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LOU CHIBBARO JR.
Friday, March 04, 2005
The former director of the U.S. Office of Special Counsel criticized her successor, Scott J. Bloch, and his staff this week for refusing to investigate a complaint by a gay federal worker who charged that his superiors retaliated against him for disclosing alleged unethical behavior by a fellow employee.
Elaine Kaplan, who served as OSC director from 1998 to 2003, said the OSC violated the U.S. Whistleblower Protection Act by dismissing a retaliation complaint by Michael Levine, a radio technician with the U.S. Forest Service in California.
Kaplan, who is a lesbian, noted that OSC issued the dismissal notice Dec. 28, 2004, more than a year after Levine filed the complaint, without interviewing witnesses and without deciding the case on its merits.
Among other allegations, Levine charged that a Forest Service personnel officer who participated in the retaliatory action against him referred to gay people as “those fucking faggots.” The personnel officer denies he made such a comment.
Levine said the same personnel officer pursued charges against him for displaying nude “children” on his office computer, after the officer discovered the charges were false.
Kaplan said substantial evidence existed to warrant an OSC probe into the case, and a finding of retaliation might have been made even if the allegation about the anti-gay slur could not be proven.
In addition to dropping the retaliation complaint, the OSC also dismissed without an investigation a charge by Levine that his supervisors engaged in discrimination against him based on his sexual orientation.
In a Dec. 28 letter informing Levine of its decision to drop the retaliation and sexual orientation charges, OSC cited a controversial policy implemented by Bloch that limits OSC’s role in sexual orientation cases to only those in which gay related “conduct” is involved.
“In the absence of any evidence of any discrimination for off-duty conduct, we found, therefore, no basis for further action concerning this allegation,” Thomas W. Forrest, an attorney with the OSC Complaints Examining Unit, stated in the letter.
“I have to tell you that I don’t know that I have ever seen a more outrageous instance of the unjustified closure of a case without an investigation,” Kaplan told Levine in a March 2 e-mail message. “I found it shocking.”
Officials at OSC did not respond to repeated attempts for comment.
Kaplan said she decided to speak out on the case after Levine contacted her last week and sent her a collection of documents pertaining to the case, including the three-page letter Forrest sent Levine explaining why OSC chose not to investigate the case.
Kaplan’s criticism of the office she once headed follows more than a year of complaints by gay activists and members of Congress that Bloch has put in place procedures and actions that have damaged OSC’s mission of protecting federal workers from discrimination and retaliation.
In one of his first official actions upon taking office at OSC in January 2004, Bloch removed all references of sexual orientation discrimination from the OSC Web site and from OSC’s printed literature.
President Bush appointed Bloch to a five-year term to run the OSC, an independent, adjudicatory agency. The agency’s task is protecting whistleblowers that uncover government corruption or “gross” mismanagement or incompetence.
President Clinton appointed Kaplan to the OSC director’s post in 1998. He later issued an executive order prohibiting job related discrimination against gay federal employees and directed the OSC to investigate cases of anti-gay discrimination in the federal workforce.
Levine, 65, said his troubles at the Forest Service began in 2003, shortly after he raised concerns about a fellow employee who appeared to be conducting a private business enterprise from his work station at the Forest Service.
At the time Levine had been working at the Forest Service’s Inyo National Forest in Bishop, Calif., for 32 years. With a background in electrical engineering, he said he served as a technician in charge of operating and servicing a radio communication network for Forest Service rangers and other employees. There had never been a complaint filed against him in all of his years of service up until that point, Levine said.
Inyo National Forest is located in eastern, central California near a number of historic national parks, including Death Valley Park and Yosemite National Park. Bishop, a popular resort town, is about 30 miles west of the Nevada boarder.
In March of 2003, Levine said he and an assistant collaborated in filing a complaint with the government’s Office of Inspector General about an employee who appeared to be operating a private outdoor goods supply business from his office. Levine said the employee often spent time during the workday at his business location.
“This was a commonly known situation [and] many [in Forest Service office] wondered why he could get away with this,” Levine wrote in a Feb. 12, 2004, letter to the OSC, as part of his retaliation complaint.
Levine stated in his letter that he and the co-worker in question each reported to the same supervisor, Craig Barnes. He said he later came to believe that Barnes and the personnel officer, Paul Marlin, conspired to retaliate against him because the two could have been viewed as failing to take action against the employee for operating a business out of his workstation at the Forest Service.
In August 2003, Barnes notified Levine in writing that he proposed to suspend Levine from his job without pay for 30 days seven separate charges. The charges ranged from “failure to follow proper procedures” for authorizing a subordinate to purchase a cell phone and not following proper procedures for allowing someone else to make a credit cad purchase of office equipment to using “slanderous, malicious, and derogatory language” toward employees and supervisors.
The most serious of the charges accused Levine of displaying on his computer “picture of nude men, women and children” to a subordinate employee who said he was “offended by these photographs.”
Levine said the photos in question were from a public clothing-optional camp in a remote area just outside Inyo National Forest known as Saline Valley. He said his aim in showing them in his office was to draw attention to a proposal to privatize a hot spring area of the Saline Valley, a development he believed would be detrimental to the longstanding use of that space as a public park.
Levine said he took the photos of the clothing-optional camp camp from a distance, so that no one in the photos could be recognized. He also said the photos were of adult men only, with no women or children. About a half dozen of his photos showed the nudist camp, located at a popular hot spring, where nudity is permitted by law.
More than 40 other photos he displayed were of the picturesque scenery of Saline Valley. According to Levine, he used a digital camera memory card to show the photos to two people in his office, one of whom was a subordinate employee who later became angry with him over a work assignment.
It was the subordinate employee, Levine said, who reported the nude photos to Barnes, his supervisor. Levine believes Barnes seized on the complaint by the subordinate employee to hatch a retaliation scheme against him over Levine’s whistleblower charge against the co-worker.
Barnes, who has since transferred to another job with the Forest Service in Sacramento, declined to comment when contacted about Levine’s charges.
Merlin, the personnel officer, disputed Levine’s charges, saying he never used the term “fucking faggot.” He called Levine’s claim about a conspiracy between him and Barnes to fabricate charges against Levine as a form of retaliation “ridiculous.”
Merlin said the charges against Levine for allegedly showing nude photos of women and children were based on a signed statement by the subordinate employee. He said they were downgraded to a charge of “improper use of a computer” after authorities discovered the photos did not show children.
Merlin also noted that the subordinate employee who accused him of making an anti-gay slur is the same person who accused Levine of showing the photos of nude children.
“He is not credible,” Merlin said.
The Blade has not identified the others mentioned in Levine’s complaint, including the subordinate employee, because they could not be reached for comment by press time.
Levine acknowledges that the subordinate employee’s credibility is in question. But he said he has known the employee for many years and believes he was being truthful when he said Merlin made an anti-gay slur when referring to Levine.
Levine notes that another witness was present when he showed the photos of the nudist camp and that person stated in a signed statement that there were no children in the photos. Levine said Merlin and Barnes knew about this witness’ statement weeks before they continued to accuse him of displaying photos of “children.”
“They did this because they were looking for something to get me on,” said Levine.
Levine retired from the Forest Service late last year, saying he could not longer remain after these developments unfolded.
Merlin has also left his job to take a new job in Reno, Nev., with the U.S. Bureau of Land Management. A spokesperson for the Forest Service said his departure, and Barnes’ transfer to Sacramento, were unrelated to the Levine case.
“The charges the Forest Service made against you in proposing your suspension are the typical kinds of extraneous things that employers dig up as pretext to cover up the real reasons for taking action against an employee,” Kaplan told Levine in her e-mail. “It appears they opportunistically took advantage of your subordinate’s anger at you to contrive a case against you.”
Lou Chibbaro Jr. can be reached at lchibbaro@washblade.com.
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