WASHINGTON – Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee, is asking the Director of the FBI about an alleged method of retaliation being used against whistleblowers at the FBI.
In a letter sent yesterday, Grassley pressed FBI Director James Comey for information about Loss of Effectiveness orders. In May, during a regular oversight hearing before the Senate Judiciary Committee, Grassley asked Comey about claims of gender discrimination and whistleblower retaliation at the FBI. Since that hearing, five additional whistleblowers have come forward and expressed similar claims of discrimination and retaliation. All of the whistleblowers allege that the FBI uses Loss of Effectiveness orders to further these abuses.
According to whistleblowers, the Loss of Effectiveness orders allow managers to bypass the Office of Professional Responsibility and avoid basic due process. Unlike reviews through the Office of Professional Responsibility, a Loss of Effectiveness order does not provide the employee in question a right of appeal. In addition, employees who receive such an order do not necessarily even receive notice of the underlying allegations, and never have the opportunity to defend against those allegations.
Grassley said that Comey has made some headway in this matter, but retaliation continues.
The text of Grassley’s letter is below.
July 17, 2014
VIA ELECTRONIC TRANSMISSION
The Honorable James B. Comey, Jr.
Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.
Washington, D.C. 20535
Dear Director Comey:
At a hearing on May 21, 2014, I brought to your attention the cases of three female whistleblowers at the FBI. Each one previously worked as a supervisor in FBI offices where their colleagues were predominantly male. These women alleged that they suffered gender discrimination and that they were retaliated against when they reported these abuses through the Equal Employment Opportunity process or other means.
In response, you pledged that the Bureau would fully cooperate with any review undertaken by the Inspector General concerning these allegations. In addition, you assured the Committee that you would ensure that there is no further retaliation. To your credit, I have heard reports from within the Bureau that personnel changes you recently made at the leadership level have sent a positive message to employees.
However, the above-referenced whistleblowers have raised more pressing concerns of retaliation from their immediate supervisors. For example, one whistleblower reports that her current, male supervisor is a friend of the man who was the subject of her initial complaint of gender discrimination. On behalf of this friend, the whistleblower’s current supervisor is reportedly perpetrating subtler forms of retaliation against her.
In addition, since the May 21, 2014 hearing, five additional FBI whistleblowers have contacted my office. Four of them are women who claim that they were retaliated against after reporting gender discrimination. The fifth is a male coworker who allegedly suffered reprisal when he spoke out against the alleged discrimination.
Overall, each of the eight whistleblowers referenced above asserts that the FBI uses Loss of Effectiveness (LOE) orders as a method of retaliation. Apparently, a Loss of Effectiveness order can be used as a punitive tool by retaliatory managers because it allows them to bypass the Office of Professional Responsibility (OPR) and thus avoid basic due process. Unlike an OPR review, an LOE does not provide the employee in question a right of appeal. Moreover, according to the whistleblowers, employees who receive an LOE do not necessarily even receive notice of the underlying allegations. Therefore, that employee never has the opportunity to defend against those allegations.
Despite this total lack of due process, the consequences of an LOE are reportedly extensive. The whistleblowers claim that managers often use an LOE as a basis for a demotion. The whistleblowers also allege that an LOE can preclude the possibility of promotion for three years. Further, the whistleblowers note that if an allegation of fraud or false statements is made as the purported basis of an LOE against an employee, that employee is required to disclose that allegation in court, regardless of its merits, if that employee is ever called to testify as a government witness in a criminal trial.
Finally, one of the whistleblowers notes that she has spoken to three additional individuals at the FBI who claim that the Bureau used LOEs to retaliate against them. These three individuals allegedly declined to come forward to my staff because they fear further reprisal from the FBI.
In order to understand the use of LOEs and their potential role in whistleblower retaliation, please respond to the following:
1. What is the FBI’s policy concerning the use of Loss of Effectiveness orders?
2. For FBI employees against whom an LOE is issued, does the FBI provide basic due process, including (1) the ability to appeal, (2) notice, and (3) an opportunity to defend against the underlying allegations? If not, why not?
3. How many LOE’s have been issued since January 1, 2009?
a. How many of those LOEs were issued against an employee following that employee’s providing notice of a potential EEO claim?
b. How many of those LOEs were issued against an employee following that employee’s alleging waste, fraud, abuse, or mismanagement?
c. Were those LOEs issued against female FBI agents in higher proportions than their representation among all agents? Please provide supporting documentation and data.
4. Are you willing to meet with the whistleblowers referenced at the May 2014 hearing who allege continuing retaliation?
Please provide your reply in writing no later than August 15, 2014. If you have any questions, please contact Jay Lim of my Committee staff at (202) 224-5225. Thank you for your continuing cooperation in this important matter.
Charles E. Grassley
cc: Michael E. Horowitz
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Patrick J. Leahy
Senate Committee on the Judiciary
Washington, D.C. 20510