Appendix — Grenier v. Department of Justice (No. 06-538)
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Supreme C
(2 Preme Court US.
O6—5-F 6007 TZ 2006
In Ohe opewe oF te GL
Supreme Court of the Gnited States
+
CHRISTOPHER W. GRENIER,
PAUL C. BOCK and TODD M. SHEA,
Petitioners,
No.
Vv.
DEPARTMENT OF JUSTICE,
Respondent.
*
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
+
PETITION FOR WRIT OF CERTIORARI
”
APPENDIX
Peter H. Noone
Counsel of Record
AVERY, DOOLEY, POST & AVERY
90 Concord Avenue
Belmont, Massachusetts 02478
(617) 489-5300
Counsel for Petitioners
THE LEX GROUP®© ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington, DC 20006
(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 ¢www.thelexgroupdc.com
TABLE OF CONTENTS
Judgment of
The United States Court of Appeals for the
Federal Circuit
entered July 14, 2006................cc.cceeeee
Final Order of
United States of America
Merit Systems Protection Board
Boston Field Office
entered April 19, 2006.....................0000+.
Initial Decision of
United States of America
Merit Systems Protection Board
Boston Field Office
entered September 19, 2008 .................
Order of
United States of America
Merit Systems Protection Board
Boston Field Office
entered April 14, 2003.....................000...
Order of
United States of America
Merit Systems Protection Board
Boston Field Office
Re: Granting Stay Request
entered December 31, 2002...................
Page
ii
Memorandum to
Asa Hutchinson from
George J. Cazenavette, ITI
Re: Boston Field Division On-site Inspection
With Attachment
dated October 29, 2002 oo... eeeceeeeeeeeees A91
Attachment:
Memorandum to
Mark R. Trouville from
Rodney G. Benson
Re: Management Review of the
New Bedford Resident Office and
Cape Cod Task Force
i aisissivinecincndisetaamtainaee A96
Memorandum to
Rogelio E. Guevara from
George J. Cazenavette, III
Re: Recommendation for Transfers:
dated September 26, 2002.....................00:. A124
Memorandum to
Charles H. West from
Mark R. Trouville
Re: Management Review of the
New Bedford Resident Office and
Cape Cod Task Force
CR TRIE Te, Be iii tiv cserveceienivestctetes A128
Transcript of Hearing before
The Honorable William Carroll
on February 24-25, 2008 .............:2::cscee A131
Al
NOTE: Pursuant to Fed. Cir. R. 47.5, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the
Federal Circuit
[ENTERED JULY 14, 2006]
05-3213
CHRISTOPHER W. GRENIER, PAUL C. BOCK,
and TODD M. SHEA,
Petitioners,
Vv.
DEPARTMENT OF JUSTICE,
Respondent.
Judgment
ON APPEAL fromthe MERIT SYSTEMS
PROTECTION BOARD
In CASE NO(S).
BN1221030033-W-1,
BN1221030034-W-1, and
BN1221030035-W-1.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
Per Curiam: (MICHEL, Chief Judge RADER and
SCHALL, Circuit Judges):
AFFIRMED. See Fed. Cir. R. 36
ENTERED BY ORDER OF THE COURT
Dated: JUL 14 2006 /3/
Jan Horbaly, Clerk
A3
UNITED STATES OF AMERICA MERIT
SYSTEMS PROTECTION BOARD
BOSTON FIELD OFFICE
CHRISTOPHER W. GRENIER, PAUL C. BOCK,
TODD M. SHEA,
Appellants,
Vv.
DEPARTMENT OF JUSTICE,
“Agency.
[ENTERED April 19, 2005]
DOCKET NUMBERS
BN-1221-03-0033-W-1
BN-1221-03-0034-W-1 .
BN-1221-03-0035-W-1
DATE: April 19,2005
Peter H. Noone, Esquire, Belmont, Massachusetts,
for the appellants.
Imelda L. Paredes, Esquire, Alexandria, Virginia, for
the agency.
BEFORE
Neil A. G. McPhie, Chairman
Barbara J. Sapin, Member
FINAL ORDER
The appellants have filed a petition for review
in this case asking us to reconsider the initial
A4
decision issued by the administrative judge. We
grant petitions such as this one only when
significant new evidence is presented to us that was
not available for consideration earlier or when the
administrative judge made an error interpreting a
law or regulation. The regulation that establishes
this standard of review is found in Title 5 of the
Code of Federal Regulations, section 1201.115 (5
C.F.R. § 1201.115).
After fully considering the filings in this
appeal, we conclude that there is no new, previously
unavailable, evidence and that the administrative
judge made no error in law or regulation that affects
the outcome. 5 C.F.R § 1201.115(d)
_ Therefore, we DENY the petition for review.
The initial decision of the administrative judge is
final. This is the Board’s final decision in this
matter. 5 C.F.R. § 1201.113.
NOTICE TO THE APPELLANTS REGARDING
YOUR-_FURTHER REVIEW RIGHTS
You have the right to request the United
States Court of Appeals for the Federal Circuit to
review this final decision. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
~—
A5
The court must receive your request for review no
later than 60 calendar days after your receipt of this
order. If you have a representative in this case, and
your representative receives this order before you do,
then you must file with the court no later than 60
calendar days after-receipt by your representative. If
you choose to file, be very careful to file on time. The
court has held that normally it does not have the
authority to waive this statutory deadline and that
filings that do not comply with the deadline must be
dismissed; See Pinat v. Office of Personnel
Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your
right to appeal this decision to court, you should
refer to the federal law that gives you this right. It is
found in Title 5 of the United States Code, section
7703 (5 U.S.C. § 7703). You may read this law, as
well as review the Board’s regulations and other
related material, at our website,
http://www.mspb.gov. Additional information is
available at the court’s website,
http://fedcir.gov/contents.html. Of particular
relevance is the court’s “Guide for Pro Se Petitioners
and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
FOR THE BOARD: /s/
Bentley M. Roberts, Jr.
Clerk of the Board
Washington, D.C.
A6
CERTIFICATE OF SERVICE
I certify that this Order was sent today to each of the
following:
Certified Mail
U.S. Mail
U.S. Mail
U.S. Mail
U.S. Mail
US. Mail
Peter H. Noone, Esq.
Avery Dooley Post & Avery, LLP
90 Concord Avenue
Belmont, MA 02478
Christopher W. Grenier
25 Apple Tree Lane
Barrington, RI 02806
Christopher W. Grenier
P.O. Box 11
Barrington, PJ 02806
Paul C. Bock
21 Rounsevell Drive
E. Freetown, MA 02717
Todd M. Shea
c/o Peter H. Noone
Avery Dooley Post & Avery, LLP
90.Concord Avenue
Belmont, MA 02478
Imelda L. Paredes, Esq.
U.S. Départment of Justice
DEA Headquarters
Office of Chief Counsel (CCA)
2401 Jefferson Davis Highway
Alexandria, VA 22301
A7
April 19, 2005 /s/
(Date) Dinh-Chung
Case Management Specialist
A8
UNITED STATES OF AMERICA MERIT
SYSTEMS PROTECTION BOARD
BOSTON FIELD OFFICE
CHRISTOPHER W. GRENIER, PAUL C. BOCK,
TODD M. SHEA,
Appellants,
V.
DEPARTMENT OF JUSTICE,
Agency.
[ENTERED Sept. 19, 2003]
DOCKET NUMBERS
BN-1221-03-0033-W-1
BN-1221-03-0034-W-1
BN-1221-03-0035-W-1
DATE: September 19,2003
Peter H. Noone, Esquire, Belmont, Massachusetts,
for the appellants.
Imelda L. Paredes, Esquire, Alexandria, Virginia, for
the agency.
BEFORE
William Carroll
Chief Administrative Judge
INITIAL DECISION
On November 8, 2002, each of the appellants, Special
Agents with the Drug Enforcement Administration
A9
(DEA), timely submitted individual-right-of-action
(IRA) appeals’ from the Office of. Special Counsel’s
(OSC’s) November 5, 2002 closeout letter stating it
was terminating its investigation of each appellant’s
allegation that he was retaliated against for his
whistleblowing activity when he was reassigned’
from New Bedford, Massachusetts to a location on
the southwest border of the United States.’ Per 5
C.F.R. § 1201.36(a), the three appeals were
consolidated for processing on December 16, 2002.
Grenier v. Department of Justice, MSPB Dkt. No.
BN-1221-03-0033-W-1 (Grenier W-l or Grenier et
al.),* Tab 11; 5 C.F.R. § 1201.36(a)(1). The Board has
jurisdiction over the appeals as noted below. A
1 See generally 5 C.F.R. Part 1209 (Practices and Procedures
for Appeals and Stay Requests of Personnel Actions Allegedly
Based on Whistleblowing) and, in particular, 5 C.F.R. §
1209.2(b\)) (Board jurisdiction over IRA appeals).
* The parties frequently referred to the actions as transfers.
According to the Office of Personnel Management’s regulations
at 5 C.F.R. § 210.102(b)(18), a transfer “means a change of an
employee ... from a position in one agency to a position in
another agency.” The appellants, however, never were slated
to leave DEA’s employ. More precisely, the appellants: were
subject to reassignment actions. According to 5 C.F.R. §
210.102(bX 12), a reassignment “means a change of an
employee, while serving continuously within the same agency,
from one position to another without promotion or demotion.”
Also, I note that although the agency made a decision to take
the reassignment actions, to date the actions have not been
effected.
* Grenier was reassigned to Imperial County, California; Bock
to Eagle Pass, Texas; and Shea to E] Paso, Texas.
‘ This case was adopted ay the lead case.
Al10
hearing in the consolidated appeal was held in two
parts: on February 24-25, 2003,and on June 16-18,
2003. For the reasons set forth below, the appellants’
request for corrective action is DENIED.
BACKGROUND
Following an agency decision on September 26, 2002
to reassign them, the appellants each filed a
“Complaint of Possible Prohibited Personnel Practice
or Other Prohibited Activity” with OSC on October 8,
2002.° They also requested OSC to request a stay
from the Merit Systems Protection Board.® Grenier
v. Department of Justice, MSPB Dkt. No. BN-1221-
03-0033-S-1 Grenier S-l), Tab 1, Exh. A, Bockv.
Department of Justice, MSPB Dkt. No. BN-1221-03-
0034-S-1 (Bock S-l), Tab 1, Exh. A, and Shea v.
Department of Justice, MSPB Dkt. No.BN-1121-03-
0035-S-1 (Shea S-l), Tab 1, Exh. A. A review of each
appellant’s complaint reveals that he cited various
actions that he was reporting to OSC, only one of
which was the proposed reassignment. Id. OSC
refused to ask the Board for a stay and otherwise on
October 31, 2002, made a preliminary determination
to close its inquiry on each appellant’s complaint
relative to the reassignment action only. Grenier S-1,
Tab 1, Exh. E; Bock S-l, Tab 1, Exh. F; and Shea S-l,
Tab 1, Exh. F. The appellants did not choose to
respond with any new information to this
° The appellants have been-represented throughout by
Attorney Noone who has for the most part submitted joint
documentation to OSC and to the Board.
* This stay request would have been to a member of the Board
in Washington, D.C., pursuant to 5 U.S.C. § 1214(b)(1)(A).
All
preliminary determination so, on November 5, 2002,
OSC notified each appellant that it was closing its
file on the matter of his reprisal charge for the
reasons stated in its October 31, 2002 determination.
Grenter S-l1, Tab 1, Exh. F; Bock S-l, Tab 1, Exh. G;
and Shea S-l, Tab 1, Exh. G.
The appellants next, as mentioned above, filed
their appeals with this office on November 8, 2002
and simultaneously requested stays of their
reassignments, scheduled for various dates in
January 2003. On November 25, 2002, I denied each
appellant’s request for a stay based on the evidence
in the record at that time. I found, in short, that the
strength of the agency’s motive to retaliate was weak
and that otherwise there existed evidence to support
the agency’s reassignment of each-’appellant; thus,
there was not a substantial likelihood that any of the
appellants would prevail on the merits of his appeal.
5 C.F.R. § 1209.10(b)\(2); Grenier S-1, Tab 2; Bock S-l,
Tab 2; and Shea S-l, Tab 2.
The appellants each filed a second request for
a stay on December 17, 2002 based on newly
discovered evidence. Grenier S-2, Tab 1; Bock S-2,
Tab 1; and Shea S-2, Tab 1. On December 31, 2002,
based on the-evidence in the record at that time, I
granted Grenier’s and Shea’s requests for a stay.
Grenier S-2, Tab-4 and Shea S-2, Tab 4. I found, in
short, that the balance had shifted “and that the
agency’s professed need to reassign these two
appellants based on their poor performance and on a
need to correct the office situation in the New
Bedford Resident Office (NBRO) where all three
appellants worked was not sufficient enough to
Al12
outweigh the agency’s retaliatory motive; thus, there
was a substantial likelihood that Grenier and Shea
would prevail on the merits-of their appeals and,
further, the agency did not meet the criterion of
extreme hardship to negate the stay.’ 5 C.F.R. §
1209.10(b)(2).
With respect to appellant Bock’s stay request,
I dismissed it on December 31, 2002 based on the
fact that he had been granted a postponement of his
January 2003 reassignment date—to no later than
August 17, 2003—based on DEA’s Career Board
- accepting his reason, i.e., medical emergency, for a
delay. Bock S-2, Tab 4. At that time I believed the
decision in Grenier et al. would be issued before
August 17, 2003 and thus the granting of a stay
would be meaningless. When, that turned out not to
be true, Bock, on August 11, 2003, requested, for a
third time, a stay of his reassignment. On August 13,
2003, I granted the stay, with no objection from the
agency, to be effective until the date on which my
initial decision was issued. Bock S-3, Tab 3.
ANALYSIS AND FINDINGS
The Board has jurisdiction over an IRA appeal when
certain criteria are met.
— —
The Board has jurisdiction over an IRA if an
a
’ | found in adjudicating, the second stay requests that Chief
Inspector George J. Cazenavette III had actual knowledge of
the appellants’ whistleblowing disclosures. The evidence
presented since that time has caused that finding to be
incorrect. Cazenavette had constructive, not actual, knowledge.
See text infra.
Al13
appellant has exhausted his administrative remedies
before OSC and makes nonfrivolous allegations that
(1) he engaged in whistleblowing activity by making
protected disclosures under 5 U.S.C. § 2302(b)(8),®
and (2) the disclosures were a contributing factor in
the agency’s decision to take or fail to take, or
threaten to take or fail to take, a personnel action
under 5 U.S.C. § 2302(a)(2)(A). See Yunus v.
Department of Veterans Affairs, 243 F.3d 1367, 1371
(Fed. Cir. 2001); Rusin v. Department of the
Treasury, 92 M.S.P.R. 298, J 11 (2002).
Each appellant has exhausted his administrative
remedies before OSC.
As recounted above, each appellant presented a
complaint to OSC on October 8, 2002 and each
received a closeout letter from OSC on November 5,
2002. This scenario serves to exhaust each
appellant’s administrative remedies before OSC. 5
U.S.C. § 1214(aX(3); 5 C.F.R. § 1209.5. Thus, I find
8 This section states:
(b) 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 or safety.
Al4
that each appellant has met this first jurisdictional
criterion.®
Each appellant has made nonfrivolous allegations
that he engaged in whistleblowing activity by
making protected disclosures.
As part of the appellants February 7, 2003
prehearing submission, I required a list of
whistleblowing disclosures each had allegedly made.
Grenier listed 39 disclosures, Bock 41, and Shea 47.
Grenier W-l, Tab 23. While I do not agree that each
of the listed disclosures constitutes a nonfrivolous
* On February 10, 2003, I issued an order summarizing the
prehearing conference I held with the parties on that, date.
Therein, I noted my agreement with the appellants that each
had certainly raised other personnel actions with OSC in their
respective October 8, 2002 complaints. However, I noted that
OSC had not addressed these other actions in either its.
October 31, 2002 preliminary determination notice or its
November 5, 2002 close out letter. Thus, I stated I did not
intend to address them in the instant appeal because I doubted
satisfaction of the exhaustion requirement. I instructed the
appellants to inquire of OSC as to its intention to address the
other actions or wait until 120.Jays had passed and file second
IRA appeals on those actions. The appellants agreed with this
procedure, inquired of OSC (and learned essentially, that OSC
had erred in not addressing all personnel actions on November
5, 2002) and subsequently filed second appeals. I dismissed
these second appeals without prejudice pending the
adjudication of the instant appeal. See Grenier v. Department of
Justice, MSPB Dkt. No.BN-1221-03-0117-W-1 (Initial Decision
JuL. 21, 2003); Bock v. Department of Justice, MSPB Dkt. No.
BN-1221-03-0119-W-1 (Initial Decision Jul. 21, 2003); and Shea
vu. Department of Justice, MSPB Dkt. No. BN-1221-03-0118-W-1
(Initial Decision Jul. 21, 2003). With the issuance of the initial
decision today, I am reopening the above-captioned appeals for
further processing.
Al5
allegation of whistleblowing activity, I find that
each, appellant has made several nonfrivolous
allegations. I note that only one disclosure need be
alleged to meet the second jurisdictional criterion.
With respect to Grenier’s allegations at
Grenier W-i, Tab 23,”° the record evidence shows that
he authored a January 27, 2001 memorandum
addressed to his second-level supervisor, Assistant
Special Agent in Charge (ASAC) Carol Cooper
detailing a meeting he had had the day before,
January 26, 2001, with his immediate supervisor,
John H. Schaefer; NBRO Resident Agent in Charge ©
(RAC). Grenier W-l, Tab 50, Appellants’ Exh. F. In
that memorandum, he alleged, among other things,”
that Schaefer had made threatening remarks
concerning two DEA, subordinates, i.e., Bock and
Shea, and two Massachusetts State Police officers
assigned to NBRO’s Task Force.’* Grenier also
1° See also Grenier S-l. Tab 1.
‘. He had also orally informed her in a telephone conservation
about the same matters late in the day on January 26, 2001. I
note that cooper is physically located in the New England Field
Division, Boston, Massachusetts, Grenier in NBRO, New
Bedford Massachusetts.
12 As _with many of Grenier’s, Block’s, and Shea’s
communications noted herein, I have recited the most obvious
of the statements constituting alleged protected disclosures.
This is not meant to exclude other statements each appellant
may have made in each of his communications. However, I will
henceforth not include “among other things” to denote that
possibility.
'’ DEA staffs many of its field offices with special agents like
the appellants here and a combination of state and local police
Al6
alleged in his list of disclosures that on March 27,
2001 he orally informed Cooper that the problems in
NBRO were ongoing. Further, Grenier alleged that
-on August 14, 2001 he orally informed Cooper that
Schaefer was deliberately condescending to task
force agents who were not college graduates.
Further, Grenier alleged that on December 26, 2001
he orally informed Acting SAC (A/SAC) Thomas
Pasquarello that morale was horrible and the NBRO
was falling apart and that Schaefer had dry-fired his
wepon in the office. Further, Grenier alleged that on
December 28, 2001, he had provided Pasquarello
documentation that Schaefer had falsified a report
involving an undercover reverse sting operation™ he.
(Schaefer) had botched. Further, Grenier alleged
that on March 20, 2002, he informed ASAC Rodney
G. Benson, who was performing an_ internal
management review of the NBRO and the Cape Cod
Task Force (CCTF),” that-the NBRO had failed and
was an embarrassment to DEA, that, with few
exceptions, no other law enforcement agencies would
work/with NBRO because of Schaefer, that Schaefer
had extorted two local police officers who asked to
officers. This constitutes what is called a task force. This
structure promotes a team effort where each task force member
can provide his/her own knowledge and expertise in law
enforcement while drawing from the knowledge and expertise
of others in the task force. Cazenavette testified that a task
force is a force multiplier for DEA’s resident offices enabling
DEA to better accomplish its mission. Hearing Transcript (HT)
152 ~
*4 This is a procedure whereby an undercover DEA agent poses -
as a seller of drugs to drug dealers.
‘S This management review will be discussed in detail below.
Al17 .
leave NBRO (i.e., threatened that if they talked
about him after they quit the task force, he would
have their chief demote them), that Schaefer had
traded a hard-working local police officer for another
who was reportedly corrupt (and who Schaefer knew
had been reported as possibly corrupt), and that
Schaefer would falsify reports to show he was
present for enforcement activity on the street when
he was not.
From, my review of the above, I find that
appellant Grenier has made nonfrivolous allegations
that he disclosed information which he reasonably-
believed evidenced either violations of law, rule, or
regulation, gross mismanagement,’® abuse of
authority,’’ or substantial and specific danger to
public health or safety. In sum, I find he has met
the second jurisdictional criterion of making
nonfrivolous allegations that he engaged in
whistleblowing activity by making protected
disclosures under 5 U.S.C. § 23:02(b)(8).
‘© See White v. Departrrient of the Air Force, 63 M.S.P.R. 90,
95(3 994) (for purposes of 5 U.S.C. § 2302(bx8), “gross
mismanagement” is defined as management action or inaction
which creates-ia-.substantial risk of-significant adverse impact
upon the agency’s ability to accomplish its mission).
1? See Pulcini v. Social Security Administration, 83 M.S.P.R.
685, J 9 (1999) (an “abuse of authority” is defined AS an
“arbitrary or capricious exercise of power by a Federal official
or employee-that adversely affects the rights of any person or
that results in personal gain or advantage to himself or to
preferred other persons”) affd, 250 F.3d 758 (Fed. Cir. 2000)
(Table).
Al18
With respect to Bock’s allegations at Grenier
W-l, Tab 23,” the record evidence shows, via a.
February 1, 2001 memorandum authored by
Cooper,” that Bock orally informed Cooper in a
January 24 or 25, 2001 meeting that Schaefer would
lie or change a decision because he forgets what was
said 5 minutes earlier and that the language
Schaefer uses berates people: Grenier W-l, Tab 50,
Appellants’ Exh. G. Bock also alleged that in the
same meeting with Cooper, he told her that Schaefer
had been seen wearing his ballistic helmet
backwoods while eating lunch and staring into
space, that he (Bock) believed Schaefer was mentally
ill, that he (Bock) and others were concerned for
their safety and felt Schaefer could “go off” at any
minute, and that Schaefer displayed irrational
behavior. Bock also alleged in his list of disclosures
that he orally informed Cooper on August 21, 2001
that Schaefer consistently lied, that Schaefer had a
mental problem, i.e., narcissistic personality
disorder, that Schaefer was subject to mood swings
and temper tantrums and often stared into space,
that Schaefer was inconsistent in. his policies
regarding operation plans when conducting
surveillance, and that Schaefer, after an altercation
with a task force officer, changed the location of his
pistol from his ankle to the small of his back.
Further, Bock alleged that in his March 20, 2002
interview with Benson during the management
1® See also Bock, S-l, Tab 1.
‘° This memorandum was essentially a written summary of
what Cooper learned from NBRO personnel interviews on
January 24 or 25, 2001.
Alg
review, he told Benson that Schaefer had at one
point issued a physical challenge to one of the task
force officers, i.e., to settle their differences outside,
that Schaefer because of his incompetence, had
botched a reverse sting operation, and that Schaefer
had improperly exposed DEA to Giglio concerns”
because of his acceptance on the NBRO Task Force
of two allegedly corrupt local police officers.
From my review of the above, I find that
appellant Bock has made nonfrivolous allegations
that he disclosed information which he reasonably
believed evidenced either violations of law, rule, or
regulation, gross mismanagement, abuse of
authority, or substantial and specific danger to
public health or safety. In sum, I find he has met the
second jurisdictional criterion oof making
nonfrivolous allegations that he engaged in
whistleblowing activity by making protected
disclosures under 5 U.S.C. § 2302(b)(8).
With respect to Shea’s allegations at Grenier
W-l, Tab 23,” the record evidence shows, via a,
February 1, 2001 memorandum authored by Cooper,
that Shea orally informed Cooper in a January 24 or
25, 2001 meeting that the NBRO was in total chaos -
because of Schaefer, that Schaefer makes
inconsistent statements and does not trust people,
and that Schaefer has a personality disorder. Shea
also alleged in his list of disclosures that he told
*° Giglio arise when a law-enforcement officer called to testify
at a criminal trial has to admit being involved in
criminal/dishonest conduct himself.
2! See also Shea, S-1, T.ab 1
A20
Cooper on January 24 or 25, 2001 that Schaefer is a
pathological liar, that Schaefer’s ineffective
management reflects not only on himself (Schaefer)
but DEA as a whole, and that many of the task force
officers were contemplating returning to their
respective departments because of Schaefer's
irrational behavior and manipulation. Further,
Shea alleged that in a March 27, 2001 meeting, he
orally informed Cooper that NBRO had a hostile
work environment, that he (Shea) felt that Schaefer
was deliberately out to get revenge on him for
previously informing Cooper about his (Schaefer’s)
problems, that Schaefer repeatedly lied and
sometimes even denied having case-related
discussions with him, that his (Shea’s) life and the
lives of others were in jeopardy because of Schaefer’s
obvious hostility, and that other members of the task
force were leaving because they could not tolerate
Schaefer’s lies and deceit.” Further, Shea alleged
that on September 10, 2001, he orally informed
Cooper that Schaefer told him he had better watch
his back, that Schaefer was setting him up as a
scapegoat for his own mismanagement and failures,
that Schaefer was irrational, unstable and
dangerous, and that Schaefer had sworn to get
revenge on another agent if it was the last thing he )
ever did. Further, Shea alleged that on December 19,
2001, he orally informed then SAC Vincent J.
Mazzilli that Schaefer failed in his duties as a
commanding supervisor in an undercover reverse
sting operation almost resulting in the death of an
*2 Both Grenier and Bock allegedly stated to Cooper in the
same meeting on this date (a meeting between Cooper and all
three appellants) that they -concurred with these particular
disclosures of Shea. Grenier W-1, Tab 23.
A21
agent, that he (Shea) was being targeted as a fall
guy for Schaefer’s failures, and that Schaefer had
probably concealed information about the alleged
corruption of a local police officer at a time when
that officer was about to be appointed as a task force
officer. Further, Shea alleged that on December 28,
2001, he orally informed then A/SAC Pasquarello
that Schaefer failed in his duties as a commanding
supervisor in an undercover reverse sting operation
almost getting people killed, including, members of
the public. Further, Shea alleged that in his March.
20, 2002 interview with Benson during the
management review, he told Benson that Schaefef
caused a lot of problems with state and local
authorities which led them to leave DEA, that
Schaefer created factions and intrigue as
mechanisms of control, and that Schaefer deflected
his failures on everyone else. In addition, Shea
provided Benson examples of two cases which
Schaefer allegedly poorly managed.
From my review of the above, I find that
appellant Shea has made nonfrivolous allegations
that he disclosed information which he reasonably
believed evidenced either violations of law, rule, or
regulation, gross mismanagement, abuse of
authority, or substantial and specific danger to
public health or safety. In sum I find he has met the
second jurisdictional. criterion of making
nonfrivolous allegations that he engaged in
whistleblowing activity by making protected
disclosures under 5 U.S.C. § 2302(b)(8).
A22
Each appellant has established by a preponderance
of the evidence that his disclosures were a
contributing factor in the encys decision t
propose his reassignment.
It is clear that a, reassignment action is a personnel
action covered under the whistleblower law. In fact,
it is specifically enumerated in the law. See 5 U.S.C.
§ 2302(a)(1)(A)iv). Moreover, the law provides that:
The employee may demonstrate that
the disclosure was a contributing factor
in the personnel action through
circumstantial evidence, such as
evidence that—(A) the official taking
the action knew of the disclosure; and
(B) the personnel action occurred within
a period of time such that a reasonable
person could conclude that the
disclosure was a contributing factor in
the personnel action.
5 U.S.C § 1221(e)(1).
On February 24 and 25, 2003, I held the first part of
the bifurcated hearing in the consolidated appeal.
This was as a result of what I found to be a viable
agency allegation that the agency officials who
recommended and _ decided the appellant’s
reassignments had no actual or constructive
knowledge of the appellants’ whistleblowing
activities at the time those officials acted on the
A23
reassignments.” Grenier W-l, Tab 26. After the
hearing concluded, I found in an April 14, 2003
order, Grenier W-1, Tab 39, and I repeat that finding
here, that the recommending and deciding officials
in the. reassignment actions had constructive
knowledge of the appellants’ disclosures. See
McClellan v. Department of Defense’ 53 M.S.P.R.
139, 147 (1992) (reprisal can be shown by
establishing that a person with only constructive
knowledge of the appellant’s disclosure can influence
the official taking the action against the appellant).
Consequently, I further find that each appellant has
met the “knowledge” part of the above-cited law.™
Further, I found.-in my April 14, 2003 order, and I
repeat that finding here, that each appellant’s
disclosures during 2001 and 2002 were made within
such a period of time of the September 26, 2002
decision to reassign that a reasonable person could
find that they contributed to the action. See
Easterbrook v. Department of Justice, 85 M.S.P.R.
60, 67 (2000). (personnel actions occurring within
slightly more than 7 months of disclosure met
“timing” test).
In view of the above, I find that each appellant
has established by a preponderance of the evidence
that his whistleblowing disclosures were a
*3 The agency representative stated that information leading
to this allegation had just then recently been acquired. It was
not known during the adjudication of the stay requests.
24 I will provide the factual analysis for this finding when I
otherwise analyze the clear and convincing issue below. It will
be more easily understood this way.
A24
contributing factor in the agency’s decision to
reassign him.”
The agency has established by clear and convincing
evidence that it would have taken the same actions’
absent the appellants’ whistleblowing activity.
Because the appellants have met the
jurisdictional criteria in their IRA appeals, I now
turn to the merits of the appeals. In determining the
merits of an IRA appeal, the Board examines
whether an appellant has established by a
preponderance of the evidence that he engaged in
whistleblowing activity by making a protected-
disclosure under 5 U.S.C. § 2302(b)\(8) and that such
whistleblowing activity was a contributing factor in
the personnel action. If so, the Board must order
corrective action unless the agency establishes by
clear and convincing evidence that it would have
taken the same personnel action in the absence of
the disclosure. 5 U.S.C. §§ 1221(e) and 2302(b)(8); see
Spencer v. Department of the Navy. 327 F.3d 1354,
1356-57 (Fed. Cir. 2003). The Board may resolve,
these merits issues in any order it deems most
efficient. See Dick v. Department of Veterans Affairs,
290 F.3d 1356, 1363-64 (Fed Cir. 2002); Rusin 92
M.S.P.R. at J 20 n.9. I find it most efficient here to
bypass the issue of whether the appellants have
established by preponderant evidence that they
engaged in whistleblowing activity (remembering
2° This means that each appellant has gone beyond merely
meeting the jurisdictional criterion by making a nonfrivolous
allegation that his disclosures were a contributing factor in the
agency's decision to reassign him. Rather, I have found that he
has actually proven that a contributing factor exists.
A25
that I have, already decided that the appellants have
proven by preponderant evidence that their
whistleblowing activity was a contributing factor in
the agency’s decision to reassign them) and proceed
to the issue of whether the agency showed by clear
and convincing evidence that it would have taken
the same reassignment actions absent the
whistleblowing activity.
Clear and convincing evidence is that measure
or degree of proof that produces in the mind of the
trier of fact a firm belief as to the allegations sought
to be established; it is a Higher standard than the
“preponderance of the evidence” standard. 5 C.F.R.§
1209.4(d). In determining whether an agency has
shown by clear and convincing evidence that it
would have taken the same personnel action in the
absence of whistleblowing, the Board will consider
the following factors: (1) the strength of the agency’s
evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of
the agency officials who were involved in the
decision; and (3) any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly
situated. See, eg. Carr uv. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999).
The strength of the agency’s evidence in support of
its action
The Board’s authority in an IRA appeal is
limited to adjudicating whistleblower allegations.
The Board lacks the authority to adjudicate the
_A26 ——
merits of the underlying personnel action, here the
reassignment of each appellant. Lewis, v. Departmen
of the Army, 63 M.S.P.R. 119, 125 (1994), affd, 48
F.3d 1238 (Fed. Cir.) (Table), cert, denied, 516 U.S.
834 (1995). Said another, way, it is not for the Board
to decide if it would have reassigned the appellants
(knowing all the information that has been gathered
in this appeal process) if the agency has otherwise
shown that there was clear and convincing evidence
for effecting the reassignment actions it did.
In the - matter of the appellants’
reassignments, the deciding official was Rogelio E.
Guevara, the Chief of Operations, DEA.” Guevara
testified that he. first occupied his current position
in June 2002. Hearing Transcript (HT) 13, 1052. He
made the decision to reassign the appellants, each
one of them, on September 26, 2002, only several
months later. HT 9-10. The basis of his decision was
a memorandum of that same date forwarded to him
by Chief Inspector George J. Cazenvette III, Office of
Inspections (IN),” recommending the reassignments.
T 19; Grenier W-l, Tab 50, Apellants’ Exh. YY.
Guevara testified that he was privy to the contents
of the memorandum because of a previous discussion
with Cazenavette about it, see infra, and he had
done certain research prior to receiving the
memorandum. Thus, upon actually receiving it, he
26 Guevara testified that he is the only official authorized to
effect a reassignment of a special agent from one division to
another. HT 34
27 Guevara and Cazenavette are in separate organizational
entities in DEA. One is not subordinate to the other. Both
report directly to the Administrator of DEA through the Deputy
Administrator.
A27
was prepared to go forward with the reassignments.
HT 19.
The research he had done consisted of
reviewing a report in which he had been much
involved, when he first took over as Chief of
Operations several months before called the
“Domestic Field Divisions’ Special Agent and
Support Personnel Resource Requests.” HT 1052;
Grenier W-l, Tab 50, Appellants’ Exh. EEEE.
According to Guevara, this report concluded that the
domestic threat from drug trafficking was
principally along the Southwest U.S. border. A
second phase of the study resulted in a
recommendation that DEA realign its resources to
meet the drug threat along that border and that
about 37 agent positions be transferred there. HT 20,
1054. Thus, Guevara recognized a dire need to staff
the Southwest U.S. border with agents, and,
although he could send many new agents just
graduating from the agency’s training academy, plus
agents returning from overseas assignments, he also
saw, in the appellants’ reassignments, an
opportunity to send “some seasoned help to try to
mentor these brand new agents.” HT 47-48.
Guevara also pointed to a May 30, 2002 letter
from the. SAC, El Paso Field Division reinforcing the
problems his office faced keeping up with the
workload in that area. HT 1061; Grenier W-1, Tab 50,
Appellants’ Exh. EEEE at DEA00136. He also noted -
that the Federal Bureau of Investigation was
“standing down about 400 FBI agents from the
business of drug enforcement” and that the New
A28
England Field Division (NEFD) was overstaffed with
agents. HT 47-48, 1056-57.
Guevara was privy to the contents of the
September 26, 2002 memorandum because he had
spoken, with Cazenavette in early September when
the latter had returned from an Office of Inspections
on-site inspection (i.e., “headquarters inspection”) of
NEFD. At that time Cazenavette informed Guevara
that the enforcement operations of the NBRO were
dismally deficient, that critical elements associated
with the enforcement of drug laws were also
deficient, such as evidence handling, and that the
agents at NBRO were not conducting and carrying
on the business of the DEA like senior agents and
were not showing the type of leadership that senior
agents should be providing in a task force setting.
HT 22. Cazenavette added that the office had not
initiated any major drug trafficking investigations in
some time, that the agents had not established a
confidential informant in over a year, and that the
agents were doing nothing -more than preparing
summary reports after state police officers would
make arrests. What was lacking, Cazenavette told
him, was a true DEA presence in terms of follow-up
investigation, an attempt to identify, the sources of
supply bringing narcotics into the community. HT
42. Cazenavette_ specifically identified the three
appellants as blameworthy because of their lack of
attention to detail and cavalier attitude about their
responsibilities. According to Cazenavette, the
appellants displayed a disregard for their
responsibilities to the extent, as the inspectors were
told, that they only collected evidence during
business hours. Guevara noted that this was “very
A29
unusual because DEA ageiits work day and night
regularly and work horrible hours to try to catch
these traffickers.” HT 43, Guevara testified that
Cazenavette did not tell him anything about NBRO’s
RAC Schaefer, e.g., that he was mentally unsound.
Furthermore, although the RAC would be the logical
place to focus the blame, Guevara understood
Schaefer was gone, i.e., retired, and “I was concerned
with what was going on with the office then and why
it was deficient.” HT 43-44.
Guevara further testified, in essence, that he
had no contact with anyone or anything else in
making his decision to reassign the appellants.
Specifically, he did not know the appellants, he did
not speak to their then SAC, Mark V. Trouville, until
after he had decided to reassign the appellants, he
never spoke to Schaefer, and he was not involved in
any way with the August 2002 headquarters
inspection. HT 8, 21. Most importantly, Guevara
testified, he never read AS AC Benson’s March 2002
management review. HT 55, 58; Grenier W-l, Tab 50,
Appellants’ Exh. HH. This is crucial because that
review, in essence, exposed the appellants as
whistleblowers and recommended, among other
things, “systematic, across the board
transfers/removal of all assigned (NBRO) personnel.”
See infra.
Guevara testified that he never read Benson’s
Management Review despite being forwarded a copy
of it on August 13, 2002 by Trouville. HT 55, 58;
Grenier W-1, Tab 50. Appellants’ Exh. PP. Guevara
explained that, at his level, he would not look at a
management review; it would be for the SAC who
A30
ordered the review to entertain. Otherwise,
Guevara’s subordinate, the Domestic Chief of
Operations, who coordinates with the SACs, would
see a Management review and assist the SAC with
it. HT 33. Guevara added that many times “a lot of
paper comes into my office where subordinate DEA
managers feel that this has to be routed to me,
whether in fact it is necessary or not” and he does
“not read every piece of paper that comes to him.”
HT 30, 34. He would never do research into a
document like a management review because it is in
much more detail than he would get into; rather, he
would take it at face value. HT 59.
But, Guevara admitted to reading the
September 26, 2002 memorandum from Cazenavette
entitled “Recommendation for Transfers: Special
Agents Chris Grenier, Todd Shea, and Paul Bock,
New Bedford Resident Office, Boston Division.” HT
19. A review of this document reveals that much of it
is a recapitulation of what Cazenavette had
previously informed Guevara during their early-
September discussion. However, on the second page,
it contains the following relevant statements:
A review of other inspection related
documents revealed that a
Management Review of the situation in
the New Bedford RO. was conducted.
earlier in the year at the direction of
SAC Trouville. Part of that review
centered on the relationship between
the New Bedford RO and the
Massachusetts State Police. In an
interview with SAC Trouville, he stated
A31
that SAs Grenier, Shea, and Bock failed
to support DEA and its mission, and in
fact actively supported the position of
the Massachusetts State Police against
DEA’s_ interests. Additionally, an
interview with a Task Force Officer
raised concerns that SAs Grenier, Shea,
and Bock were not following established
policies and procedures, thus exposing
DEA to unnecessary liability. The TFO
stated that the total disregard of DEA’s
CS. fi.e., confidential source” or
informant! policy by Grenier, Shea, and
Bock would lead to a “Whitey Bulger”
incident (a reference to a _ widely
publicized scandal involving the
impreper handling of organized crime
informants by FBI agents).
Based upon the results of the on-site
inspection, and in concurrence with the
management review conducted by the
Boston Division, I recommend that SAs
Grenier, Shea, and Bock be relocated to
other divisions.
Grenier W-.1, Tab 50, Appellants’ Exh. YY.
Initially, I find, from a review of the four
corners of this document, that, without reading the
referenced management review itself; a reasonable
person would not realize that the appellants were
whistleblewers. There, is absolutely nothing in the
words quoted above to indicate that any of the
appellants had made a protected disclosure; Rather,
A32
all it indicates is that there was a rift in the office
between DEA and the-Massachusetts State Police
and that the appellants sided with the latter. It does
not say, as the Management Review itself does, what
the rift concerned. Also, it does net reveal anything
about Schaefer’s role in the rift or what the
appellants were either saying or doing relative to it
nor does it intimate in any way that either Schaefer
or the quoted task force officer were the subjects of
some of the appellants’ whistleblowing disclosures.
Not surprisingly then, Guevara did not have actual
knowledge of the appellants’ whistleblowing
activity.” Inote that Guevara testified he was aware
that there was some kind of controversy between
DEA and the Massachusetts State Police and that
the appellants had sided with the latter. But he did
not recall the details of it and, he stated, it was of no
consequence in his decision making. HT 47, 72.
In essence then, Guevara’s decision to
reassign was based on the reasons stated in
Cazenavettes September 26, 2002 memorandum,
which, as mentioned above, was a recapitulation of
what Cazenavette orally informed him in early
September, and the documented immediate need for
more agents on the Southwest U.S. border, and the
?® What is surprising is that neither- party, specifically, asked
Quevara, in either his February 24, 2003 or June 17, 2003
hearing appearances, whether he had actual knowledge, before
making his decision to reassign the appellants, that they were
whistleblowers. However, | find it is otherwise clear from all
his other statements that he did not have actual knowledge,
albeit he had constructive knowledge. See text infra.
A33
financial wherewithal to effect the reassignments, an
amount estimated at $350,000.
With respect to this latter point, Guevara
testified that he had his executive assistant find out
before he ordered the subject reassignments whether
there was PCS (i.e., permanent change of station)
money available. HT 60-61. He said there would be
no point in deciding to reassign anyone if there was.
no .financial resource to accomplish it. HT 49. The
answer came back in the affirmative and he did not
otherwise inquire into the amount because PCS
moves “are all so different,” but he did know it would
be “a lot of money.” He also realized that he had to
effect the reassignments before the beginning of the
new fiscal year (i.e., October 1, 2002) when he
expected, from past experience, that there would be
a continuing resolution and a block on the
expenditure of. Items such as PCS money.” HT 61-
62. .
Guevara did not ask Cazenavette if the
appellants had been counseled or put on a
performance-improvement plan. HT 70. This was not
his focus. The “fact that their performance was
questionable was not why I transferred them.” HT
22 Indeed, the agency’s Chief Financial Officer issued a
directive sometime in September 2002 stating, that DEA would
begin FY 2003 under a continuing resolution and particularly
directing that “PCS decisions should be postponed except for
the most mission-critical PCS transfers.” GrenierW-l, Tab 50,
Appellants’ Exh. VV. However, it is clear that the directive
addresses funds to be expended in FY 2003 and has no
relevance to FY 2002 expenditures such as the PCS moves
here.
A34
1062. The conclusion he reached from Cazenavette’s
September 26, 2002 memorandum and their early
September discussion was that “here we had three
agents who had quite a bit of time on the job and I
would consider senior agents and (they) were not
providing the type of leadership, by way of leading
these investigations, and were not fully carrying out
their responsibilities. And I was faced with a
situation where we had gaping needs in the
southwest border.” HT 44.
Guevara testified that he called Trouville on
September 26, 2002 or the -day before” to learn
whether Trouville could backfill the three NBRO
agent positions.*’ HT 1060, 1068-69. Trouville told
him that this could be accomplished, albeit Guevara,
who is ultimately responsible for all agent
reassignments, subsequently reassigned to NBRO a
newly graduated agent from the academy. HT 1078.
It is to be noted that even though the agency
has agents sign a mobility agreement, as the three
appellants did here, Grenier W-l, Tab 50, Agency
Exh. 3A-C, stating that mobility is a condition of
employment, it is rare that an agent is involuntarily
reassigned as happened in this case. The fact is that
Guevara would not have reassigned the appellants
30 Trouville’s handwritten notes show that Guevara called on
September 26, 2002.Grenier W-1, Tab 50, Appellants’ Exh.
DDDD.
3} Backfilling means reassigning special agents within a
division so a particular office like NBRO is not left without
sufficient staff to perform its mission.
A35
were it not for Cazenavette’s recommendation
following the August 2002 headquarters inspection.
From my review of Guevara’s testimony and
from observance of his demeanor while testifying
(twice) at the Board’s hearing, I found his testimony
entirely credible. He was consistent throughout, no
other evidence contradicted his testimony, none of
what he said was inherently improbable, and I found
him to be honest and forthright. See Hillen uv.
Department of the Army, 35 M.S.P.R. 453, 458-62
(1987) (to resolve credibility issues administrative
judge must apply certain factors).
In view of all of the above, I find that
Guevara’s reasons for reassigning the appellants are
strong. The agency needed agents on the Southwest
U.S. border, particularly seasoned, i.e., experienced,
agents, at the same time Guevara reasonably
perceived that three experienced agents needed to be
reassigned away from a situation where they were
not performing acceptably and at a time when there
were ample resources to effect the moves. The
confluence of these three reasons in September 2002,
I find, strongly supports the reassignment actions.
The only way such evidence could be found not
sufficiently strong is if Guevara’s perception relative
to the appellants’ performance was unduly
influenced by reprisal for whistleblowing. And, in
turn, the only way undue influence along these lines
could have occurred is if it came from Cazenavette,
either alone or through others, for example, any of-
Cazenavette’s IN subordinates, particularly the
inspectors who investigated the NBRO.
A36
It is clear that Cazenavette, the Chief
Inspector from January 2002 to May 2003, and now
retired, had no knowledge of the appellants or
Schaefer or the NBRO from any discussions with
anyone or from reading any document before he
arrived in Boston to partake in the NEFD’s
headquarters inspection on August 29, 2002. HT
996-97. The first he heard anything at all about the
situation in NBRO was on the evening of August 29,
2002, when one of his senior inspectors, Richard M.
Dearing, met him in a chance encounter at a
restaurant in downtown Boston.
Dearing was an i<inspector in whom
Cazenavette had much confidence. Cazenavette
testified that although he had only known Dearing
from the time he became the Chief Inspector in
January 2002, he considered Dearing to be a very
good investigator and a capable agent. He was
known as a_ go-to individual in the office.
Cazenavette respected his opinion, was impressed
with his knowledge, and recognized him as one who
could grasp a situation, i.e., “cut to the chase real
quick and get to the meat of the subject.” HT 1044-
Cazenavette’s and Dearing’s August 29, 2002
conversation lasted about 30 minutes. HT 91. In that
time Dearing told Cazenavette, among other things,
that: the appellants had lost sight of the fact they
were DEA agents; they had aligned themselves too
closely with the Massachusetts State Police; they
32 There was much testimony about what “aligned with the
Massachusetts State Police” meant. The record evidence shows
in fact that it meant different things to different people.
Cazenavette’s take on it, as it was introduced to him by
Dearing (but no specifics or a definition from Dearing), was
A37
were basically relying on the state police to bring
them cases; they were not leading, but were
following the state police in case work; the office was
split into factions; the appellants had disregard for
DEA policies and procedures to the point where they
were not conducting the level of investigations they
should; they had absolutely no regard for DEA’s
authority; they were senior agents who were
basically doing nothing; they had coilateral duties
they were not doing; and they provided dishonest
and flippant .answers to the inspectors, essentially
that it concerned basically the type of work that was being done
by the state police—not the type of work DEA expects from, its
agents—and the appellants’ adoption of that type of work as
their own. However, Cazenavette appeared to also believe that
it had something to do with the philosophy of the state police
and the appellants following that policy, and/or the appellants
taking the side of the state police in the rift that had developed
in the office between the state police and Schaefer. Cazenavette
testified he never really knew the details of the so called
alignment. HT 138-39, 141. From the appellants’ perspective,
knowing intimately the history of the rift that had developed
over the few years of Schaefer’s tenure in the Cape Cod and
New Bedford offices between Schaefer and _ certain
Massachusetts State Police task force officers, it meant
something else. It meant that they had sided with those officers
in the complaints the officers had made about Schaefer’s
violation of laws, rules, and regulations, gross mismanagement,
and abuse of authority. However, someone not knowing this
history would first likely conclude, I find, that “siding” or”
“aligning” with the state police meant only that ah agent
favored the way the state police-did things, e.g., processed
cases, and-took their side in any dispute about how things,
should be done vis-a-vis how their DEA supervisor wanted
things to be done.
A38
lying to them,” being adversarial, and showing them
disrespect. HT 92-93, 95, 122, 138, 159-60, 1046-47.
Cazenavette said that “the thing that exacerbated
the whole situation was the demeanor of these
agents towards our inspectors. I mean we're all
carrying the same badge.” HT 1555. I note that
Bearing’s testimony on certain of the above points is
entirely consistent with Cazenavette’s testimony.”
HT 394-403.
The only mention of a RAC being involved in
the situation was Dearing’s statement, in response
to Cazenavette’s inquiry of who he was, that the
RAC had retired® and there was an Acting RAC
present but had been there for only a short period of
time, i.e., 4 days. HT 94. Cazenavette testified that if
the RAC, i.e., Schaefer, was not retired, then he
“would have been in play.” HT 123. He would have
33 This issue of lying, or lack of candor, has proceeded forward
to an Office of Professional Responsibility investigation.
Cazenavette testified that he understood
°* Dearing was not asked to list all the points he made to
Cazenavette on the night of August 29, 2002.
°° Apparently, Schaefer was not officially retired on the date
Cazenavette and Dearing met. But he had cleared out of his
office “in the middle of the night” the week before the
headquarters, inspection and was never seen by NBRO
personne! again. It was reported to the inspectors that he was
retired and they did not look behind that statement. Evidently,-
Schaefer was allowed to use up some sick leave before he
officially retired, ostensibly at the end of August 2002 (the date
of his retirement was never introduced into evidence).
However, in view of the circumstances, I find, as a practical
matter, that during the headquarters inspection Schaefer was
gone and unavailable.
A39
recommended Schaefer be reassigned and demoted
based on the condition of his office since it was
obvious he was not giving guidance, not directing,
not doing anything.** HT 125.
However, despite Schaefer’s incompetence,
recognized by Cazenavette and others, see infra, this
fact, according to Cazenavette, did not absolve senior
special agents like the appellants from doing their
job special agents like’ the appellants from doing
their job. They should be self-sufficient, “doing
something,” making cases, initiating informants,
“everything that we do;” “you’re/supposed to lead.”
HT 126-27. He did “not buy into” the argument that
Schaefer prevented the appellants from properly
performing. From his own experience, sometimes it
is necessary to go around the RAC in order to get the
job done. In essence, a senior agent should be able to
do this and the appellants here should have done it.
HT 123, 981.
I note that Dearing never, during his August
29, 2002 conversation with Cazenavette or at any
other time, made a recommendation to Cazenavette
that the appellants should be reassigned. Also,
Cazenavette never told Dearing that he was going to
recommend reassigning the appellants. HT 96, 398.
*® Cazenavette stated that one of the reasons he accepted the
job of Chief Inspector was to “turn this ship around and direct
our efforts at looking at management, identifying good
managers and awarding them, and taking managers that aren’t
good and exposing them, holding the managers accountable for
their offices.” HT at 126.
A40
It is otherwise clear from the record evidence
that Cazenavette, based on his confidence in
Dearing, believed Dearing’s statements about the
appellants, took them at face value, and never
thereafter questioned them. Indeed, he totally relied
on Dearing’s statements when he determined to
recommend to Guevara that the appellants be
reassigned. In effect, he never changed his opinion
after that August 29, 2002 evening discussion with
Dearing. Cazenavette added that all the decisions he
makes as Clef Inspector are based on briefings,
sometimes short ones; he relies on his senior
inspectors and the SESers, i.e., upper management
officials, who are supervising them to accurately
provide him information. HT 1008.
Cazenavette testified that it was the next
morning, the morning of August 30, 2002, after
thinking about the matter “the whole way,” when he
made up his mind he would recommend the
reassignments. HT 160-61. He then proceeded to
SAC Trouvlle’s office and, before Trouville could say
anything, he informed Trouville that he planned to
recommend the appellants’ reassignments, HT 111,
161-63. At that point, according to Cazenavette,
Trouville said that he had earlier directed a
management review and, as a result of it, he had
noted a performance issue with the appellants, had
called them into his office and told them that they
were too closely aligned with the state police.*’ HT
*’ Trouville testified that he made this determination to
recommend the appellants’ reassignments as soon ‘as
Cazenavette had finished saying he was going to do it. He had
the appellants come to his office on August 13, 2002 and,
according to the appellants and to some extent Trouville
A41
119-20. Cazenavette testified that Trouville asked
him to back off his recommendation and let him
make it. Cazenavette declined, stating that Trouville
could make any recommendation he wanted but that
his (Cazenavette’s) recommendation was based on
the results of his inspection and he intended to
follow through with it. HT 120. Trouville’s testimony
on this meeting comports in all important details
with Cazenavette’s. HT 244-47. The record further
shows that Trouville never made a recommendation
to reassign.” HT 265.
Cazenavette credibly denied ever reading
Benson’s Management Review even though it was
cited in his September 26, 2002 memorandum.” HT
114. After Trouville made him aware of its existence
on August 30, 2602, he directed his deputy to make
it part of the headquarters inspection file but only so
that file would be complete. He wanted Guevara to
himself, told them, in essence, that if they did not shape up, he
would reassign them to the Southwest U.S. border “as fast as
their heads could spin.” However, he had taken no action on
this threat as of August 30, 2002 when he met with
Cazenavette.’ But Cazenavette convinced him this is what he
(Trouville) should do because it corroborated what he believed
and he agreed with Cazenavette. HT231.
7° If he had, the analysis in this case would be quite different.
*9 Cazenavette did not author the memorandum. Cazenavette
told his deputy to write the September 26, 2002-memorandum
and told him specifically what he wanted in it. HT 128-29, 501,
504. Dearing testified that he put the “meat and potatoes” in
the memorandum, “especially the issues pertaining to the
different findings that we had in (NBRO).” HT 3 89-90. From
Dearing, the draft went up through the chain of command to
Cazenavette who signed it.
———————————————————
A42
be aware that another document existed on the same
subject—to be fair to Guevara and to give him the
option of looking at «. But he (Cazenavette) would
never read such a document. HT 114-15, 129. Thus, I
find that Benson’s Management Review had no effect
on Cazenavette’s recommendation to reassign the
appellants
As with Guevara, from my review of
Cazenavette’s testimony and from observance of his
demeanor while testifying (twice) at the Board’s
hearing, I found his testimony entirely credible. He
was consistent throughout, no other evidence
contradicted’ his testimony, none of what he said
was inherently improbable, and I found him to be
honest and forthright. See Hillen, 35 M.S.P.R. at
458-62.
The appellants alleged that Dearing and
several other DEA employees had gained knowledge
of the appellants’ whistleblowing disclosures either
independently or from reading Benson’s
Management Review and that the:’, in turn, passed
oh such kmowledge to Cazenaveiie. They also
intimated that if Dearing had this knowledge—and
any adverse opinion that came along with it—it may
well have caused him to slant his findings, i.e., he
would be prone to look for errors in the appellants’
work where there were none or exaggerate any
errors that did exist. This then would have tainted
Dearing’s findings, his report to Cazenavette on-
August 29, 2002, and, ultimately, Cazenavette’s
determination to recommend the _ appellants’
reassignments. The appellants pointed to Dearing’s
supervisors, Charles. H. West, Deputy Chief
A43
Inspector, IN, and Lee Wayne Nicks, Associate
Deputy Chief Inspector, IN,*° and they also pointed
to Schaefer, Trouville and Cooper.
Thus, I will examine what employees had
knowledge of the appellants’ disclosures and
whether, if they did, they passed it on, directly or
indirectly, to Cazenavette before he made the
determination on August 30, 2002 to recommend
their reassignments. I note my finding above that
Cazenavette made up his mind on August 30, 2002
to recommend the appellants’ reassignments and
never wavered from that determination after he
announced it to Trouville.
In order to understand the import of Benson’s
Management Review on the clear and convincing-
evidence issue, as well as on the knowledge issue, I
recite the following statements from that review
which, I find, relate directly or indirectly to the
appellants’ alleged whistleblowing disclosures:
e Several interviewees described an incident in
January 2001 when Schaefer was called to
Boston to meet with Cooper and rumors
*° Nicks serves as West executive assistant. HT 502. According
to West, he “basically wanted him [Nicks] to kind of draw back
on this one [the NEFD headquarters inspection] because he
was here before and he could have some culpability.” HT 503.
What he meant by this was that Nicks had only recently come
to IN in November 2001 from & ASAC position in NEFD
(where he served 7’years) and” he could have been involved in
some program area errors while an ASAC on which IN would
be making findings. Despite this, Nicks was in Boston for the
closeout session during the second week of the inspection and
spoke to West on occasion then. HT 489-90.
A44
circulated that Schaefer was to be removed
from the office. After the meeting, several of
the interviewees heard. Schaefer was coming
back to the office. Some staff members
indicated they affixed weapons to their belts
while others left the office entirely. This was
done as a. safety precaution as it was
speculated that Schaefer had” been; relieved
of his position and would be in a very unstable
mental state—capable of “going postal.”
Because of poor -decisions made by Schaefer
regarding personnel and case management,
the perception of those interviewed (the
appellants were among these) was _ that
Schaefer is the cause of NBRO having such a
high turnover of task force officers;’
Each person revealed that the underlying
problem revolves around DEA’s relationship
with the Massachusetts State Police and
Schaefer’s mental state.
Regarding this menial state, the consensus of
those interviewed was that Schaefer is
mentally unstable; he appeared to be
preoccupied, forgetful, and— subject to
unpredictable mood swings.
On one occasion Schaefer sat alone at his
desk, eating lunch with a Kevlar helmet on
backwards (this was described as irrational
behavior and not meant to be a joke). On
another occasion he sat at his desk dry firing a
pistol at a time when tension-in the office was
particularly high.
Schaefer was accused. of not allowing the
agents and task force officers to do their jobs.
A45
» As a result of ongoing problems, the NBRO
had been ineffective to the point that very
little enforcement action had even been
attempted.
e During an undercover reverse sting operation,
Schaefer made several tactical and
judgmental errors that resulted in the escape
of several suspects. Later, an after-action
meeting did not include three arrest team
members making the critique mostly
ineffective. Also, Schaefer rewrote the arrest
report to. Support his position and the original
report disappeared.
e Schaefer allegedly threatened Grenier.
e A New Bedford police officer, recently
appointed as a task force officer, should not
have-been appointed because there was a
report that he may have been involved in a
tow company kickback scheme.
Grenier W-l, Tab 50, Appellants’ Exh. HH. In
addition to the above, Benson implied in. Ms
narrative that the appellants (and others) had been
reporting some of the above allegations to Cooper.
Dearing testified that he learned on the
Wednesday (i.e., August 14, 2002) before the
headquarters inspection of NEFD that he was; going
to the New Bedford and Cape Cod offices of NEFD.
HT 338. On August 14, 2002, Dearing attended the
“mountrout,” an essentially logistical meeting of all
those IN employees involved in it NEFD inspection.
This was about 30 employees. At some point before
going to New Bedford, Dearing received the
customary notebook put together for the inspectors.
A46
This notebook contained certain _ statistical
information about the division as provided by
headquarters offices, the last headquarters
inspection report on the division, and the last
division inspection report*’ conducted by the NEFD.
HT 343. Benson’s Management Review was not in
the notebook. Such a document would not normally
be part of the notebook because. IN does not want to
prejudge what it might find as a result of its own
inspection. HT 498, 555. And Dearing did not see the
review until after he inspected the NBRO. He had
then arrived at certain conclusions about the office
and about the appellants, and wrote his draft
findings. This all occurred on August 19-21, 2002
and he first saw Benson’s Management Review on or
about August 28, 2002, just prior to his August 29,
2002 30-minute conversation with Cazenavette.
Dearing further testified that he did not
discuss with West, his second-level supervisor, the
NBRO headquarters inspection before he went to
New Bedford. HT 346-47. Otherwise, there is no
evidence to show that West ever discussed Benson’s
Management Review with Dearing. Although West
had received Trouville’s August 13, 2002
memorandum forwarding the management review,”
** This is also referred to as a self-inspection and is mandated
by IN. Division inspections are normally performed yearly by
some of the division’s ASACs and are accomplished between-
aperiodic, usually 3-year, headquarters inspections. They cover
_ some of the same program areas as a headquarters inspection.
*¢ That one-page memorandum stated, in pertinent part:
Based on the review conducted, I believe that there has
been a history of mismanagement and lack of
A47
Grenier W-l, Tab 50, Appellants’ Exh. PP, West
testified that he only glanced at the memorandum,
never read the review,” but forwarded it on to Nicks
who he expected might forward it on to the senior
inspectors inspecting the NEFD.“ HT 483-84, 496-
97, 555. West did not mention Trouville’s
memorandum to anyone, not even Cazenavette when
they met briefly before speaking with Trouville on
August 30, 2002 HT 486. West “didn’t think about”
Trouville’s memorandum even when Cazenavette
mentioned there was a problem with three agents in
NBRO. HT 494-95.
For the same reasons that I found Guevara
and Cazenavette credible, I find West equally so. In
view of all of the above, I find that West did not
have, and therefore did not pass, on, any knowledge
of the appellants’ whistleblowing disclosures to
appropriate oversight in both (NBRO and CCTF)
offices. The combination of ineffective or “Acting” DEA
supervisors and the presence of very senior
Massachusetts State Police (MSP) officers led to the
abdication of DEA’s leadership role in the offices. RAC
Schaefer, upon his arrival, did not possess the needed
diplomatic nor management skills to properly assert
DEA’s leadership role. His heavy handed attempts
appear to have been met with rebellion not. only from
the MSP officers, but also from several of our Special
Agents.
‘3 West testified that if-he read documents like this one he
would be reading from morning to night. He said of such
document: “I funnel it down to where it needs to go.” HT497.
** Bolstering my finding that neither West, nor Guevara, nor
Cazenavette, ever read Trouville’s August 13 2002
memorandum is that, according to Trouville, he never received
any feedback on it. HT 220. ~
A48
Dearing or Cazenavette before the latter determined
to recommend reassignment of the appellants.
Dearing testified that Nicks, his immediate
supervisor, chose him to be the senior inspector for
the NBRO and CCTF because of all the problems
they expected to find in CCTF as reported in the
division inspection. Before Dearing went to New
Bedford, Nicks told him there were some issues in
CCTF with the Massachusetts State Police.
According to Dearing, “There really wasn’t a whole
lot of discussion on New Bedford.” HT 652-53.
After Dearing finished the NBRO inspection
on August 20, 2002, he called Nicks on August 21,
2002 from Cape Cod. He did so for two reasons: to
inform Nicks of the number of problems and findings
in NBRO (he had “never seen that many findings in
any one office before in my entire tenure in
inspections”) and to recommend referral for Office of
Professional Responsibility (OPR)“ investigation
Shea’s alleged lack of candor. HT 356-58. Dearing’s
testimony about his conversation with Nicks at that
time is otherwise a bit unclear but, from a review of
it, I cannot find that Nicks informed Dearing of any
of the appellants’ whistleblowing disclosures. HT
358-66, 403. Moreover, Nicks testified that he never
discussed with Dearing the recommended findings in
Benson’s Management Review (with which Nicks
was otherwise familiar). HT 514. Nor did he ever
discuss with Guevara, Cazenavette, or West the’
appellants’ allegations against Schaefer. HT 526-27.
45 OPR is a division within IN and is responsible for such
matters as alleged employee misconduct investigations.
A49
For the same reasons that I found Guevara,
Cazenavette, and West credible, I find Nicks equally
so. In view of all of the above, I find that Nicks,
albeit he had knowledge of some of the appellants’
whistleblowing disclosures, did not pass that
knowledge on to Dearing or Cazenavette before the,
latter determined to recommend reassignment of the
appellants.
Dearing has never spoken to Schaefer and it is
clear that neither has Cazenavette. HT 364.
Furthermore, I find no evidence to show that
Schaefer authored any documents or was otherwise
able to make good on his threats that he would
retaliate against the appellants even after he left
NBRO. Schaefer had no access to the agency’s
decision makers.”
It is clear from the record that neither
Trouville nor Cooper ever spoke to Dearing or
Cazenavette about the appellants before August 29,
2002. As mentioned above, Trouville sent his August
13, 2002 memorandum to West and attached
Benson’s Management Review. However, as found
above, Cazenavette never read it. However, it was
provided by Cooper to Dearing, along with much
other documentation, at Dearing’s request, on
August 28 or 29, 2002. Grenier W-l, Tab 50,
Appellants’ Exh. CCCC (list of documents provided-
by Cooper to headquarters inspectors).
Fir -lly, here is evidence of Dearing acquiring
knowledge relating to the appellant’s whistleblowing
*© See text infra re discussion of inspectors’ interviews of two
individuals who were favorably disposed towards Schaefer.
A50
disclosures. And, more importantly, Dearing admits
that he read in its entirety Benson’s Management
Review. HT 379.
From a review of Coopers and Dearing’s
testimonies, I find that the preponderance of the:
evidence is that Dearing received Benson’s
Management Review from Cooper no later than
August 29, 2002 and read it that day. HT 423. I also
find, from a review of the statements in the
management review, see supra, that, despite
Dearing’s testimony that he did not recognize the
statements as_ indicative of whistleblowing
disclosures, they are clearly indicative of
whistleblowing disclosures. I further find that
Dearing had actual, knowledge of the appellants’
whistleblowing disclosures before he spoke with
Cazenavette on the night of August 29, 2002. Thus,
I find that Cazenavette had constructive knowledge
of those disclosures at the time he formulated his
determination to recommend the _ appellant’s
reassignment and, in turn, Guevara also had
constructive knowledge at the time he decided on the
reassignments. Moreover, I find that this establishes
the “knowledge” part of the knowledge/timing test in
whistleblower law by- a preponderance of the
evidence. See supra; McClellan, 53 M.S.P.R. at 147,
Although Dearing’ received Benson’s
Management Review before he spoke with
Cazenavette, the record evidence shows that he had
already completed his report on NBRO on
“Wednesday of the previous week, i.e., August 21,
2002. HT 352, 379. That report was not changed as a
result of Dearing’s reading of the management
A51
review and, clearly, his strong opinion of the
problems, he saw firsthand during the NBRO
inspection and reported to Cazenavette on August
29,. 2002, as identified above, has never wavered.
Dearing’s observations and opinion of NBRO
and of the appellants were shared by his two fellow
inspectors who worked with him in NBRO on August
19-20, 2002. All three were experienced inspectors.
Kenneth Etchison explained how the NEFD
headquarters inspection unfolded. At the August 14,
2002 “mount out,” the inspectors received a notebook
including, among other things, the operational plan
for the NEFD headquarters inspection, which
summarized the information, including the last
division inspection,’ that IN had gathered on NEFD
and all its resident offices. The operational plan for
the NEFD headquarters inspection stated that
morale and cases were down in NBRO. HT 923.
When on-site in NBRO the inspectors first
completed checklists of various information, e.g.,
employee interviews. These were maintained in a
binder and then a report was written, by Dearing,
about what the inspectors found in NBRO.® The
*’ ASAC Carol Cooper’s November 23, 2001 division inspection
report was also included in the notebook. A review of it reveals
no discernible whistleblowing disclosure from anyone. Grenier
W-l, Tab 10, Subtab 4K, “Division 'nspection Rep.” Cooper
reported difficulties in NBRO, including morale problems, but
#othing extraordinary as compared to other included offices
wseh also had various problems of their own.
‘® The findings that Dearing made in the NBRO report were
almost entirely adopted in the NEFD report and contain many
A52
NBRO report was subsequently combined with all
other office reports, after review and editing, and
was put into one report for the entire division. HT.
278-79; Grenier W-l, Tab 10, Subtab 4K (first
section). “Findings” are noted in the reports. These
are IN determinations that an office has violated a
statute, regulation, policy, or procedure. HT 569.
Etchison testified that he, Dearing, and
Auditor Gary K. Smith first arrived at NBRO at 8:30
AM on Monday, August 19, 2002. No one was there.
They went for coffee and came back 20 minutes later
and there still was no one there. After a few
minutes a support staff person let them in. Besides
the extremely poor physical facility the office
occupied, the inspectors were appalled at the
filthiness of the office: cords laying across walkways,
trash cans overflowing, garbage/shredder bags just
left in piles, food and beverages ground into the
carpet, remnants on the floor, computer parts and
other things just strewn about the office. HT 815-16
It appeared to them that no one cared about
anything. It is obvious that the inspectors got a very
bad first impression of the office and that this did
not bode well for the appellants. -
Etchison did the standard employee
interviews of all three appellants. According to
Etchison, all three appellants provided
uncharacteristically brief, and sometimes
untruthful, responses to the interview questions,
with Shea providing the shortest answers. Shea’s
of the same points that Dearing relayed to Cazenavette on the
night-of August 29, 2002.
A53
body language was “horrible,” a curt “fine” was his
answer to many questions, and Etchison’ generally
got the impression that Shea; did not want to talk
about the office situation with him.” Etchison
thought that Shea’s attitude was “unprofessional”
and wrote “total BS” as a comment in the
interviewer's observations section on the
Standardized Employee Interview Questionnaire.
HT 288-91, 830, 838, 858; Grenier W-l, Tab 10, Sub
tab 4K, “Core Interviews.” Grenier’s interview was
not much better, according to Etchison. His answers
were short, not the typical responses an inspector
would get from a special agent with the length of
service Grenier has. HT 285-87, 290-91, 87-28.
Bock’s interview was longer and more open than the
other two agents but still relatively short. HT 287,
290, 832-33. Etchison got the feeling that the
appellants just wanted to get through the process..
HT 296.
Smith testified that Grenier gave him short
and rough answers concerning information in
logbooks; he certainly did not get the help he usually
gets when he is dealing with DEA staff on an
inspection.*® HT 754-56. Smith testified that one day
*° This expected cooperation is clearly an important component
of a headquarters inspection and apparently not realized by the
appellants. Gilbert. Howard, RAC of the Providence, Rhode
Island Resident Office, testified that his office had a lot of
findings in the August 2002 headquarters inspection but the
inspectors complimented his people and asked him to
thank/them for their hard work, their cooperation and their
willingness to help the inspectors. HT T215. Howard further
testified that he told his staff before the inspectors arrived that
“anything they want, you get it for them and you don’t argue
with them.” HT 1236. Etchison commented that staff at CCTF
A54
the whole NBRU staff just left the inspectors in the
office alone; that has never happened to him in 3
years of inspecting. HT 802-03.
When the three inspectors would talk during
breaks, they were commenting to each other that the
office was so different from what they had
experienced with the main theme being “I can't
believe this is like this,” HT 857. Smith added that
in his opinion the office was totally broken. “Things
just did not operate or weren’t operating up to where
it should have been, not even close to it.” HT 753.
For the first time, Smith testified, Dearing got “a
little frustrated” with an office. HT 752, 800.
Etchison testified that he would observe the
three appellants having little meetings among
themselves with hushed voices and he never saw one
of them speak with a task force officer. HT 860.
According to Etchison, IN expects a lot more
cooperation in the interview process from special
agents and they were just not getting it from the
appellants. The interview gives, employees an
opportunity to talk about their cases, the office,
anything they want to talk about. Ironically, the
inspectors are anxious to hear the kind of disclosures
the appellant had been making about Schaefer for
the last couple of years; their primary job is to make
sure managers are doing their job. Etchison, upon
laver reflection and with knowledge of the entire
situation, was disturbed that the appellants did not
important and the appellants did not do themselves any favors
by not exhibiting it.
A55
bring Schaefer up as an issue. “They didn’t think it
was important enough to bring [issues] to my
attention and wanted to live with the status quo.”
Etchison testified that if the appellants “had said
this is the most screwed up office I’ve ever worked
in, that Mr. Schaefer is an ax murderer, I would
have written it down ... and brought it forward” as
he did in two other inspections where employees
essentially blew the whistle on managers during the
headquarters inspection process. HT 858-59.
Dearing concurred in this sentiment. He
testified that if the inspectors had been made aware
of any issues regarding Schaefer they could have at
least brought it to the attention of DEA
management. HT 689-900. Dearing added that it
would have made a difference if the appellants had
told the inspectors about Schaefer, albeit they would
have put the burden on the appellants to show them
how that was true. HT 691.
On the other hand, two people who were
cooperative and free with information for Dearing
and Etchison were Arthur J. Kelly, Chief of Police,
New Bedford, Massachusetts and a task force officer
placed by Kelly in NBRO and whom the appellants.
had alleged was corrupt.” These two were favorably
disposed to Schaefer and not favorably disposed to
the appellants. Kelly told Dearing, among other
things, that if any of his people had done what the
°° Dearing interviewed Kelly and Etchison interviewed the
task, force officer. I note that it is the firm opinion of all besides
the appellants who testified on the subject that the task force
officer is not corrupt, that the allegations against him are false.
See, e.g., HT 956 (testimony of RAC Michael J. Ferguson).
A56
appellants had done, ie. sided with the
Massachusetts State police against DEA’s interests,
he would have immediately transferred them.
Dearing, in fact, wrote this statement up in his
summary report of NBRO. The task force officer,
who was one of the subjects of the appellants’
whistleblowing disclosures, also spoke up and
essentially blew the whistle on the appellants.
Etchison perceived the officer as straightforward and
candid. HT 310. The officer told Etchison that now
that Schaefer was gone, the appellants were happy
because they could do what they wanted. He further
opined that DEA could face liability because of the
way the appellants were circumventing confidential
informant policy; there could be a Whitey Bulger
incident as a result.”’ HT 915-16. Etchison was glad
to have this type of information because “one of my
major jobs” is to make sure DEA is not exposed to
criminal or civil liability. HT 310-11.
Although these were not positive reports for
the inspectors to have received about the appellants,
I cannot find that they unduly influenced their
opinion of the appellants. It was reinforcement, yes,
for the inspectors’ extremely poor opinion of the
appellants, but I find it clear that the inspectors
would have arrived at the same opinion regardless of
Kelly’s and the task force officer’s input. Most
+ This “Whitey Bulger” comment made its way into
Cazenavette’s Septem!er 26, 2002 niemorandum. It should not
have because it is a poor analogy in this case, obviously
misunderstood by those who put it there. Bulger was a
confidential informant whom the FBI used improperly, e.g., he
was supplied information by his FBI handlers to allegedly hurt
and murder people. There was no such analogous situation in-
NBRO.
A57
importantly, there is no evidence to show that
Dearing told Cazenavette on August 29, 2002 that.
Kelly had told him (Dearing) that he would reassign
the appellants if they worked for him.
Smith testified that the inspection was carried
out the usual way. Dearing and Etchison did the
same things they normally do. HT 758-59. Etchison
did all three of the appellants’ employee interviews
and half the case file reviews (five) at Dearing’s
request. If Dearing were of a mind to control any
findings in these areas, I find it unlikely that he
would have allowed anyone else to perform these
investigative tasks.
The appellants attempted to show that the
inspectors schemed to disadvantage them in the
NBRO inspection process, e.g., in the way they
selected “case files to review,-in not reviewing cases
for FY 2000, and in not correctly determining that
the office was producing certain types off cases.
However, I cannot find from my review of these
matters that these experienced inspectors’ deviated
from standard investigative practices or were
otherwise unfair in their inspeciion.
Dearing testified that he decided his
- inspection team would not review NBRO case files
that were initiated in 2000 because the N-BRO was
formed in May 2000 and he “basically gave them a
few months, if you will, to get in, get settled, get set
up rather than trying to judge what they were doing
at the time they were making, the move.” HT 667,
705. I find that this reasuning is entirely plausible
and not unreasonable in any sense.
A58
In addition, I find merit in the inspectors’
random sampling of case files for review and find it a
valid method of selection. It is statistically sound.
The fact that it did not result in a more favorable
selection of cases was unfortunate for the appellants
but not preordained. The fact that 10 “weak” cases
were selected—and I do not find credible evidence
that there was a rigged selection—is indicative, I
find, that the office was processing a
disproportionate number of that level case,” as the
inspectors concluded.
And finally, I find no evidence that the
inspectors purposefully deflated the number of high
level-cases in the office.
In sum, I find no scheme existed to
disadvantage the appellants in the NBRO inspection
process also note that Michael J. Ferguson, the
current RAC of NBRO, testified that since arriving
in NBRO in November 2002, he has addressed the
headquarters inspection, reviewing each and every
finding. He-has found that the findings were “all
very accurate.” HT 941-44.
In view of all of the above, I find that the
agency has clearly shown that neither Cazenavette,
Dearing, nor anyone else brought to bear on
Guevara’s decision to reassign .the appellants any
undue influence based - on reprisal for
whistleblowing.
The existence and strength of any motive to
ae
involved in the decision
A59
With respect to the existence and strength of
any motive to retaliate on the part of Cazenavette
and Guevara, I find none. The appellants certainly
did not present any evidence to show improper
motive on the part of either official. The appellants’
whistleblowing disclosures had nothing whatsoever
to do with these two officials. Instead, the
disclosures targeted an individual, i.e., Schaefer,
whom everyone appeared to agree was a liability to
the agency and someone they were just as happy to
see retired. Moreover, as alluded to above,
Cazenavette and his inspectors would have
welcomed whistleblowing disclosures about Schaefer
during the course of the NBRO headquarters
inspection. Schaefer personified bad management, a
condition Cazenavette had dedicated his last months
of government service to-eliminate.”
I also note that Cazenavette, as a member of
the agency’s Career Board, cast the deciding vote in
a 5-4 split on the question of whether Bock’s request
for a medical extension of his reporting date from
January 2003 to August 2003 should be granted. I
find that Cazenavette’s action in this instance is not
that of an official with a motive to retaliate. Also, I
note that Guevara granted two (Grenier’s and
Shears) of the three appellants’ requested
extensions’ on their reassignments for 45 days,
* According to Cazenavette, part of IN’s job and his reason for
accepting the Chief Inspector position was’ to correct bad
management. He wanted to see the inspection process be able
to identify performance and lack of performance. It seemed
there had been no consequences for lack of performance; he
wanted to hold people accountable. HT 986-87.
A60
which he is authorized to do.® I find that Guevara’s
granting the two extensions he could, even though
they were for short periods, is not the action of an
official who has a motive to retaliate.
Neither Cazenavette nor Guevara viewed the
reassignment actions as punitive. Rather,
Cazenavette believed that each of the appellants had
the ability to be outstanding performers; otherwise,
DEA would not have hired them. And the whole
point “was to get them to that level where we
thought they could perform.” HT 1039, He wanted
to see them rehabilitated and to learn from the
experience; when DEA hires agents it believes they
are “the best of the best” and the agency has “a lot of
money” invested in them. He intended to give the
appellants an opportunity to prove themselves in a
new environment. HT 980-81.
Guevara had the same idea. He testified that
he saw the reassignments as an opportunity for the
appellants because obviously they had become
complacent in NBRO, “but the slate is clear once
they get there, and they’re senior agents; in two or
three years from now, they could be the supervisors;”
this was “an opportunity not only for the agency but
°3 The third (Bock’s), being for a much longer period, had to go
to the Career Board.
A61
for the agents to be able to go to a new office and
start anew.”™ HT 62-63, 1062.
In sum, I find no motive to retaliate on the
part of Guevara or Cazenavette.
Any evidence that the agency takes similar actions
against agency employees who are not
whistleblower who are otherwise similar]
situated
The appellants alleged that the fourth agent
in NBRO, Daniel J. Forde, was not a whistleblower
aid was similarly situated to them, yet he was not
reassigned. First, it is clear from the record that
Forde was not reassigned. However, it is not clear
from the record that Forde could not at least be
perceived as a_ whistleblower. In Benson’s
Management Review, for instance, he is listed as one
of the NBRO interviewees and then the narrative
immediately following states: “the perception of
those interviewed was that the RAC is the cause of
this office having such a high turnover of TFOs (i.e.,
task force officers);” also, “due to bad relations with
other agencies throughout the region, the NBRO
received very little cooperation and few referrals.” It
continues along the same lines as many of the
appellants’ alleged disclosures. But no one is
differentiated as the source of any of these
°4 Michael J. Ferguson, the present RAC of NBRO and the
appellants’ supervisor, put it well when he stated his belief
that “DEA is a very forgiving agency;” there are “bumps in the
road” of everyone’s career, but one “can come to a new place
with a clean slate and have a chance to start fresh.” HT 974-
75.
‘
A62
allegations. Thus, from reading only Benson’s
Management Review, one would not know that
Forde was any less a whistleblower than any of the
three appellants. That said, I will assume that Forde
is not a whistleblower and only decide the similarly
situated issue.
With respect to that issue, Dearing did Forde’s
employee interview on the second week of the
headquarters inspection. Forde, who was on military
leave the first week of the inspection while the
inspectors were in NBRO, came up to NEFD in
Boston the second week. Dearing testified that Forde
was “bright, energetic, helpful.” HT 684. According
to Cazenavette, Dearing told him (Cazenavette) on
August 29, 2002 that Forde was working.
Cazenavette got the impression that Forde-was “out
swinging and trying to hit the ball,” albeit the
investigation level of the cases he was working was
not “what we wanted to see.” He was working with
the task force officers which is fine, according to
Cazenavette, as long as he was not aligned with
them so as to lose his DEA identity. HT 136-39,
1036-37. Again, Cazenavette was relying on
Dealing’s expert judgment in arriving at his
conclusions about Forde.
In view of the above, I find that Forde was not
similarly situated to the appellants. The appellants
were reassigned essentially for three reasons: their
poor performance, their poor attitude and demeanor
exhibited to the inspectors, and their lack of candor
in responding to direct questions. Forde was not
guilty of any of these although on performance, it
would be difficult to distinguish him.
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Unfortunately for the appellants, it appears
that the inspectors lumped together all that was
happening in NBRO—and they were finding
overwhelmingly bad things—and blamed the DEA
employees who were there, i.e., the appellants, for
them. One of the reasons that Schaefer was not
focused on is that he was not there. The same is true
for Forde. Fortunately for him, he was away on
military leave the week the inspectors were in
NBRO.® He thus was not associated with the
shortcomings that the inspectors were finding
minute by minute.
I also note that the appellants’ case is the first
time Cazenavette made a recommendation to
Guevara to reassign anyone. However, the record
evidence shows that Cazenavette recommended the
reassignment of a RAC and three ASACs, ostensibly
not whistleblowers, from the Detroit Field Division
before Guevara began as Chief of Operations in June
2002. According to Cazenavette, each of them had
numerous elements that they had not identified
during their own self-inspection and they were not
doing their jobs.” HT 146, 987. Two of the ASACs
were eventually reassigned. HT 989. Thus, there is
°° Smith testified that Forde was not there to form an opinion
about. HT 798-99. Etchison added that there was not a lot of
discussion about Forde “because he just wasn’t there” HT 926
°° There is also some evidence that, after September 26, 2002,
Cazenavette and Guevara have both been involved in the
reassignment of others for similar, e.g., performance, reasons.
But, because these actions occurred after these officials knew of
the appellants’ whistleblowing complaints, I find them to be of
limited probative value.
A64
some evidence that Cazenavette was not singling
out the appellants.”
In view of all of the above, | find that the
agency has proven by clear, and convincing evidence
that it would have taken the reassignment actions in
the absence of the appellants’ whistleblowing. The
agency evidence in support of its’ action is strong,
the two agency officials most involved in effecting
the reassignment actions barely knew that the
appellants were whistleblowers and were not
themselves, “the subject of any disclosures, and the
agency has taken similar reassignment actions
against employees who are not whistleblowers but
who are similarly situated (in the sense that they
were viewed as not doing their jobs) and has not
taken similar action against a non-whistleblower
employee for good reason, i.e., he was not similarly
situated.
DECISION
The appellant’s request for corrective action is
DENIED. Based on this denial, and in accord with
my previous rulings on the stay requests, the stay
orders in the appellants’ cases have now expired.
*’ There is also some evidence that, after September 26,2002,
Cazenavette and Guevara have both been involved in the
reassignment of other for similar, e.g., performance, reasons.
But, because these actions occurred after these officials knew of
the appellants’ wistleblowing complaints, I find them to be of
limited probative value.
A65
FOR THE BOARD:
_/s/
William Carroll
Chief Administrative Judge
NOTICE TO PARTIES CONCERNING
SETTLEMENT
The date that this initial decision becomes
final, which is set forth below, is the last day that
the administrative judge may vacate the initial
decision in order to accept a settlement agreement
into the record. See 5 C.F.R. § 1201.112(a)(5).
NOTICE TO APPELLANTS
This initial decision will become final on
October 24, 2003, unless a petition for review is filed
by that date or the Board reopens the case on its own
motion. This is an important date because it is
usually the last day on which you can file a petition
for review with the Board. However, if this initial
decision is received by you more than 5 days after
the date of issuance, you may file a petition for
review within 30 days after the date you actually
receive the initial decision. The date on which the
initial decision becomes final also controls when you
can file a petition for review with the Court of
Appeals for the Federal Circuit. The paragraphs that
follow tell you how and when to file with the Board
or the federal court. These instructions are
important because if you wish to file a petition, you
must file it within the proper time period.
A66 |
BOARD REVIEW
You may request Board review of this initial
decision by filing a petition for review. Your petition,
with supporting evidence and argument, must be
filed with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419
If you file a petition for review, the Board will obtain
the record in your case from the administrative
judge and you should not submit anything to the
Board that is already part of the record. Your
petition must be postmarked, faxed, or hand-
delivered no later than-the date this initial decision
becomes final, or if this initial decision is received by
you more than 5 days after the date of issuance, 30
days after the date you actually receive the initial
decision. If you fail to provide a statement with your
petition that you have either mailed, faxed, or hand-
delivered a copy of your petition to the agency, your
petition will be rejected and returned to you.
JUDICIAL REVIEW
If you are dissatisfied with the Board’s final decision,
you may file a petition with:
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439
A67
You may not file your, petition with the court before
this decision becomes final. To be timely, your
petition must be received by the court no later than
60 calendar days after the date this initial decision
becomes final.
A68
NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for
review of this initial decision in accordance with the
Board’s regulations.
I certify that the attached Document(s) was (were)
sent by regular mail this day to each of the following:
A69
CERTIFICATE OF SERVICE
Appellants
Paul C. Bock
21 Rounsevell Drive
E. Freetown, MA 02717
Todd M. Shea;
c/o Peter H. Noone, Esq.
AVERY DOOLEY POST & AVERY, LLP
90 Concord Avenue Belmont, MA 02478
Christopher W. Grenier
25 Apple Tree Lane
Barrington, RI 02806
Appellant’s Representative(s) (VIA FAX)
Peter H. Noone, Esq.
AVERY DOOLEY POST & AVERY, LLP
90 Concord Avenue
Belmont, MA 02478
Agency’s Representative(s) (VIA FAX)
Imelda L. Paredes, Esq.
Monica Pantos-Deagostino, Esq.
U.S. Department of Justice
DEA Headquarters
Office of Chief Counsel (CCA)
2401 Jefferson Davis Highway
Alexandria, VA 22301
A70
September 19, 2003
/s
Joyce Reynolds
Paralegal Specialists
A71
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BOSTON FIELD OFFICE
CHRISTOPHER W. GRENIER,
PAUL C. BOCK, AND
TODD M, SHEA
Appellants,
¥.
DEPARTMENT OF JUSTICE,
Agency.
[ENTERED April 14, 2003]
DOCKET NUMBERS
BN-1221-03-0033-W-1
BN-1221-03-0034-W-1
BN-1221-03-0035-W-1
DATE: April 14, 2003
ORDER
On February 24-25, 2003 I held a bifurcated
hearing in the above-captioned appeal in order to
determine whether the appellants met their burden
of proof to show that their purported whistleblowing
disclosures were a contributing factor in the agency’s
reassignment of each of them from New Bedford,
Massachusetts to three locations on the Southwest
border. As I had explained in my February 10, 2003
order summarizing the ruling I made at that day’s
A72
prehearing conference, a bifurcated hearing was-the
most efficient way to proceed in light of the agency’s
viable allegation that responsible agency officials
had no actual or constructive knowledge of the
appellants’ disclosures.
From my review of all the evidence, including
particularly the testimonies of the witnesses
presented at the February 24-25, 2003 hearing, I
find that the appellants have met their burden of
proof. In short, I find the facts, by a preponderance
of the evidence, to be at least the following; Senior
Inspector Richard Dearing had actual knowledge of
the appellants’ purported whistleblowing disclosures
because he read, before speaking with Chief Inspector
George J. Cazenavette III on Thursday night, August
29, 2002, the “Management Review of the New
Bedford Resident Office and the Cape Cod Task
Force (FFS 140-01)” in which the disclosures were
identified (Dearing’s understanding of those
disclosures to be whistleblowing disclosures is
immaterial); Cazenavette thus had constructive
knowledge of the disclosures before he formulated
his intent on August 20, 2002 to recommend to Chief
of Operations Rogelio Guevara, on September 26,
2002., that the appellants be reassigned; in turn
Guevara had constructive. knowledge of the
appellants’ disclosures when he ordered the
reassignments on September 26, 2002.
In addition, I find, in applying the above-
decided facts to the law, e.g., Board precedent, that
this line of knowledge leading to the ultimate
decision to reassign (i.e., Dearing’s actual
knowledge, Cazenavette’s constructive knowledge,
A73
and Guevara’s constructive knowledge) is sufficient
to establish the “knowledge” part of the
knowledge/timing test in whistleblower case law. See
McChllan v. Department of Defense, 53 M.S.P.R. 139,
147 (1992) (reprisal can be shown by establishing
that a person with only constructive knowledge of
the appellant’s disclosure can influence the official
taking the action against the appellant). I otherwise
find with respect to the timing part of the
knowledge/timing test that the disclosures were
made within such time that a reasonable person
could find that they contributed to the actions. In
sum, the appellants have proven their disclosures
were a contributing factor in their respective
reassignments.
I emphasize the obvious. The above findings
are made in. summary fashion. If this were an initial
decision, my ruling on the knowledge/timing test
would comprise at least 10 pages of very. detailed
factual and legal analysis and findings. However,
there is no need for such detail here because, in
essence, we are still in the midst of case processing.
Moreover, the parties are hereby notified that I will
not revisit this ruling before I issue my _ initial
decision in this consolidated case. Thus, I will accept
no request for reconsideration or similar motion with
respect to this ruling. Indeed, I will summarily reject
and return any such request/motion to the party
filing it. In sum, this part of the case is behind us.
We are moving on.
The only parts of the case that remain in
contention are whether the appellants did indeed
make disclosures protected under 5 U.S.C. §
A74
2302(b)(8), i.e., whistleblowing disclosures, and
whether the agency can establish by clear and
convincing evidence that it would have taken the
reassignment actions in the absence of the
disclosures.
With respect to the making of whistleblowing
disclosures, it has appeared to me throughout and it
is still my firm impression that each of the
appellants will easily be able to establish that he
indeed made such disclosures. However, I am
cognizant that the agency has contested each
appellant’s ability to establish this part of their
respective appeals. If I allow evidence to be
introduced at hearing on this issue, the hearing will
likely require many days of testimony even if I
otherwise restrict the proof to just several purported
whistleblowing disclosures from each appellant. In
an attempt to avoid this inefficiency, I am hereby
requiring the agency’ to review each of the 147
instances of purported whistleblowing disclosures
identified by the appellants’ representative in. his
February 7, 2003 prehearing submission and state
which of these the agency is alleging does not
constitute a whistleblowing disclosure and why it
does not. (The agency representative should be
aware that each appellant need only prove that he
made one whistleblowing disclosure to meet his
burden on disclosures).
The agency representative will present her
allegations in her’ supplemental prehearing
submission to be filed by May 9, 2003. See infra. At
the May 16, 2003 supplemental prehearing
conference, sec infra, I will rule on whether the
A75
agency has presented good reason for the hearing to
proceed with evidentiary presentations on the issue
of the making of disclosures or whether the hearing
will proceed with just the submission of written or
oral argument on that issue.
Of course, the pivotal issue in this case is
whether there is clear and convincing evidence that
the reassignment actions would have been taken in
the absence of the appellants’ disclosures. In this
regard, I will be looking primarily at the strength of
die agency’s reasons for the reassignment actions,
the existence and strength of any motive agency
officials had to retaliate against the appellants, and
any evidence that the agency takes similar actions
against employees who are not whistleblowers but
who are similarly situated. Evidence will be liberally
allowed on these matters with the primary witnesses
being Guevara and Cazenavette. However, the
parties should be mindful that some evidence on
these matters was already introduced in the
February 24-25, 2003 hearing via the testimonies of
these two officials, albeit I recognize that I restricted
each of their testimonies on the grounds of relevance
because of the particular nature of that hearing. The
parties should review the testimonies of these
witnesses in an attempt to limit unnecessarily
repetitive testimony in the supplemental hearing.
Sea infra.
The parties may amend their previously filed
prehearing submissions. They must file such
amendments no later than May 9, 2003. There is no
need to repeat anything in those _ previous
submissions. The representatives should be only
A76
adding to or subtracting from them. (Please be aware
that I will be attending the Board’s Legal Conference
from May 5-9, 2003 and will thus be unable to
respond to any last-minute motions, etc.)
The supplemental prehearing conference will
be held at 10 AM, May 16, 2003. I have not seta
date for hearing but will leave it to the parties to
select a mutually available date (please be cognizant
of witnesses’ availability) on any of the following
consecutive dates: June 3-6, June 16-20, June 30-
July 3, July 7-11, 2003.
Finally, the parties are encouraged to once
again attempt settlement of their dispute. The time,
energy and expense of this case to both sides is
mounting, and quickly. A resolution at this time
could well be in both parties’ interests. Failed
attempts in the past should not deter the parties
from exploring solutions which may be more
palatable at the present time. In this regard, let me
repeat the offer of appointing as a settlement judge
in this matter our regional director, William
Boulden. Judge Boulden officiated in many
whistleblowing cases when he was an administrative
judge in the Board’s Washington Regional Office. He
could provide the parties a fresh perspective and
explore alternatives neither the parties nor I have
thought of to date. The parties should notify me as
soon as possible if this is an approach they would
like to take and I will make the arrangements.
AT77
FOR THE BOARD
/s/
William Carroll
Chief Administrative Judge
A78
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BOSTON FIELD OFFICE
CHRISTOPHER W. GRENIER,
Appellant,
Vv.
DEPARTMENT OF JUSTICE,
Agency.
[ENTERED December 31, 2002]
DOCKET NUMBER
BN-1221-03-0033-S-2
DATE: December 31, 2002
Peter H, Noone, Esquire, Belmont, Massachusetts,
for the appellant. ‘
Imelda L. Paredes, Esquire, Alexandria, Virginia, for
the agency.
BEFORE
William Carroll
Chief Administrative Judge
ORDER GRANTING STAY REQUEST
By motion filed December 17, 2002, the ©
appellant, a Special Agent, GS-1811-13, with the
Drug Enforcement Administration (DEA), New
A79
England (i.e., Boston) Division, New Bedford
(Massachusetts) Resident Office (NBRO), moved for
the second time’ for a stay of his pending
reassignment to be effective January 12, 2003 to the
Imperial County Resident Office, San Diego
(California) Division, DEA. For the reasons set forth
below, the appellant’s motion is GRANTED.
The appellant meets the Board’s filing
requirements for a stay request per 5 C.F.R. §
1209.8. He filed his motion by FAX after having
become eligible to file an appeal with the Board* and
before the close of discovery in his pending
individual-right-of-action (IRA) appeal, see Grenter v.
Department of Justice, MSPB Dkt. No, BN-1221-03-
0033-W-1, and he correctly served his motion on the
appropriate Board field office (i.e., Boston Field
Office). He also simultaneously filed his motion ‘nter
alia, upon the agency’s designated representative,
showing by an accompanying certificate of service
how and when service was made (i.e., by FAX and
overnight mail on December 17, 2002). Moreover, I
find that the appellant meets the content
requirements of 5 C.F.R. § 1209.9(a) for his stay
request.
' The appellant’s first stay request was denied on November
25, 2002. See Grenier v. Department of Justice, MSPB Dkt. No.
BN-1221-03-0033-S-1
? The appellant first sought corrective action from the Office of
Special Counsel and received a written notification from that
agency on November 5, 2002 that it was terminating its
investigation of the appellant’s allegations. See 5 C.F.R. §
1209.5.
A80
The agency filed its response to the stay
request within the regulatory 5 days, see 5 C.F.R. §
1209.9(c), on December 24, 2002. The appellant
replied to the agency response on December 30, 2002
claiming the response contained crucial evidence,
ie., .an August 13 2002 report’ entitled
“Management Review of the Cape Cod and New
Bedford Offices,” which the appellant had heretofore
not been privy Under the circumstances, I find no
obstacle to the appellant’s filing regulations are
silent with respect such filing of his reply, noting
that the Board’s regulations are silent with respect
to such filing.
This ruling on the instant stay request is
made within the mandatory 10 workdays after
receipt of the request, i.e., December 17, 2002. See 5
C.F.R. § 1209.10. The ruling addresses, as the
regulation mandates, whether there is a substantial
likelihood that the appellant will prevail on the
merits of his IRA appeal.
The initial determination to be made is
whether the appellant has established Board
jurisdiction over his whistleblower claim by showing
that he has exhausted his Office of Special Counsel
(OSC) remedies and by making non-frivolous
allegations’ that he nude disclosures protected under
5 U.S.C. § 2302(b\8) and the disclosures were a
contributing factor in the agency’s decision to take a
personal action as defined in 5 U.S.C. § 2302(a).
Rusin v. Department of the Treasury, 92 M.S.P.R.
289, 304 (2002).
A81
As indicated in footnote 2 supra, the appellant
has shown that he raised the whistleblower issue
before the OSC and proceedings before OSC have
been exhausted. Moreover, I find it clear that the
agency took a personnel action by proposing to
reassign the appellant. From a review of the
appellant’s exhaustive rendition of all the facts and
circumstances in his case, including his experience
as a special agent and the disclosures he made
regarding his former immediate-supervisor, Resident
Agent in Charge (RAC) John Schaefer, I. find he had
a reasonable belief that many of his numerous
disclosures evidenced an abuse of authority, gross
mismanagement, a violation of law, rule, or
regulation, and/or a substantial danger to the public
health or safety.
In my order denying the appellant’s, first stay
request, I found that the agency official primarily
responsible for proposing the appellant’s
reassignment was New England Division Special
Agent in Charge (SAC) Mark Trouville. However,
the appellant, based on “newly discovered evidence
contained within the Agency file,”* asserts that .the
official primarily responsible for the reassignment
was the agency’ chief inspector, George J.
Cazenavette, III. There is good reason for this
assertion. In his September 26, .2002 memorandum
entitled “Recommendation for Transfers: Special
Agents Chris Grenier, Todd Shea, and Paul Bock,
> In view of the Fact that the appellant has yet to actually be
reassigned, and such action will not happen until an effective
date comes and goes, it is still only a proposed action.
* L.e., the agency’s response file in his IRA appeal
A82
New Bedford Resident office, Boston Division,”
Cazenavette stated his recommendation was based
on these agents’ alleged poor performance exposed
during an on-site inspection conducted by his office,
i.e., the Office of Inspections, on August 19-20, 2002,
as well as on a interview with SAC Trouville in
which he (Trouville) stated that these agents “failed
to support DEA and its mission, and in fact actively
supported the position of the Massachusetts State
Police against DEA’s interests.” See Stay Request
File (SRF), Tab 1, Appellant’s Ex. A. The appellant
asserts that his active, support of certain
Massachusetts State Police officer’s disclosures of
gross mismanagement, abase of authority, etc., made
against his immediate, supervisor, RAC Schaefer,
constituted his whistleblowing—dubbed by the
agency a failure to support DEA--and is now the
overriding reason he is scheduled to be reassigned.
. The agency claims that there is no evidence
that Cazenavette was aware of any protected
disclosures made by the appellant. I find this claim
without merit. Cazenavette indicated in his
September 26, 2002 memorandum that he concurred
“with the management review conducted by the
Boston Division.” This review was conducted at
Trouville’s direction’ and he sent it: to DEA
headquarters officials on August 13, 2002. See SRF,
Tab 2, Agency Ex. 1, pp, 1-2. Close perusal of the
review. see SRF, Tab 2, Agency Ex. l.pp. 3-15,
reveals several instances where the inspectors
reported on the unmistakable whistleblowing
> The review was actually conducted on March 19-21, 2002, but
the lengthy report of it, undated in the record, was probably not
forwarded to Trouville until much later.
A83
activities of several agents, including the appellant.®
Furthermore, the first listed recommendation made
by the reviewers, and endorsed by Trouville, was:
“[systematic, across the board transfers/removal of
all assigned personnel (NBRO) appears to be the
only viable solution to what appears to be a long
term, ongoing, institutionalized issue fueled by
preconceived notions and prejudices towards the
RAC.” Id: at p. 15. In sum, I find that in reading the
Boston Division’s review, Cazenavette had to have
seen the obvious references to the appellant’s
whistleblowing disclosures. I thus further find that
Cazenavette had actual knowledge of those
disclosures. Moreover, I find that he recommended
the appellant’s reassignment within a short time
after learning of those disclosures which
recommendation was based in part, as he saw it, on
the appellant’s “failure to support DEA,” i.e., making
disclosures against RAC Schaefer.’
In view of all of the above, I find that the
appellant has established jurisdiction over his
whistleblowing claim and that he has further shown
a substantial likelihood that his whistleblowing
disclosures were a contributing factor in his
proposed reassignment action.
: Many of these are documented in the appellant’s December
30, 2002 reply. Sue SRF, Tab 3.
’ It is unclear from this record but, evidently, someone in upper
DBA management has the authority to actually effect, i.e.,
authorize, the appellant’s reassignment. The parties did not
address this point so I must assume that once Cazenavette
made his recommendation, the appellant’s reassignment was a
forgone conclusion.
A84
Under 5 U.S.C.§ 1221(e)(2), the Board may
not order corrective action “if the agency
demonstrates by clear and convincing evidence that
it would have taken the same personnel action in the
absence of such disclosure,” In making this
determination, the Board generally considers, inter
alia, the strength of the agency’s evidence in,
support of its personnel action and the existence and
strength of any motive to retaliate on the part of the
agency officials involved in the decision. See Visconli
v. Environmental Protection Agency, 78 M.S.P.R. 17,
24 (1998).
In the first stay request order, I found that the
motive to retaliate was weak because’ agency
management welcomed the appellant’s
whistleblowing activity, that it realized that RAC
Schaefer was a poor manager, that the particular
managers responsible for his reassignment were not
the targets of the whistleblowing disclosures, that
management had evidence of the appellant’s
performance problems from the headquarters
inspection, and that management was just tired of
the underlying miserable state of affairs in NBRO
‘and wanted a quick fix. See Greni.er v. Department
of Justice, MSPB Dkt, No. BN-1221-03-0033-5-1
(Nov. 25, 2002)
However, recent revelation of the Boston
Division’s internal management review and the
Office, of Inspections on-site inspection of the
NB.R.O, referenced supra, casts a different light on
the motivation issue. My review of the reports of (the
review and the inspection reveals a management
preoccupation/obsession with reassigning _ the.
A85
appellant and two other similarly situated agents
who were responsible for an alleged failure to
support DEA and its mission. It also reveals a lack of
perception and/or appreciation by management that
any failure to support was founded on the fact that
those agents, including the appellant, rightfully blew
the whistle on RAC Schaefer, a manager whom
Trouville and Cazenavette readily recognized as a
total incompetent but one who somehow also
deserved loyalty and blind obedience from his
subordinates.
I also note in this regard that the on-site
inspection recommended “systematic, across the
board transfers/removals of all assigned personnel,”
see supra, yet Special Agent Daniel Forde, the fourth
agent in the NBRO® and the only non-whistleblower,
is not being reassigned. The agency has to realize
how bad the appearance is of reassigning only the
three whistleblowers while leaving the non-
whistleblower in place.
With respect to the alleged poor performance
of the appellant, I find that the agency has not
sufficiently clarified how many performance errors
he has committed over what time period, how
serious any of these errors really are, how many of
them were really caused by Schaefer to the
appellant’s detriment, and/or how much remedial
instruction/retraining any of them will require to
correct his performance. On top of this is the issue
of the efficacy of reassigning an allegedly
~
* At least it appears that Forde was a fourth agent in NBRO.
The record is not clear exactly when or for how long he was an
NBRO agent
A86
incompetent employee to a geographical area which
seemingly would require a _ reasonably good
performer. Also of note -are the appellant’s
(unrebutted) points that none of his alleged
performance problems have ever been brought to his
attention or attempts made to correct them despite 4
months having elapsed since their alleged discovery.?
In short, I find that the strength of the agency’s
evidence to support the appellant’s poor performance
is weak. |
Accordingly, I find that the balance has
shifted and that the agency’s professed need to
reassign the appellant based on his_ poor
performance and on a need to correct the underlying
miserable state of affairs in NBRO is now not
sufficient enough to outweigh the agency’s
retaliatory motive. I thus find that at this time the
agency has not shown that it will be able to
sufficiently prove by clear and convincing evidence
that it would have taken the reassignment action in
the absence of the appellant’s. disclosures.
Consequently, I find a substantial likelihood the
appellant will prevail on the merits of his IRA
appeal.
The agency argues that a grant of a stay
would result in extreme hardship to it, disrupting
the lives of other special agents and adversely
affecting its mission at NBRO and the Imperial
*T find, in accord with my November 25, 2002 first stay request
order, that the appellant’s reliance on his previous excellent
performance appraisals is misplaced given that they were
authored at the immediate supervisor level by the incompetent
Schaefer.
A87
County office. According to the agency, the
appellant’s continued presence will only regress the
DEA presence and stature in the NBRO area. Also,
there is a shortage of an agent in Imperial County.
The agency’s position is supported by the sworn
statement of Rogelio E. Guevara, Chief of
Operations, DEA. See SRF, Tab 2, Agency Ex, 4
I note that the agency has already approved,
through its Career Board, an extension of the
reporting date of one of three reassigned NBRO
agents up until August 17, 2003. See Bock uv.
Department of Justice, MSPB Dkt. No. BN-1221-03-
0034-S-2 (Dec. 30, 2002). So, there is room for
providing for employee hardships.
Also, the “regression of DEA presence” that
the appellant allegedly would cause-is, I find,
entirely speculative. With Schaefer gone,
relationships between federal/state/local law
enforcement agencies are bound to improve all
around. Schaefer was the problem, not the
appellant. The agency has not sufficiently explained
why the appellant’s presence should cause any
“regression”
The assignment on TDY (temporary duty
assignment) of special agents should alleviate any
shortages the agency may suffer in a particular office
during the short time before I issue my initial
decision in the appellant’s IRA appeal. Certainly,
this will cause the agency to expend some additional
funds, but the amounts pale in comparison to the
amount it would spend in reassigning the appellant
A88
and his two fellow whistleblowers—allegedly (and
unrebutted) $350,000, one way.”
In view-of all of the above, I find that the
agency has not supported a claim of extreme
hardship.
Based on my analysis above, I hereby GRANT
the appellant’s second stay request. The agency is
ORDERED not to reassign the appellant. The
appellant requested that the stay be in place until I
issue my initial decision in the appellant’s IRA
appeal. I find such time limit, reasonable and I so
order no reassignment action until such issuance.” "
FOR THE BOARD:
/s/
William Carroll
Chief Administrative Judge
'° This, of course, would double to $700,000 if the three
whistleblowers were first reassigned and then un-reassigned by
Board order and moved back to NBRO.
'' | expect to hold a hearing in early February 2003 and issue my initial
decision in March or April 2003. At that time I will either order
corrective action or not. If corrective action is ordered, it will perpetuate
the no-reassignment date. If corrective action is not ordered, the agency
will be free to reassign the appellant.
A89
CERTIFICATE OF SERVICE
I certify that the attached Document (s) was (were)
sent by regular mail, unless otherwise indicated
below, this day to each of the following:
Appellant
Christopher W. Grenier
25 Apple Tree Lane
Harrington, RI 02 8 06
Appellant’s Representative’s, by FAX
Peter H. Noone, Esq.
AVERY DOOLEY POST & AVERY,
LLP
Attorneys at Law
90 Concord Avenue
Belmont, MA 02478
Agency's Representative(s), by FAX
Imelda L. Paredes, Esq.
U.S. Department of Justice
DEA Headquarters
Office of Chief- Counsel (CCA)
2401 Jefferson Davis Highway
Alexandria, VA 22301
Kenneth L. Bates
U.S. Office of Personnel Management
Employee Relations Division
1900 “E” Street, N.W., Room 7412
Washington, DC 20415
A90
DECEMBER 31, 2002
Date
/S/
JOYCE REYNOLDS
PARALEGAL SPECALIST
A91
Memorandum
Subject
Boston Field Division On-Site Inspection
(FFS: 170-02)
Date
OCT 29 2002
To: Asa Hutchinson
Administrator
From /s/
George J. Cazenavette, III
Chief Inspector
I have approved the Office of Inspections (IN)
report concerning the inspection of the Boston Field
Division. The report and your letter of transmittal to
SAC Trouville are attached hereto.
Two issues cause me special concern. The first
is the unacceptable situation extant at the New
Bedford Resident Office (RO). IN recommended, and
I approved the issuance of 11 Findings. Among the
Findings were serious deficiencies in the program
areas of Enforcement Effectiveness, Evidence
Handling, Confidential Source(CS) Management,
Imprest Fund Management, Seized Assets,
Accountable Property, Fiscal Operations, Security,
and Space and Utilities
Three Special Agents (SA) assigned to the RO,
SAs Christopher Grenier, Todd Shea, and Paul Bock
were determined by Inspectors to have failed to
properly execute their assigned duties. IN reviewed
A92
the collateral duty list for the office and found SA
Grenier was responsible for seized and recovered
monies, imprest fund, and office safety. SA Shea was
responsible for drug evidence, accountable property,
and office security. SA Bock was responsible for
nondrug evidence. IN determined the neglect of duty
by SAs Grenier, Shea, and Bock in respect to these
critical program areas led to the deficiencies
encountered by IN.
SAs Grenier, Shea and Bock contributed to, or
were the basis for, the deplorable office conditions,
the general lack of cleanliness, and lack of security
at the New Bedford RO. The actions, or lack thereof,
by SAs Grenier, Shea, and Bock were significant
contributing factors to the issuance of the Evidence
Handling, Enforcement Effectiveness, CS
Management, Space and Utilities, Security, and
Security Sweep Findings. Each of these Findings are
directly attributable to SAs Grenier, Shea, and Bock.
Inspectors observed general lack of respect for DEA
procedures and property and near complete
indifference toward the DEA mission on the part of
SAs Grenier, Shea, and Bock.
Through a random review of investigative
files, IN identified a serious lack of effectiveness im—
the New Bedford RO enforcement operation. IN
determined that approximately 50 percent of the
cases were in the Summary Report format and
merely claimed arrests and seizures. These
investigative files did not contain any documentation
of DEA presence, participation, and/or follow-up
investigation. These investigations were opened
upon information being supplied from the police
A93
departments that participate in the New in the New
Bedford RO task force. The office had not conducted
a Title III investigations during the last three fiscal
years and did not initiated an OCDETF
investigation in the past year and a half. The office
had only four active CSs (approximately .36 CSs per
law enforcement officer); approximately half the
national average. The enforcement effectiveness
review also revealed that SAs Shea and Bock had
not established a CS in the past year.
During the review of the drug evidence
program, SA Shea, in an effort to explain his
inability to produce the required logbooks, told the
Inspectors that the New Bedford RO only seized
drugs during normal office hours. IN’s investigative
file review found several instances where drug
evidence had been stored in the office overnight.
A Management Review of the situation in the
New Bedford RO was conducted earlier in the year
at the direction of SAC Trouville. Part of that review
centered on the relationship between the New
Bedford RO and the Massachusetts State Police.
During SAC Trouville’s management interview with
IN, he stated that SAs Grenier, Shea, and Bock
failed to support DEA and its mission, and in fact
actively supported the position of the Massachusetts
State Police against DEA’s interest. IN’s interview of
a Task Force Officer raised concerns that SAs
Grenier, Shea, and Bock were routinely ignoring
established policies and procedures, thus exposing
DEA to unnecessary liability. The TFO stated that
the total disregard of DEA’s CS policy by Grenier,
Shea, and Bock vould lead to a “Whitey Bulger
A94
incident” (a reference to a widely publicized scandal
involving the improper handling of organized crime
informants by FBI agents).
Based upon the results of the on-site
inspection, and in concurrence with the management
review conducted by the Boston Division, I
recommended to the Chief of Operations and to the
Deputy Administrator that SAs Grenier, Shea, and
Bock be reassigned to other divisions to promote the
efficiency of the service. Clearly, an immediate effort
was required provide an environment conducive to
an effective DEA presence in the New Bedford
Resident Office’s area of responsibility. Continued
strong support of SAC Trouville’s efforts will be
required to produce the desired result:
The second issue concerns the deficiencies in
the 2001 division inspection conducted by ASACs
Carol Cooper and John Mahoney. The Division
Inspection Program (DIP) report indicates that the
named ASACs inspected the mandatory programs
within their areas of responsibility. The report also
states that certain programs were reviewed and no
deficiencies were noted or that deficiencies were
identified and presumably addressed. The IN on-site
inspection identified numerous deficiencies in the
areas of evidence handling, investigative file
management and management effectiveness within
the reporting elements supervised by ASAC Cooper
and ASAC Mahoney.
The day to day responsibility for management
_of any DEA division lies with the Assistant Special
Agents in Charge. In this case, the performance of
A95
ASAC Cooper and ASAC Mahoney is less than
acceptable. I have recommend that SAC Trouville
consider proposing formal discipline.
A copy of the memoranda to SAC Trouville
expressing my views in this regard is attached for
your information.
Attachment
A96
MEMORANDUM
Subject
Management Review of the New Bedford Resident
Office and Cape Cod Task Force (FFS 140-01)
ee Date
To:
Mark R. Trouville
Special Agent in Charge
New England Division
From
Rodney G. Benson
Assistant Special Agent in Charge
New England Field Division
Introduction:
Pursuant to your directive, from march 19
through March 21, 2002, myself along with RAC
John Dudley (Springfield RO), GS Dave Golia
(OCDETF Coordinator), and GS Leo Ducey
(Manchester RO) (Management Review Team-MRT)
conducted an internal management review of the
DEA Cape Cod Task Force (CCTF) and the New
Bedford Resident Office (NBRO). The purpose of the
review was to assess current office operations and
management as well as operational effectiveness. In
addition to the management review, I investigated
Allegations as Conduct Unbecoming concerning
NBRO RAC John Schaeffer. This part of the review
A97
was conducted by myself and GS Ducey and is
detailed in a separate report.
The CCTF became a DEA funded office in
1987. Prior to that time, the office was primarily ©
founded by and managed by the Massachusetts
State Police (MSP). The MSP troopers, specifically
John Allen and Robert Melia, were the original
founders and leaders of the task force. They
remained in the CCTF despite being promoted to
Detective Lieutenant and _ Lieutenant (Lt.),
respectively. The consensus of CCTF personnel
revealed that the MSP and specifically the Lts. were
highly thought of and in some cases, idolized. In
September of 1999, John Schaefer reported to the
CCTF as the RAC from the Vienna County Office.
Shortly thereafter, CCTF personnel indicated that a
power struggle ensued between RAC Schaefer and
the two Lts. This tension and friction continued to
mount and in November of 200i the CCTF was
dissolved and all Task Force Officers were removed
from the group. The bitterness and hate towards
DEA and specifically RAC Schaefer concerning the
demise of the CCTF is prevalent and addressed in
this review. It should be noted, that the NBRO was
opened by RAC Schaefer in May 2000 and the RAC
physically sat at that location and had managerial
oversight for both offices until January 2002. At this
time, RAC Schaefer has managerial oversight for
only the NBRO.
Synopsis:
The management review consisted of
interviewing all personnel currently assigned to the
A98
CCTF and the NBRO as well as conducting a Self-
Inspection of several program areas. It should be
noted that NEFD ASAC Carol Cooper conducted a
Self-Inspection of the CCTF in the latter part of
2001. ASAC Cooper’s Self-Inspection revealed a long-
standing situation where DEA _ enforcement
requirements were being circumvented as a matter
of convenience by Task Force Officers and Special
Agents alike with the focus of efforts being on low-
level targets. ASAC Coopers report described a
hybrid system of enforcement and case management,
i.e. combining Massachusetts State Police methods
and evidence handling procedures with those of
DEA. This caused confusion in tracking operational
issues through investigative files. A similar sysemt
was used with the employment of Confidential
Sources.
The MRT’s Self-Inspection focus was to
determine whether’ corrections had _ been
implemented since the Self-Inspection by ASAC
Cooper and determine overall adherence to DEA
policies and procedures. This involved the review of
case files, confidential source files, evidence handling
and related issues. In regards to the Self-Inspection
review, the MRT discovered deficiencies both at the
CCTF and the NBRO concerning case files,
confidential source files, and evidence handling. All
deficiencies were brought to the attention of RAC
Schaefer and GS Ferguson for corrective action and
are detailed further later in this report. It should be
noted that the MRT did note corrective action by GS
Ferguson and RAC Schaefer relative to action items
uncovered during ASAC Coopers Self-Inspection.
A99
The interview of CCTF and NBRO personnel
were designed to evaluate the current state of
affairs, the morale of assigned staff and the quality
of overall management relative to the NBRO and the
CCTF. At the conclusion of the subject interviews,
the combined assessment of ASAC Benson and GS
Ducey was that these offices, given the current
circumstances in their totality have, at best, been
ineffective. The recent arrival of GS Ferguson at the
CCTF should resolve some, if not all, of the issues
there. However, several problems remain in effect
especially at the NBRO and are detailed later in this
report.
I. Cape Cod Task Force (Interview of
Personnel):
On March 19, 2002, myself and GS Ducey
interviewed all staff present, assigned to the CCTF.
SA Daniel Hutchinson was away on temporary
assignment and was subsequently interviewed on
March 28, 2002. The following personnel were
interviewed:
Michael Ferguson, GS
Diane Thompson, Office Assistant
Thomas Millar, SA
Daniel Hutchinson, SA
Sean Balcom, Task Force Officer (TFO) —
Detective, Barnstable PD
Paul Cara, TFO — Detective, Plymouth PD
As mentioned above, the CCTF became a DEA
funded office in approximately 1987. Prior to this,
the office was primarily founded by and managed by
A100
the Massachusetts State Police (MSP). Among those
MSP Troopers involved, John Allen and Robert
Melia, were the original founders and leaders of the
tas force. Subsequently, upon the arrival of RAC
Schaefer in September of 1999, a power struggle
ensued between RAC Schaefer and the two Lts.
Ultimately, the MSP were removed fromt eh CCTF
over poor relations (previously documented in other
memos by ASAC Carol Cooper). |
In summary, the interviewees thought the
RAC was “strange”, had a bar temper and made
disparaging remarks about both the SAs and TFO’s.
The RAC was often heard to say, “The Cape will be
my legacy; good or bad.” (no further explanation).
Each of those interviewed (from both the CCTF and
the NBRO) related a story in which RAC Schaefer
called Lt. Allen outside to fight after a long
argument. While all agreed there was no fight, no
one admitted to witnessing the incident. This
became a common theme throughout the interviews:
many of the problems have grown in scope as a
result of rumor and hearsay.
In general it was revealed that RAC Schaefer
made “life long enemies” with the MSP, and other
undisclosed local departments, for DEA. In fact,
more than one person stated that it was
embarrassing the way DEA treated MSP (removing
the MSP from the CCTF) — during one interview the
interviewee was moved to tears when disclosing this
issue. Also, several CCTF SA’s and TFO’s indicated
that when they would request assistance from the
NBRO, agents and task force officers assigned to the
NBRO would have to sneak out to assist the CCTF
A101
with cases in New Bedford because the RAC would
not allow them to help. It is believed that the RAC
did not want to see the MSP Lts. Succeed.
Also, several interviewees described an
incident in January 2001 when RAC Schaefer was
called to Boston to meet with ASAC Cooper and
rumors circulated that the RAC was to be removed
from the office. After the meeting in Boston, several
of the interviewees heard the RAC was enroute back
to the office. Some staff members indicated that they
affixed weapons to their belts while others left the
office entirely. This was done as a safety precaution
as it was speculated that the RAC had been relieved
of his position and would be in a very unstable
mental state — capable of “going postal”.
II. Cape Cod Task Force (Self-Inspection):
The CCTF is located on the second floor of a
small office building. The space meets minimal
security needs for the maintenance of case files and
none of the retention of Confidential Source files.
The dismissal of the Massachusetts State Police
(MSP) from the Cape Cod Task Force and the arrival
of a new Group Supervisor, have had an immediate
impact on case and CS management issues at Cape
Cod. The most visible change has occurred in the
number of open cases. CS Michael Ferguson has
taken immediate steps to close cases where there is
no DEA involvement, but substantial MSP interest,
transferring any exhibits in DEA custody to that
agency. During the management review, it was
noted that ten cases had been closed and an
additional ten cases were pending closure. This is in
A102
accordance with GS Ferguson’s stated objectives
outlined in his January 22, 2002 memorandum titled
“2001 Self-Inspection” concerning increasing the
caliber of investigation and focusing on long term
cases to comply with the Division’ Filed
Management Plan.
A. Enforcement Files
GS Golia and RAC Dudley reviewed eight
open cases in order to evaluate the impact of the
Self-Inspection on how cases are managed in the
office. The most consistent deficiency is that no cases
~at the CCTF are inputted into the National Drug
Pointer Index (NDPIX). The Secretary commented
that this had not been done for a couple of years. It
should also be noted that the office does not make
use of SF 702 forms, Security Container Check
Sheets for safes, as required in section 8615.5 of the
Planning and Inspection Manual. The following
observations were made concerning the content of
the reviewed files. Cases found to be in compliance
are not mentioned.
CZ-01-0040
* Case is overdue for a status report. Last status
completed 9-17-2001.
* Nine non-drug exhibits appear on the DEA 7a.
* Exhibit N-11, $120 OAF was deposited into the
MSP safety deposit box.
CZ-01-0043
A103
* Last report written on case October 2001.
CZ-01-0049
* No status reports written on the case since August
2001.
CZ-01-0054
* No status reports written to the case file since 9-1-
2001.
* Four (4) drug exhibits listed on one DEA 7.
CZ-02-0007
* At least one investigative report one month late
CZ-02-0008
* No witness on money list for purchase of exhibit 1
(2-26-2202)
* No DEA-6 for Acquisition of exhibit 1.
* DEA 284 in file, but no notation on its use for the
acquisition of exhibit 1.
CZ-02-0011
* No G-DEP 202 in file
B. Confidential Source Files
Due to the temporary nature of the facilities of
CCTF, all Confidential Source (CS) files are
maintained at the Divisional Office. However, the
A104 .
CCTF has duplicate, informal files for operational
needs. At the time of the review, the office
maintained five active confidential sources, with the
establishment of another pending. The majority of
active Confidential Sources have been established
since the arrival of GS Ferguson. Seven active and
deactivated Confidential Source files were selected
for this review. No Confidential Sources were
available for interview. As noted in ASAC Cooper’s
memorandum, a reason for deficiencies may be the
retention of the files at the Divisional office. This ©
requires documents being handled by many different
people before they make their way from the CCTF to
the file in Boston compounding the chance of loss or
misfiling. The following summarizes the information
gleaned from the review.
CS01-104444 — Deactivated
* No CS statements for exhibit purchases
CS00-101049 — Deactivated
* Case initiation report missing.
* Reactivation for security payment on 3-26-2001,
contains no mention of calendar year cap remaining.
CS01-103473 -— Deactivated (concurrent use,
therefore some deficiencies may apply to other
offices)
* Debriefings are not thorough.
* No witness signature on CS statement.
* No case initiation reports.
* No initial debriefing reports. :
A105
CS00-101536 — Deactivated
* No case initiation report. .
* One DEA 103 is photocopy only, no green copy.
CS02-106989 — Active
* No case initiation report.
CS02-107163 — Active
* No initial debriefing report.
CS 01-103802 — Active
* No case initiation report.
C. Evidence Handling
The CCTF is located in temporary quarters,
which has placed physical limitations on secure
evidence holding facilities. The office uses standard,
locked, roadside mailbox for the temporary storage of
drug evidence en route to the Northeast Regional
Laboratory or on hold for court, with an
accompanying hardbound logbook. The contained is
also used for the temporary holding of non-drug
evidence. The non-drug evidence room has its own
alarm, but has an unbarred window that could
theoretically allow access from the _ outside
(theoretical given that the Office is on the second
floor). At the time of the visit, the evidence custodian
was out of State for training and the alternative was
A106 ~
not familiar with how inventory control files were
maintained. The hardbound ledger conforms to the
requirements of Agent’s Manual 6681.72, but the
method used does not allow, or neglects to use,
notation as to the document that releases an exhibit
_after acquisition, e.g: DEA 12, DEA 48a, which is a
requirement of the Agent’s Manual.
Five exhibits were selected at random from
the ledger to determine the accuracy of record
keeping. Three were located and appropriate
documentation was in the inventory control file.
However, under CZ-00-0041, the log shows exhibits
N-3, N-4, N-5, N-6 and N-10 were taken for court on
11-1-2001, but no DEA 12 or DEA 48a is in the
inventory control files or the case file, reflecting the
movement of the exhibits and no notation is in the
ledger indicating their return.
Under CZ-00-0031, no inventory control file
could be located for exhibits. It should be stressed
that the Agent who assisted with this portion of the
review was not familiar with the filing system in the
non-drug evidence room. The file may be in an
inactive/closed inventory file, which could not be
located.
The office does not have a separate container
for seized and recovered moneys, nor does it have a
safe deposit box for the more permanent storage of
such items. Prior to the departure of the MSP
troopers, seized monies and OAF were lodged in
their safety deposit box. Some justification for
deficiencies can be made because of the ongoing
temporary nature of the facilities at the CCTF, and
A107
given the fact that the MSP were taking charge of
seized and recovered monies. However, full
compliance with evidence handling should be
implemented to maintain the integrity of the
process, especially seized and recovered monies.
Ill. New Bedford Resident office (Interview of
Personnel):
On March 20 and 21, 2002, respectively, myself and
GS Ducey interviewed the current staff assigned to
the NBRO. Additionally,.on March 21, 2002, GS
John Dudley and GS David Golia met with two TFOs
who had recently departed the NBRO. Overall , the
following personnel were interviewed:
John Schaefer, RAC
Heather Zemotel, DynCorp (Ms. Zemotel
rotates between both offices)
Paul Bock, SA
Christopher Grenier, SA
Todd Shea, SA
Daniel Ford, SA
Robert Jacob, TFO — Detective, Fall River PD
Jeff Silva, TFO — Sergeant (Sgt.), New
Bedford PD
Celeste Carbrale, TFO — Deputy, Bristol
County Sheriffs Office
William Delaney, TFO — Sgt., MSP
Dennis Ledo, former TFO — New Bedford PD
Dean Fredricks, TFO — New Bedford PD
The following is a synopsis of the interviews
conducted at the NBRO. Most, if not all of those
interviewed related the same stories. For example,
A108
on the subject of morale, everyone agreed that
morale was very poor due to the overriding sense of
tension within the NBRO. Much of this tension is
carried over from the problems experienced with the
MSP and CCTF. Additionally, because of poor
decisions made by the RAC regarding personnel and
case management, the perception of those
interviewed was that the RAC is the cause of this
office having such a high turnover of TFOs. Of
particular mention was the loss of TFOs Ledo and
Sousa referred to as the major case-makers and
backbone of the NBRO. Also, due to bar relations
with other agencies throughout the region, the
NBRO received very little cooperation and few
referrals. In fact, according to the interviewees, the
Bristol County District Attorney (DA) would not call
the RAC for any reason.
Subsequently, all personnel are on edge and
divided along the same lines as the CCTF. Each
person revealed that the underlying problem
revolves around DEA’s relationship with the MSP
and the RAC’s mental state. Again, the relationship
with the MSP is tenuous at best and documented
both above (CCTF) and below (RAC Schaefer’s
interview). Pursuant to these “battle of egos” over
control, the RAC was often seen visibly upset. When
questioned about this struggle for control, most of
the staff (including DEA employees) supported the
MSP, viewing the RAC position as administrative in
nature — the MSP Lts. had formulated and approved
all operational plans and directed all enforcement
activities on the street. Another oddity associated
with the MSP was that they were attached to the
District Attorney's C-PAC Team and detailed out to
A109
the CCTF> As such, they were not assigned to the
CCTF on a fulltime basis, thus, subject to call-out by
the C_PAC and obligated to serve collateral
functions at the C-PAC.
Regarding the RAC’s mental state, the
consensus of those interviewed was that the RAC is
mentally unstable. He appears to be preoccupied,
forgetful and subject to unpredictable mood swings.
He is described as being mentally unstable and
possibly a danger-to himself and/or others as
illustrated by the time he sat alone at his desk,
eating lunch with a Kevlar helmet on backwards
(this was described as irrational behavior and not
meant to be a joke). On another occasion he was
heard sitting at his desk dry firing a pistol during a
time period when tension in the office was
particulariy high. Additionally, the RAC was
described as condescending, berating and
unapproachable.
The RAC was also accused of not allowing the
SA/TFOs to do their job. He was blamed for closing
out a case which was later absorbed by Boston
Group Three’s Title III investigation and resulted in
the seizure of 240 kilograms of cocaine. The view of
those interviewed was the NBRO had information
relative to the target of the seizure and his telephone
# from a NBRO CS, yet the RAC wanted no part of
it. Later, after the Group Three seizure, the RAC
supposedly blamed the former case agent for closing
out the case, thereby excluding the NBRO from
having a role in such significant enforcement
activity.
A110
The RAC was also held responsible for the
high turnover rate and subsequent lost of
investigative opportunities. Because some TFOs
were unable ot get along with the RAC, and/or
pressured by the RAC, they asked to be removed
from the task force. Shortly after their departure two
specific TFOs were involved in major investigations
which, according to those interviewed, should have
had DEA/NBRO involvement. For example, a
recently removed Fall River detective conducted an
investigation resulting in the seizure of one kilogram
of heroin. Prior to the TFO’s departure, the NBRO
had opened an investigation (CZ-00-0025) on this
trafficking group. This case was closed and taken
with the departing TFO. Also, on the Saturday prior
to these interviews, a similar situation occurred in
New Bedford when a recently removed TFO seized
approximately $1 million (formerly CZ-00-0024). The
NBRO had no role in this event either.
As a result of ongoing problems, the NBRO
had been ineffective to the point that very little
enforcement action had even been attempted. One of
the very few operations, recently conducted, was
conveyed over and over again as an illustration of
the RAC’s ineffectiveness as a leader. The
investigation was a reverse sting whereby the
undercover agents were selling oxycotin in the
Dartmouth area of Massachusetts. Allegedly, the
RAC made several tactical and judgmental errors.
First, the RAC chose to assign himself as the
primary “eye” and recipient of the kel transmissions,
yet, the RAC failed to give detailed account of the
undercover/suspect movements or updates relative
to the conversations. Second, the RAC repositioned
A111
the bust van “out of the play” and reassigned those
vehicles which were to have covered a likely
money/counter surveillance vehicle to other
undisclosed assignments. Third, despite obvious and
developing problems during the course of the
negotiations (ie-a long verbal struggle between the
suspect and the U/C, one suspect observed possibly
arming himself) no reasonable command decisions
were made by the RAC, to include the ultimate
arrest order. When the arrest order was given by
another agent, several suspects were allowed to
escape due to poor prior planning and lack of
coordination. Later, an after action meeting didn’t
include the three arrest team members making the
critique mostly ineffective. When this incident was
brought to the attention of the Acting SAC Tom
Pasquarello all reports were sent to Boston.
According to those interviewed, the RAC rewrote the
arrest report “to support his position” and the
original DEA-6 has since disappeared.
During the course of the last two years the
NBRO staff recalled being interviewed a minimum of
three times. Each time they were interviewed by
ASAC Carol Cooper. 2n each occasion they
explained their concerns about morale within the
office and the RAC. The three interviews occurred at
the Self-Inspection, during the Fall of 2000 and in
the beginning of 2001.
At the Self-Inspection, many of the same
issues were raised, but no action was taken. In the
Fall of 2000, two TFOs left the NBRO (details above)
causing TFO/MSP Lt. Robert Costa to call ASAC
Cooper and voice his concerns. Pursuant to this call,
A112
ASAC Cooper came to the NBRO the next day and
interviewed all personnel. The following day, the
RAC was called to Boston to meet with ASAC
Cooper. Upon returning to the NBRO, the RAC
allegedly threatened SA Grenier saying, “What goes
around comes around.” SA Grenier, in turn, wrote a
memo to ASAC Cooper outlining the threat.
Accordingly, the RAC was told to have a group
meeting wherein he apologized to the group for the
threat and the problems within the office. The RAC
supposedly stated that all was a result of
miscommunications and a difference of opinion. He
then asked for a second chance. When the same
problems began to occur within two weeks, three
agents complained again to ASAC Cooper. They were
called up to Boston and told by ASAC Cooper to
“make it work” because the RAC’s transfer was
imminent. Upon hearing this news the RAC
allegedly retaliated with threats of poor evaluations
and the scrutinization of cell phone tolls. SA Shea
indicated that in previous discussions in early 2001
with ASAC Cooper, SA Shea was told that the RAC
was being replaced and a date on when the transfer
would occur. On a Friday in early 2001, SA Shea
stated that RAC Schaefer was called to Boston to
meet with Division management. SA Shea believed
at this meeting, RAC Schaefer was going to be
relieved form command. Following the meeting in
Boston, SA Shea stated that he received a call from
RAC Schaefer, who indicated to SA Shea that he was
returning to the NBRO. SA Shea stated that when
he heard of the RAC’s return to the office, most of
the NBRO personnel went home while others armed
themselves thinking the RAC would go “postal”.
A113
On the occasion of the third set of interviews
(beginning of 2001), many of the local chiefs were
interviewed by ASAC Cooper as well as those int eh
office, according to those interviewed. Supposedly,
most of the chiefs said they could not get along with
the RAC. :
In December 2001, SA Todd Shea believed he
was targeted by the RAC by being sent on temporary
duty (TDY) to Rhode Island to assist in a Title III (T-
3) investigation. SA Shea stated the TDY was
punitive because the drive to Rhode Island from his
home was about 80 miles one way. According to SA
Shea there was no T-3 and upon complaining to the
ASAC the TDY was rescinded by then Acting SAC
Pasquarello within three days. SA Shea again
thought he was being targeted by the RAC when the
Office Assistant at the CCTF tipped SA Shea that
the RAC was auditing his leave balance (SA Shea
had taken 13 Sick Leave days during said fiscal
year). No action was ever taken.
During this time RAC began replacing TFO’s
with those believed to be loyal to him and referred to
as “rats” by the remaining group members. On one
occasion an archived DEA-6 was ordered from the
warehouse because information within the report
contained disparaging remarks about recently
arrived TFO Sgt. Al Silva. According to those
interviewed, the report stated that TFO Silva, a New
Bedford PD Detective, had been receiving kickbacks
from a tow company in November of 1999. The
interviewees believed such an officer should not be
assigned to a DEA task force. TFO Silva stated that
this investigation had been unfounded. He went on
A114
to say that he, himself, recently transferred from the
Internal Affairs unit within his department. Despite
this, on one occasion TFO Silva called SA Gazarra in
Boston’s Tech Group to maké an inquiry regarding
TFO credentials. When he gave his name and off
location, SA Gazzara asked him if he was the “rate”.
Later, in December of 2001, TFO Silva found a
chopped off rat’s tail on the roof of his OGV (TFO
Silva maintains photos). It should be noted that
these allegations against TRO Silva have not been
substantiated.
Another TFO, Bristol County Deputy Sheriff
Celeste Cabral was accused of leaking information
on an ongoing case. It was later determined that the
source of the accusation was a Bristol County
Sheriffs Captain and brother of former MBRO
TFO/MSP Trooper Bob Andrade. No other action
was taken relative to this accusation. In March
2002,TFO Cabral recalled calling Bost
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