that she should feel able

to speak candidly. It is concerning that the Agency is now using 's comments during

this meeting to remove her, and it casts doubt on the neutrality of the Agency's investigations

into the allegations presented here.

III. CON CLUSION

Given the foregoing, we believe that the Agency's removal of M s. Greene cannot be

sustained, even absent her affirmative defense of wh istleblowing rep risal, for which the A gency

must justify its penalty by clear and convincing evidence. W e are requesting by this letter an oral

reply as well; please contact me d irectly to schedule a mutually agreeable time an d place.

10.30.15 Response to Proposed Removal-Greene-redacted

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