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1901 L STREET. N.W.












October 30, 2015





Peace Corps

Written Reply to Notice of Proposed Removal for Kellie Greene

I am writing on behalf of my client, Kellie Greene, to submit her response to the October
5, 2015, Notice of Proposed Removal. I am writing to address two primary concerns: 1) that this
proposed penalty is a result of Ms. Greene's protected disclosures involving the Kate Puzey
Peace Corps Volunteer Act of 2011; and 2) that the proposed penalty of removal is too harsh a
penalty for what is alleged.
Ms. Greene cares deeply for Peace Corps volunteers. She has made her career on
advocating for victims of sexual assault and other violent crimes. No doubt, her expertise in
victim advocacy was what drew the Agency to retain Ms. Greene as the first Director of the
Office of Victim Advocacy ("OVA"). Since she became Director, Ms. Greene worked for and
worried over the wellbeing of her volunteers. She has no prior disciplinary record. She has only
positive performance appraisals. In removing Ms. Greene, the Agency will be doing both itself
and its volunteers a great disservice.
The proposed removal contains direct evidence that the Agency's real reasons for
removing Kellie Greene are her persistent disclosures and her opposition to the Agency's failure
to fully comply with the Kate Puzey Act. For example, the Agency cites to activity that reflects
Ms. Greene's devotion to the volunteers as a basis for removing her: "frequent and demanding
communications, including emails in the evening and late night hours"; "inquired about routine
case management actions"; "contradicted or disagreed with staff plans of actions". Removal, p.

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1. It is illuminating that the Agency felt that Ms. Greene was wrong to "ask questions about cases
to ensure Volunteer needs were being met", and it is further illuminating that the Agency
Aff., p. 7 ("Kellie
perceived these efforts as "micromanagement". See, e.g.,
stated in so many ways that it was her right to ask questions about cases to ensure Volunteer
needs were being met. She was unable to acknowledge that this was perceived as
In addition, the Agency takes Security Specialist
's statements out of context.
For instance, the Agency quotes
that Ms. Greene was "more interested in winning the
argument than correcting a critical error in process or approach"; however, he specifies
immediately thereafter that "Whether that impression is correct or not, I cannot be certain, but it
was discussed on a number of occasions when Kellie continued to argue against a policy
decision that had been settled by consensus weeks before."
Aff., p. 2 (emphasis
added). Blaming Ms. Greene for continuing to insist on compliance with the Kate Puzey Act is
direct evidence of animus. If, as
alleges, the policy decision has already been settled
weeks before, it would be illogical to conclude that Ms. Greene's continued fight against it
represents her desire to fight over an already lost battle for the sake of winning. Ms. Greene was
fighting as a victim's advocate to correct a critical error.
Further, the Agency quotes
that Ms. Greene's subordinates were "clearly
stressed" about "delivering negative information" and "being judged for it". Removal, p. 3.
had provided context in the preceding sentence that "On these occasions,
would vigorously advocate for the Volunteer's interests, but end up being
overridden due to legitimate safety concerns or operational issues overseas. While
would accept an adverse decision with complete professionalism, they did express to
me privately their concerns about how Kellie would react when she was told the outcome. They
were clearly stressed about delivering negative information to Kellie, and being judged for it."
Aff., p. 3 (emphasis added). Ms. Greene denies expressing judgment against her
subordinates; however, she does view it as her responsibility as the Director of the Office of
Victim Advocacy to ensure that the Volunteer's interests were not subsumed by the Agency's
entrenched disinterest in volunteer safety. And, the Agency gives no credit to
statement that "Kellie engaged in a single-minded pursuit to change how the Agency viewed
victim needs and victim behavior, and to change how decisions were made when they impacted a
victim's potential recovery." Id., p. 1.
Notably, the Agency found that "Regional Directors had so little trust in how [Ms.
Greene] would interact with Post staff that they insisted all communications go through the
Regional Directors". Id., p. 2. Yet, the Kate Puzey Act was enacted for the very purpose of
confronting the negligence and inaction at the Country Director/Post level that resulted in the
death of Ms. Puzey. Ms. Greene's position was created to safeguard volunteer safety, not to
placate agency officials entrenched in the old way of sacrificing volunteer safety for the sake of
administrative convenience.
Of further note, the Agency hones in on
"popularity with the agency
staff". Id
admits that she instructed Ms. Greene to "be more cooperative", and in
so doing, reveals that her real concern is with protecting Agency managers from criticism, and

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not for volunteer safety. See, e.g., id, p. 6. In fact, she admits that reassigning Ms. Greene out of
OVA "took a big stress off [her] life" and that "morale [in her office] soared." Id., p. 3. The
Agency itself concedes that "other offices at Peace Corps do not like working for you". Id., p.
6 (emphasis added). The Agency felt that Ms. Greene placed her "own private interests above
those of [her] team and the agency." Id. Whistleblowers are no strangers to accusations of not
being team players,' and Ms. Greene's position was particularly prone to attack from other
offices within the agency because she was specifically tasked by Congress to remedy those
offices' past errors.
Ms. Greene's protected disclosures are legion; she kept Agency management apprised of
the numerous Kate Puzey Act violations and attempted to work with the agency to enforce
compliance.2 The Agency's statements in its proposal are all strong indicators of the Agency's
animus against Ms. Greene for enforcing the Act and of its powerful desire to return to pre-Kate
Puzey Act practices.
Under the federal Whistleblower Protection Act, 5 U.S.C, § 1221(e)(2) (see also, 5 C.F.R.
§ 1209.7(b)), when a federal employee shows that protected activity, such as disclosing
violations, refusing to participate in violations, and participating in proceedings, was a
contributing factor in an adverse action, the agency cannot thereafter prevail unless it proves that
it would have taken the same adverse action by clear and convincing evidence. See also 5 U.S.C.
§ 2302(b)(1), (8) and (9). The Supreme Court has imposed the "clear and convincing" standard
only to protect interests that are "far more precious than any property right." Santosky v. Kramer,
455 U.S. 745, 758-59 (1982) (termination of parental rights); see also, e.g., Addington v. Texas,
441 U.S. 418, 424 (1979) (requiring interests "more substantial than mere loss of money"). It is a
heightened standard of proof that "concede[s] the possibility of error" but "ensure[s] that the
error is generally in one direction." Ralph K. Winter, Jr., The Jury and the Risk of Nonpersuasion, 5 Law & Soc'y Rev. 335, 339-40 (1971); cf. 4 William Blackstone, Commentaries
*352 ("[B]etter that ten guilty persons escape, than that one innocent suffer."). "For employers,
this is a tough standard, and not by accident. Congress appears to have intended that companies
in the nuclear industry face a difficult time defending themselves." Stone & Webster Eng. Corp.
v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997).
The Federal Circuit spoke to the reasons for this elevated burden on agencies in
Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012). There, the Federal Circuit
stated at p. 1377 that the law seeks to balance the public interest of protecting whistleblowers
with an eye toward the inherent advantages agency management would otherwise have:

As Senator Grassley has often said, "whistleblowers typically are treated like skunks at a
Sunday afternoon picnic." See

There is no requirement for a whistleblower to specifically label her disclosures as such.

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The laws protecting whistleblowers from retaliatory personnel
actions provide important benefits to the public, yet whistleblowers
are at a severe evidentiary disadvantage to succeed in their
defenses. Thus, the tribunals hearing those defenses must remain
vigilant to ensure that an agency taking adverse employment action
against a whistleblower carries its statutory burden to prove—by
clear and convincing evidence—that the same adverse action
would have been taken absent the whistleblowing.
In Whitmore, the Court considered the employee's admission about the following conduct:
Whitmore put his foot in the way and told Dubois that if he ever
spit on him again, he would "knock him into the basement." *** In
the hallway Whitmore encountered Dave Schmidt, director of
OSA, standing in a narrow passageway between a wall and some
filing cabinets. *** Whitmore claimed Schmidt would not allow
him to pass to Goddard's office. Whitmore then physically pushed
past Schmidt while yelling "get out of my way," and possibly also
spit on Schmidt. Whitmore expressed that he was so angry he
"could have just cold cocked [Mr. Schmidt] right then and there"
for blocking his way out of the area.
Even with this evidence, the Court could not conclude that the agency would have fired
Whitmore without considering his protected activity. The Peace Corps has not alleged any
misconduct by Ms. Greene anywhere near this level of seriousness. More pointedly here, the
Federal Circuit explained at p. 1376 that:
Perhaps most glaringly absent from the AJ's decision is any serious
discussion of the facts and circumstances surrounding how
Whitmore's whistleblowing in 2005 marked the beginning of his
increasingly strained relationships with OSHA officials, and how
his disclosures paralleled his increasingly poor performance
reviews and adverse personnel actions after decades of exceptional
In December 2012, Congress passed the Whistleblower Protection Enhancement Act
(WPEA) to clarify precisely this protection. 5 U.S.C. § 2302(b)(8); Senate Report No. 112-155,
p. 4 ("the 1994 amendments were intended to reaffirm the Committee's long-held view that the
WPA's plain language covers any disclosure[.]"). The 1994 House Committee report on the WPA
stated, "Perhaps the most troubling precedents involve the ... inability to understand that 'any'
means 'any.' The WPA protects "any" disclosure evidencing a reasonable belief of specified
As to the manner of raising her concerns, the Secretary of Labor held that, "[t]he right to
engage in statutorily-protected activity permits some leeway for impulsive behavior, which is

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balanced against the employer's right to maintain order and respect in its business by correcting
insubordinate acts." Kenneway v. Matlack, 1988-STA-20 (Sec'y June 15, 1996), slip op. at 3.
A key inquiry is whether the employee has upset the balance that must be
maintained between protected activity and shop discipline. The issue of
whether an employee's actions are indefensible under the circumstances
turns on the distinctive facts of the case. Id (citations omitted).3
Dissenters and whistleblowers rarely win popularity contests or Dale
Carnegie awards. They are frequently irritating and unsettling. These
qualities, however, do not necessarily make their views wrong or
unhelpful, and the Supreme Court has concluded that it is in the public
interest and consonant with the First Amendment for them to express
opinions on subjects of public concern without fear of retaliation.
Cudahy, J., dissenting in Greenberg v. Kmetko, 840 F.2d 467, 477 (7th Cir.
1988) (en banc)
See also Lajoie v. Environmental Management Systems, Inc., 1990-STA-3 (Sec'y Oct. 27,
1992) (where a complainant who has engaged in a protected activity also engages in spontaneous
intemperate conduct privately communicated over the telephone, the intemperate conduct does
not remove the statutory protection nor provide the respondent with a legitimate,
nondiscriminatory reason for adverse action.); NLRB v. Mueller Brass Co., 501 F.2d 680, 685-6
(5th Cir. 1974) (termination unjustified where employee called supervisor a "damn liar" and
invited him to "step outside" to settle matters because outburst was provoked).
In Trustees of Boston Univ. v. NLRB, 548 F.2d 391, 393 (1st Cir. 1977) (citing NLRB v. M
& B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965)), the Court wisely understood the
interplay of an employer's animus and the employee's reaction. The Court explained:
The circumstances of Plaintiff's alleged misbehavior must be considered
in evaluating her conduct. . . . [Boss] provoked an angry response from
Plaintiff, and now seeks to use it to justify a termination. "An employer
cannot provoke an employee to the point where she commits such an
indiscretion as is shown here and then rely on this to terminate her
employment." [internal citation omitted.]

In Moravec v. H C & M Transp., Inc., 90-STA-44 (Sec'y Jan. 6, 1992), the Secretary of
Labor found that the employee's impulsive behavior of "hollering and shouting" at supervisor
during a discussion about his complaint was not sufficient to justify discipline. Moravec, slip
op. at 8-10. Martin v. Dep of the Army, 93-SDW-1 (Sec'y July 13, 1995) arose under the Safe
Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i). The protected activity consisted of
complaints to supervisors and to the Army Inspector General about claimed violations of
SDWA. The Secretary found that the employee's conduct was disruptive, but "not
indefensible under the circumstances." The employee conduct in Whitmore, supra, was even
more egregious, yet the Federal Circuit said it did not permit the employer to engage in
retaliation. Ms. Greene's conduct, in contrast, consists of emails which threatened no
violence, and contained no hollering at all.

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"It would be ironic, if not absurd, to hold that one loses the protection of an
antidiscrimination statute if one gets visibly (or audibly) upset about discriminatory conduct."
Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1022 (10th Cir. 2004). It is equally unfair to
subject Ms. Greene to a hostile work environment, and then punish Ms. Greene for becoming
upset about it. Here, the allegations against Ms. Greene do not arise to the levels in Lajoie,
Whitmore, or the Boston Univ. cases.
As to the persons and channels she chooses to send her concerns to, Title VII's
prohibition against retaliation "is not confined to situations in which the parties are engaged in
formal proceedings, but rather extends to forbid 'discrimination against applicants or employees
for attempting to protest or correct allegedly discriminatory conditions of employment.' Hearn
v. R.R. Donnelley & Sons Co., 460 F. Supp. 546, 548 (N.D. Ill. 1978) quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 796, 93 S. Ct. 1817 (1973).
By way of comparison, Congress has given the Department of Labor the responsibility to
adjudicate whistleblower retaliation claims under more than 20 statutes.4 The Department has
concluded that once the law protects a disclosure, it does not permit the imposition of a chain of
command reporting requirement. In raising safety concerns, employees are under no obligation
to report their concerns to their supervisors. Fabricus v. Town of Braintree, 97-CAA-14, D&O of
ARB, at 4 (February 9, 1999)5 (collecting cases); Talbert v. Washington Public Power Supply
System, 93-ERA-35, D&O of ARB, at 8 (Sept. 27, 1996) ("chain of command" restrictions on
reporting concerns would "seriously undermine the purpose of whistleblower law").
In Holligan v. USPS, 75 MSPR 372, 374 (1997), the appellant was accused of behavior
that "increased the potential for violence at the postal facility under [his] supervision". The
Board upheld the administrative judge's determination that the "maximum reasonable" penalty
was a 4-level demotion and reassignment rather than the Agency's 11-grade demotion and
reassignment. Id. at 373. In Gore v. VA, 68 MSPR 100 (1995), rev'd on other grounds, the
appellant was found, inter alia, to have publically humiliated her subordinate. The Board
mitigated the Agency's 30-day suspension to a 15-day suspension. In Hughey v. Dep't of
Treasury, 59 MSPR 480, the Board mitigated the Agency's demotion to a 30-day suspension. In
Johnson v. Dept of Justice, 65 M.S.P.R. 46, 49 (1994) the agency demoted the appellant after
discovering that he had made statements about a co-worker such as "dumb nigger", "porch
monkey", and "this looks like it was written by a nigger". In Moultrie v. Dept of Navy, 65
M.S.P.R. 153, 161 (1994), the Board determined that removal was too harsh a penalty, even
though the appellant was found to have said that she would "throw [her co-worker's] ass onto the
4 A list is available at:
5 Available at DECISIONS/CAA/

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street", and "white bitch", and even though the appellant had a prior disciplinary record that
included a 14-day suspension.
Regarding the Agency's allegations that Ms. Greene's actions amounted to the creation of
a hostile work environment (Removal, pp. 7-8), even if we conceded to all of the Agency's
factual allegations, which we do not, the Courts have repeatedly held that federal law does not
provide for a "general civility code". See Oncale v. Sundowner Offshore Services, Inc., 523 U.S.
75 (Mar. 1998); see also Lassiter v. Army, EEOC No. 0120122332, 2012 WL 5178399, at *4
(EEOC Oct. 10, 2012) (explaining that "personality conflicts," "general workplace disputes and
tribulations," "trivial slights," and "petty annoyances" "do not rise to the level of severe or
pervasive conduct" necessary to establish a hostile work environment claim).

The bulk of Ms. Greene's factual disputes with the Agency's allegations are outlined in
the affidavit that she provided as part of the Agency's administrative inquiry in this matter. There
may be other factual disputes between Ms. Greene and the Agency's witnesses, which will be
addressed elsewhere. However, some facts bear emphasizing:
• Ms. Greene did not take over any of
's cases unless the volunteer asked to
be transferred from
. This was often because the volunteer had complaints
's handling of his or her case.
• Ms. Greene did not slam doors, did not snap or raise her finger in others' faces, and did
not turn away during conversations (unless it was to look up information relevant to the
conversation on her computer).
• Ms. Greene did not state to
that "OVA was like a family and that you lash
out at those closest to you."

informed Ms. Greene that she was seeking therapy because of the
dysfunction present in the Agency. They conversed on this subject matter because Ms.
Greene herself was seeking therapy due to the dysfunction present within Peace Corps.
• The Agency uses
affidavit to accuse Ms. Greene of stating, "He'll be
sorry he crossed me" and "See I told you he would be sorry". Ms. Greene did not make
these statements; and in fact, such statements are completely out of character for her.
affidavit is unsigned, despite being provided to her on July 12,
a. Specification 1
The litany of crimes that the Agency accuses Mr. Greene of committing, even if taken as
true, do not arise to misconduct.' Specifically, being a demanding supervisor is not misconduct.
To be clear, Ms. Greene vigorously disputes whether many of the allegations in the
proposed removal actually occurred.

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Id, pp. 1, 3. Micromanaging is not misconduct. Removal, pp. 1-2, 4. Taking action on a
subordinate's case is not misconduct. Id., p. 1. Frequent communication from a supervisor,
innately tasked with supervision of a subordinate, often in extremely sensitive situations is not
misconduct. Id, p. 1. Contradicting prior actions of a subordinate is not misconduct, even if it
causes the subordinate "to waste time", if the prior action was inadequate or misguided. Id, p. 1.
In fact, failing to correct a subordinate's error is far more likely to result in greater harm, yet the
proposed removal shows no concern over this issue.
Further, exercising discretion regarding which meetings a subordinate is to attend is not
misconduct. Id, pp. 1-2. Providing inconsistent guidance, while understandably possibly
frustrating for a subordinate, is not misconduct. This is especially so, as inconsistent guidance
frequently results from new information or analysis that requires changing the appropriate course
of action. Id, p. 2. Similarly, "last minute taskings" is not misconduct, and are often unavoidable
in a field such as victim's advocacy. Id
In essence, specification 1 accuses Ms. Greene of being too devoted to the care of
volunteers. An email in the late evening and late night hours does not constitute bullying. On the
contrary, it reflects a person who is committed to the wellbeing of volunteers. (This is
commonplace — and inevitable — in an organization that has employees worldwide and in
different time zones.) In addition, to inquire about case management actions — even routine ones
— reflects a person who is concerned with the safety of volunteers. It is revealing that the Agency
seems more upset that Ms. Greene was double-checking that legal options were being properly
explained to victims, or whether the victims had been referred to counseling, than whether the
victims were in fact being adequately cared for, in line with the Kate Puzey Act. Removal, p. 1.
These are critical moments for victims, and perhaps a better way of viewing Ms. Greene's
actions might be through the old adage "it is better to be safe than sorry"!
Woven throughout is the recognition of Ms. Greene's determination to protect volunteers
in the face of entrenched internal opposition to OVA's authority. For example,
stated, "I shared my fear that [Ms. Greene's] tendency to fight so hard for change was perhaps
leading people to feel defensive...." Agency's Materials Relied Upon,
Aff., p. 3
(emphasis added). The Agency characterizes Ms. Greene as being "confrontational" and
"argumentative", and fails to see that the very nature of her position required Ms. Greene to
correct the Agency's prior practices, which had endangered the safety of countless volunteers.
Fighting to create a safety-conscious culture within Peace Corps is not misconduct.
Of particular concern is the Agency's accusation that Ms. Greene "contradicted or
disagreed with staff plans of action in group emails to staff and others outside of OVA". The
For example, a volunteer complained about
, stating that
"was unprofessional, insensitive, and demonstrated incompetence in her role as a victim's
advocate." Agency's Materials Relied Upon, p. 48 (April 20, 2015 Email from
to Kellie Greene re: "FW: request to file complaint").

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Kate Puzey Act did not create Ms. Greene's position as a rubberstamp for the actions of others.
In fact, the Act made clear that the Peace Corps' prior actions involving volunteers were
unacceptable, and had deadly consequences.
b. Specification 2
Ms. Greene was appreciative that
approached her about her concerns, and
so informed her. She stated to
that she recognized that it takes courage to share
these concerns. The emails between Ms. Greene and
, not included in the Agency's
investigation, ought to bear this out, and we are requesting that the Agency find and include in
the official record these emails.
c. Specification 3
states that Ms. Greene's "behavior reached its worst surrounding a team
Aff., p. 6. Yet, the behavior at issue here amounts to
failing to join
, and
, for dinner or outside activities, and
being "quiet and cold". Id., pp. 6-7. Ms. Greene recalls being quiet during the drive to and from
because she was the driver and was focusing on driving, and she recalls not joining
all the dinners and outside activities because she was feeling under the weather. Contrary to the
removal's allegations, Ms. Greene did not slam a door on
, nor did she verbally
Even if this specification accurately reflected the events of the
support a removal action; this is particularly true in light of
was the worst of Ms. Greene's behavior.

trip, it does not
concession that this

d. Specification 4
Employees who "participate" in proceedings are entitled to "exceptionally broad
protection." Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1006, n. 18 (5th Cir. 1969)
(Title VII retaliation claim). Federal employees have such protection under 5 U.S.C. §
2302(b)(9), and this coverage "does not turn on the substance of an employee's testimony," and
retaliatory actions are prohibited "regardless of how unreasonable" an employer finds the
testimony. Kubicko v. Ogden Logistics Services, 181 F.3d 544, 554 (4th Cir. 1999); U.S. v.
Glover, 170 F.3d 411 (4th Cir. 1999).
When an employee, such as Ms. Greene, makes disclosures to management of
time and attendance and other performance issues, those are also protected as
opposition to retaliation, even though the employee made some of those disclosures in response
to a management inquiry. Accord, Crawford v. Metropolitan Government of Nashville and
Davidson County, 555 U.S. 271 (2009) (Title VII case which addressed only the opposition
clause and not the participation clause). In Pettway, the Fifth Circuit held that protections for
participation in a proceeding (there, Title VII) apply regardless of the merits of the underlying
proceeding. See also Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1138-39

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(5th Cir. 1981); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (no requirement that
underlying charge be reasonable).
The meeting described in this specification, i.e., participating in an internal proceeding, is
thus protected. During this meeting,
specifically asked Ms. Greene for a response,
and specifically assured her that this was considered a "safe space" and that she should feel able
to speak candidly. It is concerning that the Agency is now using
's comments during
this meeting to remove her, and it casts doubt on the neutrality of the Agency's investigations
into the allegations presented here.
Given the foregoing, we believe that the Agency's removal of Ms. Greene cannot be
sustained, even absent her affirmative defense of whistleblowing reprisal, for which the Agency
must justify its penalty by clear and convincing evidence. We are requesting by this letter an oral
reply as well; please contact me directly to schedule a mutually agreeable time and place.