[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EPA MISMANAGEMENT, PART II
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HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JULY 29, 2015
__________
Serial No. 114-36
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Printed for the use of the Committee on Oversight and Government Reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Sean McLaughlin, Staff Director
David Rapallo, Minority Staff Director
William McGrath, Staff Director of the Subcommittee on the Interior
Ryan Hambleton, Senior Professional Staff Member
Melissa Beaumont, Clerk
C O N T E N T S
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Page
Hearing held on July 29, 2015.................................... 1
WITNESSES
Mr. Ronald Harris, Equal Employment Opportunity Specialist
Officer, U.S. Environmental Protection Agency
Oral Statement............................................... 7
Written Statement............................................ 9
Ms. Carolyn Bohlen, Chief, Enforcement Services Section #2,
Superfund Division, U.S. Environmental Protection Agency
Oral Statement............................................... 18
Written Statement............................................ 20
Mr. Ross Tuttle, Senior Advisor, U.S. Environmental Protection
Agency
Oral Statement............................................... 27
Written Statement............................................ 29
Ms. Karen Kellen, President, American Federation of Government
Employees Council 238
Oral Statement............................................... 45
Written Statement............................................ 47
The Hon. Gina McCarthy, Administrator, U.S. Environmental
Protection Agency
Oral Statement............................................... 81
Written Statement............................................ 84
APPENDIX
Statement of the National Treasury Employees Union, entered by
Chairman Chaffetz.............................................. 119
Statement of Ms. Cynthia Colquitt, entered by Chairman Chaffetz.. 120
Statement of Ms. Deborah Lambery, entered by Chairman Chaffetz... 123
U.S. Army Corps of Engineers Memos on ``Waters of the United
States'' Rule, entered by Chairman Chaffetz.................... 135
EPA Responses to Questions for the record, entered by Chairman
Chaffetz....................................................... 261
EPA MISMANAGEMENT, PART II
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Wednesday, July 29, 2015
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:01 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Jordan, Walberg, Amash,
Gosar, Gowdy, Lummis, Massie, Meadows, DeSantis, Buck, Walker,
Hice, Carter, Grothman, Hurd, Palmer, Cummings, Maloney,
Norton, Lynch, Connolly, Lawrence, Watson Coleman, Plaskett,
DeSaulnier, and Welch.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order. Without objection, the
chair is authorized to declare a recess at any time.
The title of today's hearing is about the EPA
mismanagement. This is the second hearing we have had. We had
one back in April. And once again we find ourselves at a
hearing examining the management failures at the EPA.
Allegations before us today are disturbing and sound
strikingly similar to a hearing this committee held just a few
months ago. In April, we discussed Peter Jutro, the former EPA
manager who had a history of serial harassment. Mr. Jutro
harassed at least 16 women, with 13 of them filing formal
complaints of misconduct to management. These reports,
unfortunately, fell on deaf ears. In fact, EPA leadership
continued to promote Mr. Jutro even though he continued to
harass his female coworkers.
The EPA Office of Inspector General launched an
investigation in August of 2014 into alleged acts of sexual
harassment by Peter Jutro. During the course of its
investigation, the EPA OIG corroborated the sexual harassment
of a 21-year-old female intern at the Smithsonian and uncovered
other allegations of Jutro's sexual harassment of female EPA
employees throughout his 31-year career at the agency.
Senior officials at the EPA may have known about Mr.
Jutro's misconduct prior to the intern incident, but it did not
take necessary steps to corroborate that information while
promoting him to the Acting Associate Administrator position in
February of 2014. They failed to contact Mr. Jutro's direct
supervisor, who knew of the allegations against Mr. Jutro, and
verbally counseled him on multiple occasions for inappropriate
behavior. When the EPA inspector general attempted to interview
Mr. Jutro a second time, the Agency allowed Mr. Jutro to
retire, blocking the OIG from pursuing the investigation
further.
The deep concern here is that--people are going to do
stupid things. That is going to happen. We are a very forgiving
society. But when you have somebody who repeats this behavior
that is absolutely and totally unacceptable and does so time
and time again, there needs to be consequences, not promotions.
And it is of deep concern to this committee, to this Congress,
on both sides of the aisle, that when these things are brought
forward, that they are dealt with.
The situation that we are dealing with here today is
another very unfortunate situation, to say the least, of a
young woman who was harassed. And then it was compounded by the
fact that the people who were trying to investigate it and hold
people accountable were retaliated against.
So today we are discussing new allegations of sexual
harassment along with employer retaliation in EPA's Region 5
Chicago office. Sadly, this incident is almost identical to the
Jutro situation. Here a 24-year-old research fellow is the
victim of a sexual harassment by a 62-year-old employee by the
name of Paul Bertram. The victim in this case--and I would
admonish our members here and the people that are on the panel
today, we do not want to refer to this victim by name. She
deserves our utmost respect. I do not want you to use her name.
Call her the victim, Intern X, but we are not to use her name
in this hearing here today. We are trying to protect her
identity. She deserves better in her young career as she is
starting forward.
But in her statement, when she put forward what she went
through, the way she described it is this perpetrator, Mr. Paul
Bertram, inappropriately hugged her, rubbed her back, grabbed
her, rubbed her hands, touched her knees, kissed her, made
suggestive comments, and engaged in unsolicited physical and
verbal contact. This happened countless times over a period of
years. The consequence? They moved the 62-year-old's cubicle.
That was one of the consequences.
Unfortunately, he had a history of this. This was not just
the first time. This was not just an isolated incident. What we
are going to hear today is this had happened several times
before. And when it happens, you have got to deal with it and
protect, in this case, the young women in the office because it
creates such a toxic environment.
The overwhelming majority of people at the EPA, the
overwhelming majority of people that work in our Federal
Government, they are good, honest, decent people. They do not
do this. But it taints the whole atmosphere. In fact, one of
the most toxic environments we have is at the EPA. How ironic.
The mission of the EPA is to protect the environment, protect
the people. The problem is the EPA does not protect its own
employees.
And we have got good people here today who are in a
position to do something about it. They did. They did their
work. But then they were retaliated against. That only
compounds it and makes it worse.
Our witnesses today believe the EPA management in Chicago
retaliated against the employees who investigated the victims'
accusations of sexual harassment. Three of these employees are
testifying today--three of them. This is not just one person
saying: Oh, I was singled out. Three of them. And there are
more. I applaud them for being brave enough to come before this
committee today and to tell their story.
Other employees have submitted written testimony. And one
passage from Ms. Deborah Lamberty--I hope I pronounced her name
properly--is a perfect example of what these employees are
facing, but it is so fundamentally wrong at every level. And I
read from what she wrote: ``Retaliation is not always loud and
full of itself. It can be quiet and chilling, the soul-crushing
kind, the kind that leaves you alone in your cubicle in tears
in the middle of the day.''
That is so wrong. We would be deficient in our jobs if we
did not highlight this. We are here to help solve this. We are
Oversight, but we are also Government Reform, and if we have to
keep doing this, we are going to keep doing it. But if we do
not shine the light on it, it is not going to get solved.
Something is wrong when multiple employees come to Congress and
attempt to get attention of the EPA management.
I would like to enter into the record, I ask unanimous
consent to enter into the record a letter from the National
Treasury Employees Union, somebody I do not always agree with.
On July 1 of 2015, they wrote this letter to myself and Mr.
Cummings, the ranking member.
I will read one sentence from it. ``Our trust and
confidence in the EPA leadership has sunk to an abysmal level,
and we respectfully submit to you that more remains to be done
in order to correct this unacceptable situation.'' I ask
unanimous consent to enter this into the record. Without
objection, it is so ordered. Thank you.
High-performing employees, people who are optimistic about
their country, passionate about their work, concerned about
their environment, trying to do a patriotic job, earn a living,
and support their family, it is so discouraging when they see
management rewarded for bad behavior and ignoring clear signs
of misconduct.
Like I said, this is not common. It is not regular. But
when it does happen, every red flashing light in the building
better go off at every level in Washington, D.C., in Chicago,
and other places, and there can never be the retaliation like
we are about to hear today.
Again, I want to be careful about the treatment of this
young woman. Please refrain from using her name. I look forward
to having this hearing here today.
And I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. I
associate myself with your words. I must say, Mr. Chairman, as
a husband and as the father of two beautiful daughters, as a
brother with three sisters, and with a son, being a son of a
beautiful mother, I want to thank you for holding this very
important hearing today.
First, I want to welcome the whistleblowers who are
testifying on our first panel. They have some very troubling,
very troubling allegations. In short, they assert that an EPA
official in Region 5 sexually harassed an intern and several
other women, that managers in that region tried to cover up
this activity, and that they were retaliated against after they
tried to expose this wrongdoing. Those are some very, very
strong and painful and unfair and unfortunate allegations.
The three whistleblowers here today are the former heads of
the Offices of Human Resources and Civil Rights in Region 5, as
well as the Equal Opportunity Employment manager there, holding
very responsible and significant positions. I want to thank
each of them. I know how hard it is to come forward in this
public forum and to testify before the United States Congress
and put yourselves out there, not only to this committee, but I
am sure to a C-SPAN audience.
Our committee respects whistleblowers, and I say that
without hesitation. And I can tell you that on both sides of
the aisle we have done everything we know how to protect
whistleblowers, and we will continue to do everything in our
power to ensure that all valid claims are thoroughly
investigated and remedied.
Let me also welcome Ms. Kellen. She represents the
employees union, and their core goal is to protect the rights
and interests of hard-working and dedicated Federal employees
across the Federal Government.
We welcome you, Ms. Kellen.
And I have been a strong advocate whenever Federal
employees have been talked about in a negative way, I have been
one who has constantly reminded all of us up here that we are
also Federal employees.
Finally I welcome Administrator McCarthy, who will testify
on our next panel. Although the activities at issue today
happened before she became the EPA Administrator, we are happy
Ms. McCarthy is going to be here, and we thank her for her
service.
Sexual harassment is intolerable and has no place in the
Federal workplace. Let me be clear on that. Sexual harassment
is intolerable and has no place in the Federal workplace. That
statement may seem obvious, but it is still worth saying.
In this case there seems to be an agreement that on March
2, 2011, a little more than 4 years ago, an intern reported
that an environmental scientist in Region 5 had sexually
harassed her in that office. Based on the limited information
we have, it appears that managers acted quickly in response to
this incident. The branch chief notified his supervisor, sought
guidance from human resource officials, and informed them about
a prior incident about 7 years earlier.
In turn, the human resource officials provided guidance,
gave him a draft letter of reprimand, and urged him to move
quickly. They met with the individual, who admitted that he:
``crossed the line.'' They issued a Notice of Proposed Removal,
and he left the Agency in June of that year.
Unfortunately, that was not the end of the story. Our
witnesses here today also allege that officials in Region 5
retaliated against them for investigating this matter.
Allegations of whistleblower retaliation are very serious,
and they deserve to be fully investigated, and substantiated if
they are true, but that has not happened yet. Essentially, so
far we have only one side of the story. Our committee has not
interviewed many of the people involved in this case, we have
not requested relevant documents from the Agency, and the
inspector general has not investigated these allegations.
Mr. Chairman, in order to respect the rights of all Federal
employees, I recommend that this committee either initiate an
investigation and a thorough investigation of these retaliation
allegations or that we ask the inspector general to do so, and
I would join you today in making that request. These
whistleblowers deserve their claims to be taken seriously and
to be investigated thoroughly.
Finally, I believe that Congress needs to enhance the laws
against discrimination and abuse rather than watering them
down. Let me say that again. Congress, we folks up here, need
to enhance laws against discrimination and abuse, rather than
watering them down.
For example, right now, current law does not prohibit
sexual harassment or discrimination against unpaid interns or
others who are not paid directly by an agency. Something's
wrong with that picture. These are young people who come here
trying to walk into their destiny, trying to get experience,
working for free, sometimes from 9 to 5, 9 to 10, simply trying
to be all that God meant for them to be. It appears that some
of the victims in this case may have fallen into this category.
In order to close this loophole, yesterday I introduced
H.R. 3231, the Federal Intern Protection Act. This legislation
is one that our entire committee should be able to support, and
I hope that all of my colleagues will join in cosponsoring the
bill.
In addition, the House of Representatives recently took up
my bill, H.R. 1557, the Federal Employees Antidiscrimination
Act, which I introduced earlier this year. The House passed
this legislation by a resounding, bipartisan, unanimous vote of
403 to 0. And I want to thank the chairman for joining me in
cosponsoring that bill and supporting it. I hope we can work
together again to press the Senate to act quickly on that bill.
What we should not do, however, is strip away existing
Federal civil service protections, as some of my colleagues
have proposed. That is going in the wrong direction. And I
respect many of our witnesses today--I would suspect that they
would strongly agree with me.
Again, Mr. Chairman, I want to thank you, and on behalf of
all of those people who come to work for our Federal
Government, who simply want to be the best that they can be,
who simply want to be about the business of giving their blood,
sweat, and tears to the public and making the public a better--
place them in a better position, we say to you and to our
whistleblowers, we will do every single thing in our power to
protect you. And I say that, I am sure, for this entire
committee.
And with that, Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentleman.
I will hold the record open for 5 legislative days for any
member who would like to submit any written statement.
We would now like to recognize our first panel of
witnesses. And I want to say at the onset, we do appreciate
these people being here. This is not common to come testify in
front of Congress, as we have many people that come on a
regular basis. These are people that are serving on the front
lines and doing the good work for this country, and we thank
them for being here.
We are pleased to be joined by Ronald Harris, who works at
the U.S. Environmental Protection Agency. He is served at the
EPA for 26 years in such positions as property supply
specialist, grant specialist, labor relations specialist, and
EEO manager. Mr. Harris was reassigned to unclassified duties
at the Employees Services Branch in the Health and Safety
Office. We look forward to hearing his comments.
We appreciate, as I read your bio, your participation and
your service in the United States military. We thank for that
service as well.
We have Carolyn Bohlen.
Did I pronounce that properly?
Dr. Carolyn Bohlen is a distinguished manager and
supervisor with more than 30 national and regional awards over
her 28-year career at the EPA. Her awards range from
Outstanding Achievement in Equal Employment Opportunity,
presented by Susan Hedman, to the Federal Manager of the Year
Award. She has quite a distinguished career, and we are honored
that she is here with us today.
Mr. Ross Tuttle is also with us here. He began his career
in the EPA in 2009 as a human capital officer, a senior manager
position for Region 5. He currently works in Region 6 as a
senior supervisor to the regional administrator.
We also, as I read your bio, I thank you for your service
in the United States military as well.
Karen Kellen is joining us. She currently serves as the
President of the American Federation of Government Employees
and is an enforcement attorney for the EPA.
And we thank you again for being here with us today.
Pursuant to committee rules, all witnesses are to be sworn
before they testify. So if you would please rise and raise your
right hand.
Thank you.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth and nothing
but the truth?
Thank you. You may be seated.
Let the record reflect that all witnesses answered in the
affirmative.
In order to allow time for discussion and the fact that
panel two will include the EPA Administrator, we would
appreciate it if you would limit your verbal comments to 5
minutes. Your entire written statement will be entered into the
record, and as we go through the hearing today, if there are
additional comments, information that you would like to provide
to the committee, we would obviously welcome that on a timely
basis.
But if you could please limit your comments to 5 minutes.
We will start with Mr. Harris and go down the line. And then
after that we will go to the question section.
Mr. Harris, you are now recognized for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF RONALD HARRIS
Mr. Harris. Good morning, Chairman Chaffetz, Ranking Member
Cummings, and other distinguished members of the committee. My
name is Ronald Harris. I am an EEO employee and specifically an
EEO specialist located in the Region 5 Chicago, Illinois
office. Thank you for inviting me to submit a statement for the
record with regard to sexual harassment, discrimination, and
retaliation that took place in the Region 5 Chicago office by
several EPA managers, the highest level managers within various
divisions in the region.
I also would like to thank my attorney, Mr. Waite Stuhl,
for his tireless efforts in representing me with regards to the
issues I endured in this 4-year battle with the Agency.
I watched the EPA hearings titled ``EPA Mismanagement''
streamed on April 30 of 2015 before this same committee and was
literally sickened to see the stories depicted were so similar
to mine with regard to the following: Sexual harassment, the
length of the harassment, and the regional coverup about these
blatant and willful discriminatory activities by management
officials. After viewing the hearing, I was more determined
than ever to share my experiences as it related to the similar
scenario within the EPA.
Ironically, I am here before you again, as I offered
testimony before the 106th congressional committee nearly 15
years ago. The issues that were prevalent then are similar
issues that I appear before you today to discuss.
During the opening statement of the 106th Congress by
Chairman Sensenbrenner, he stated: ``Retaliating against those
who speak out against the Agency is not acceptable. Failing to
enforce EPA disciplinary policies against those who are found
to discriminate or harass is not acceptable. All of these
actions send a message to EPA employees not to speak out, not
to engage in public debate, and not to dissent against the
Agency.''
He further stated: ``The EPA managers or officials that
have been found to discriminate, harass, and intimidate other
EPA employees or the public should be disciplined. This does
not appear to happen.''
I chose to highlight Chairman Sensenbrenner's prior quotes
to use in this opening statement today because very little has
changed within the EPA management culture, Region 5 office,
despite the fact that these statements were made a decade and a
half ago. This lack of change has a direct correlation to the
absence of accountability. To expect change without
accountability is wishful thinking at its best.
The regional office has chosen to offer the reward for
going along to get along over accountability. In Region 5, this
type of managerial mentality strengthened resistance and
animosity toward change because the sentiments spoken by
Chairman Sensenbrenner in the 106th Congressional were viewed
as oppositional.
To further illustrate this point, the over 500 documented
pieces of evidence I provided to this committee reveal that
when I and Dr. Bohlen followed Agency protocol and reported
allegations of sexual harassment activity towards female
interns to the EPA Washington headquarters office, we
discovered, through our investigation as EEO officers, had been
going on for at least a decade and involved more than a dozen
women. And we were immediately retaliated against by Mr. Bharat
Mathur, assistant regional director, and removed from our
positions in the Office of Civil Rights for following Agency
protocol and contacting headquarters.
Despite the fact that Mr. Mathur had a legal obligation to
prevent discriminatory activity within Region 5, he was
rewarded with a $35,900 award approved by Washington
headquarters to further supplement his $179,000 annual salary.
This award given to Mr. Mathur was approved by the Region 5
administrator, Susan Hedman, and management officials within
the EPA Washington headquarters as well had to make this
approval.
Other Region 5 senior managers who were also named
participants in these discriminatory coverups and retaliatory
activities also received awards approved by both Regional
Administrator Hedman and Assistant Regional Administrator
Mathur. These monetary awards should have to be repaid to the
government so that the earlier statements made by Chairman
Sensenbrenner and further echoed by this honorable committee
today will send a strong message: That discrimination and
retaliation does not pay and there must be accountability.
Another claim that I mentioned in 2000 to the 106th
congressional committee was that Region 5 and EPA lacked an
Agency process for dealing with managers who retaliated and
discriminated against regional employees. Three years later, in
2003, in a U.S. GAO report to Congress entitled ``Environmental
Protection Agency: Continued Improvement Needed in Assessing
Equal Employment Opportunity,'' on page 15 stated that the
``EPA had no formal process to discipline managers found for
discrimination.''
Further, on page 16 of this same report, the GAO concluded:
``Accountability is the cornerstone of results-oriented
management. Because EPA's management sets the conditions and
terms of work, they must be accountable for providing fair and
equitable workplaces, free of discrimination and reprisal.''
By implementing the 2003 U.S. GAO report, this honorable
committee can send another strong message: That the word
``accountability'' applies to these management officials too.
[Prepared statement of Mr. Harris follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you. We will put your entire
statement into the record. Thank you.
Mr. Harris. Thank you, Chairman Chaffetz.
Chairman Chaffetz. We have questions, so we want to get to
your questions. Thank you.
Mr. Harris. Thank you.
Chairman Chaffetz. Dr. Bohlen, you are now recognized for 5
minutes.
STATEMENT OF CAROLYN BOHLEN
Ms. Bohlen. Good morning, Committee Chairman Chaffetz,
Ranking Minority Member Cummings, and esteemed congressional
committee members. I appreciate the invitation to speak before
this illustrious committee this morning to discuss my
experiences with regard to the violations of the Title VII
Civil Rights Act of 1964 and Section 501 of the Rehabilitation
Act of 1973. Unfortunately, I was subjected to these violations
at the behest of the EPA Region 5 administrator, Ms. Susan
Hedman, and her former deputy administrator, Mr. Bharat Mathur,
the two highest level managers in the region.
In God I trust that my testimony today, along with that of
my colleagues present here this morning, will not result in
further retaliation. We have the courage to speak before you,
acknowledging that we have undergone 4 years of turmoil and
consternation as a result of performing the requirements of our
jobs. The actions waged against us were, indeed, an
infringement of our civil rights and an embarrassment to the
Agency at large.
I want to acknowledge and thank Mr. Waite Stuhl, my legal
counsel, who is here with us today. My testimony is not
intended to diminish or tarnish the meaningful work that many
Region 5 employees, supervisors, and managers engage in on a
daily basis to ensure that the air that we breathe, the water
that we drink, and the land in which we live is safe for us
all. I have devoted my career and efforts as a manager to the
mission of the EPA. I will note that I am the recipient of the
Regional Administrator's Award for Excellence, which was
presented by Susan Hedman in June 2010, for outstanding
achievement in EEO through redesigning the Region 5 Mentoring
Program. I also received the national prestigious Manager of
the Year Award from the Federal Managers Association in 2010 as
well.
Nevertheless, I will speak about the office bullying,
mismanagement, and retaliation that I was subjected to while
serving as director of the Office of Civil Rights from
September 12, 2010, to July 31, 2011. My life and professional
career was disrupted to the point that I had to file a formal
discrimination complaint against the Agency in September 2011.
The complaint was based upon the overt discrimination practices
that were perpetrated against me and my staff during that
period.
On August 23, 2010, I was selected by Ms. Hedman and Mr.
Mathur to provide my leadership and assistance in restructuring
and redirecting Region 5's OCR. As my personnel records
indicated, I was reassigned as the director of the Office of
Civil Rights.
Mr. Mathur had been the second-in-line supervisor for the
OCR for several years. The office had been grossly mismanaged,
and Mr. Mathur asked that I clean it up. He asked me what it
would take for me to consider the job. I remarked that it would
take a GS-15 for me to undertake the challenge. I explained to
Mr. Mathur that I was a person with a disabling condition and
with documented reasonable accommodations. Both Mr. Mathur and
Ms. Hedman were eager for me to start the job, and they thanked
me for accepting it.
Although my effective date was September 2010, I began
working in August of 2010. I worked two jobs simultaneously.
Mr. Ronald Harris was the EEO officer and the highest-
performing employee in the OCR. We worked long, arduous hours
developing overdue reports, preparing strategic 2- and 3-year
plans, and I rewrote existing manuals, prepared Special
Emphasis events, while reorganizing and restructuring each
group.
The work was grueling. The office was understaffed and
lacking resources. I repeatedly informed Mr. Mathur of the
staff shortages. Mr. Mathur continued to give me assignments.
Some were not related to OCR, like being made to prepare
speeches for him and Susan Hedman, which is very odd,
especially since they had two speechwriters dedicated to them.
The work was unrelenting, and with computer work and
extensive writing, I made Mr. Mathur aware that I had begun to
experience serious pain in my neck, shoulders, and back.
In January 2011, Ms. Cynthia Colquitt, a former employee of
OCR, came to us on a detail. She did an excellent job. Ms.
Colquitt went on to receive the Region 5 Administrator's
Professional Award.
They staged a show to support OCR, but did not take the
time to discuss the 2010 Regional Workforce Status and Analysis
Report, which illustrated the participation rate of general
schedule grades by race, ethnicity, and sex. It showed the full
and part-time trends which demonstrated and impacted the racial
makeup of the region as compared to EPA nationally and compared
to the national civilian labor force.
Mr. Mathur and Ms. Hedman cancelled both meetings with the
EEO Office on three different occasions. When Mr. Mathur was
asked why we are postponing the meetings, he laughingly
responded to Mr. Harris and I and said, ``This meeting is
cancelled indefinitely,'' and he walked away from us and closed
the door.
It was apparent that these managers who set the tone for
the region failed to embrace diversity and the principles of
EEO in their leadership roles. The chances of addressing upward
mobility initiatives and advancement of qualified minorities to
higher graded positions was a moot point with them.
[Prepared statement of Ms. Bohlen follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Dr. Bohlen, thank you. We have your full
written statement, and we want to get to the questions.
Ms. Bohlen. Okay.
Chairman Chaffetz. We are going to run short on that. So we
are going to elect to err on the side of having more times for
questions.
Mr. Tuttle, you are now recognized for 5 minutes. And
remember, you can summarize this. We have got the full written
statement.
Mr. Tuttle is now recognized for 5 minutes.
STATEMENT OF ROSS TUTTLE
Mr. Tuttle. Good morning, Chairman Chaffetz, Ranking Member
Cummings, distinguished members of the committee. Thank you for
this opportunity to come and address you today.
My name is Ross Tuttle. Since January of 2014, I have been
employed as senior advisor to the assistant regional
administrator in EPA Region 6, Dallas, Texas. Prior to this
reassignment, from September of 2009 to January of 2014, I was
employed as the human capital officer at EPA Region 5 in
Chicago.
I appreciate this opportunity to testify in front of you
today, and I do so with a significant amount of trepidation,
despite my belief that it is the right and proper thing to do.
I can concur in what my colleagues have said with regard to the
sexual harassment that took place of the interns. I
investigated that case, as well, from the administrative side
in human resources and found in my investigation that that went
back with that perpetrator. And I stopped my investigation and
stopped taking statements at the year 2000, and this was in
2011 that this was brought to my attention. So I can concur in
that.
When I got stonewalled after the perpetrator was allowed to
retire, and I decided I was going to pursue action against
members of management that had concealed this for so many
years, to use a phrase, EPA management circled the wagons and
stonewalled me, and I was not able to pursue that at all. And I
believe firmly that that did a significant amount of damage to
my reputation in Region 5.
There were other incidents that I had to deal with in
Region 5 that are included in my statement that I shared with
the committee on other actions where I was not well received
and was, in fact, treated with less than a cordial amount of
professional respect for what I was doing. And that led me in
April of 2013 to file a complaint against my division director
at the time, Cheryl Newton, who was the assistant regional
administrator in Region 5 in Chicago. That was settled, but
then I was reassigned to Region 6 in Dallas, Texas, and the
retaliation continued in Region 6 in Dallas.
My position as the senior advisor to the assistant regional
administrator should be one of significance in that I am
providing guidance and advice to the ARA in his job. From a
human capital standpoint, I am responsible for providing him
advice on differing issues that are important to him so that he
knows what actions to pursue.
In actuality, in the time that I've been in Dallas, I've
had only two assignments that would be considered respectful of
my expertise and my grade. One of those was to coordinate the
early buyout program for Region 6 that was initiated in
November of 2013. Based on the way that should work, that would
have been a significant project. In actuality, the only thing I
ended up doing there was coordinating applications, a list of
applications that came in from people that were eligible, and I
did the final wrap-up report that is provided to the Office of
Personnel Management.
The other assignment that should have been significant as a
follow on to the early buyout was a reorganization and
restructuring of Region 6. And, again, the way that should have
worked, that would have been a significant undertaking. I was
assigned initially to chair a regional reorganization work
group that was supposed to evaluate options and bring
recommendations to senior management.
In actuality, the only thing I did there was sit on a work
group as a panel member along with two of my colleagues from
human resources who were not allowed to participate in those
meetings. Management did what they wanted to do with those. And
I ultimately ended up only looking over packages, the packages
that were put together to submit to our headquarters. I just
looked them over to make sure that the right forms were there
and the signatures were there.
Since that is been completed in early April of this year,
I've had no meaningful assignments at all. And as in my
statement, I've told you how my ARA approached my midyear
evaluation and what my plans are. Because I signed a
modification agreement to protect myself and not have me go
back to Region 5, to that environment I was in, that now
essentially compels me to retire in December of this year, an
action that was unpalatable then, as now.
Thank you for the opportunity.
[Prepared statement of Mr. Tuttle follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
Ms. Kellen, you are now recognized for 5 minutes.
STATEMENT OF KAREN KELLEN
Ms. Kellen. Chairman Chaffetz, Ranking Member Cummings,
thank you for inviting me to testify today. I have worked at
the EPA for 28 years, the last 2 as the president of AFGE
Council 238. Council 238 is the largest union at the EPA. We
represent about 8,500 employees.
EPA is an agency of proud and dedicated civil servants with
a strong work ethic. However, bad management practices have
become routine, causing everyday duties to become stressful and
difficult. This hinders the Agency's ability to function
effectively and efficiently.
There is a double standard in which the rank-and-file
employees accused of lesser offenses are often treated harshly,
while managers who bully and harass their employees are
rewarded with promotions and large bonuses. Allow me to present
some examples.
First, I will speak to the aftermath of the testimony
before this body on the misconduct of Peter Jutro, who was
accused of sexually harassing multiple female EPA employees.
After that testimony, EPA held an all-hands meeting with his
staff to discuss the testimony. Staff were encouraged to speak
freely, but as information was shared, it became clear that EPA
senior management did not want to hear about the extent of the
harassment. They attempted to limit the input by stating that
Peter was not here to defend himself. Management chose to
defend the indefensible rather than addressing the serious
allegations of misconduct.
Another incident involves a former employee who had a
stellar work record and an international reputation in the
scientific community. Upon her division director's retirement,
her new manager was appointed using Title 42 authority. Title
42 positions are intended for short-term consultants with
specific expertise. EPA has been using this authority to hire
managers.
Soon after his arrival, the new manager began to harass and
bully the employee. He cancelled previously approved speaking
engagements at scientific conferences, even though it was part
of her job and there was no cost to the agency, while allowing
the men in the office to continue to pursue these endeavors.
After months of this behavior, she filed an EEO gender
claim. The manager was not deterred, but was emboldened to try
to find a way to have her removed from Federal service. EPA
searched her desk and her email in an effort to manufacture
ethical violations relating to conference travel and planning
activities. EPA then fabricated charges and proposed to remove
her from service. Despite the lack of any threat on her behalf,
they escorted her out of the building with a specially hired
armed guard. The employee was forced to hire an attorney to
defend herself.
The Agency ultimately reduced the termination to a 2-month
suspension. When she returned to the office, the harassment
intensified. This employee ultimately found new employment as a
full professor with an endowed tenured seat at a major U.S.
university.
Her EEO case went to trial in June of this year. After a 5-
day trial, the 12-person jury took less than 2 hours to return
a verdict in her favor. They found that the Agency had
retaliated against her and awarded her back pay and substantial
compensatory damages.
It is not easy to fight the full force of the Federal
Government. This woman had to refinance her home and tap into
her retirement account to pay for the legal costs. While she
prevailed in court, EPA lost a valuable employee, and those
responsible for this reprehensible behavior have never been
held accountable.
These are not isolated instances, just specific accounts of
systematic breakdown. The Agency has too many managers at
senior levels who regularly bully and harass employees.
Today, I ask Administrator McCarthy to stand with the good,
hard-working employees of the EPA and work with the unions to
address the harassment, bullying, and retaliatory behaviors
within EPA.
Finally, I ask the members of this committee to distinguish
between the very public problems that you are hearing about and
the vast majority of EPA employees, both staff and managers,
who want nothing more than do a good job for the American
people.
When the rhetoric about Federal workers as lazy,
unproductive, or unresponsive to the public is tossed about
without consideration to the men and women who labor for the
government, it demeans and demoralizes employees. Please do not
paint all Federal workers with the brush of a few problem
employees. Federal employees deserve the respect of the Nation,
not its scorn. They are what keeps this country working, day in
and day out.
Thank you.
[Prepared statement of Ms. Kellen follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
I now recognize myself for 5 minutes.
What I would like to do is talk specifically about the case
with Intern X, as we are referring to her. Please, I admonish
members, the people on the panel today, do not use this
person's name.
Paul Bertram was accused of harassing several women over
the course of time, and specifically I want you to give me your
firsthand account of what she went through. What do you know
specifically about this case involving Paul Bertram? What was
his history, and what happened specifically to this intern?
What was your findings, your personal involvement in that?
And we'll start with Mr. Harris.
Mr. Harris. My personal involvement is that I was
contacted, I believe, right around sometime in May--I am sorry,
March. She had spoken with another young lady, Ms. Deborah
Lamberty, whose statement you read, and told her get in touch
with me, because she did not feel like anything was happening.
When she got in touch with me, I made several appointments to
see her, took her the necessary documents. We discussed what
was to take place, what had taken place. I recorded everything.
I then contacted my director, Carolyn Bohlen, and then we
proceeded from there.
Emotionally, mentally, Intern X was a wreck. It bothered
her. She was strong. She did prevail. She kept saying to me: I
just want it to stop. How do I get it to stop?
She contacted an individual who was the lead person, or who
was supposed to have been addressing the issue, and she did not
hear back from them for 3 weeks. And during this 3-week period,
other incidents still occurred. She also continued to let the
supervisor know, who also took no action.
At that point my advice to her: You might have to file
something in order to get them to do the right thing.
Chairman Chaffetz. And what happened? What ultimately
happened?
Mr. Harris. I spoke with her about what it would take to
file something. She said she just simply couldn't afford it.
Her and her husband--I believe that was her husband at that
time--were just getting their lives together. They both were in
graduate school. They just did not have the money to pursue
anything.
Chairman Chaffetz. Why couldn't she do anything internally
in the office, I mean, make a complaint?
Mr. Harris. She did make an informal complaint.
Chairman Chaffetz. But what happened? They just moved the
cubicle, that is all they did?
Mr. Harris. Yes. They moved her cubicle first. When we got
involved in the OCR office, we said: Wait a minute. That is not
the way you do this. You move the aggressor, not the intern.
Chairman Chaffetz. When you say moved the cubicle, like how
far?
Mr. Harris. Originally they moved, I believe, it was four
cubicles down.
Chairman Chaffetz. So that was going to solve the problem,
move it four cubicles down?
Mr. Harris. Yes. And we insisted: No, move him to another
floor.
Chairman Chaffetz. Dr. Bohlen, what was Paul Bertram doing
to this intern?
Ms. Bohlen. To my knowledge, he was touching, groping her,
kissing her, and she was feeling very uncomfortable by his
advances. She had asked him to stop, and he continued to do it.
And Dr. Bertram's advances were well known by management, and
they had just been going on for years.
The intern, along with two other ladies, came to my office,
along with Mr. Harris, to report the situation. They were very
upset, all of them. What they finally did was to give a number
of testimonies to us. Mr. Harris and I prepared a 12-page
summary document and prepared it for the human capital officer,
the Office of Regional Counsel, as well as Mr. Mathur. And we
gave the allegations, the persons who were involved, the
comments that were given, and we gave recommendations.
Chairman Chaffetz. And what happened?
Ms. Bohlen. Mr. Mathur was irate with Mr. Harris and myself
for writing up the 12-page summary. He questioned us and
shouted and yelled at us, intimidated us, and said: Why did you
report this to headquarters? Mr. Harris stated to him that it
is the procedure to report sexual harassment and discrimination
claims to headquarters. Mr. Mathur banged on his desk, pointed
his finger, and said he was not interested in hearing the EEO,
and he used and expletive when he referred to it.
Chairman Chaffetz. What is Mr. Mathur doing now?
Ms. Bohlen. He has retired.
Chairman Chaffetz. What happened to Paul Bertram?
Ms. Bohlen. Paul Bertram, to my understanding, retired. But
he was seen in the building several times for several months
after that at meetings, at various meetings. So I can't tell
you exactly why he was there, but it looked suspicious.
Mr. Harris. Mr. Chaffetz, may I make a comment on what Dr.
Bohlen said?
Chairman Chaffetz. Yes.
Mr. Harris. The Agency, especially direct level supervisor,
Mr. Paul Horvatin, they were going to issue a reprimand again
to the same guy, despite the fact they had known all these
years and had all these accusations against him. Once we
stepped in and met with Mr. Mathur, myself and Dr. Bohlen, said
you can't do this, you have got to do the right thing and
elevate this to more than a reprimand, only then did they move
to remove him.
Chairman Chaffetz. How many previous reprimands had Dr.
Bertram had?
Mr. Harris. According to the witness statements that I
remember and observed, there were three to four.
Chairman Chaffetz. Thank you.
I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
As I've listened to this testimony, it is, indeed, very
alarming. But having practiced discrimination law when I first
came out of law school back in 1976, it does not surprise me.
To all of you, to Mr. Harris, to Ms. Bohlen, to Mr. Tuttle,
first of all, I want to thank you for standing up for what you
believe to be right. My favorite theologian says that it is
what you do when you are unseen, unnoticed, unappreciated, and
unapplauded that matters the most. And I am sure that you all
have stood up in many instances where you were not applauded,
as a matter of fact, you got slapped for doing the right thing.
Mr. Tuttle, the idea that you have been basically forced
out of the Federal Government, I mean, is that a fair
statement?
Mr. Tuttle. Yes, that is essentially correct. I was handed,
as part of what could have been and should have been a routine
reassignment to Region 6, I was handed a modification to my
original EEO settlement agreement that stated in part, and as I
said in the record, stated in part, in exchange basically for
being permanently reassigned to Region 6, I agreed to
voluntarily retire no later than December 31 of 2015, and that
EPA is authorized to initiate the documentation to indicate
that.
Mr. Cummings. Let me say this, that as I listened to the
testimony, one of the things that is being said that is not
being said is that when you all are being retaliated against,
that means that you cannot do the job that we are paying you to
do. Come on now.
Mr. Harris. That is correct.
Mr. Cummings. You can't do the job that we are paying you
to do. Your effectiveness and efficiency is diminished. So that
is a double whammy. Not only do you suffer, but the taxpayers
can't get what we are paying for. And so that is why I am so
appreciative of what you have tried to do.
And one of the things that is just bearing into the DNA of
every cell in my brain is the idea, Mr. Harris, that back in
2000 you were making the same types of statements, I guess.
Mr. Harris. That is correct.
Mr. Cummings. In 2000. Which means that over the course of
15 years, over and over and over again, obviously there have
been folks who have been damaging people, harming them, and
then moving on, or being promoted. Is that right? Is that a
fair statement?
Mr. Harris. Yes.
Mr. Cummings. Now, back to you Ms. Kellen. I am glad you
said what you said the way you said it, that we have a way up
here of maligning Federal employees over and over and over
again. But the fact is that we have some folk who are not doing
the right thing. But you said something that is very powerful.
You said the management gets rewarded. Am I right?
Ms. Kellen. Correct.
Mr. Cummings. But on the other hand, the rank and file, the
folks getting up at 6 o'clock in the morning, giving their
blood, their sweat and their tears, they get messed over. Am I
right?
Ms. Kellen. Absolutely.
Mr. Cummings. We are better than that. We are.
Now, Dr. Harris, Ms. Bohlen, Mr. Tuttle, I am very
concerned about the allegations you raise, especially your
claims that you were retaliated against for investigating this
activity. Now, I understand that we have not investigated your
claims yet, we haven't talked to your managers to get their
responses, and we haven't requested any documents that would
shed light on your claims. I hope we will do that soon. As I
said to the chairman, I think we need to have the IG to look in
this because this stuff is culture. I mean, you got to dig
deep.
In Baltimore, we had a situation where we had some concerns
about our Police Department, and I asked for a patterns or
practice examination. You know why? Because I knew that in
order to deal with the culture, we had to dig deep. I mean, you
cannot just leave this on the surface, because what will
happen, Mr. Harris, is that you will be here, God willing, 15
years from now making the same allegations with more victims
having fallen by the wayside.
Mr. Harris. That is correct.
Mr. Cummings. What a waste of taxpayer dollars. But more
importantly, what harm comes to people who are simply trying to
walk into their destiny? And it is sad. We are better than
that. And I thank you for what you are doing.
But let me go on just 1 more minute. I want to ask you
about the recommendations you made in your testimony and some
legislative proposals that Congress is considering. Mr. Harris,
you urged the committee to require EPA to develop a process to
hold managers accountable for discrimination and retaliation.
Is that right?
Mr. Harris. Yes, I did.
Mr. Cummings. I have a bill called the Federal Employee
Antidiscrimination Act that does just that. It says:
``Accountability in the enforcement of Federal employee rights
is furthered when Federal agencies take appropriate
disciplinary action against fellow employees who have been
found to have committed discriminatory or retaliatory acts.''
Mr. Tuttle, do you agree with that statement?
Mr. Tuttle. I absolutely do.
Mr. Cummings. And, further, my bill would require agencies
to track every single complaint alleging discrimination from
inception through resolution, which is not required now under
Federal law. My bill would also require agencies to notify the
EEOC when violations occur, and it would require agencies to
report on their Web sites whether a finding of discrimination
or retaliation was made.
Dr. Bohlen, I realize these steps are not a silver bullet,
but do you think they could help bring some additional level of
accountability to the process?
Ms. Bohlen. I do. I do think that this is exactly what is
needed.
Mr. Cummings. Well, I've run out of time, but let me say
this. I have seen so many people over the years, over my being
in the practice of law, I mean, people who have gone through
difficulties, and then they were looked upon like you, Mr.
Tuttle. They tried to do the right thing, and then they filed
suit or whatever, and while waiting for the suit, they died.
Mr. Tuttle. Yeah.
Mr. Cummings. They died. I've see that over and over and
over again. And I am so glad you all are coming before us.
Hopefully we can get to the bottom of this so that 15 years we
won't be going through the same thing, Mr. Harris.
Thank you, Mr. Chairman.
Mr. Harris. Congressman Cummings, may I make one comment on
the bill that you are going to introduce?
Mr. Cummings. Please.
Mr. Harris. We need to include the language in settlements,
because, as your bill might indicate, those who are found
guilty, but when issues are settled, there's a clause----
Mr. Cummings. There is a nondisclosure clause. We addressed
that in the bill also. By the way, I did not get a chance to
ask you about that. Because what happens, you are right, when
they settle, they put a nondisclosure clause in there. And so
therefore the very acts that brought about the settlement, they
can't talk about them. So therefore they go on and on and on.
Thank you, Mr. Chairman.
Mr. Gowdy. [Presiding.] The gentleman from Maryland yields
back.
The chair will now recognize the gentleman from Michigan,
Mr. Walberg.
Mr. Walberg. Thank you, Mr. Chairman.
Ms. Kellen, thank you for being here from your position as
president of the Council 238. Could you just summarize the
basics, the general approach, as to how EPA leadership handle
cases of misconduct or harassment by management?
Ms. Kellen. Frankly, it varies from location to location.
We do have some locations in which management has been
responsive in listening to us and starting to address the
problems, although I have to admit that the solutions that they
come up with tend to be feckless, frankly.
Mr. Walberg. What does the responsiveness look like, just
briefly?
Ms. Kellen. Responsiveness looks like an acknowledgement
that the bullying behavior is happening and that there is a
problem.
The response, however, is to send the bully, whose been
doing this for 20 years, off for training for 3 weeks with
master's credit. I actually asked if I could be sent off for 3
weeks of training with master's credits.
In other instances, there is complete denial of what is
going on. Frequently what happens is, when you raise the issue
with one level of management, they join forces. Managers stand
together as one, and the manager is always right, the manager
is the one who is telling the truth, and the employee is the
problem.
Mr. Walberg. Does that promote, in the culture of EPA, an
effective, productive workplace?
Ms. Kellen. Oh, no. It undermines the work people are
trying to do. These people just want to do their job. And if
we'd just get out of their way, they would give great service
to the American public. But, instead, you get this whole
culture of--everything starts to revolve around the problems,
and it just undermines everything we do.
Mr. Walberg. In your testimony, Ms. Kellen, you say that
the managers are not held to the same standard as their
employees. Elaborate on that a little bit more. Explain it to
us.
Ms. Kellen. Okay. So what we see after the John Beale
situation, which I am sure you are all aware was the CIA
impersonator----
Mr. Walberg. Right.
Ms. Kellen. --the Agency came down very hard on employees
on time and attendance issues, to the extent where there are
times when single mothers have gotten in trouble for being 5
minutes late once in a while. We had an employee who was
severely ill who forgot to request his leave to take his
doctor's appointment 1 out of, like, 40 visits. Despite the
fact that he was working again later in the afternoon, he was
put on AWOL for that period of time because he did not ask
ahead of time.
Yet the managers pretty much walk free. They do as they
like, and they are not held accountable.
Mr. Walberg. I guess this is a crucial question for me to
hear from you, because you have talked with your membership,
other employees. What steps do you think leadership at EPA
should be taking to address these management problems?
Ms. Kellen. Well, I think the first place to start would be
developing a feedback loop.
One of the issues I see is that, when you have a bullying
situation going on, the bullies tend to be very good at
managing upwards, so the senior leaders never see that
behavior. And they need to listen to the staff, they need to
listen to the employees.
And when you are managing, you learn that there are some
gripers, and then--but when the problem expands beyond those
few people who are always griping to a larger group of people,
you have to listen to the employees.
So we need to develop a feedback loop to make sure that
senior leadership gets feedback about how managers are doing
within this process.
Mr. Walberg. And ultimately they listen to it.
Ms. Kellen. Well, that is the next step, that they actually
have to act upon what they hear.
Mr. Walberg. Okay.
Mr. Chair, I yield back.
Mr. Gowdy. The gentleman from Michigan yields back.
The chair will now recognize the gentlelady from New
Jersey, Mrs. Watson Coleman.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
And thank you very much to the panel being here and sharing
this very painful information. I spent much of my career
working in EEO/affirmative action, and so I understand the,
sort of, frustration when the system just does not do what it
is supposed to do.
I am not quite sure I completely understand your system,
but I think we are dealing with two issues here. We are dealing
with what does this agency do when it has a discrimination
complaint, what is the process, what do you do--like the sexual
harassment complaint. And then the other process is what
happens to individuals who try to stand up and make the system
work right, the whistleblowing.
So let me go to the first piece. The first piece involves a
sexual harassment, a discrimination complaint that you all
investigated. This is a very toxic environment that you have
described, as it relates to sexual harassment, with regard to
this one individual. But is there a culture there that there is
discrimination because of race and gender assignments also?
Ms. Bohlen. Yes.
Mrs. Watson Coleman. Is this--and I do not know who can
best answer that.
Dr. Bohlen?
Ms. Bohlen. Yes. There is definitely the culture.
Mrs. Watson Coleman. So have you all been called upon in
that region to investigate discrimination complaints based on
race, creed, color, all that other stuff?
Ms. Bohlen. Yes, we have.
Mrs. Watson Coleman. And do you have the same reaction and
response from the higher-ups with regard to those cases as you
did with this case involving sexual harassment and this doctor?
Ms. Bohlen. Actually, I think that the higher-ups are not
concerned with those types of cases.
And, by the way, I might add that I was removed from the
Office of Civil Rights as a result of my doing my job. Mr.
Harris and I worked diligently with employees and with managers
to make sure that they understood the policies of EEO and
affirmative action. And I think that the attitude comes from
the top. And if----
Mrs. Watson Coleman. So, when you say ``the top,'' are you
referring to the top of your regional office, or are you
talking about headquarters?
Ms. Bohlen. Well, it is the top of our regional office.
And, of course, that should come from headquarters. I think it
is a trickle-down effect.
Mrs. Watson Coleman. So let me ask you a question. You
investigate cases of discrimination, sexual harassment,
whatever. You have a responsibility not only to report that to
your regional office, but you have a responsibility to report
it to headquarters also?
Ms. Bohlen. That is correct.
Mrs. Watson Coleman. And in doing so, you were then
harassed--allegedly harassed on your regional level, right?
Ms. Bohlen. Yes, we were.
Mrs. Watson Coleman. Is there a policy in place in the
Department as it relates to whistleblowing, harassment of
whistleblowers?
Ms. Bohlen. Yes.
Mrs. Watson Coleman. And what is that policy?
Ms. Bohlen. I will defer to Mr. Harris.
Mrs. Watson Coleman. Mr. Harris?
Mr. Harris. They have a policy, but it is more or less a
statement. There is no official step one, step two, step three.
But they send out a policy statement every year. So if you are
asking me are there steps involved, no. And this is what one of
my recommendations is. There should be.
Mrs. Watson Coleman. Uh-huh.
Mr. Harris. I want to respond back, if I may, to another
part of the question or remark that you just made.
One of the biggest issues that I've seen in doing this over
a 10- to 15-year period, it is our own regional counsel's
office. The moment a discrimination complaint comes in
informally or even are mentioned, the attorneys are digging in
with the managers. This is not the way the EEO--the OCR process
is supposed into work.
Mrs. Watson Coleman. Okay. Then let me ask you a question
about that. Has the Department established any kind of, sort
of, training and accountability on a routine basis?
Mr. Harris. Yes, they have. Matter of fact, as I indicated
in my statement, in 2004 and 2008, the same managers that
withheld doing anything with regards to the sexual harassment,
they attended the training. I submitted that as part of the
evidence.
The attorney, again, who defended the Agency during an
informal process, documents were sent out by then Karen
Higginbotham, who was a director, stating they should not be
involved, prior to that, 1998, stated they should not be
involved.
Mrs. Watson Coleman. Let me ask you a really quick
question. Anybody can answer it.
Is it better as a result of your being here today, as a
result of the, sort of, prominence associated with the issue?
Is the culture better? Is there more accountability? Are there
any steps moving in the right direction being done by the
administrative branch?
Mr. Harris. I can only speak on what I know. And, right
now, just recently, there was another issue. I brought it to
the DRA's attention, who is new, and he addressed it right
away.
Mrs. Watson Coleman. Okay.
Mr. Harris. This is what is needed.
Now, how long he'll be able to do that with that
institutionalized culture, that is the question mark.
Mrs. Watson Coleman. Okay.
Ms. Kellen. And, if I could, as a lawyer, I would have to
say: It depends. Because it is very dependent on the senior
career leaders in each location. And I have found that some
locations, the political leadership is stepping in and really
trying to make a difference.
Mrs. Watson Coleman. So consistency, or the lack thereof,
is a big issue here?
Ms. Kellen. That is correct.
Ms. Bohlen. Yes. Absolutely.
Mrs. Watson Coleman. Mr. Chairman, may I just ask one final
short question?
Mr. Gowdy. Yes, ma'am.
Mrs. Watson Coleman. And this is to Mr. Tuttle, because he
explained that he had investigated cases against Dr. Bertram--
--
Mr. Tuttle. Yes, ma'am.
Mrs. Watson Coleman. --as far back as 2000, and then you
stopped.
Mr. Tuttle. Yes.
Mrs. Watson Coleman. Can you tell me why you stopped and
what happened with the findings of your investigation?
Thank you, Mr. Chairman.
Mr. Gowdy. Yes, ma'am.
Mr. Tuttle. Thank you for asking.
I stopped at the year 2000 because I had--in my part of
this investigation, I was doing it from the administrative side
of the house as opposed to the civil rights side. And I would
have gotten the names of previous interns who had been through
the same thing, and I stopped at 2000 because that was the last
point that any of the--either the employees that I had talked
with or the interns could give me any information or contact
information on who to reach out to.
And I would have like to add, for the benefit--one of the
things that was among the most disturbing things that I saw in
those statements, one intern specifically stated that, because
of what had happened to her and what had not been done, it not
only changed her mind about a career with EPA, it turned her
off from government service completely, and she ended up
getting a job in a completely unrelated profession.
Mrs. Watson Coleman. Thank you, Mr. Tuttle.
Thank you, Mr. Chairman.
Mr. Gowdy. The gentlelady yields back.
The chair will now recognize the gentleman from Wisconsin,
Mr. Grothman.
Mr. Grothman. Thank you.
Thank you all for your testimony.
For most of us, or at least for me, when I think of the
Environmental Protection Agency, I think of, you know, touring
local farms, factories, that sort of thing and what they feel
are, first of all, rules that are lacking in common sense,
causing huge cost of money, perhaps chasing jobs out of
America.
Now, you guys are not psychologists, but I will ask you
maybe to comment. I wonder, do you think the same apparent
psychological problems with the management at EPA--the
bullying, okay, the getting revenge on people, not dealing with
legitimate questions but just walking away--is that
psychological problem that you are experiencing, do you think
those same psychological flaws in the EPA management is what is
causing, you know, problems for American business or American
landowners?
Ms. Kellen. If I could respond, I believe that when you
allow a bullying culture to exist with managers that those
employees who have those tendencies will also act that way
towards the public.
I also think that is more rare. I think you hear about the
worst ones, but on the day-to-day operations, unfortunately
what I've seen is that some of our employees in the field have
been harassed and threatened by the public because of the
environment towards us.
But I think, if there are instances of that out there, that
the bullying culture definitely lends itself to that.
Mr. Grothman. Well, what I am saying is I am extending even
to the people who write the regulations that American business,
that American farms have to live under. Okay?
Now, a normal human being, in writing these regulations,
would have to realize that, when you write them, it is going to
be very costly, it is going to result in a lot of ambiguity in
the regulations, you are going to create a situation in which
individual employees can make subjective decisions that, quite
frankly, ruin businesses and ruin people's lives.
Do you feel, if this is the culture in the management of
the EPA, that these personality flaws are perhaps one of the
reasons why we have such onerous regulations coming out of the
EPA?
Mr. Harris. If I may respond?
Mr. Grothman. Yeah.
Mr. Harris. Yes, I do. You have a culture of arrogance,
beyond the shadow of a doubt that you could ever see--the
arrogance. And when you have that level of arrogance and
unaccountability, there's an untouchable feel about this
individual now. So, yes, I know it transfers over to the
public.
Mr. Grothman. Okay.
Ms. Kellen. And if I could, as well, address that, I think
part of the problem with that is just--I grew up in a town of
400 people, so I know what it is like in rural America. And the
rules you come up with in Washington, D.C., just do not always
make sense when you get down on the farm. And I think that is a
challenge in general.
And I think one of the things I would caution you on is
that, currently, the Federal Government itself is so loaded
down with regulations that control us and tell us how we can
and cannot do things that it is impossible to operate
effectively or efficiently.
Mr. Grothman. Do you think it is possible--and, obviously,
you know, we are not going to get rid of the entire EPA--but do
you think it is possible, given the huge culture of arrogance
at the top, apparently covering so many employees, is it
possible for the EPA to reform itself and work with the
American people rather than right now, where it is perceived
as, you know, I mean, really a problem agency that seems like
its sole goal is to harass people and come up with regulations
that lack common sense?
Are there enough good people left in the EPA that it can
even reform itself?
Mr. Harris. Did----
Mr. Grothman. Sure, Mr. Harris.
Mr. Harris. I believe EPA can be reformed but not without
accountability. There's no way you are going to have change and
reform without accountability. Until you initiate
accountability, do not expect change.
Mr. Grothman. Just one more question. Do you think it would
be better, given the huge problems you have, to take at least
some of the responsibilities the EPA has and give them back to
the various departments of natural resources around the
country?
Mr. Harris. They have what--in working in the HR issues,
they have what they call the delegation of authority. If EPA
cannot perform in a satisfactory manner and eliminate that
culture of arrogance, that delegation of authority should be in
place to take that authority away and give it to somebody else.
This is how you hold an agency accountable.
Mr. Grothman. Thank you very much, Mr. Harris. We will see
if we can do that.
Chairman Chaffetz. [Presiding.] Thank you. I thank the
gentleman.
We will now recognize the gentlewoman from Michigan, Mrs.
Lawrence, for 5 minutes.
Mrs. Lawrence. Thank you.
I just want everyone to know here today that sexual
harassment in the workplace and allegations of management
coverup are something I take very seriously. As a matter of
fact, during my tenure with the Federal Government, I served as
an EEO investigator. So these are things that I am--the process
and the sensitivity to this I take very seriously.
So one of the protections in place throughout our executive
branch is the Office of Inspectors General. And this committee
has worked to strengthen the role of the IG because of the
critical importance of an independent investigation when
allegations such as this arise.
So my question to you today, to the members of this panel:
Mr. Harris, did you contact the IG, or did you consider doing
so?
Mr. Harris. No, we did not contact the OIG. My reasons for
not contacting, or the individual contacting them, in Region 5,
OIG is seen as an extension of management, and many employees
are intimidated to contact them.
The reason for this, because when certain managers with the
bullying tactics, the first thing they do, they contact OIG and
sic them on the employees. So the persona of the OIG regional
office is not the persona that it should be, because they are
used as extensions of management to attack employees. So no one
wants to talk with them.
Mrs. Lawrence. So would you say for the record that you
feel that the IG, as we call them, actually are part of the
conspiracy of what happened in this case?
Mr. Harris. No, I do not. I think OIG, themselves,
independently, will and can do a good job. But the perception
of the employees toward OIG.
And, no, I do not think there's a conspiracy. I think OIG
would investigate the facts as they are. But the perception.
Mrs. Lawrence. But they were not given the opportunity.
Mr. Harris. That is correct.
Ms. Bohlen. And I might add that there is a certain clique
of managers that seem to follow the same pattern. It is not all
supervisors and managers that have this opinion or that operate
in this manner.
But there is a certain faction within EPA that seems to
have the attitude that Mr. Harris just--the arrogance and the
entitlement and that idea of being above the law. And those are
the managers that taint the region, that cause low employee
morale. And those are the ones that need to be isolated and
dealt with and held accountable.
Mrs. Lawrence. Mr. Tuttle, could you respond to that
question pertaining to the IG?
Mr. Tuttle. Well, I was going to ask just to weigh in on
this.
I knew personally two people that worked in the Office of
the IG in Region 5 that were investigators. I had met them
independently when they came down to my office to seek
information about other issues. And while I was completely
comfortable that if it was left to them that it would be
investigated, I, too, was not--I am like Mr. Harris. I was of
the impression that the IG's office has the persona of being an
extension of management.
Contacting the IG would've normally been one of the things
I would've recommended, but I wasn't comfortable doing that.
Mrs. Lawrence. Ms. Kellen?
Ms. Kellen. Yes. Just to let you know, I have reached out
to the IG. And, unfortunately, our meeting was cancelled last
week because of various reasons. But my intention is to work
with the IG to try to find a way to address these issues and to
try to reopen those lines of communication so that employees do
feel comfortable reporting that. So that is an ongoing effort
that we are making right now.
Mrs. Lawrence. Again, I want to reiterate that part of the
investigation of allegations such as what we have heard, and
the whistleblower and that, we must exercise the process that
we have. And we can't hold our government responsible if we are
not using the investigative tools that are allotted to us.
It seems to me that the allegations that I have heard here
today, which are disturbing to me, are exactly the type of
allegations that we need a third party to investigate.
Mr. Harris. That is correct.
Ms. Kellen. Absolutely.
Mrs. Lawrence. And perceptions are hard to validate when
you are not even given the opportunity or reporting for that.
When management fails to investigate themselves, the IG can
step in as an independent party to carry out that
investigation.
Mr. Chair, I yield back my time.
Chairman Chaffetz. Thank you.
I now recognize the gentleman from South Carolina, Mr.
Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Harris, I made a note, the ranking member in his
opening remarks said that sexual harassment was intolerable and
had no place in the Federal workplace. And if you heard him
today and hear the passion with which he speaks on this issue,
you will know that if he were in charge it would be not
tolerated and have no place in the workplace.
Mr. Harris. That is correct.
Mr. Gowdy. But he is not in charge. And it appears to me
that it is tolerated, prevalent. And, really, the only
consequences are consequences for the victims, not the
perpetrators.
Mr. Harris. Yes.
Mr. Tuttle. That is right.
Mr. Gowdy. The chairman, whom I laud for calling this
hearing, began to get into some of the specifics with you, and
that is precisely what I am going to do.
No names, no identifying characteristics at all, but I want
to know, how many victims and witnesses to the harassing
conduct were there?
Mr. Harris. From the top of my head, right now I remember
there were at least 10. I do not remember specifics, but I do
have it documented in the evidence that I submitted. But I do
remember there were at least--we took 10 statements.
Mr. Gowdy. All right. So there are 10 victims of sexual
harassment.
When did the conduct begin?
Mr. Harris. I was informed--as I said, we worked together.
I was informed that the conduct started right around 2002.
Mr. Gowdy. All right.
Now, we use the word ``conduct'' because it has such a
benign-sounding name to it. I want you to describe for our
fellow citizens what that conduct was. What did these victims
have to endure?
Mr. Harris. According to the statement submitted by one of
the victims, she endured the very same thing--the touching, the
attempts at rubbing, touching her back, arms, legs, shoulders.
This, if I remember correctly, according to the statements,
happened to at least four of these women.
They reported this, again, going back to 2002, and nothing
took place for this long, limited period. The manager involved
was more hellbent on saving the reputation of Dr. Bertram than
he was in dealing with the issue. He himself stated to one of
the victims, ``If I do something, it will ruin his
reputation.''
Mr. Gowdy. Well, I think he had already done that.
And, to the extent that he had not, we are going to keep
going. I read hugs, kisses, placing his hand on the knees of
several women. Is that correct?
Mr. Harris. That is correct.
Mr. Gowdy. Rubbing their arms, upper and lower backs. Is
that correct?
Mr. Harris. That is correct.
Mr. Gowdy. And, again, this is going on since 2002?
Mr. Harris. Yes. We were made aware this had been taking
place since 2002. We predict it might have lasted longer than
that, but----
Mr. Gowdy. Well, let's just go with the most--let's just go
with what we know we can prove.
Mr. Harris. Okay.
Mr. Gowdy. 2002. We have a combination of victims and
witnesses who were forced to watch this, whom I also consider
to be victims, numbering 10.
Mr. Harris. Uh-huh.
Mr. Gowdy. Gestures, remarks, and other sexual innuendos.
What were some of the remarks and innuendos that these victims
were forced to endure?
Mr. Harris. I remember, in one conversation with one of the
young ladies, they were at a meeting, and one of the innuendos
were--there was a couple of males who were bantering back and
forth. And they were supposed to be on a ship, the Guardian,
which is the EPA vessel. And they kept making references as to
who they were going to ``poke.''
Mr. Gowdy. So you have conduct dating back to 2002. You
have double-digit victims. You have conduct that is by any
definition sexual harassment.
Mr. Harris. Correct.
Mr. Gowdy. Now, I want you to tell my fellow citizens all
the consequences that the perpetrators suffered.
Mr. Harris. The perpetrator--or, initially, there was an
issue for a--they were going to go ahead and give him a
reprimand.
Mr. Gowdy. A reprimand.
Mr. Harris. For about the third--a written reprimand for
about the third or fourth time. When we stepped in and said,
wait a minute, you gotta do more than that, that is when----
Mr. Gowdy. How would you get a reprimand for this conduct?
Is there any ambiguity as to whether or not it is acceptable?
Is there any ambiguity as to whether or not it is illegal?
Mr. Harris. It is not acceptable and should not be. If you
look at the Agency's----
Mr. Gowdy. It is actually a crime----
Mr. Harris. I would have agree.
Mr. Gowdy. --to touch someone when the touching is
unwanted. It is actually a crime.
Mr. Harris. Yeah.
Mr. Gowdy. Well, I hope it gets remedied. This workplace
environment is criminal.
Mr. Harris. Yeah. It is toxic.
Mr. Gowdy. And whatever consequences befall this
perpetrator would be insufficient, in my judgment.
I yield back to the chairman.
Chairman Chaffetz. I thank the gentleman.
I now recognize the gentleman from Virginia, Mr. Connolly,
for 5 minutes.
Mr. Connolly. Thank you, Mr. Chairman.
And thank you all for being here.
I think all of us ought to stipulate that sexual harassment
in any form is wrong. In some cases, as my friend from South
Carolina just said, it is against the law. Unwanted advances
simply cannot be tolerable in the workplace. And it is the
obligation of every agency manager within the Federal
Government to protect the workforce from such unwanted
advances.
But I think it is important for all of you to also keep in
mind that in this Congress, unfortunately, there is a clear
agenda against the mission of EPA that does not want EPA
protecting the public through regulatory process. And it is
very important that, as we excise out wrongdoers with respect
to sexual harassment, that we keep in mind there is another
agenda sometimes at work here, too. Of course, none of my
colleagues here.
And I do not know how many times--over 100--we have voted
on the floor of the House to de-fang EPA. Whether it be water
regulation, air regulation, particulate matter, you know, we do
not like it, collectively, this Congress. And I just--a word of
caution, in terms of what is--some might see another agenda
going at work here.
Now, let me ask Ms. Kellen--so, listening to this and
certainly listening to the formidable statements against the
evil of sexual harassment--so sexual harassment is a pervasive
part of the EPA culture; is that right?
Ms. Kellen. I would not say it is a pervasive part. It
happens in locations, and it is not appropriately addressed.
Mr. Connolly. Right.
Ms. Kellen. Bullying is more pervasive.
Mr. Connolly. Bullying.
Ms. Kellen. Bullying, which is as detrimental, almost as
detrimental, as sexual harassment.
Mr. Connolly. Why do you think, when it does occur,
although it is not pervasive, it is not handled instantly, I
mean, you know, efficiently and rapidly, so we make a clear
statement to others who might think that is okay and, frankly,
to deal with the situation so the victim is not lingering, you
know, without an unresolved case? Why do you think that is?
Ms. Kellen. I think, most of the time, most of the
managers--EPA employees tend to hang around a long time, and
most of the managers have come up through the ranks together,
and they just cannot imagine that Joe over here, Manager Joe,
who is the nicest guy in the world to them, could possibly be
treating their employees that badly.
They are not listening to the employees. And I think
there's a lot of pressure on senior leaders. And there are
plenty of really good managers at EPA, but I do not think they
have the support to stand up to other managers and do what
needs to be done.
Mr. Connolly. You know, H.L. Mencken once said that, for
every human problem, there is a solution that is simple, neat,
and wrong.
One of the solutions being proposed floating around here is
actually to take away civil service protections from Federal
employees, virtually making Federal employees at-will employees
so that protections go away.
Do you think that would be helpful in terms of trying to
make sure we are excising sexual harassment from the Federal
workplace?
Ms. Kellen. I think that would be a disaster. None of the
people to my right would still be working for the Agency if
that were the case. They would have got them out of the Agency
so fast none of us would have known what happened.
Mr. Connolly. Mr. Tuttle, you are shaking your head
``yes.'' You agree with Ms. Kellen on that, that it would be
counterproductive?
Mr. Tuttle. Yes, I do. I do not want to broad-brush
anything. I think that appropriate action needs to be taken on
situations like this and others, and frequently it is not,
whether it is the culture of get along, go along.
In my words that clearly belong to me, my attitude and
viewpoint has been that management will do whatever it wants,
when it wants, to who it wants, any way they want, anytime they
want, with impunity. And my colleagues to my right----
Mr. Connolly. You mean without civil service protection?
Mr. Tuttle. So I do not think--yeah. So I do not want to
broad-brush anything----
Mr. Connolly. Yeah.
Mr. Tuttle. --but I do agree with Ms. Kellen, that if the
protections were removed, I can pretty much assure you that you
and I would not be having this conversation.
Mr. Connolly. Dr. Bohlen and Mr. Harris, I have very little
time left. Did you want to comment on this question of the
removal of civil service protections?
Ms. Bohlen. I agree with my colleagues to my left. This is
a very serious situation for us----
Mr. Connolly. Could you speak up, Dr. Bohlen? I am sorry.
Ms. Bohlen. I am sorry. I agree with my colleagues on the
left. It is a very serious situation for us to deal with, and
if we were not to have that protection, none of us would--
neither of the three of us would be here today. So----
Mr. Connolly. Thank you.
Ms. Bohlen. --that is my response.
Mr. Connolly. Very important testimony.
I yield back.
Chairman Chaffetz. I thank the gentleman.
I now recognize the gentleman from Georgia, Mr. Hice, for 5
minutes.
Mr. Hice. Thank you, Mr. Chairman.
Ms. Kellen, you mentioned earlier that many people,
employees at the EPA just wanted to do their job, and if the
managers could get out of their way, they would be able to do
so.
And just to counter a bit the gentleman from Virginia, we
are not talking about an agenda against clean air or safety or
that type of thing, but there are many businessowners out
there, quite frankly, who feel the same way about the EPA as
the people who are working there. They just want to get the EPA
off their back and allow them to do their business without
being bullied by the culture that is within the EPA.
But I do want to go specifically to some of the issues you
brought up regarding retaliation. There has been quite a bit
mentioned in that regard here today.
In your opinion, what kind of retaliation is there? We have
mentioned bullying, perhaps changing of positions. But,
specifically, what type of retaliation is there against people
who report these types of thing?
Ms. Kellen. Well, in the instance that I mentioned in my
testimony, once the employee had filed her EEO claim, they
decided to go on a fishing expedition and search through her
email and try to--and go through her desk and try to find
something that they could go after her for. And so that that is
one way.
And, really, when you look at the nature of the Agency----
Mr. Hice. And what would they use that information,
whatever they found? Would it be used in a blackmail kind of
way? Or how would they use it?
Ms. Kellen. It was used to try to remove her from Federal
service.
Mr. Hice. Okay. All right. So it was an attempt to find
something in order to fire her.
Ms. Kellen. Exactly.
Mr. Hice. All right.
I am sorry. Continue, please.
Ms. Kellen. In other instances--I think the issue with the
Federal Government, it is very easy, because of the amount of--
after the Beale situation, the time and attendance rules are
very tight, and we are spending an extraordinary amount of
money trying to enforce that against the rank-and-file
employees. And so it is very easy to find a technical violation
when someone is still doing their job.
So the other forms of retaliation is not assigning the good
work. People really are excited about their job. They want to
do good work. And you can take away the high-profile cases, you
can take away the good work and give them the, kind of, dredge
of the work.
And so there's severe and there's more subtle types of----
Mr. Hice. But there's multiple types of retaliation.
Dr. Bohlen, real----
Ms. Bohlen. May I comment?
Mr. Hice. --quickly, please.
Ms. Bohlen. Yes. The denial of workplace benefits and
privileges is one way of retaliating. Harassment. Then you have
the removal, the backdating of personnel actions to change the
situation so that it appears to be what management wants it to
be.
Mr. Hice. You mentioned earlier specifically intimidation.
Ms. Bohlen. Yes.
Mr. Hice. So there's quite a bit of about. All right.
How prevalent is retaliation in the culture?
Mr. Harris. Mr. Hice, may I address also that issue and
that question, if you do not----
Mr. Hice. Yeah, but do so quickly. My time is running out.
Mr. Harris. The higher up you go, the more the retaliation.
You have a go-along-to-get-along mentality. You file one
complaint, say something is wrong, there's now 25, 30 people
you now have to watch.
Mr. Hice. Okay.
All right. How prevalent is this?
Mr. Harris. It is very prevalent.
Ms. Bohlen. Very prevalent.
Mr. Harris. The higher up you go, the more prevalent.
Mr. Hice. All right. So this is not--these are not out of
the ordinary, these are not exceptions. The entire culture is a
culture of you fall in line, you do as you are told, or you
will suffer consequences.
Mr. Harris. That is correct.
Ms. Bohlen. Absolutely.
Mr. Hice. All right.
All of you would agree with that?
Mr. Tuttle. Yes.
Mr. Harris. Yes.
Ms. Kellen. I actually might disagree a little bit, because
there are some managers there who really do support their
employees and allow them to do their work.
Mr. Hice. That would be the exception.
Mr. Harris. Well, we are talking different regions, too.
Mr. Hice. No, not necessarily.
Ms. Kellen. Not necessarily.
Mr. Hice. All right. But it is not uncommon? Is it safe to
say it is not an uncommon----
Ms. Kellen. Right. And maybe I just come from a location
that has better managers than----
Mr. Hice. Sure.
Ms. Kellen. --they have in Chicago.
Mr. Hice. Okay.
What are the options that a person has? If they want to
identify harassment or they've seen something that they want to
report, what are the legitimate options, given the fact that
there is a culture of retaliation if they go forward?
Mr. Harris. Your options are diminished. But, again, we
have talked about OIG, the perception or persona. And I think
OIG would do an excellent job, but the persona.
OCR, if you look at the new OCR policies that the Agency
just came out with, they just changed them. Now, you do not
even contact the OIG's office.
Mr. Hice. What about the person whose there, though? I
mean, do they feel like there are options, or do they feel like
they just have to be silenced?
Mr. Harris. They feel like they have to be silent. Their
options are----
Mr. Hice. All right. So they do not feel comfortable.
Mr. Harris. No, they do not.
Ms. Bohlen. No.
Mr. Hice. Okay.
Thank you, Mr. Chairman.
Chairman Chaffetz. I thank the gentleman.
We will now recognize the gentleman from Alabama, Mr.
Palmer, for 5 minutes.
Mr. Palmer. Thank you, Mr. Chairman.
Ms. Kellen, you mentioned that if the EPA leadership fails
to act on management complaints that were investigated by the
Office of the Inspector General, then that could undermine the
IG reporting system.
This committee takes that very seriously. We have had a
couple of hearings in which Arthur Elkins, the inspector
general for the EPA, has testified and talked about the
impediments that they've faced in investigations, I think some
specifically to what is being discussed here today.
Can you elaborate on this concern from your perspective?
Ms. Kellen. Absolutely.
In one situation that I actually mention in my written
testimony, the IG did an investigation of an employee. He was
moved off into a small office. And then he was brought back up
to the administrator's office.
I have asked to see the copy of the IG report. I've talked
to the former chief of staff to try to get an idea of what
really happened here. And I was told he was exonerated except
for the alcohol charge, but I am not allowed to see the report.
And so I am not allowed to know whether he was actually
exonerated from all these charges or whether the employees were
just too afraid to talk to them. And there's a big difference
there.
And so, by having these reports not shared or not more
open, we have no way and the employees who anonymously reported
this have no way to know that anything was actually done on it.
Mr. Palmer. Are there other examples that you might cite?
Ms. Kellen. Not offhand, but I am sure it has happened in
other situations. But, in general, we do not get to see the IG
reports on these matters.
Mr. Palmer. One other thing that troubles me about the
culture at the EPA involves the title 42 appointments by EPA.
And they allow the EPA to pay well above the normal title 5
levels, with salaries reaching $200,000, $300,000. That is
supposed to be used to hire temporary consultants.
Why does the EPA use this authority to hire managers when
it is intended to attract top-quality scientists and engineers?
Ms. Kellen. In one instance, I was told that they use the
authority because it takes so long to get an SESer in place and
that this was a fast, easy way to get a manager in there.
But I also think that there is, at least in some places, a
culture of, frankly, nepotism-like behavior, whether they have
people that they know of, buddies from before, that they want
to get into some sweet position that they can just kind of slip
them in and let them do their thing.
Mr. Palmer. And those people are protected?
Ms. Kellen. They are not protected, really. They are
protected by management, but they shouldn't be protected,
because they are term appointments. So it should be very easy
to remove them, yet they do not.
Mr. Palmer. Okay.
Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you.
I will now recognize myself. Mr. Cummings and I have just a
couple followup questions, and then we'll get to the
Administrator.
I need to understand the involvement of Susan Hedman. Have
you any personal experience with any sort of retaliation from
Susan Hedman herself?
Mr. Harris, go ahead.
Mr. Harris. I do, personally--I did not have contact with
her directly. However, personally, yes, I believe she was
definitely made aware of what was taking place. There's no
doubt about it. If you read what Mr. Mather stated in his
affidavit and in the depositions, he clearly stated he'd
consulted with her. And once she was made aware of this, her
statement in her own affidavit, ``I told him to handle it,''
or, ``I just want this to go away.''
The question with regards to my reassignment and the
depositions that my attorney, Mr. Stuhl, took over--I am sorry,
I am sorry, Carolyn Bohlen's depositions--again, the
elusiveness, the ``I just wanted it done with and over.''
And she signed those documents, but yet in the deposition
she stated she did not have anything to do with this. It was
like she was above this. As the CEO of that region, how can you
be above something of this nature?
Chairman Chaffetz. Dr. Bohlen?
Ms. Bohlen. Mr. Mather stated on several occasions that he
had consulted with Ms. Hedman and that they had agreed on
certain negative aspects of what happened to me in the
retaliation, like the removal from the OCR, like not allowing
me to have the temporary medical flexiplace, episodic
flexiplace, I was denied the workplace privileges and benefits,
and also involved in backdating personnel documents, which I
think is a serious issue.
I see that her name was on those documents, signed those
documents. So there was some involvement, yes.
Chairman Chaffetz. Thank you.
Mr. Tuttle?
Mr. Tuttle. As I indicated in the statement I submitted to
the committee, in December of 2012 when I returned from
Christmas leave, my colleague and my labor relations supervisor
told me that he had been informed by an attorney from the
Office of Regional Counsel that Ms. Hedman had told Mr. Mather
and Ms. Newton to get rid of me--and I use the term ``get rid
of me'' colloquially--largely because of the sexual harassment
case and my involvement in that and how hard I was pursuing to
see that management was held accountable for their
responsibilities in that, as well as some other incidents that
occurred that I alluded to in my statement where I took a stand
and said, no, this is not going to happen this way, and I
became an impediment.
So that is what I understand that she was involved in. As I
indicated in my statement, that is hearsay on my part, but it
was credible at the time, given the circumstances.
Chairman Chaffetz. And, Mr. Tuttle, I haven't heard from
you directly verbally here about the Intern X. What did you
find? What did you hear? And were there other incidents that
this Paul Bertram was involved with? What was your finding?
Mr. Tuttle. My findings were that, in the statements that I
had gotten, the written statements I had gotten from not only
Intern X but the other interns that I was put in contact with
that submitted statements, a majority, not all, but a
significant majority of those statements all indicated that the
same type of behavior--the touching, the inappropriate contact,
the sexual innuendos, the words--all of that the same.
All of the statements that expressed that indicated that
that intern had reached out to management, in particular the
manager that was responsible, because they were all in the same
branch within that division. And they had reached out to this
manager to get it to stop. And one of them made the statement
that Mr. Harris brought up that said, when she wanted something
done about it, this manager, Paul Horvatin, said to her,
``Well, you know, if I do this, it will ruin his career.''
And, as I indicated to Ms. Lawrence, to Congresswoman
Lawrence, one of the other things that was said was that these
women all asked for something to be done, and nothing had been
done.
And to piggyback on what my colleagues have said here, all
of this was made much worse than just being in the office,
because all of these interns went out on our research vessel,
the Lake Guardian, onto Lake Michigan, because that is a normal
part of what Region 5 does because that is the national program
for the Great Lakes. And sometimes they are out for days at a
time. And so to be confined on this small research vessel while
this is going on was a concern for the ones that I had gotten
statements from.
Chairman Chaffetz. How many people, and how far back did it
go in the record?
Mr. Tuttle. My records went--I got statements that went
back to approximately the year 2000. That would have
encompassed about 10 statements, like Mr. Harris said. And
probably all but--best I can remember right now, all but two
had this same kind of statement made to them.
Chairman Chaffetz. In your professional opinion, how would
you categorize Mr. Bertram? Was he a predator? Was he a
serial--I do not want to put words in your mouth.
Mr. Tuttle. Based on what was documented, that could
conceivably constitute a serial predator. And, you know, as I
heard someone else make the statement, and I can't remember
where I heard it, but, you know, this predator was being fed a
steady diet of young interns over an extended period of time.
And to also go along with my involvement--because, again,
as I indicated to the committee in my statement, I pursued this
from the administrative side, and I was pursuing, actively
pursuing, removal. And when Dr. Bertram was served notice, I
guess, of his proposed removal, he retained an attorney. And
from what I was given to understand through my labor relations
supervisor, Mr. Gil Colston, once his attorney--because we
provided support documentation as part of the due process--once
his attorney saw what evidence we had that we were using to
justify the removal, the attorney supposedly came back to Mr.
Mather and asked if Mr. Mather would let him retire in lieu of
removal.
Now, Dr. Bertram had sufficient service for regular
retirement at the time that removal was proposed. I was not
proposing to do him out of retirement, because that wasn't
within my purview. But, by removing him, I could have added a
few extra months and steps into him getting his retirement.
Instead, in my professional opinion, when Mr. Mather agreed to
let him retire, he gave him a free pass out with no blemish. So
he had done all these things and essentially walked free.
Chairman Chaffetz. Was there any discussion about a
criminal referral? Because, in my opinion, in Mr. Gowdy's
opinion, what he did was illegal.
Mr. Tuttle. What he did was absolutely illegal. I do not
know if discussion was held between Mr. Mather once the matter
was brought to his attention and the regional counsel, Mr.
Kaplan, who is now the Deputy Regional Administrator since Mr.
Mather retired. I do not know if discussion was held on that or
not. I can't testify to that.
Chairman Chaffetz. Dr. Bohlen, it seemed like you wanted to
add something.
Ms. Bohlen. Yes, I just wanted to interject something.
It seemed as though Susan Hedman made herself involved in
the GLNPO program, the Great Lakes national program, as a
result, I think, of an enormous grant that was given. And Dr.
Bertram was a scientist that was very, very important in
completing the projects involved in that GLNPO grant. And I
think that they were trying to hold onto him for that reason
specifically until some of the work was, you know, either
transferred to someone else or that he was able to at least get
involved with cleaning up some of the project.
Chairman Chaffetz. So what you are saying is it was more
important to the EPA to get the grant money and to get the
grant done than it was to hold him accountable for----
Ms. Bohlen. Yes, it was. At the hands of Ms. Hedman.
Chairman Chaffetz. It is disgusting. Absolutely disgusting.
I now recognize the gentleman from Maryland, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. I just
have a few questions real quick.
Let me say this. I assume this is being streamed to EPA,
probably. And all of you out there in EPA land, let me tell you
something. We have had these courageous people to come before
us today, and I promise you that if you try to retaliate
against any of them I will do everything in my power to come
after you. And I really mean that. I do not want anything to
happen to these folks or any other people who are bravely
coming forward, trying to simply do their job.
Ms. Bohlen. Uh-huh.
Mr. Cummings. Just doing their job.
Mr. Tuttle, if it were not for all of this, do you think
you'd stay in service? In other words, you have been kind of
forced out, but would you have rather to stay in service?
Mr. Tuttle. Well, to answer the question directly, yes. I
like what I am doing. I believe--I've always been in customer
service positions. I like what I do. I enjoy helping people and
helping the mission get done.
And because of all of the things I've done, I've not only
been--I am not only facing a force-out in December, I've been
reduced in grade from a GS-15, which is what I was in Chicago,
to a GS-14; I've been removed from supervision; I am not
allowed anywhere near anything to do with what I formerly did,
at least certainly anything where I can contribute at the level
I have expertise in.
Mr. Cummings. Have any of you all ever talked to
Administrator McCarthy, any of you, directly?
Mr. Harris. No.
Ms. Bohlen. I have not.
Mr. Tuttle. No.
Mr. Cummings. She is going to be sitting where you are
sitting in about 5 minutes. What would you, if you--since you
are not going to be asking questions, what would you want us to
say to her? And how do you think that she can help you do your
job? Because you are not--we are going to have that
opportunity. You won't. This is your shot. I am listening.
Mr. Harris?
Mr. Harris. Well, I would like to see, the very first
thing, who are you going to hold accountable. And I do not just
mean accountable with a slap on the wrist or another
reassignment and then you get promoted a year from now and get
a big, fat award. Who are you actually going to remove from
Federal service as to what occurred to us?
Mr. Cummings. By the way, she is probably watching this
right now. But go ahead.
Mr. Harris. That is my question with her watching. Who are
going to remove from Federal service?
Mr. Cummings. All right.
Dr. Bohlen?
Ms. Bohlen. Yes, I think that disciplinary action is
necessary for those who are violators of Federal policies,
rules, and regulations. And I think that accountability, as Mr.
Harris said, is very, very important. There should be some type
of stringent action coming from the top down to reinforce the
fact that retaliation, sexual harassment, discrimination, and
the like will not be tolerated here. And I think that will be
done through example.
Mr. Cummings. Mr. Tuttle?
Mr. Tuttle. I agree with my colleagues. I think
accountability that is held firmly to is the only answer. I
think that retaliation in any form, regardless of who it is,
whether it is me, any of my colleagues, or anybody else, is
abhorrent and has no place in any organization.
So if I were going to say--I were going to ask a question,
it is, are you going to take a stand to make sure that me, my
colleagues, and people like me can speak out on issues that
need to be brought into the light of day and we are not going
to have to worry about whether we are going to end up out on
the street or castigated or marginalized or shamed any more
than we have already been?
Mr. Cummings. Ms. Kellen?
Ms. Kellen. I want the Administrator to do what the head of
VA recently did and go to us, the unions, and work with us so
that we can identify the problems. Because we know where they
lie, and we will be very careful about not identifying people
who are not the problem. We will identify the problems, and
they need to address them.
Mr. Cummings. Now, one thing that Ms. McCarthy may say is
that EPA issued a notice of proposed removal of Dr. Bertram
within 2 months of the March 2011 incident. Is that accurate?
Mr. Harris. That is accurate, but only after we got
involved and completed a factfinding investigation. Initially,
they were going to give another reprimand. When we met with Mr.
Mather and told him, you can't do another reprimand----
Mr. Cummings. I am running out of time, unfortunately.
Mr. Harris. --that is what it changed.
Mr. Cummings. But let me just say this as I close. I want
to thank you for what you have said.
And I've got to tell you, my chairman here is a lot younger
than me, but as I get older, I realize, Mr. Harris, that 15
years from now I may be dead. And what you are doing today, it
is not just about this moment----
Mr. Harris. Yeah.
Mr. Cummings. --and it is just not about the people there
right now. It is about generations yet unborn.
Mr. Harris. That is right.
Mr. Cummings. It is about people who are in high school
right now----
Ms. Bohlen. Right.
Mr. Cummings. --little kids in the sixth grade----
Ms. Bohlen. Yes.
Mr. Cummings. --who simply want to give.
Ms. Bohlen. Uh-huh.
Mr. Cummings. They do not want to make a lot of money. They
just want to make things better for all members of our country.
And so what you are doing, what you have done, it goes
beyond--hopefully it goes beyond the grave. And so I want you
to keep pushing forward.
Mr. Tuttle, I am so sorry that you are being forced out of
government, because you all are the kind of people that we
need.
Ms. Bohlen. Yes, he is.
Mr. Cummings. You are the ones that we need.
Ms. Bohlen. Uh-huh.
Mr. Cummings. But, yet and still, you are forced out,
simply trying to do the right thing.
Ms. Bohlen. Yes.
Mr. Cummings. We are better than that.
Thank you, Mr. Chairman.
Chairman Chaffetz. I want to thank you all for being brave
enough to come here and testify. It will make a difference. We
do listen to what you have. We do want to continue to follow up
with you.
And I concur with our ranking member here. The passion that
he puts into this and the caring that he has we all appreciate.
And you keep us up to speed, and we got your back.
We are going to stand in recess for approximately 5 minutes
while we reset, and then we will start our second panel with
the Administrator.
[Recess.]
Chairman Chaffetz. The committee will come to order.
We are pleased to welcome the Honorable Gina McCarthy,
Administrator for the Environmental Protection Agency.
And, Administrator, we appreciate you being here. You have
regularly testified before Congress. You have made yourself
available, and to that we are very appreciative, as I know
other committees are.
It is not always an easy thing to come and testify before
Congress, but I do believe it is one of the unique things and
great things about the United States of America, the way we
operate. We have these discussions with candor. We ask tough
and difficult questions. It is part of the checks and balances.
And your personal involvement and participation is very much
appreciated. And we recognize that, and we thank you.
As you know, pursuant to committee rules, witnesses are to
all be sworn before they testify. So if you would please rise
and raise your right hand.
Do you solemnly swear or affirm that the testimony you are
about to give will be the whole truth, the truth, and nothing
but the truth?
Thank you.
Let the record reflect that the witness answered in the
affirmative.
We would appreciate it if you would limit your verbal
comments to 5 minutes, but we will be very generous with that.
And, of course, your entire written statement will be entered
into the record.
Administrator McCarthy, you are now recognized for 5
minutes.
STATEMENT OF THE HON. GINA MCCARTHY, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Ms. McCarthy. Thank you, Mr. Chairman, Ranking Member
Cummings, and members of the committee, for the opportunity to
testify today.
It really is an honor to serve as Administrator of the U.S.
Environmental Protection Agency. EPA's mission to protect
public health and the environment is important to every one of
us and our families, and I understand and appreciate the
committee's keen interest in EPA's work.
In order to best achieve our mission, one of the priorities
for my tenure as Administrator has been embracing EPA as a
high-performing organization. That means using our limited
resources effectively, supporting our incredibly talented and
dedicated workforce, so that EPA employees have the tools that
they need to do the important work that we all ask of them
every day, as well as ensuring that the Agency continues to
rely on a faithful application of the law and science.
The overwhelming majority of the approximately 15,000 EPA
employees are dedicated. They are hardworking, they are
professional public servants. I personally remain very proud of
the EPA's achievement in protecting public health and the
environment on behalf of the American people and of the EPA
employees who work hard every day to make those achievements
possible.
But I also know that, over the last few years, there have
been examples of a few EPA employees who have engaged in
serious misconduct. While I firmly believe these employees are
isolated examples, I believe we always can and must do better.
To that end, we have made a number of changes to Agency
management processes and procedures, and we will continue to
strive for continuous improvement in this area.
While not the subject of today's hearing, with the
committee's encouragement, we have been working closely with
our inspector general to enable the Agency to expeditiously
take administrative action with regard to certain types of
employee misconduct. The Agency and the OIG have now biweekly
meetings to discuss the status of those investigations into
employee misconduct, and we have agreed upon a set of
procedures and timelines for information-sharing in certain
categories of cases.
These meetings and procedures have helped us facilitate the
Agency's ability to take action more quickly upon completion of
the OIG investigations. The Agency and the OIG sent a joint
letter to the committee outlining this progress earlier this
year.
As I understand it, today's hearing is focused primarily on
the events surrounding a misconduct situation which occurred in
2011 at our Region 5 office in Chicago.
While the misconduct that is at the root of this case
occurred before my tenure as Administrator, it is my
understanding that, in this particular case, a Region 5
supervisor took action upon learning of the alleged misconduct
of the individual and that the individual was subsequently held
accountable and no longer works for the Agency.
While there were some difficulties and likely some
miscommunications among the offices in the region which may
have created confusion among those involved, through the
efforts of all involved, disciplinary actions were taken that
resulted in the subject employee no longer being a Federal
employee.
I expect all managers to take appropriate and corrective
disciplinary actions when they learn of potential misconduct by
one of their employees, regardless of that employee's position
at the Agency. Harassment of any kind in EPA workplaces is
intolerable.
In December 2014, I reaffirmed the Agency's commitment to
prohibit harassment in the workplace through an email to the
entire Agency. In January, I sent a second Agency-wide email
reminding everyone of the OIG's important role in routing out
waste, fraud, and abuse at the Agency, ensuring employees were
aware of their ability to contact the OIG Hotline about a
matter.
The Agency also recognized the need to provide managers
with clear guidance on what to do if they become aware of a
matter--an alleged matter of harassment. Earlier this year, the
first-ever comprehensive set of procedures evaluating
allegations of harassment were developed and sent to the
Agency's five units for bargaining.
When those discussions are concluded, we will finalize the
order that formalizes the Agency's very first procedure for
addressing allegations of workplace harassment. The order will
provide for uniformity and transparency about expectations
related to processing complaints of harassment, procedures for
reporting and responding to those complaints, and guidance for
engaging in related factfinding and decisionmaking.
We hope to conclude this process in the very near term.
Having formal procedures to implement the Agency's anti-
harassment policy will provide the clarity we need for managers
and employees in preventing and stopping harassment of any
kind.
In closing, I am honored to serve this agency and the
people of the United States. I am proud of the great work
accomplished every day by all of the employees at EPA, and I am
excited about the progress we are making as an agency.
With that, I look forward to taking questions.
[Prepared statement of Ms. McCarthy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Chaffetz. Thank you.
I now recognize myself for 5 minutes.
Do you believe the three witnesses that were here prior, do
you believe they wereretaliated against?
Ms. McCarthy. No, I do not.
Chairman Chaffetz. Not in any way, shape, or form?
Ms. McCarthy. You know, I think that--Mr. Chairman, I want
to just confirm that harassment of any kind is not tolerated.
You know, as a 61-year-old woman who started in a man's field--
--
Chairman Chaffetz. No, no, no. This is not the question I
asked you. I do not want to know about your background. I want
to know if you think that they were retaliated against.
Ms. McCarthy. No, sir.
Chairman Chaffetz. We heard nearly 2 hours of testimony,
and you believe that their statements are false.
Ms. McCarthy. No, I did not indicate that.
Chairman Chaffetz. Well, they said that they were each
retaliated against, and you said that is not the case.
Ms. McCarthy. I indicated that what I look at is the entire
facts around the case. And, clearly, we had confusion in how we
investigated it, but they were part of a large team that
actually recommended removal of that employee, and they are no
longer in Federal employ.
Chairman Chaffetz. And part of the criticism----
Ms. McCarthy. There was nothing to retaliate, and
retaliation will not be tolerated.
Chairman Chaffetz. Mr. Tuttle has a lower grade, less
responsibility. You do not think that that was a result of some
of his complaints against management?
Ms. McCarthy. There were issues long before the issue of
sexual harassment that arose----
Chairman Chaffetz. What is----
Ms. McCarthy. --about Mr. Tuttle's performance that is
well-documented, and he still is a productive and valued member
of EPA's----
Chairman Chaffetz. What is your definition of ``sexual
harassment''?
Ms. McCarthy. It is the same as in the law, sir. And any
harassment or bullying is not tolerated at EPA. This is not a--
--
Chairman Chaffetz. When you say ``not tolerated,'' they
have documented multiple cases, up to 10 times, of sexual
harassment against this intern. Did you ever do----
Ms. McCarthy. I think, sir, if you look at the----
Chairman Chaffetz. Hold on. Hold on.
Ms. McCarthy. --entire record, you'll see that these are
regular performance issues that we have resolved separately. It
is not a retaliation.
Chairman Chaffetz. Was there any criminal referral?
Ms. McCarthy. Was there any criminal referral? In this
particular case----
Chairman Chaffetz. The answer is no. And I want to----
Ms. McCarthy. --I do not believe so.
Chairman Chaffetz. You said that the definition of ``sexual
harassment,'' you agree, is what is in law. So if there is--if
it is illegal, the kissing, the touching, the inappropriate
behavior is against the law, why did not you refer that for
criminal prosecution?
Ms. McCarthy. It was properly referred to the correct
agencies within the----
Chairman Chaffetz. Which agencies?
Ms. McCarthy. The Office of Human Resources in that region.
Chairman Chaffetz. That is within your own agency.
Ms. McCarthy. Well, that is----
Chairman Chaffetz. It is against the law. It is against
your own policies and procedures. What these people testified
to is they had to step up, go to the mat, and say--offering a
reprimand is not sufficient. I want to know why somebody----
Ms. McCarthy. The employee was removed, sir, not
reprimanded. He was removed from service.
Chairman Chaffetz. Not the--the problem is they had 10
victims to get to that point.
Now, I grant it, you were not the Administrator the entire
time. I understand that. But this predator, the quote we heard,
this was a predator who was fed a steady diet of interns. The
first time it happened he should've been fired, and he
should've probably been referred to the authorities for
criminal prosecution. It happened 10 times, and you never did
that.
Ms. McCarthy. I am aware----
Chairman Chaffetz. You still haven't done that on this
person.
Ms. McCarthy. I am aware that 11 years ago there was an
issue raised. And it was handled appropriately, is my
understanding----
Chairman Chaffetz. Appropriately? He got a promotion. He--
--
Ms. McCarthy. No. He was----
Chairman Chaffetz. --continued to work there.
Ms. McCarthy. He was carefully watched. The very minute----
Chairman Chaffetz. Watched?
Ms. McCarthy. --we had any indication----
Chairman Chaffetz. Who was watching him?
Ms. McCarthy. The very minute we had any indication of
impropriety, which was the recent issue, we took prompt action.
And in less than 2 months, that man----
Chairman Chaffetz. You moved his cubicle four spaces away.
You think that is appropriate?
What do you say to the mother and father who sent their 24-
year-old to the EPA, she is starting her career, and she is
harassed? Look at her statement. And you did the appropriate
thing by moving her four cubicles away?
Ms. McCarthy. We are doing everything we can to reenforce
the policy in the law. We are developing procedures so there's
never a question about this. And we are doing everything----
Chairman Chaffetz. That is not good enough.
Ms. McCarthy. --we can to protect every employee----
Chairman Chaffetz. When somebody is sexually harassed, you
send them to the authorities. You fire them.
Ms. McCarthy. I did send them to the correct authorities.
Chairman Chaffetz. You sent them to Human Resources, who
wanted to reprimand him. You never did send him to the criminal
referral.
Ms. McCarthy. Human Resources recommended the same thing as
every manager, which was to actually proceed to removal. The
man is no longer in Federal----
Chairman Chaffetz. That is not what initially happened. It
was in his record that they had had 10 complaints, 10 sexual
harassment complaints, against this gentleman, and he was
allowed to continue to be there. And, as we heard testimony, a
predator who was fed a steady diet of interns.
Ms. McCarthy. I am aware of one complaint 11 years ago and
the complaint that was just processed under my watch, which
resulted in his removal from public service within 5 or 6
weeks.
Chairman Chaffetz. Did you fire him, or was he allowed to
retire?
Ms. McCarthy. He was allowed to retire because that is his
right.
Chairman Chaffetz. Yeah.
Ms. McCarthy. Even if he were fired, he was allowed to
retire.
Chairman Chaffetz. Do you believe this intern who said that
there was sexual harassment? Do you believe that her statement
is true?
Ms. McCarthy. Oh, I absolutely do, and that was----
Chairman Chaffetz. Then why did not you refer it for a
criminal referral? Why did not you give it as a criminal
referral? If you believe that her statement is true and it was
sexual harassment and that is a violation of the law and you
allowed him to just retire, why did not you send that to the
proper authorities?
Ms. McCarthy. We took the appropriate action.
Chairman Chaffetz. Do you think it is appropriate--do you
think it is against the law to sexually harass somebody at
work?
Ms. McCarthy. I think it is not only against the law, but
it is also against our policies. And we acted under the
policies and the law when we--when it led to the removal of him
from public office.
Chairman Chaffetz. Did you let any of the law enforcement
officers know?
Ms. McCarthy. Mr. Chaffetz, I have two young daughters just
about this woman's age.
Chairman Chaffetz. I've got two young daughters, too----
Ms. McCarthy. I appreciate the fact that----
Chairman Chaffetz. --and I would never send them to the
EPA. it is the most toxic place to work I've ever heard of.
This person, this 24-year-old girl, she is starting her
career; she is harassed over a 3-year period. And you admit
that that is a violation of the law. Why did not you do the
criminal referral?
Ms. McCarthy. There was absolutely no information that I
was aware of or that the people investigating this when this
intern spoke up that there was any consistent harassment until
the day she spoke up.
I am not blaming her. She is in a very difficult situation
that none of us want her to be in.
Chairman Chaffetz. When she did speak up.
Ms. McCarthy. But we can't know----
Chairman Chaffetz. When she did speak up.
Ms. McCarthy. --things that have never been--when things
aren't spoken up.
Chairman Chaffetz. Looking at the record now, are you going
to do a criminal referral?
You have got to ask somebody? You are the Administrator.
Ms. McCarthy. Well, I am happy to move forward in
whatever----
Chairman Chaffetz. You are happy. I do not want you to be
happy. I want you to do the right thing. He should have been
fired, and, at the very least, you should do a criminal
referral.
How many times does this happen and you do not do a
criminal referral? I mean, we had the case where we had to
bring you up and talk about Mr. Jutro. So why is there such a
toxic environment?
I want to know why there's no criminal referral. You did
not do it then, and you are not willing to do it now. Why?
Ms. McCarthy. The individual could have. We responded
appropriately under our policies in the law. If additional work
is necessary or referrals, we are happy to do that.
I did not make a decision that this shouldn't move there. I
operated under the policies in the law to move forward. And, in
fact, we expedited this in a way that Mr. Cummings has been
asking us to do for a long time, which is quickly and
decisively.
Chairman Chaffetz. Do you believe you have an obligation
under the law if you know of sexual harassment----
Ms. McCarthy. No.
Chairman Chaffetz. --to report that to the legal
authorities?
Ms. McCarthy. I am not aware of that obligation, no. I am
aware that we have to follow it up and appropriately take steps
that are appropriate for the circumstances, which is exactly
what we did.
Chairman Chaffetz. Your appropriate steps were to move him
four cubicles away. Do you think that was appropriate?
Ms. McCarthy. No, my step and the step that led to his
removal is what I am referring to. I do not know what you are
referring to in terms of four cubicles----
Chairman Chaffetz. I've given you probably a dozen chances
to say--and I will give you one more time before I recognize
Mr. Cummings. If you have knowledge of criminal activity, do
you believe you have an obligation to report that to law
enforcement?
Ms. McCarthy. I did not treat this as a criminal activity
as opposed to an appropriate anti-harassment issue. That is how
it is worked. That is how it is done.
Chairman Chaffetz. And that is the crying shame, because
you know what? Sexual harassment, it is a crime. And you need
to take it more seriously. And it needs to go to the legal
authorities. And that is the failing on your watch, on what you
are doing.
Ms. McCarthy. Well, part of the challenge, Mr. Chair, is--I
am happy to talk to the woman involved, but part of the
decision is that that woman chose a number of different paths
she could take. It is always open to her. Frankly, I am not
comfortable making decisions for a young woman who probably
wants to move on, when I have already taken all of the actions
I can do under my own authority.
Chairman Chaffetz. You did not separate----
Ms. McCarthy. And I am not sure you----
Chairman Chaffetz. --him. You did not move him away.
Ms. McCarthy. --should make that decision on her behalf
either.
Chairman Chaffetz. Anybody who looks at this case, you fell
far short of that.
I now recognize the gentleman from Maryland, Mr. Cummings.
Mr. Cummings. Thank you very much.
Ms. McCarthy, I just want to see if we can't--you know, I
do not know how much of the testimony you heard earlier, but
you had three whistleblowers. Two of--well, all three of them
are still in the room. And they were very, very--first of all,
they were very courageous. They are people who came before us--
they did not have to do it, but they did--and they talked about
problems that the chairman had just alluded to.
And I want us to be very careful that we are not so busy
being defensive----
Ms. McCarthy. Yes.
Mr. Cummings. --that we do not address the problem.
I am always--I tell my staff that I am about the business
of being effective and efficient, period. Life is short. And so
I am trying to figure out how do we address these issues
effectively and efficiently so that we are not in the situation
that Mr. Harris found himself, some 15 years ago talking about
these same things, and now he is back again today talking
generally about these same things.
Mr. Harris, the former EEO manager in the Office of Civil
Rights, Region 5, testified about his experiences with what he
believed to be retaliatory conduct by management. Specifically,
Mr. Harris alleges that in 2011, as a result of investigating
claims of sexual harassment, among other things, he was
reassigned to his current position as EEO specialist.
As a result of his experiences, he offered four
recommendations for bringing about positive change to EPA's
work environment.
And, again, these are dedicated employees----
Ms. McCarthy. Absolutely.
Mr. Cummings. --simply trying to do their job. These are
the kind of employees that ought to be up for awards and, you
know, commendations.
And I would like to get your take on each of his
recommendations.
Mr. Harris contends that the EPA counsel currently act as
personal counsel for senior officials. He said this:
``undermines Agency policies and Federal statutes enforced by
EEOC.'' He recommends that this committee, ``examine the roles
of the Agency general counsels with regard to allegations of
Title VII violations and counsel's premature involvement in EEO
complaints.''
Madam Administrator, how do you respond to that
recommendation?
Ms. McCarthy. Mr. Cummings, any recommendation that a
dedicated employee of EPA wants to make I am going to look at,
period. But I will explain a couple of things.
In our counsel office, we have a dedicated independent unit
that specifically is there to support OCR and EEO complaints.
They are independent of all of the other lawyers in the office
and act that way.
We also have an Office of the Inspector General, who I
think this committee, above all others, will know is extremely
independent. We do not always agree, but they do their jobs
well, and they push us to get better all the time. And we need
to respect that they are available.
There's also an Office of Special Counsel that is available
external to the Agency specifically as an independent body to
support these issues.
So there are layers of opportunities here that folks have,
and I am happy to explain that to them. And if that is
inadequate, I will listen to what else they might recommend
that we do.
Mr. Cummings. Well, I am going to go to Mr. Harris' other
recommendations, but, you know, one of the things that I said
to the chairman is that I really wanted the IG to look at all
of this. Because I think----
Ms. McCarthy. Yeah.
Mr. Cummings. --perhaps, and you may not see it, but it
sounds like there's a culture problem. At least in some of the
regions, there's a culture problem. And that culture problem
probably has developed long before you even got here. And
sometimes that culture can be so thick and so--I mean, it is so
deep that you almost have to dig it up to really effectively
deal with it. And so I am hoping that we will have the IG look
at this.
Mr. Harris recommends--I am going to his second
recommendation--that we have an ombudsman's office which should
have, ``the utmost authority over personnel-related issues as
they relate to Title VII violations.''
Administrator, what is your view on the need for a regional
ombudsman's office with regard to overseeing Title VII claims?
Ms. McCarthy. I certainly will take a look at it. I can't
say that I am familiar enough with the role of an ombudsman and
how that interacts with other legal statutes and requirements.
But I am happy to take it back, and we'll come back to you.
Mr. Cummings. I would ask that--how soon can you get back
to us on your thoughts with regard to that?
Ms. McCarthy. If possible, maybe I could have our staff
work together and develop a reasonable schedule that you'd
think was appropriate.
Mr. Cummings. Very well.
Next, Mr. Harris suggested the Federal EEO employees
currently do not have sufficient retaliation protection. So he
proposes that the EEO devise, ``well-defined penalties for
managers who retaliate against those who work to uphold an
agency's EEO mission.''
I believe that you will not tolerate retaliation. There is
no Member of this body that would go along with people being
retaliated against. As a matter of fact, all of us have worked
very hard on both sides of the aisle to protect whistleblowers
and those who might come before us from the agencies.
But I just wanted to know your view on that.
Ms. McCarthy. Well, certainly, we want to move forward to
make sure our anti-harassment procedures are in place so that
it avoids confusion. Because I think part of that really led
really good individuals, as well as two managers, into a
difficult situation. So we'll get those done, and that will
help.
But the idea that we would provide, sort of, uniform
measures really negates our ability to look at each case on its
own merits and give each employee, whether they are a manager
or not, their due process, which is just as important to me, to
make sure that we do thorough investigations and do this with
due process.
Mr. Cummings. Well, you'll never get me to argue against
you with regard to due process. I think the problem is that,
when people feel that they are walking up against brick walls
when they try to get the word out and try to complain about
situations--and, by the way, and trying to do their job that
they are sworn to do--then, I mean, they wonder about any
process.
Ms. McCarthy. I think part of the issue that I am hearing
is the sense that there's a double standard----
Mr. Cummings. Yes.
Ms. McCarthy. --in the Agency.
Mr. Cummings. I am glad you said that.
Ms. McCarthy. And, you know, I----
Mr. Cummings. I am glad you said that.
Ms. McCarthy. I am working hard to make sure that that is
not the case. And that is what these policies and procedures
are about.
But, honestly, this has not been raised as an issue to me.
And I am really surprised that people do not find that the OIG
is independent and effective in looking at these issues.
Mr. Cummings. Well----
Ms. McCarthy. You know, I would welcome that.
Mr. Cummings. Well, it goes back--now, Ms. Kellen--I do not
know if she is still here. Ms. Kellen was telling me that she
does have a relationship where she is able to talk to you.
Ms. McCarthy. Yeah.
Mr. Cummings. And one of the things that she said in her
testimony--and I think it kind of summarized this whole
hearing. She said the rank and file basically get screwed, and
the management, some of the management folk--and she admitted
that there are a lot of good management people now----
Ms. McCarthy. Good.
Mr. Cummings. --but that there are some that, even when
they do the wrong thing, they get the bonuses, they get
promoted. And there's something wrong with that picture. I
mean, it seems like that would smack morale in the face big
time. Would you agree?
Ms. McCarthy. Absolutely.
Mr. Cummings. So I want you to do me a favor. I want you
to--I mean, I know you want to come before us--and I am almost
finished, Mr. Chairman.
I know you want to come before us, and I know you want to
make sure you defend your agency. I got that. But I want you to
also put some binoculars on or at least look through a high-
powered microscope and say to yourself, why would somebody who
has been----
Ms. McCarthy. Yeah.
Mr. Cummings. --these employees, who have been here many
years, given their blood, sweat, and tears, why would they even
risk coming here if they did not have something legitimate, or
at least they believed legitimate, to say?
They are putting themselves on the line. And I am telling
you, I could not be in your shoes and just disregard folks who
put themselves in that position.
Ms. McCarthy. Well, Ranking Member, the issue in Region 5
that the chairman was referencing involves what I consider to
be very valued and successful members of this agency. I am not
disputing their value or my willingness to work with them as
continued wonderful employees at the Agency.
There was clearly a problem. The question I was asked was
whether it was directly retaliatory, and my concern is that
this committee needs to see the entire record.
Mr. Cummings. I do want to see the entire--that is why I
want to see the IG. That is why I want the IG to look at it.
Ms. McCarthy. Yeah. So I think it is just important, and
not because I am disputing how they feel----
Mr. Cummings. Right.
Ms. McCarthy. --but just what the facts are on the ground.
And I will continue to work with these employees and
others. Now that I know that there's a concern here, there will
be no stopping our ability to work together. The unions are our
partners. We are going to make sure that happens.
Mr. Cummings. Now, either you can refer to the IG or we can
refer to the IG, but----
Ms. McCarthy. I am happy to request it. I am happy to, sir.
Mr. Cummings. Will you do that?
Ms. McCarthy. Yes.
Mr. Cummings. And, Administrator, please hear me out.
Ms. McCarthy. Yes.
Mr. Cummings. Administrator, I do not know how long you are
going to be in this position, but what we are trying to do is
create a situation where we try to cure some of this----
Ms. McCarthy. Absolutely.
Mr. Cummings. --so that people coming behind us will not
have to go through the same thing. I mean, it makes no sense.
Ms. McCarthy. I agree. And I am certainly not trying to be
defensive of the Agency, just defending due process for
everybody involved. And I will work hard on this, Mr.----
Mr. Cummings. And I want to make it clear, Mr. Chairman,
we--and I know the chairman agrees with me--that we know that
the vast majority of EPA employees are great people giving
everything they've got. We've got that. But we do not want to
ruin their spirit; we do not want to take away from them. We do
not want to be forcing somebody out, like Mr. Tuttle, who--
almost in tears when I talked to him after the hearing. He does
not want to leave, but he is being forced out. And you know
what he said to me?
And I hope you do not mind me sharing this, Mr. Tuttle.
He said, ``You know, I am 63 years old. Everywhere I go, I
am pretty much blackballed. I can't get a job.'' Why? Because
he simply was trying to do his job. We are better than that. We
are so much better.
Thank you, Mr. Chairman, for your indulgence.
Chairman Chaffetz. Thank you.
I now recognize the gentleman from Arizona, Mr. Gosar.
Mr. Gosar. Thank you, Mr. Chairman.
We are going to switch it up a little bit, since I haven't
had a chance to evaluate some of the things.
Administrator McCarthy, there's a memorandum prepared by
senior Army Corps of Engineers employees detailing serious
legal and scientific deficiencies with the waters of the United
States rule were reported in the news this week.
Are you aware of those memos?
Ms. McCarthy. I have been reading about them, yes.
Mr. Gosar. Okay. Are you aware of the legal and scientific
deficiencies raised by the Corps in those memos?
Ms. McCarthy. Just from what I've read. I have not seen the
memo myself.
Mr. Gosar. Mr. Chairman, I would like to submit the memos
and the attachments into the record and share some of those
concerns with you right now.
Chairman Chaffetz. Hearing no concerns, without objection,
so ordered.
Mr. Gosar. An April 27, 2015, memo from Major General John
Peabody, Deputy Commanding General for the Corps' Civil and
Emergency Operations, states: ``The rule's contradictions with
legal principles, general multiple legal and technical
consequences that, in the view of the Corps, would be fatal to
the rule in its current form.'' As is, the rule will be
legally: ``vulnerable, difficult to defend in court, difficult
for the court to explain or to justify, and challenging for the
court to implement.'' The rule has abandoned principles of
sound science, quote, and introduced indefensible provisions
into the rule.
A May 15, 2015, memo states: EPA's analysis underlying the
rule is, quote, flawed in multiple respects. And the Corps'
review could not find a justifiable basis to the analysis for
many of the document's conclusions.
Now, question. This rule was jointly issued by the EPA and
Army Corps. Is that correct?
Ms. McCarthy. That is correct.
Mr. Gosar. Assistant Secretary of the Army Jo-Ellen Darcy
testified before the House Transportation Committee in June
that the Army Corps, quote, took these concerns and walked
through them with the EPA before finalizing the rule.
Is that your understanding?
Ms. McCarthy. That is my understanding, yes.
Mr. Gosar. Can you confirm that the EPA knew about these
concerns before finalizing the rule?
Ms. McCarthy. Since I am not privy to the exact language in
the memo, I can't speak directly. But I can tell you that, in
working with Jo-Ellen Darcy on this rule, she indicated that
all of the concerns of the Army Corps had been satisfied. In
moving forward with the final, I individually had conversations
with her about the changes that the Army Corps was interested
in making as the proposal moved through the interagency
process, and I understood that everything had been fully
satisfied.
Mr. Gosar. Really? Huh.
The EPA has publicly stated that it worked closely and
carefully with the Army Corps to make sure, just as you said,
sure that all concerns were addressed before finalization.
In its April 27, 2015 memo, the Corps asserts that, to
date, the fixes have not been adopted, so the flaw remains.
Did the EPA adopt the Corps' recommended changes to the
final version of the rule published on June 29, 2015?
Ms. McCarthy. I wasn't privy to the exact interagency
discussion within the Army Corps. I was privy with--I had a
close working relationship, as did our staff, and that is what
produced the final rule. And they understood that all concerns
were satisfied.
Mr. Gosar. Well, that is why these two documents come out
here showing quite the contradiction, because they are saying
they weren't met.
Once again, I see the EPA saying that they are above the
law, not only in rulemaking--and you are aware that there are
numerous Supreme Court rulings that defy you actually going
into this waters of the U.S. Application. You got serious
comments in regards to the Army Corps of Engineers that you are
supposed to team up with, and yet you sit here and tell me that
we have made sure that it is all taken care of, but yet it is
not.
What am I supposed to believe when I hear just the
testimony that you gave in front of the chairman and now I am
looking at waters of the U.S.? It is just a blatant disregard
for the rule of law.
Do you have any comments in regards to that?
Ms. McCarthy. I disagree with that, sir. I think it
follows----
Mr. Gosar. Oh, you can disagree all you want, but the facts
are the facts, are they not, ma'am?
Ms. McCarthy. They certainly are.
Mr. Gosar. And so there's huge deficiencies with this rule,
but yet you did not take the time to do it properly. What you
did is you forced it down, just like everybody else does within
this agency. And so, who cares about the rules?
You know, I come from Arizona, where water is for fighting
over, whiskey is for drinking. So these are very, very
important to us, particularly, in the West.
Ms. McCarthy. They are.
Mr. Gosar. And they are overreaching beyond that.
So I find it very defiant to have you sitting here and, in
light of these two documents, stating that you actually worked
with the Army Corps of Engineers, that it is ingrained within
the rule. But it is not ingrained in the rule. And you
perpetuated a bad rule that has legal consequences and has
ramifications for States and water use throughout this country.
Shame on you.
I yield back, Mr. Chairman.
Chairman Chaffetz. I thank the gentleman.
I now recognize the gentlewoman from Michigan, Mrs.
Lawrence, for 5 minutes.
Mrs. Lawrence. Ms. McCarthy, Administrator, I am here today
to talk about your responsibility as the Administrator of this
department.
You have been in this position 2 years, correct?
Ms. McCarthy. That is right.
Mrs. Lawrence. And the incidents we are referring to
happened before your position took over this department.
Ms. McCarthy. That is my understanding.
Mrs. Lawrence. So my question to you is--and I know that
you understand this, because when you take on a position of a
department head, you have a responsibility for ensuring that
your employees are safe, that they work without discrimination.
Title VII clearly outlines what that discrimination is.
And one of the ways that you hold employees accountable is
that you train them; that when you come into a department, that
you have documented training that explains to all of your
management staff that violation--that these are the laws, and
you are held responsible for that.
Can you explain to me how you, in these 2 years, have
documented that your managers have this training and the
accountability that happens as a result of that?
Ms. McCarthy. I certainly can, and I am happy to provide a
more complete report after the hearing.
But we have had anti-harassment policy in place. People are
trained in accordance with all of the policies. When an issue
arises, one of the first things we look at is ensuring that
they have been properly trained and that there will be no
repeat of any violating behavior.
You know, we take these issues incredibly seriously. And
one of the things that is happened under my tenure is a
continued increase in our training budget, not just for
managers but for other employees, so that people can know what
their rights are, know what the appropriate recourse is if they
feel like they have had issues that arise that they are
uncomfortable with or they do not understand.
And I think we are going to keep trying to do the best we
can to both document training but to increase training
availability. It is been very difficult at the Agency to adjust
to budget cuts, but the last thing I am going to do is
disinvest in the employees of this agency.
Mrs. Lawrence. Now, the training goes two ways. So you
train your managers, but you also train the employees.
Ms. McCarthy. Right.
Mrs. Lawrence. I was disheartened to hear the testimony of
the previous panel, where they felt they did not have anywhere
to go. To me, what came to mind, if there had been proper
training--you are required to post information. If you feel
like you have been discriminated, there's a confidential number
that you can call that is beyond your manager if you do not
feel--are all those things in place?
Ms. McCarthy. I believe they are, but I will go back and
double check. I think I am distressed by the same issue. It
seems as if they knew the Office of the Inspector General was
available but did not feel comfortable or that they would be
independent. You know, we are--and I will talk about that and
figure out what else we do.
But there is training. People know who to call. One of the
things we are working on on anti-harassment is, while we have
had a good policy, I think we haven't had the procedures in
place to implement that consistently and effectively, which is
why we just did that.
I just asked that that policy be developed. What happened
is the five unions wanted to bargain on the implementation of
that policy. And that is where we are today. My hope is that
that will provide added clarity, and we'll integrate that into
a more rigorous training program, as well.
Mrs. Lawrence. I want to be really clear. The question that
was just asked by my colleague is about efficiencies in
programs and procedures within EPA. I am the ranking member on
Interior. EPA is extremely important to our government, to our
environment, something I am very committed to.
This whole hearing is about distractions, about waste of
time and demoralizing employees that we need energized and
committed to actually doing the job we hired them to do. It is
unacceptable that we have 11 complaints put forth on the same
issue about sexual harassment, about bullying. And, to your
credit, 2 years in--but you must have a fierce commitment to
policies, to making sure that any employee, if they feel like
they've been discriminated against, that they know where they
can go; that the IG--you do not wait for the employee to call
the IG. You energize the IG to advise you.
You need to do something above and beyond. You need to be
creative, as the Administrator, how you are going to change
this. Because I am holding EPA accountable to do what we hired
them to do. It is a critical time in our country, with our
environment and these questions on water, for us to be so
distracted.
This, to me, is so disappointing, that we have to spend
this much time when we have valued--30 years' experience in EPA
is something that we should be valuing. That employee should be
so energized and integrated into the success of this country
and doing the work for EPA.
And, with that, I yield back my time.
Chairman Chaffetz. Thank you.
We'll now recognize the gentlewoman from Wyoming, Mrs.
Lummis, for 5 minutes.
Mrs. Lummis. Thank you, Mr. Chairman.
And I certainly admonish you to listen to the chairman and
the ranking member and the other members of this committee who
have brought to your attention how serious this committee
believes this issue is.
With that, I, too, am going to switch gears. I want to talk
to you about a couple of substantive issues related to the
President's Climate Action Plan.
Now, under his plan, the EPA has proposed two major rules
on existing power plants and on new power plants. These rules
affect listed species.
Now, let's go to the Endangered Species Act, where any
Federal agency that carries out a discretionary action that may
affect a listed species or critical habitat must consult with
either the Fish and Wildlife Service or NOAA Fisheries. The
threshold is really low. It is any possible effect, including
insignificant or beneficial effects. That is what triggers the
consultation requirement in the Endangered Species Act.
Now, let's turn back to the existing-source rule. The EPA
just summarily concluded that the rule would have no effect on
any listed species. In the new-source rule, the EPA did not
even address compliance with the Endangered Species Act.
My question is this: Will EPA consider whether its proposed
new-source rule may affect any listed species or critical
habitat?
Ms. McCarthy. Well, Congresswoman, first of all, I am glad
of the commitment to endangered species, and I share it. We
will make sure that the final rules actually meet our
obligation under the Endangered Species Act.
Mrs. Lummis. Well, I hope that obligation includes a
consultation. Because, with regard to the existing-source rule,
every model EPA has released projects that multiple coal-fired
power units will close if the rule is implemented. Now, among
those are Big Bend Power Station and Crystal River Power Plant
in Florida.
Now, according to the Fish and Wildlife Service's Florida
manatee recovery plan and a USGS study, the warm water that is
provided by these plants is crucial to the existence of the
Florida manatee. The plan states that about two-thirds of the
manatees in Florida rely on these warm-water discharges for
protection from the cold. The plan states that alterations to
power plants will significantly affect the manatees' ability to
survive cold temperatures.
Many of the power plants in Florida even have manatee
protection plans imbedded in their Federal Clean Water Act
permits for water discharges. Now, that includes, like, Big
Bend and others. The operator of Big Bend Power Station, Tampa
Electric Company, has advised the Public Service Commission in
Florida that your existing-source rule will force the company
to shut down Big Bend.
How did the EPA conclude that its existing-source rule will
have no effect on endangered species if the EPA's own modeling
and the Tampa Electric Company have both concluded that the
rule will shut down generating units at this plant and
eliminate the warm-water refuge for manatees?
Ms. McCarthy. Well, Congresswoman, as you know, this issue
has arisen during the proposal period for 111(d). We will
certainly take a look at this comment, and we will abide by the
law as we finalize the rule.
Mrs. Lummis. Have you ever contacted the Fish and Wildlife
Service with regard to the possible effects of the two power
plant rules on endangered----
Ms. McCarthy. I can only speak to my own knowledge, which I
personally have not.
Mrs. Lummis. Do you know if anyone else in the Agency has?
Ms. McCarthy. I do not know the process that has been
established by the Agency and the staff so far.
Mrs. Lummis. Would you please provide to this committee
information on whether and who, if anyone, contacted the Fish
and Wildlife Service with regard to the possible effects of the
two power plant rules on endangered and threatened species?
Ms. McCarthy. Well, I know, Congresswoman, that when the
rule comes out in final form, you will see this as a comment in
response, and it will be fully responsive to your request.
Mrs. Lummis. We will go now to the existing-source rule.
What is the basis for finding no effect on the manatee under
the existing-source rule? The overwhelming evidence is to the
contrary.
Ms. McCarthy. I can't answer that specific question any
more directly than I just did, which is the folks are aware of
the concern that is been raised, and they will address that
concern, and we will make sure that when the final rule comes
out it is consistent with our requirements under the Endangered
Species Act.
Mrs. Lummis. Would you provide to this committee also the
basis for a decision?
Ms. McCarthy. That will also, I am sure, be thoroughly
discussed, but I will make sure that is the case as we look at
the response to comment in the rule.
Mrs. Lummis. Thank you, Ms. McCarthy.
Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentlewoman.
I now recognize the gentlewoman from the District of
Columbia, Ms. Norton, for 5 minutes.
Ms. Norton. Thank you very much, Mr. Chairman. And I want
to thank you especially for today's hearing. I think it is a
very important hearing.
And I want to thank Ms. McCarthy for coming and for the
progress the Agency has made.
Ms. McCarthy, when I became chair of the Equal Employment
Opportunity Commission, sexual harassment was not even defined
as sexual discrimination. We issued guidelines defining the
words ``sex discrimination'' in the statute to include sexual
harassment, and the Supreme Court later backed us up.
The courts have not done the same with respect to unpaid
interns. I was flabbergasted but understanding, how some courts
interpreted law, to find that some courts have already found
that unpaid interns are not covered by the word ``employees''
in Title VII of the 1964 Civil Rights Act. That means that the
people, the whistleblowers who testified here today could not
receive relief in the courts the way an employee of the Agency
could under the statute.
Mr. Cummings, our ranking member, has introduced a bill to
correct this flaw in Title VII. He calls it the Federal Intern
Protection Act. I hope that some of the Republicans on this
committee who have expressed I think appropriate outrage at the
harassment that went on here will join us as cosponsors to this
bill.
And I would like to ask you if you would support a bill to
add or define interns as employees under Title VII of the 1964
Civil Rights Act.
Ms. McCarthy. While I can't speak directly to a legislative
proposal, I can indicate to you that EPA strives to protect all
of our employees from discrimination, and we hold our employees
and our managers accountable for their actions.
Ms. Norton. Now, let me ask the question more directly.
Would you have your counsel look at the--since there has been
repeated harassment of interns--and, by the way, this House and
the Senate now, like most large employers across the United
States, are replete with interns. This has widespread
implications.
Would you have your counsel look at the recently introduced
Federal Intern Protection Act and indicate to this committee,
to the chairman and the ranking member, whether you would
support that act to prevent the harassment of interns in the
future? Would you give us that in writing?
Ms. McCarthy. I am happy to provide technical assistance on
this. And I think, as you know, I personally and the Agency
would support any effort to ensure that our employees are not--
--
Ms. Norton. I appreciate that, Ms. McCarthy, because I can
see that you want to get rid of this issue and are right do so.
I wasn't here to hear from the first panel, but I've read
their testimony, and I was particularly interested in the
testimony of the whistleblowers and of Ms. Kellen of AFGE
Council 238. In my own experience at EEOC, I've found that
employees on the ground can be very helpful. That particularly,
seems to me, might be the case here, where we are talking about
managers.
Ms. McCarthy, I can think of no one in the life of an
employee, not even you, the head of the Agency, that has more
power and authority over an employee than the direct supervisor
or manager. That is why listening to these employees is, it
seems to me, particularly important. And, of course, she
describes what she calls a serious lack of accountability and
transparency, she says, at EPA in particular.
When a manager has a problem--you know, imagine having to
file a Title VII complaint against your manager. I mean, that
really takes a lot, even if the law covered interns. That takes
a lot of gall. That is why proactive action would be most
beneficial.
She does state, Ms. Kellen, that there are tools and
procedures currently to address management issues. So I would
like to look at the existing tools and procedures to address
management issues, since that is so far out of reach of the
average employee.
You have made some progress, and I am looking at these
management issues for even further improvement. And employees
are among those who will always offer suggestions. She says
that it would be helpful to have the GAO conduct a study of
what she calls bullying in the Federal sector. And she does not
even list EPA alone.
Now, understand that the word ``bullying'' here has real
connotations. I mean, it may be if you bully a Federal employee
that is about all you have to do in order to get your point
across, and there's nothing she can do, even if it is a form of
harassment.
So I wonder if you would support the idea of a GAO study of
bullying in the Federal sector by management employees?
Ms. McCarthy. I would be happy to support an independent
look at this. And, in fact, Congresswoman, I think we still
have work to do within EPA. I mean, every agency has to
continue to be diligent, but one of the things we have put on
the table is much more concise and well-spelled-out procedures
that managers need to follow and that employees can count on
when these complaints come forward. We need to get that over
the finish line, complete the review of the union, because we
welcome their input on it. But we all have to keep struggling
on this issue.
And I am not claiming that EPA is above where any other
agency is. Bullying happens at all levels whenever there is a
power difference between one employee and another. And we have
to constantly be as diligent as----
Ms. Norton. And it is really that power difference I am
talking about. The Agency employee may rarely see you but will
see her supervisor, or SES, far more often.
I wonder, because there was testimony that action by
managers has not been fully investigated. Now, Ms. Kellen
suggests something called a feedback loop, where employees
could anonymously offer their opinions of how managers are
performing their duties.
Now, of course, that anonymous feedback could be of any
kind, and I am not suggesting it is enough to get some kind of
action taken against an employee. But this person who was
guilty, it would appear, of repeated instances of sexual
harassment, if employees could have anonymously reported that
and if the head of the Agency knew that--others have gone on
for much longer than I've gone on, including, you Mr. Chairman.
If I could just get an answer.
Chairman Chaffetz. Well, with all due respect, we are
almost 3 minutes over. I am just--I just tapped.
Ms. Norton. Could I just get an answer to this question
then?
Chairman Chaffetz. Sure.
Ms. Norton. Thank you, Mr. Chairman.
Ms. McCarthy. I will be as brief as possible.
We do have an OIG Hotline, which is the most direct way for
anybody to raise an issue.
Ms. Norton. And that is anonymous?
Ms. McCarthy. It is, yes.
But more to your point, I am happy to talk to Ms. Kellen
about any suggestion she has for how we can proactively address
this issue and not wait until it has to go to a hotline.
Ms. Norton. Thank you for your indulgence, Mr. Chairman.
Chairman Chaffetz. Thanks.
We'll now recognize the gentleman from Georgia, Mr. Hice,
for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
I would like to begin by going back to the topic from my
colleague from Wyoming. The U.S. Geological Survey, I am sure
you are aware, has the manatee on the endangered list. And they
rely on power plants as a source of warm water during the
wintertime.
And you had mentioned a moment ago that, to your knowledge,
the EPA never contacted the U.S. Fish and Wildlife Service or
National Marine Fisheries Service. Is that correct?
Ms. McCarthy. No, sir, that is not what I indicated. I said
that I have not personally had those conversations.
Mr. Hice. So who has had those conversations?
Ms. McCarthy. Well, the obligation of the development of
the rule in addressing those issues falls to--I guess our
Assistant Administrator at the Office of Air and Radiation
would be the next one to look at this issue.
Mr. Hice. You ``guess.'' So you do not know who is
responsible?
Ms. McCarthy. You know, I do not run the day-to-day work of
the rule. As you know, we have received lots of comments on
this rule. This is certainly on the radar screen, and I am
confident that we will put out the rule in a way that addresses
this----
Mr. Hice. Well, it needs to be on the radar screen; this is
the law.
Ms. McCarthy. Absolutely.
Mr. Hice. The law requires you to contact them, and you do
not have any idea if they were contacted or not.
Ms. McCarthy. I just said I did not participate in
conversations myself. That is all I am----
Mr. Hice. And you are also indicating that you do not know
if anyone else did either, because you are saying you guess it
might have been one department or another. So you do not know.
Ms. McCarthy. All I know is that my staff and I are well
aware that we have an obligation to meet the rules under the
Endangered Species Act, and we will do that.
Mr. Hice. Okay. But you do not know if those agencies were
contacted.
Ms. McCarthy. I honestly do not recall whether I've had
that direct conversation. I may have, but it is----
Mr. Hice. I am not talking about you. I am talking about
the EPA in general. Did the EPA abide by the law----
Ms. McCarthy. The EPA has to abide by the law on the final
rule, and we will.
Mr. Hice. Did the EPA abide by the law and consult with the
U.S. Fish and Wildlife Service or National Marine Fisheries?
Ms. McCarthy. I am happy to get back to you, as I
indicated----
Mr. Hice. So you do not know, is the answer.
Ms. McCarthy. There are many comments that we receive that
I do not follow directly up on. But I am----
Mr. Hice. So are you saying yes or no or you do not know?
Ms. McCarthy. I do not know.
Mr. Hice. Okay. That is what I was trying to get to. All
right. So you do not know if the law was upheld or not.
Ms. McCarthy. I know that the law has to be upheld, and I
know that happens when we issue the final rule, which has not
happened yet.
Mr. Hice. All right.
Well, you realize that the EPA's proposed rule ultimately
is going to shut down a number of coal-generated power plants.
Ms. McCarthy. I remember in the Regulatory Impact Analysis
there was an estimate of potential closings as a result of
decisions the States might make as a result of that rule.
Mr. Hice. There have been a number of those. One of them is
in my own district.
Ms. McCarthy. Okay.
Mr. Hice. Plant Branch was closed down because of EPA
regulations and so forth. And this----
Ms. McCarthy. Which plant did you say, sir? I am sorry.
Mr. Hice. Plant Branch in Milledgeville, Georgia, shut down
because of the EPA regulations, and hundreds of jobs have been
lost because of that. And the manatee, of course, not in my
district but relies in other areas on the warm water generated
here. And it just sounds to me, again, that the EPA is not
abiding by the law.
What would happen if a business decided that they were just
not going to abide by regulations from the EPA? Would you
ignore that?
Ms. McCarthy. Not if it was called to my attention. And,
certainly, EPA won't ignore the law either.
Mr. Hice. Well, EPA has been ignoring the law, and it is
not--do you believe that all coal plants should be shut down?
Ms. McCarthy. I do not have--it is not--there's no belief
system I have about coal at all, sir. All I do is enforce the
law.
Mr. Hice. You do not have a belief system?
Ms. McCarthy. No.
Mr. Hice. Do you believe that coal generates power?
Ms. McCarthy. Yes, I--that is a factual issue.
Mr. Hice. It is a factual issue. Do you believe that they
should be shut down because they are coal-generated?
Ms. McCarthy. I think they offer tremendous value to
energy----
Mr. Hice. That was not my question. I know they offer----
Ms. McCarthy. No, I do not have any----
Mr. Hice. --value because the offer energy.
Ms. McCarthy. --belief as to whether they should be shut
down or not shut down. I do not--that is not a belief system
for me, sir. I appreciate the value that coal brings to our
energy supply system and how valuable it is----
Mr. Hice. You are having a difficult time understanding my
question. I am asking, do you believe that coal plants should
be shut down?
Ms. McCarthy. I have no such belief that they should be
shut down.
Mr. Hice. Okay.
Ms. McCarthy. I have no belief----
Mr. Hice. Are you aware that EPA policies and regulations
are skyrocketing the ability for coal-generated power plants to
exist?
Ms. McCarthy. I believe there are two things happening. One
is there is a transition in the energy world, and coal is
becoming less competitive because of inexpensive natural gas.
And I believe that we are putting rules out that are related to
pollution from those----
Mr. Hice. Coal is becoming expensive because of the
upgrades that are required by plants to uphold the regulations
put upon them by the EPA.
Ms. McCarthy. There are----
Mr. Hice. My time has expired. I thank you, Mr. Chairman.
Chairman Chaffetz. I thank the gentleman.
We will now recognize the gentleman from Alabama, Mr.
Palmer.
Mr. Palmer. Thank you, Mr. Chairman.
Ms. McCarthy, Arthur A. Elkins, the inspector general for
the EPA, testified a number of times about their frustration
with cooperation from the EPA. As a matter of fact, he talked
about how the EPA had inappropriately blocked his office from
conducting some investigations that involved employee
misconduct. He testified to this in September 2014 and, in that
testimony, advised the committee that the EPA had asserted that
there was a category of activity defined as intelligence, to
which the OIG may have access only subject to the EPA's
granting permission. He further stated that, in some cases, the
EPA's obstruction had interfered with and, in some cases,
fouled the investigations.
There's other testimony by Patrick Sullivan from the OIG's
office where he talked about other inappropriate activity
taking place at the EPA in which the EPA employees in the
Office of Homeland Security had been interviewing EPA employees
and telling them not to tell the OIG, pulling EPA employees'
emails and phone records, and searching information on
employees' computers, among other things. And he said those, in
fact, are investigations, and that is what they are doing. And
the point is that the Office of Homeland Security does not have
investigative authority.
Now, this has gone on now for some time. In April, Mr.
Elkins testified again and pointed out that the EPA confirmed
to the Office of Inspector General that it would share the
information that they had been seeking, both with regard to
previous matters and on an ongoing basis, and that the Agency
had not yet shared that information.
Then, in June, apparently--and I do want to cite one other
thing. There was a memorandum of understanding that the EPA
entered into unilaterally with the FBI without informing the
OIG that further impeded the OIG's ability to do their job.
And then, earlier, in June, you finally agreed to turn over
the information. And you also informed the OIG's office that
you had rescinded the memorandum of understanding.
Now, my question to you is, have you turned over all of the
information from the investigations from the Office of Homeland
Security?
Ms. McCarthy. My understanding is that we have made
tremendous progress into----
Mr. Palmer. No, ma'am. This is a yes or no answer.
Ms. McCarthy. I am trying to answer your question, sir.
I do not believe that we were withholding information or
that MOU indicated that we would be. However, I've addressed
every one of Art's concerns, including rescinding that MOU,
having----
Mr. Palmer. You have rescinded the MOU?
Ms. McCarthy. --direct contact with the staff, reaching an
agreement with the FBI on how to integrate the OIG into all of
the efforts that they are concerned about at our Office of
Homeland Security so that Homeland Security can perform their
programmatic functions and never ever be viewed by the IG or
anyone as above the law, in terms of allowing the IG access to
information they need to do their job.
We have made great progress in that venue.
Mr. Palmer. Well, you keep talking about not impeding the
OIG's investigation, but that is not their opinion. In this
April testimony, he said, in this particular case, the OIG's
investigation was negatively impacted and delayed by the fact
that these senior EPA officials did not notify the OIG about
their knowledge of the underlying incidents.
And my question again: Have you turned over the information
from these investigations to the Office of the Inspector
General?
Ms. McCarthy. I am not sure I understand what this refers
to, sir, but I do not want----
Mr. Palmer. Okay. I will simplify it for you.
Ms. McCarthy. --you getting the impression that we are
withholding any information that the IG needs to do its job.
Mr. Palmer. Reclaiming my time----
Ms. McCarthy. And I think the IG understands that.
Mr. Palmer. I will simplify it for you. Let me make it
simple.
Ms. McCarthy. Okay.
Mr. Palmer. Have you turned over all of the information
from the Office of Homeland Security to the OIG?
Ms. McCarthy. As far as I know, the IG and the Office of
Homeland Security are working collaboratively to ensure that
the Office of the Inspector General can do its job while the
Office of Homeland Security can perform its programmatic
functions.
Mr. Palmer. The reason I am pressing this----
Ms. McCarthy. That is how it is supposed to work.
Mr. Palmer. The reason I am pressing this is, throughout
this period of time----
Ms. McCarthy. Yes.
Mr. Palmer. --you consistently offered to work with the
OIG's office and did not do it. Okay? So I just want to know,
are you going to do what you said you were going to do?
And I appreciate the fact that you rescinded the memorandum
of understanding.
Ms. McCarthy. Thank you.
Mr. Palmer. But we would like to know definitively that you
are turning over the information that the Office of Inspector
General has requested. And, if you have not, when will it be
done?
Ms. McCarthy. I have dictated that as an absolute
requirement of our Office of Homeland Security. We met with the
Federal Bureau of Investigation; we set up a process to ensure
that is happening. And I have heard no further concern of the
inspector general that information that he is aware of is being
somehow withheld.
Mr. Palmer. Okay. We'll follow up on that later.
If the chairman will indulge me, I have one other question.
Five years ago, armed agents from the EPA conducted a raid
on a city wastewater treatment facility in Dothan, Alabama.
What I would like for you to do, Ms. McCarthy, is provide to
this committee a copy of the threat assessment that justified
armed agents in body armor conducting a raid on a municipal
facility.
Mr. Chairman, I appreciate the additional time. Thank you.
Chairman Chaffetz. Thank you.
As we wrap----
Ms. McCarthy. Mr. Chairman, can I just make----
Chairman Chaffetz. Sure.
Ms. McCarthy. --sure I know which incident he is talking
about?
I am aware of an investigation. I am unaware of any raid.
Mr. Palmer. Okay. It is the city of Dothan, Alabama.
Ms. McCarthy. Okay. Thank you.
Mr. Palmer. Thank you very much.
Chairman Chaffetz. We would appreciate your following up
with Mr. Palmer on that.
Ms. McCarthy. Okay.
Chairman Chaffetz. As we wrap up here, I have just a few,
sort of, cleanup questions here.
Can you provide this committee the bonuses, if any, that
Mr. Paul Bertram received over the last 10 years?
Ms. McCarthy. I am happy to follow up on that, sir.
Chairman Chaffetz. And Susan Hedman, could we also look at
those for the past 10 years, as well?
Ms. McCarthy. The Regional Administrator?
Chairman Chaffetz. Yes. Bonuses----
Ms. McCarthy. Certainly.
Chairman Chaffetz. --for the last 10 years. We would
appreciate that.
Ms. McCarthy. Okay.
Chairman Chaffetz. She was the person in charge with all of
these incidents that we have been talking about, the sexual
harassment incidents, not the other issues that were sort of
off-topic. What is your assessment of her performance in this?
Ms. McCarthy. In this instance?
Chairman Chaffetz. Regarding the sexual harassment issues,
the retaliation, et cetera.
Ms. McCarthy. Well, I do not--I do not know what her direct
involvement has been. I am aware of the full record, and I know
that the employee in question basically left Federal service,
which I think was the appropriate thing to do. I do not know
her direct involvement in the retaliatory issues.
Chairman Chaffetz. And I guess that is the concern. I mean,
it is risen to the level that we are having congressional
hearings about this. We have expressed concern about this.
These problems keep happening.
Ms. McCarthy. Generally----
Chairman Chaffetz. And, you know, it is one thing when you
get one person complaining; it is another thing when you get
three. And their testimony is consistent. Their authenticity
seems to be as real as it gets.
Our professional staff have spoken to the victim here, one
of multiple victims that were at the hands of Paul Bertram. And
what is just sick and disgusting----
Ms. McCarthy. Yeah.
Chairman Chaffetz. --is that it was allowed to continue
through years.
And we have brought this issue to you before, about when
somebody does this and they do look at it, I do not understand
why it is not in their record so that the next time they go to
get a bonus or a promotion or come to some conclusion, that
somebody can't look back at this and say--I mean, first of all,
it should never get to the second time, ever. But, in this
case, we are talking about 10 times.
Now, I respect the idea that you were not the Administrator
the entire time. But it is your watch, and you have been there
for a few years now. And we had a hearing about this earlier
this year.
Ms. McCarthy. Yes.
Chairman Chaffetz. What specifically are you doing, not
about issuing, ``Hey, here's our sexual harassment policy,''
which is important, but what are you doing to make sure that
nobody but nobody is allowed to get a bonus or promotion if
they participate in sexual harassment?
And are you doing anything to look back into the record and
find those people who have a serial problem with harassing
women in particular? And it can happen to men, too, but the
cases we have heard have been primarily towards young, entry-
level women.
Ms. McCarthy. Yeah.
Chairman Chaffetz. What exactly are you, as the
Administrator, doing to get rid of those bad apples so we do
not ruin somebody else's life? Because the atmosphere that we
hear about today, it is still going on. I have no trust or
belief that you have actually solved the problem.
Ms. McCarthy. Well, you know, we have to be as diligent as
we possibly can, because----
Chairman Chaffetz. I know, but what is it? What are you
doing?
Ms. McCarthy. --one is one too many, and I understand that.
I want to make it clear to you, Mr. Chairman, that we are
not just putting another policy out. We are actually doing an
implementation, procedures, so that the employees can know what
it is, we can hold managers accountable for doing--for actually
following those procedures.
So we are working through that with the union because I
understood that this issue has been raised. But, you know,
we'll continue to be as diligent as we possibly can. We'll find
out what we need to do to make it more comfortable for these
women to come forward. This is a very difficult situation that
I take very seriously.
Chairman Chaffetz. I just do not hear the specifics. Here's
what I want to hear: We are going to go through each and every
personnel file, and anybody who has sexual harassment, we are
going to go back and evaluate that, we are going to do criminal
referrals where necessary, we are going to fire people who have
participated in this habitually, and we are going to go through
each and every one. It is going to take some time, but we are
going to do that. And when it comes to our attention next time,
we are going to get the inspector general involved, and we are
going to take it very seriously so that everybody feels
comfortable in their work environment at the EPA.
That is the answer I am looking for, and you are nowhere
close to that. Did I say anything that you would disagree with?
Ms. McCarthy. You have not said anything I disagree with
what--how you would handle it. My concern is making sure that
we follow due process for the employees. That is equally
important to me. Whether you are an employee or you are a
manager, I am going to follow due process.
Chairman Chaffetz. Nobody's going to argue against due
process----
Ms. McCarthy. Okay.
Chairman Chaffetz. --but what we heard testimony in the
first panel is, when they went through the due process--we had
some brave people stand up and say, you know what? A reprimand
ain't good enough here. You are going to have to do something
more.
Ms. McCarthy. But I want to make clear to you, Mr.
Chairman, the managers in that situation absolutely agreed, as
well. It provided an opportunity during----
Chairman Chaffetz. That is not true.
Ms. McCarthy. --the process for more women to come forward.
Chairman Chaffetz. That is not true.
Ms. McCarthy. That was the decision of the management, was
to call for that gentleman's removal.
Chairman Chaffetz. That is not true. Because the original--
the original recommendation was to move his cubicle four spaces
down.
Ms. McCarthy. Well----
Chairman Chaffetz. And--no, no. Hold on. Fortunately, you
had some people who came in and said, that ain't good enough,
folks. And now they feel like there's retribution.
Look, we do not need to rehash the whole case.
Ms. McCarthy. No. I just wanted to say I couldn't agree
with you more that we have to be serious and diligent. Let me
go back and see what else the individuals or the unions would
suggest, and we'll keep working through this issue.
I just do not want to leave here with you thinking that I
do not take these issues seriously, because we absolutely do.
And I am going through not just policies and procedures, but we
will do everything we can to follow up on the issues that were
raised to you today.
Chairman Chaffetz. I have----
Ms. McCarthy. Had they been raised to me earlier, maybe we
would be further along. But I respect the rights of every
employee at EPA and the unions to come to you or anybody else
with these issues. And I will not hold that against them. I
will work with them.
Chairman Chaffetz. I want to believe you. I just want to
see the action. And I want you to----
Ms. McCarthy. Yes, sir.
Chairman Chaffetz. --follow up with this committee. We have
jurisdiction over all of the Federal workforce. This is
something that we are seeing not only at the EPA----
Ms. McCarthy. I will do that.
Chairman Chaffetz. --but other agencies, as well. And I
think we need a clear definition of sexual harassment, sexual
misconduct, and what are the consequences for that----
Ms. McCarthy. And, Mr. Chairman----
Chairman Chaffetz. --because it is happening government-
wide----
Ms. McCarthy. --I am very happy that you are taking this
seriously.
Chairman Chaffetz. --and it is a problem.
I do want to ask a last thing about the inspector general.
Ms. McCarthy. Yes.
Chairman Chaffetz. Do you think it would be appropriate or
inappropriate--do you think it would be appropriate that, if
you have a sexual misconduct or sexual harassment, to have that
automatically referred to the Inspector General's Office?
Ms. McCarthy. I am happy to talk to the inspector general
about that, but that is----
Chairman Chaffetz. No, I want you to talk to me about that.
Ms. McCarthy. Well, part of that is the discussion of our
implementation that is currently happening with the unions----
Chairman Chaffetz. Why----
Ms. McCarthy. --because we want these issues implemented.
Chairman Chaffetz. Why not automatically refer this to the
Inspector General's Office?
Ms. McCarthy. It is--generally, this is not a criminal
issue. It is an administrative procedure that goes to our
Office of Human Resources.
Chairman Chaffetz. Sexual harassment--sexual harassment is
a crime.
Ms. McCarthy. But we work with the IG on these issues. We
do not----
Chairman Chaffetz. No, you did not.
Ms. McCarthy. --exclude them from----
Chairman Chaffetz. You do not. You did not in this case.
That is the problem. You did not refer it to the inspector
general. You did not refer it to the criminal--to any criminal
referral.
I would think that you would work with the person who is
claiming the sexual harassment and work with her to figure out
the proper remedy. She complained multiple times. It is not as
if she came forward once. She came forward multiple times.
Ms. McCarthy. No--well----
Chairman Chaffetz. So----
Ms. McCarthy. --we do not need to rehash this, other than
to recognize that we both share the same concern. And you have
my assurance----
Chairman Chaffetz. But you are in a position to do
something about it.
Ms. McCarthy. And I will. And I have.
Chairman Chaffetz. But you did not. You did not.
Ms. McCarthy. Well----
Chairman Chaffetz. You did not. We had the conversation
earlier.
Ms. McCarthy. Yes.
Chairman Chaffetz. We want to look at making sure--last
question about the IG, still on that same topic.
Ms. McCarthy. Yes, sir.
Chairman Chaffetz. What information is the IG not able to
access? In other words, to me, the IG should have unfettered
access to the information that it wants. What exceptions are
there?
Ms. McCarthy. Well, in issues of national security, we just
have to make sure that the appropriate individual receiving
that information has the appropriate clearance.
Chairman Chaffetz. Understood. Other than that----
Ms. McCarthy. That is the agreement that was reached, and
that is what we operate----
Chairman Chaffetz. Other than that, the IG should have
unfettered access, correct?
Ms. McCarthy. I can't speak to whether it is unfettered. I
know what my responsibility is, to make sure that they can do
their jobs effectively and----
Chairman Chaffetz. We had the inspector general come before
this committee and said that your agency is not allowing them
the access to the personnel or the information that they want.
I want to know why not and what they shouldn't be able--who
they shouldn't be able to talk to and what documents they
shouldn't be able to see.
Ms. McCarthy. I believe we are, but you can speak with Mr.
Elkins directly. We have----
Chairman Chaffetz. I have. Now I am asking you. What--this
should be a simple question.
Ms. McCarthy. It is. And I've answered the question, sir.
Chairman Chaffetz. I do not think so. Should the inspector
general have total access to all personnel and all information?
Ms. McCarthy. They should have access that is appropriate
for them to do their jobs and----
Chairman Chaffetz. Okay.
Ms. McCarthy. --and have the appropriate clearance.
Chairman Chaffetz. Why are you qualifying----
Ms. McCarthy. And they have that.
Chairman Chaffetz. Should they have access--it is
appropriate for them to do their job by having access to all
the personnel----
Ms. McCarthy. I just do not want----
Chairman Chaffetz. --and all the information.
Ms. McCarthy. I am not a lawyer. I just do not want to have
you ask me a direct legal question and me pretend I am one, and
I do not want to go down that road. I do not know----
Chairman Chaffetz. When will you provide us an answer?
Ms. McCarthy. --what the term ``unfettered'' means.
Chairman Chaffetz. Can you provide an answer to me? Pick a
date. What is an appropriate time for you to come back and
answer me that question?
Ms. McCarthy. Well, why do not we work with your staff and
we'll make that determination----
Chairman Chaffetz. Give me a date.
Ms. McCarthy. --and I will do the best I can to meet that.
Chairman Chaffetz. Give me a date where I say,
Administrator, it is past the deadline. What is an appropriate
date to get that back?
Ms. McCarthy. I can explain to you, sir, how we have
reached an agreement with both OHS and the----
Chairman Chaffetz. I do not want you to have to negotiate.
Ms. McCarthy. --and the FBI.
Chairman Chaffetz. The inspector general----
Ms. McCarthy. Well----
Chairman Chaffetz. The IG Act is very clear.
Ms. McCarthy. I am sorry, sir.
Chairman Chaffetz. This is taking far longer than it
should. I just want you to give me a date as to when you can
respond to me. That is all I am asking.
Ms. McCarthy. I've already responded that I believe we are
providing them access to every information they need. And that
is already happening, and there is a process for that. I had to
protect the interests of the intelligence community. I've done
that, and the IG can do their jobs.
Chairman Chaffetz. Okay. I want you to give me a date as to
when you will give me a full and complete answer as to what
limitations you think there are on the inspector general.
In my opinion, they should have total, complete access to
all personnel and all of your records all the time. If there
are exceptions to that, I need to know, I want to know what
those are.
And you said you are not an attorney. I am giving you time
to--I respect that.
Ms. McCarthy. Right.
Chairman Chaffetz. I want you to take some time, get the
answer right. We also have jurisdiction over the inspectors
general, so we want to get this right, as well.
What is an appropriate date? Do not tell me we are going to
work with staff, because these continue on in perpetuity. Give
me a date. I am letting you pick the date.
Ms. McCarthy. Would it be okay if I ask my----
Chairman Chaffetz. Sure.
Ms. McCarthy. --attorney what an----
Chairman Chaffetz. Ask him.
Ms. McCarthy. --appropriate date might be?
Chairman Chaffetz. Yeah.
Ms. McCarthy. Okay.
Is 30 to 60 days okay?
Chairman Chaffetz. How about the end of August? Is that
fair, by the last day of August?
Ms. McCarthy. That sounds like 30.
Chairman Chaffetz. Yeah. Is that fair?
Ms. McCarthy. I would be happy do that.
Chairman Chaffetz. All right. Thank you.
Ms. McCarthy. And I apologize. I wasn't trying to confuse
the issue. I just did not want to act like----
Chairman Chaffetz. I want you to have the proper time to
get to the right answer. So we will say the end of August.
Ms. McCarthy. Thank you.
Chairman Chaffetz. All right.
Mr. Cummings.
Mr. Cummings. Just very quickly, I just want to clarify
some things, Ms. McCarthy, and I will be very, very brief.
It is my understanding that the intern had been--the first
time she came and notified anybody of this was in March of
2011, although she had been being harassed at least a year, I
guess, earlier.
Is that right? Is that your understanding?
Ms. McCarthy. I am aware of when she reported it and when
the person was removed from----
Mr. Cummings. Would that have been March 2011?
Ms. McCarthy. --Federal service. Yeah.
Mr. Cummings. Yeah.
And there has been a little bit of confusion, because--and
I wanted to straighten this out earlier, when the gentleman
testified, Mr. Harris, because he talked about 10 statements,
but I wanted to make sure.
As I understand it, based on our review of the witness
statements provided to the committee, we understand that EPA
manager Paul Horvatin only knew of one incident of sexual
harassment prior to the March 2011 incident, although there
were witness--we have witness statements.
Ms. McCarthy. Yes.
Mr. Cummings. But as far as--we keep talking about----
Ms. McCarthy. I think 11 years prior to----
Mr. Cummings. --10 people being harassed.
Ms. McCarthy. Yes.
Mr. Cummings. I do not think that was clear.
It is not your fault, Mr. Harris. I had meant to clarify
that before.
But the only thing I would say is this, Ms. McCarthy. I
hope that you took the things that I said in the light----
Ms. McCarthy. I do.
Mr. Cummings. --that I said them--that I meant them. And I
just want to see if we can resolve these issues.
And I thought the points that the chairman and certainly
the points that Ms. Norton made were just right-on. I mean, in
some kind of way, we have got to be able to resolve these
issues and create--and sort of memorialize----
Ms. McCarthy. Yeah.
Mr. Cummings. --the solution, as opposed to rehashing over
and over and over again. And that is all we are trying to do.
And we want to work with you, because I know that--I know
you were about to tell the chairman in the very beginning about
your own history, about your family and what you, I am sure,
have seen in your life, as a woman being in all kinds of
difficult situations. So we know you have the sensitivity. But
now we have got to make sure that we bring all of that to bear
so that people like the people who testified before us will
feel that they do have an opportunity to get these things
addressed.
Finally, let me ask you this. I would appreciate it--and
this is just a little personal favor--is that you at least meet
the three people and just say hello to them, because they may
never get this chance again, to meet the top person in the
agency that they've worked so hard for. They are still in the
audience, and I hope that you would at least meet them and
thank them.
Thank you.
Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you.
As we wrap up, to the good men and women who work at the
EPA, like I said, the overwhelming majority, they are good,
honest, patriotic people working hard. You know, God bless you.
They are important--there is important work to do.
We also know that there are going to be bad apples. You get
that many people together, there are going to be some bad
apples. We want to work with the unions, with the employees,
with the administration, with the Congress. Let's weed out
those bad apples, hold them accountable. It will make
everybody's life better in every way, shape, and form. And that
is the spirit in which we gather here today.
And I want to conclude with what I started with, to the
Administrator. You have made yourself readily available to the
committee and to other committees. You regularly testify before
Congress. And, to that extent, we sincerely do appreciate it.
So we thank you for being here today.
And this committee stands adjourned.
Ms. McCarthy. It is my honor, Mr. Chairman. Thank you.
[Whereupon, at 12:27 p.m., the committee was adjourned.]
APPENDIX
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