September 19, 2022

CONFIDENTIAL

TO: Xavier Becerra

Secretary

THROUGH: Elizabeth J. Gramling.

Executive Secretary

Digitally signed by CHRISTIAN SCHRANK

FROM: Christian J. Schrank CHRISTIAN SCHRANK Date: 2022.09.19 18:20:11 -04'00'
Deputy Inspector General for Investigations

SUBJECT: Investigation Into Alleged Whistleblower Retaliation

Against Veronica Quinonez
H-20-0-0017-4

This memorandum is submitted for your consideration and appropriate action based on the
information, facts, and evidence provided. This memorandum contains highly sensitive
investigative information and should only be disseminated as necessary to determine and initiate
appropriate administrative activity. Please be particularly sensitive to individual identities and
identifying information provided in this report.

The Office of Inspector General (OIG), Office of Investigations, Special Investigations Branch
(SIB) is an independent fact finder. Consistent with OIG’s responsibilities under the
whistleblower reprisal statutes and legal authorities, SIB makes a determination as to whether an
unlawful act of reprisal has occurred based on all of the information and facts presented. While
SIB may make recommendations for corrective action based on its determination, the ultimate
decision as to what corrective action should be implemented must be made by the Department of
Health and Human Services. This decision should be rendered in consultation with the appropriate
human resource and/or legal professionals. In this matter, Quinonez’s allegation that she was
placed on a performance improvement plan and constructively discharged in reprisal for making a
protected disclosure is substantiated.
Department of Health and Human Services
Office of Inspector General
Office of Investigations
Special Investigations Branch

Investigation of Alleged Whistleblower

Retaliation Against Veronica Quinonez
OI File # H-20-0-0017-4
 Notice

THIS REPORT CONTAINS SENSITIVE INFORMATION

This report is being released for consideration. It may be disseminated as necessary

in the course of the review and any related action. It may not be reproduced or
released for any other purpose without the specific approval of the Deputy Inspector
General for Investigations or a designee.
EXECUTIVE SUMMARY

The Special Investigations Branch (SIB) of the Office of Inspector General (OIG), Office of
Investigations conducted this investigation in response to an allegation brought by complainant
Veronica Quinonez, a former program coordinator for the Tennessee Coalition to End Sexual and
Domestic Violence (Coalition). Quinonez alleged in a complaint submitted to the OIG Hotline on
October 10, 2019, that Executive Director (ED) Kathy Walsh and Associate Director (AD) Dawn
Harper, who were both Quinonez’s Responsible Management Officials (RMOs) at the Coalition,
issued Quinonez a performance improvement plan (PIP) and later constructively discharged
Quinonez in retaliation for reporting her concerns about grant fund misuse internally and to the
Centers for Disease Control and Prevention (CDC).

The investigator found that Quinonez made multiple protected disclosures from May 2019 through
October 2019 when she:

(1) reported to Harper that certain functions Quinonez was required to perform were not
appropriate under the grant,
(2) notified the CDC grant project officer that Walsh and Harper were continuing to direct
Quinonez and Quinonez’s staff to perform these functions despite receiving guidance from
CDC that they were not covered under the grant, and
(3) asked Harper for information on how to file a complaint against Walsh to the Board of
Directors.

The investigator found that Walsh and the Coalition would not have constructively discharged
Quinonez or placed Quinonez on a PIP if Quinonez had not made protected disclosures.

I. SCOPE

This investigation covered disclosures made by Quinonez and personnel actions taken by the
Coalition, through Harper and Walsh, that occurred from May 2019 through October 2019.
Investigators reviewed and analyzed personnel files, documents, and correspondence related to
Quinonez and Quinonez’s employment, including protected disclosures and personnel actions
taken against Quinonez. The documentation was provided by Quinonez, Harper, Walsh, and the
Coalition. In addition to Walsh and Harper, investigators interviewed other current and former
Coalition employees: (b)(6)(7)(C)

and former Coalition employees (b)(6)(7)(C)

Investigators also interviewed (b)(6)(7)(C)

(b)(6)(7)(C) Domestic Violence Prevention Enhancement and Leadership Through Alliances

(DELTA) grant recipients, including the Coalition.

II. STATUTORY AUTHORITY

This whistleblower reprisal investigation was conducted pursuant to the National Defense
Authorization Act for Fiscal Year 2013, 41 U.S.C. § 4712 (NDAA).

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III. BACKGROUND

The Coalition is supported and funded in part by grants from the Department of Health and Human
Services (HHS) through the CDC, 1 specifically by the DELTA grant. The Coalition is a nonprofit
organization located in Nashville, Tennessee, that provides advocacy, education, information, and
training through community programs aimed at ending domestic and sexual violence. During
Quinonez’s employment, the Coalition received $820,000 for the operation of its community
programs; Quinonez’s position was fully funded by the DELTA grant.

IV. FINDINGS OF FACT

In February 2019, Quinonez began working for the Coalition as a DELTA grant program
coordinator. Quinonez managed one employee, (b)(6)(7)(C) and reported directly to Harper, the
Coalition’s AD. Harper reported to Walsh, the Coalition’s ED.

In the OIG complaint, Quinonez contends that during her employment at the Coalition, Quinonez
reported a series of concerns to Harper and Walsh regarding actions that Quinonez and (b)(6)(7)(C) were
directed to perform. Quinonez felt these directed actions constituted a misuse of DELTA grant
funds. Quinonez also discussed these concerns with (b)(6)(7)(C) Quinonez felt Quinonez's
complaints and concerns were ignored. Quinonez asked Harper how to file a grievance against
Walsh with the Coalition’s Board of Directors. On that same day, Quinonez was constructively
discharged from the Coalition. Below is a chronological summary of the issues Quinonez reported
to management and to CDC, as well as the Coalition’s responses to Quinonez’s allegations that
were provided to OIG investigators during interviews.

In mid-May 2019, Quinonez and (b)(6)(7)(C) were directed by Harper to answer technical assistance
(TA) calls from sexual and/or domestic violence survivors because the volume of calls received
by the Coalition had increased. Additionally, Walsh informed them that the Coalition staff person
who answered most of the calls was out on (b)(6)(7)(C) leave. Quinonez said she initially answered
the calls as directed but became concerned when (b)(6)(7)(C)questioned how the calls would be funded,
since both (b)(6)(7)(C) and Quinonez’s activities were completely funded by the DELTA grant.
Quinonez’s interpretation of the DELTA grant was that TA calls could be funded under the grant
as long as the assistance was “related to the DELTA grant itself,” but Quinonez explained that
prior guidance from (b)(6)(7)(C) determined the TA calls were a “misuse of funds.” Quinonez
assessed that the type of TA calls Quinonez and (b)(6)(7)(C) answered often required a provision of
“victim service assistance or direct assistance” which, according to Quinonez, was in violation of
the DELTA grant. Doing work outside of Quinonez’s job funding area concerned Quinonez
because the Coalition had recently received an unfavorable audit finding regarding timekeeping
from the Tennessee Comptroller of the Treasury. 2

Later that month, Quinonez had an informal discussion with Harper about (b)(6)(7)(C) concerns with
the TA calls. During the discussion, according to Quinonez, Harper “just reassured [Quinonez]
that she could understand why we were nervous because of the Coalition’s history, and that they’re

1
CDC is a division of HHS.
2 (b)(6)(7)(C)
revealed that she was also made aware of the results of the comptroller’s audit after a former Coalition
employee called another CDC staff member and warned “that [the CDC] shouldn’t work with them” after the
Coalition was awarded the DELTA grant.
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very careful now not to get into hot water,” and that “we had nothing to worry about.” Quinonez
expressed continuing concern that Quinonez and (b)(6)(7)(C) “were doing job activities outside of the
scope of the grant.” (b)(6)(7)(C)even stated that Quinonez would have felt “very comfortable attributing
calls to an unrestricted funding source” that was separate from the DELTA grant. (b)(6)(7)(C) and
Quinonez said they were more than willing to answer the calls as long as it did not result in DELTA
grant misuse.

On May 22, 2019, Quinonez met with Harper and (b)(6)(7)(C) during a conference call to discuss
operations and activities the Coalition performed through the DELTA grant at which time,
according to Quinonez, Harper specifically instructed Quinonez and (b)(6)(7)(C)“not to speak on the
call” and not to “explain what technical assistance meant.” Quinonez said Harper spoke with
(b)(6)(7)(C) and gave a “minimized” representation of the types of assistance that had been given

during the calls Quinonez and (b)(6)(7)(C)answered. After the call with (b)(6)(7)(C) ended, Quinonez said
Harper directed Quinonez and (b)(6)(7)(C) to keep “two separate timesheets”—one to track TA calls and
the other to track their DELTA activities. Harper told Quinonez and (b)(6)(7)(C)to turn in the timesheet
without TA call times to the Coalition, and to keep the second timesheet with TA call times to
“personally track how much time we were spending on technical assistance, but to not turn that
in.” Quinonez and (b)(6)(7)(C) continued to answer TA calls as directed, but Quinonez submitted her
time for all activities on one timesheet instead of separating the time for TA calls as Harper directed
because Quinonez “thought it was odd.” Quinonez said (b)(6)(7)(C) questioned Harper about whether
keeping a separate timesheet was “a misuse or something that we shouldn’t do” because “she was
familiar with the histories” associated with a 2017 audit that found the Coalition misused grant
funds. Quinonez said(b)(6)(7)(C) told Quinonez that Harper “backed away” from the discussion but still
wanted them to keep separate timesheets. It was Harper’s response that prompted Quinonez and
(b)(6)(7)(C) to start “keeping records and being really intentional about getting things in writing,”

Quinonez said.

Quinonez and Harper had additional verbal discussions from June through August 2019 regarding
the TA calls, and Quinonez requested that Quinonez and (b)(6)(7)(C) be removed from the TA call
rotation. Quinonez stated, “I had spent about 30 percent of my week on technical assistance calls
. . . . I felt that it was far too much.” On August 29, 2019, during a staff meeting, Quinonez
asked Walsh to explain what TA calls were because Quinonez “wanted to get a better
understanding of it.” After Walsh’s response, Quinonez told Walsh that Quinonez and (b)(6)(7)(C)“were
instructed not to [answer TA calls] by the CDC” because the calls did not “fall under the scope of
the grant.” It was not until Quinonez voiced concerns about the TA calls during this meeting that
Quinonez felt “the retaliation began.” Harper was also in attendance at the staff meeting.

On September 4, 2019, Quinonez sent an email to (b)(6)(7)(C) regarding Quinonez’s concerns about
answering the TA calls. Quinonez told (b)(6)(7)(C) that the TA calls “slow me down on DELTA
work” and “are often direct service calls similar to a hotline.” Quinonez also said she “can’t
dedicate the time to handling these phone calls properly.” (b)(6)(7)(C) responded to Quinonez’s email
later that same day, explaining that “DELTA Impact funds cannot be used for victims’ services,
as that is not in the scope of activities for the goals and purpose of the NOFO.” (b)(6)(7)(C) further
wrote that the Coalition “would need to do a budget revision and decrease the percentage of time
allocated to DELTA impact you’re your salary [sic] if you are doing work outside the scope of the
NOFO.” Quinonez forwarded (b)(6)(7)(C) response to Walsh and Harper and added, “I went
ahead and clarified with the CDC and they said I’m not allowed to do anything victims services

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related . . . . We can’t take any calls from survivors/victims even if we’re not TA lead.”
Quinonez also wrote, “I also got this in writing so we can share it with the rest of the staff. I’m
hoping that will help with assumptions around us ‘being above’ taking calls.”

said she was contacted at least eight times about Quinonez and (b)(6)(7)(C) issues regarding
(b)(6)(7)(C)

answering TA calls. (b)(6)(7)(C) agreed with Quinonez that the grant had “nothing to do with survivor
support.” (b)(6)(7)(C) copied (b)(6)(7)(C) supervisor, (b)(6)(7)(C) , and grants management support
staff member, (b)(6)(7)(C) on the email response to Quinonez and noted that “as per the
NOFO, the DELTA impact funds cannot be used for victim services.” (b)(6)(7)(C) included language
from the “funding restrictions” portion of the grant that (b)(6)(7)(C) had given (b)(6)(7)(C) to add to the
email response.

Walsh responded to Quinonez’s email on September 5, 2019, explaining that she would contact
(b)(6)(7)(C) “myself for further clarification.” Walsh also told Quinonez that “sharing your email with

other staff would be premature at this time.” Quinonez said she followed up with Walsh and
Harper “several times” by email for the results of their discussion with CDC because both
Quinonez and (b)(6)(7)(C) were instructed by Harper to continue answering the TA calls until Walsh
received a response.

On September 16, 2019, Quinonez sent an email to (b)(6)(7)(C) Walsh, (b)(6)(7)(C) and Harper requesting
a conference call to clarify (b)(6)(7)(C) guidance on activities allowed under the DELTA grant.
(b)(6)(7)(C) responded that same day by email to Walsh confirming that Walsh would “put in writing

exactly what [Quinonez] was being asked to do” as Walsh had expressed in a phone conversation
that occurred the previous Friday. (b)(6)(7)(C) further explained, “I let you know that once I had that,
I would speak to my supervisor and our Grants Management Specialist to get further clarification.”
In two of Walsh’s response emails to (b)(6)(7)(C) Walsh declined to meet via phone to discuss the
issue and sent a description of the type of calls and activities Quinonez and(b)(6)(7)(C) were being asked
to answer and perform.

On September 18, 2019, Harper issued the PIP to Quinonez during an in-person meeting. The PIP
was marked to indicate that “Conduct” and “Other (define): Failed to follow policy/procedure”
were the “Standard(s) of Performance Reviewed.” Quinonez’s contact with (b)(6)(7)(C) regarding the
TA calls was the first element of “Specific examples of current performance under review.” The
PIP also documented that Quinonez “felt providing TA was not part of her duties as listed in the
grant she works under” and that “even after being told the ED and AD would follow up with
obtaining further clarification regarding TA calls, PC [Quinonez] contacted the CDC directly. PC
did not follow the process we discussed.” A review of emails sent among Walsh, Harper, and
then-Coalition Counsel (b)(6)(7)(C) revealed a discussion on September 17, 2019, regarding the
development of Quinonez’s PIP which contained elements Harper noted to Walsh should be
removed from the PIP and addressed “verbally” since there was no policy to support them.

The second element of the PIP stated: “The publications protocol was not followed. The personnel
policy reads, ‘Employees may not submit an article for publication without prior approval.’ A
newsletter was sent out on 8-29-19 without approval from AD or ED.” Quinonez said she “asked
a lot of questions” about the elements during the meeting and found after the meeting that some
items in the PIP that were cited as “policy and procedure” were not covered by a written policy.
Quinonez remembered telling Harper during the meeting, “this feels like retaliation” after Harper

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would not answer questions Quinonez had about elements of the PIP. That same day, Quinonez
sent an email to Harper asking Harper to specify the policies Quinonez had violated that
“corresponds with each point.” However, Harper did not respond to Quinonez’s email. 3

When investigators asked Harper why a PIP was issued to Quinonez, Harper said it came “from
the advice of Kathy” and that Harper only remembered the PIP related to issues with Quinonez
regarding “attendance” and “communication.” Harper told investigators, “I had considered it only
because of the attendance.” Harper also described sending the PIP to Walsh and (b)(6)(7)(C) to
“approve it per se or add to it” because Walsh “wanted to see it before I institute[d] it.” Walsh,
however, contended that it was Harper who had concerns about Quinonez’s discussions with the
CDC because Quinonez had contacted them against Harper’s and Walsh’s directive. Walsh told
investigators, “I think after Dawn [Harper] drafted it [the PIP], I think she . . . showed me a copy
of it. But I was not involved in drafting it.” Walsh also expressed being unaware of any other
Coalition staff assisting in drafting Quinonez’s PIP. Email communications among Walsh, Harper,
and (b)(6)(7)(C) show their collaboration and suggestions for the specific language used in the PIP.

The facts do not support Walsh’s contention but do support that Quinonez’s PIP was implemented
after Quinonez again brought forth concerns regarding the use of grant funds to pay for activities
outside the scope of the grant.

On September 20, 2019, Walsh sent a follow-up email to (b)(6)(7)(C) confirming that Walsh had
received the description of TA activities. In another email that same day, Walsh requested that
(b)(6)(7)(C) not share the Grants Management Specialist’s response with Quinonez. (b)(6)(7)(C) found
that Walsh’s descriptions of the TA calls conflicted with Quinonez’s and were not consistent with
approved activities under the DELTA grant. (b)(6)(7)(C) also thought it was odd that Walsh
asked (b)(6)(7)(C) not to include Quinonez on the response. (b)(6)(7)(C) said that “it seem[ed] like she
[Walsh] was . . . trying to hide something.” (b)(6)(7)(C) believed that Walsh’s request to not copy
Quinonez on her email response regarding CDC’s clarification of activities allowed under the grant
was an attempt to “keep her conversation with me (b)(6)(7)(C) separate from her conversation with
[Quinonez] for whatever reason.” (b)(6)(7)(C) further explained, “the way it [activities performed
during the calls] was described to me from [Quinonez] and Kathy [Walsh], the one thing that was
consistent was that it was not DELTA. It was not for DELTA specifically. It was, like, for the
Coalition generally.”

Quinonez recalled that, sometime in September 2019, she spoke with “HR experts” at a conference
in Nevada regarding Quinonez’s concerns with the Coalition and how Quinonez was being treated
by management. Quinonez said the experts “instructed me that this is definitely retaliation” and
that she “started realizing that it was truly retaliation and not just a hunch . . . .”

On September 27, 2019, Quinonez’s day off, Harper sent a text asking Quinonez to respond to an
email from (b)(6)(7)(C) Quinonez replied to the text expressing concern with corresponding with
CDC since Quinonez felt one of the elements in the September 18 PIP directed Quinonez not to
contact CDC without permission. Quinonez further explained in a text to Harper that the
environment at the Coalition was “toxic” and that Quinonez wanted “nothing to do with it.”

3
In a September 17 email from Harper to Walsh and (b)(6)(7)(C) Harper mentioned that the Coalition’s “personnel
policy does not indicate that publications need to be reviewed with the communication specialist” and asked Walsh
whether the language for that element should be removed from the PIP.
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Quinonez also wrote “[s]o, needless to say I’m definitely on my out . . . .” Harper continued to
text Quinonez and asked whether Quinonez would be willing to talk by phone about Quinonez’s
responses, but Quinonez declined, explaining that she did not wish to discuss Coalition concerns
on her day off.

That same day, Quinonez responded to an email (b)(6)(7)(C) sent regarding the DELTA grant
activities. In her reply, Quinonez wrote to (b)(6)(7)(C) that Quinonez was no longer able to respond
to CDC emails as per the recent PIP directives. Quinonez also told (b)(6)(7)(C) that Quinonez had
removed Walsh from Quinonez’s email response “to avoid further retaliation.” When investigators
asked (b)(6)(7)(C) what she thought of Quinonez’s statement, (b)(6)(7)(C) said, “I was not surprised.”
(b)(6)(7)(C) described recalling a discussion she had with (b)(6)(7)(C)
(b)(6)(7)(C) and the Coalition’s “toxic environment.”

Quinonez did not return to the office after the text exchange with Harper on September 27.
Quinonez “called out sick” on October 1, 2019, after experiencing an exacerbation of a medical
condition that Quinonez attributed to the stress experienced after the text exchange, Quinonez said.
Harper asked (b)(6)(7)(C) whether she was “really sick,” Quinonez said. Quinonez interpreted that
statement as “kind of the final straw that there were things that weren’t necessarily kosher going
on, and I was definitely being targeted.” Quinonez said Harper’s inquiry is “what prompted me to
want to file a grievance” against Walsh.

On October 2, 2019, Quinonez sent Harper an email requesting information on how to file a
grievance against Walsh to the Coalition Board of Directors. Quinonez said that, according to the
Coalition’s manual for all staff, all complaints were to be forwarded to (b)(6)(7)(C) however, Quinonez
said she did not trust (b)(6)(7)(C) “because she’s very close [to] Kathy [Walsh], so I didn’t feel safe.”

On October 3, 2019, at 10:07 a.m., Quinonez sent another email to Harper reminding Harper to
send the Board’s grievance filing information. At 10:08 a.m., Harper forwarded Quinonez’s
emails to Walsh and (b)(6)(7)(C) regarding the grievance request. Between 10:47 a.m. and 10:57 a.m.,
(b)(6)(7)(C) and Harper sent emails to each other discussing how to respond to Quinonez’s grievance

request. At 10:56 a.m., Quinonez sent a text message alerting Harper that someone was accessing
Quinonez’s computer remotely. At 10:59 a.m., Harper responded to Quinonez’s email with
instructions on how to submit a grievance. At 11:14 a.m., (b)(6)(7)(C) emailed Quinonez a severance
letter to Quinonez’s personal email address. The investigator concluded that Harper, Walsh, and
(b)(6)(7)(C) did not believe the text message Quinonez sent Harper on September 27, 2021—a message

discussing how unhappy Quinonez was—equated to a resignation and that, instead, they used that
text message to attempt to justify Quinonez’s constructive discharge. When asked about typical
ways staff notified the Coalition they were leaving the organization, Walsh said, “Generally, it’s a
letter of resignation.” Walsh explained that it was by examining the texts with (b)(6)(7)(C)

and herself that (b)(6)(7)(C) “would interpret that . . . she was resigning.” Even after (b)(6)(7)(C) sent
to Quinonez a “severance letter,” Walsh admitted that Quinonez later sent Harper another text that
Walsh recounted with “[t]hat’s not what I [Quinonez] meant during those texts, but I’m [Quinonez]
resigning now—or I’m [Quinonez] quitting now.” These facts support that the text messages
originally sent by Quinonez were not Quinonez’s notice of resignation to the Coalition.

On October 7, 2019, Walsh told (b)(6)(7)(C) in an email that Quinonez, via email, had voluntarily left
the Coalition. When investigators asked (b)(6)(7)(C) why (b)(6)(7)(C) thought Quinonez had left the

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Coalition, (b)(6)(7)(C) said, “Probably because it was a toxic environment. Sounds like it was toxic
to me; I wouldn’t want to work there.” (b)(6)(7)(C) specifically remembered being approached by the

(b)(6)(7)(C)

(b)(6)(7)(C) stated in regard to how TA

calls were viewed in relation to the DELTA grant, having believed that Quinonez was “doing the
ethical thing by bringing up that as a question.” (b)(6)(7)(C) further explained not “think[ing] it was
right for Kathy to respond that way” when Quinonez was issued a PIP for voicing concerns.

The investigator also interviewed three former Coalition employees assigned to coordinate the
DELTA grant. All three former employees expressed similar concerns about Walsh’s
mismanagement of Coalition staff and reported retaliatory actions toward staff who had questioned
Walsh’s directives. (b)(6)(7)(C)

(b)(6)(7)(C) questioned Walsh’s lack of

involvement in management of the grant and expressed concerns to Walsh, Harper, and (b)(6)(7)(C)
about the “unhealthy communication patterns” (b)(6)(7)(C) had noticed when asking Walsh to be more
involved. (b)(6)(7)(C) said Walsh was known to be unreceptive toward hearing a “critique” from
anyone and explained it was after (b)(6)(7)(C)

(b)(6)(7)(C)

(b)(6)(7)(C) after explaining to Walsh and Harper(b)(6)(7)(C)concerns about

how the Coalition operationalized the DELTA grant. (b)(6)(7)(C)

(b)(6)(7)(C)

(b)(6)(7)(C) from the Coalition after Quinonez’s departure, said Quinonez experienced
“microaggressions” from Coalition management and felt that Quinonez’s ousting was
“accelerated” when Quinonez requested information from Harper on how to file a grievance on
Walsh. (b)(6)(7)(C)stated that the events Quinonez experienced after she disclosed her concerns to CDC
“could be interpreted as retaliatory.” (b)(6)(7)(C) referred to Quinonez’s PIP as “unfairly negative.”

(b)(6)(7)(C)

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V. LEGAL FRAMEWORK

The National Defense Authorization Act of Fiscal Year 2013 (NDAA) prohibits Federal
contractors and grantees from taking personnel actions against an employee for disclosing
information that the employee reasonably believes is evidence of gross mismanagement of a
Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal
contract or grant, a substantial and specific danger to public health or safety, or a violation of law,
rule, or regulation related to a Federal contract or grant. 41 U.S.C. § 4712(a)(1).

Federal courts have held that to establish that there has been retaliation for whistleblowing
activity in violation of the NDAA, an employee must demonstrate by a preponderance of the
evidence 5 that the employee engaged in whistleblowing activity by making a protected disclosure
under the NDAA and that the disclosure was a contributing factor in the personnel action taken
against the employee. See 5 U.S.C. § 1221(e)(1); see also, Busselman v. Battelle Mem. Inst.,
2019 U.S. Dist. LEXIS 226127, *17-18 (E.D. Wa. 2019). An employee may establish that the
protected disclosure was a contributing factor in the personnel action through circumstantial
evidence that the official who took the personnel action knew of the disclosure, or that the action
took place within a period of time such that a reasonable person could conclude that the disclosure
was a contributing factor to the personnel action. See 5 U.S.C. § 1221(e)(1)(A)-(B). If an
employee makes this showing, the employer must “demonstrate by clear and convincing evidence
that it would have taken the same personnel action in the absence of such disclosure.” Id. at
§ 1221(e)(2). 6

The following factors are considered in determining whether an employer has shown by clear
and convincing evidence that it would have taken the same personnel action in the absence of
whistleblowing: whether the employer had legitimate reasons for the personnel action; the
existence and strength of any motive to retaliate on the part of the employee who was involved in
the decision; and any evidence that the employer takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situated. See id.

VI. LEGAL ANALYSIS

In light of the above, OIG evaluated the facts and evidence in this matter and assessed whether:
(1) Quinonez made a protected disclosure(s); (2) Quinonez’s supervisors Coalition Associate
Director Dawn Harper and Executive Director Kathy Walsh had knowledge of the protected
disclosure(s); (3) an unfavorable personnel action was taken or threatened against Quinonez after
the disclosure(s); and (4) a causal connection exists between the protected disclosure(s) and the

5
A preponderance of the evidence is defined as “the degree of relevant evidence that a reasonable person, considering
the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.”
5 C.F.R. § 1201.4(q). The NDAA applies the Whistleblower Protection Act’s burden of proof, found in 5 U.S.C. §
1221(e). See 41 U.S.C. § 4712(c)(6) (“The legal burdens of proof specified in section 1221(e) of title 5 shall be
controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an
executive agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this
section has occurred.”)
6
“Clear and convincing evidence” is that measure or degree of proof that produces in the mind of the trier of fact
a firm belief as to the allegations sought to be established; it is a higher standard than a preponderance of the
evidence. Id. at § 1221(e)(2); Fellhoelter v. Department of Agriculture, 568 F.3d 965, 970-71 (Fed. Cir. 2009);
Schnell v. Department of the Army, 114 M.S.P.R. 83, 94 (2010).
10 | P a g e
unfavorable personnel action. Having concluded that these four elements were established, OIG
next considered whether Harper and Walsh were able to demonstrate that they would have taken the
same personnel action in the absence of Quinonez’s disclosures. Each of these burdens of proof
is analyzed below.

Element 1—Protected Disclosure: Did Quinonez make or prepare to make a protected disclosure,
or was Quinonez perceived as having made or prepared to make a protected disclosure?

To establish that a communication was a protected disclosure under the NDAA, Quinonez must
have disclosed to a protected source information that Quinonez “reasonably believes is evidence of
gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of
authority relating to a Federal contract or grant, a substantial and specific danger to public health
or safety, or a violation of law, rule, or regulation related to a Federal contract . . . or grant.”
41 U.S.C. § 4712(a). Harper is a protected source under the NDAA because she told staff that if
they ever had concerns about fraud, they should come to her, and therefore constitutes “a
management official of the grantee who has the responsibility to investigate, discover, and address
misconduct.” Id. at § 4712(a)(2)(G). Walsh, as the Executive Director of the Coalition, is also a
protected source because she told the investigator she was responsible for the Coalition’s
operations. Additionally, (b)(6)(7)(C) is a protected source under the NDAA because she is a “Federal
employee responsible for contract or grant oversight or management” for DELTA grants issued
by the CDC. Id. at § 4712(a)(2)(D).

Quinonez made multiple protected disclosures over the course of Quinonez’s employment with
the Coalition. Quinonez’s salary was funded entirely by DELTA grant funds. Consequently, any
work she conducted needed to fall within the scope of the DELTA grant. 7 The evidence reflects
that Quinonez was directed in mid-May 2019 to answer TA calls for sexual and/or domestic
violence survivors. Quinonez had received prior guidance from (b)(6)(7)(C) that using grant funds for
survivor TA calls was a “misuse of funds.” Beginning in May 2019, Quinonez raised concerns to
DELTA grant project officer (b)(6)(7)(C) that taking TA calls was outside the scope of the grant.
Based on (b)(6)(7)(C) communications, Quinonez reasonably believed that she was being directed
to assist in the Coalition’s mismanagement of the DELTA grant by taking TA calls, a belief that
she verbalized to her supervisor Harper multiple times. Quinonez and Harper had multiple verbal
discussions from June through August 2019 regarding TA calls. They also participated in a call
on May 22, 2019, with (b)(6)(7)(C) and Coalition employee (b)(6)(7)(C) which resulted in Quinonez being
directed to track TA calls on a different timesheet. On August 29, 2019, during a staff meeting,
Quinonez spoke about the inappropriateness of TA calls and told Walsh that the CDC had
explicitly told Quinonez and (b)(6)(7)(C) not to answer TA calls, and yet they were still being made to
answer TA calls. Harper also attended that meeting. These verbal complaints of the Coalition’s
mismanagement of the DELTA grant to protected sources Harper and Walsh are all considered
protected disclosures.

7 (b)(6)(7)(C)
instructed the Coalition to submit a budget revision for any work Quinonez performed that was outside of
the activities covered by the DELTA grant. (b)(6)(7)(C) explained that since Quinonez was entirely funded under the
grant, any victims services work Quinonez performed would require a budget revision to “decrease the percentage of
time in the budget. Only time dedicated to the program funded can be charged to the award.”

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Quinonez also made a protected disclosure on October 2, 2019, when she asked Harper how to file
a grievance against Walsh to the Coalition Board of Directors. This is considered to have been a
protected disclosure because it is reasonable to believe that Quinonez was perceived by Harper
as preparing to make a protected disclosure of grant mismanagement to the Board when asking
about the grievance procedures. See 41 U.S.C. 4712(c)(6); see e.g., Mount v. U.S. Dep’t of
Homeland Security, 937 F.3d 37, 44 (1st Cir. 2019) (noting that the MSPB has long adopted
perceived protected activity analysis in Whistleblower Protection Act (WPA) retaliation cases,
5 USC 2302(b)(8)); King v. Dep’t of the Army, 2011 MSPB 83 (“Specifically, an individual who
is perceived as a whistleblower is still entitled to the protections of the Whistleblower Protection
Act (WPA), even if she has not made protected disclosures.”). Quinonez had been consistently
vocal about the Coalition’s mismanagement of the DELTA grant since May 2019 up until
October 2019 and had been issued a PIP as a result of communicating with (b)(6)(7)(C) about the
DELTA grant’s mismanagement. Therefore, it is reasonable to believe Harper and Walsh
thought Quinonez’s Board of Directors grievance would relate to the Coalition’s
mismanagement of the DELTA grant and the hostile work environment created as a result of her
reporting grant mismanagement to (b)(6)(7)(C)

Quinonez’s multiple reports of grant mismanagement related to the TA calls to (b)(6)(7)(C) a

protected source, via email and over the phone from May through August 2019 are also considered
protected disclosures.

Element 2—Knowledge: Did the RMOs have knowledge of Quinonez’s protected disclosure(s)
or perceive Quinonez as making or preparing to make a protected disclosure(s)?

There were two RMOs in this matter: Harper, who was Quinonez’s direct supervisor, and Walsh
who was Quinonez’s second-line supervisor. The RMOs collectively asked Coalition Counsel
(b)(6)(7)(C) to prepare Quinonez’s severance letter, which amounted to a constructive discharge as

explained further below. 8 The investigator determined that Harper and Walsh knew about
Quinonez’s multiple reports of grant mismanagement issued to (b)(6)(7)(C) from May through
September 2019. Whenever Harper and Walsh were not copied on an email that Quinonez sent
to (b)(6)(7)(C) alleging grant mismanagement, Quinonez forwarded the email communications to
Harper and Walsh. When Quinonez made similar reports of grant mismanagement over the
phone to (b)(6)(7)(C) she notified Harper and Walsh of these occurrences. Consequently, Harper
and Walsh were made aware of Quinonez’s protected disclosures both verbally and via email.
Lastly, Harper knew that Quinonez was planning to file a complaint against Walsh to the Board
of Directors because Quinonez emailed Harper to inquire as to how to file a complaint with the
Board. This email was forwarded by Harper to Walsh. Consequently, it is well established that
both RMOs were aware of Quinonez’s grant mismanagement allegations and her intention to file
a complaint with the Board of Directors. Based on the facts and information presented,
preponderant evidence exists that the management officials responsible for Quinonez’s personnel
actions had knowledge of her multiple protected disclosures.

Element 3—Personnel Action: Was an unfavorable personnel action taken or threatened against
Quinonez, or was a favorable personnel action withheld or threatened to be withheld from
Quinonez?

8 (b)(6)(7)(C)
although a co-issuer of Quinonez’s severance letter, is not considered an RMO as (b)(6)(7)(C) role was
acting as counsel to the Coalition without any supervisory role over Quinonez.
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Quinonez was the subject of a personnel action under the NDAA when Harper and Walsh issued
a PIP to her on September 18, 2019. 9 The PIP identified Quinonez’s issues as failing to follow
policy, procedure, and publications protocol. PIPs are generally accepted as unfavorable personnel
actions, and it is undisputed that Quinonez received a PIP. See Knowles v. Dep’t of Veterans
Affairs, 796 Fed. Appx. 1026, 1029 (Fed. Cir. 2020) (noting there was no dispute that the actions
taken against the Quinonez, including a PIP, were personnel actions under whistleblower laws).

Quinonez was also the subject of a personnel action under the NDAA when she was issued a
severance letter by (b)(6)(7)(C) on October 3, 2019, at the direction of Harper and Walsh. The
severance letter caused Quinonez’s involuntary resignation on October 3, 2019. An involuntary
resignation constitutes a constructive discharge. See, e.g., Shoaf v. Dep’t of Agric., 260 F.3d 1336,
1340 (Fed. Cir. 2001). In determining whether a resignation was voluntary or coerced, the courts
have repeatedly held that the ultimate question is whether “a reasonable person in the employee’s
position would have felt compelled to resign.” Id. at 1342. See Middleton v. Dep’t of Defense,
185 F.3d 1374, 1379 (Fed. Cir. 1999) (“The employee must present allegations of fact which, if
proven, establish that a reasonable employee confronted with the same circumstance would feel
coerced into resigning.”); Scharf v. Dep’t of Air Force, 710 F.2d 1572, 1574 (1983) (“Freedom of
choice [is] the guiding principle [in an involuntariness determination].”). Furthermore, the courts
have held that when determining “whether a reasonable person in the employee’s position would
have felt compelled to resign, a deciding tribunal must consider the totality of the circumstances.”
Shoaf, 260 F.3d at 1342 (emphasis added); see also Braun, 50 F.3d at 1007-08 (“To determine
whether a resignation or retirement is voluntary, a court must examine ‘the surrounding
circumstances to test the ability of the employee to exercise free choice.’” (citations omitted)).

Considering the facts at hand, on September 27, 2019, Quinonez sent a text to Harper stating,
“needless to say I’m definitely on my way out . . . this is a toxic workplace and I want nothing
to do with it.” Harper did not ask Quinonez whether her statement indicated an intention to resign.
On October 2, 2019, Quinonez sent Harper an email requesting information on how to file a
grievance against Walsh to the Coalition Board of Directors. On October 3, 2019, at 10:07 a.m.,
Quinonez sent an email to Harper with a reminder to send Quinonez the Board’s grievance filing
information. At 10:59 a.m., Harper responded to Quinonez’s email with instructions on how to
submit a grievance. At 11:14 a.m., (b)(6)(7)(C) emailed Quinonez a severance letter to Quinonez’s
personal email address. After receiving the severance letter, Quinonez sent Harper a text clarifying
that she did not mean she was resigning when she sent the text on September 27, 2019, but that
she was resigning now.

It is reasonable to believe that an employee presented with a severance letter by their employer’s
attorney “would feel coerced into resigning,” especially because the severance letter was issued
less than 2 hours after requesting information on how to file a grievance about their employer’s
CEO, which would reasonably include their multiple protected disclosures that had led to their
retaliatory PIP and hostile work environment. Middleton, 185 F.3d at 1379. Consequently,
Quinonez’s resignation is considered involuntary and is considered constructive discharge.

9
Although Harper was the sole issuer of the PIP, emails reviewed by the investigators show that Walsh and Harper
together made the decision to issue the PIP.
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Element 4—Causal Connection: Was the protected disclosure a contributing factor in the
personnel action?

To establish causation, Quinonez must demonstrate by a preponderance of the evidence that the
protected disclosure was a contributing factor in the personnel action. Quinonez may
demonstrate that the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel action knew about
the disclosure, and that the action occurred “within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor in the personnel action.” Schnell, 114
M.S.P.R. at 93 (internal citations omitted). Courts typically consider personnel actions taken
within the same performance evaluation period or within 1 year as satisfying the knowledge/timing
test. See, e.g., Kewley v. Dep’t of Health & Human Servs, 153 F.3d 1357, 1363 (Fed. Cir. 1998).

Based on the facts and information presented, all four elements described above are present and
there exists a prima facie case of retaliation based on the protected disclosures Quinonez made
from May 2019 through October 2019. Walsh and Harper had direct knowledge of multiple
disclosures, as the protected disclosures were made to them or forwarded to them via email after-
the-fact. Quinonez received personnel actions from Walsh and Harper at times in close proximity
to the disclosures. Specifically, they issued Quinonez a PIP on September 18, 2019, 2 days after
Quinonez made a protected disclosure to (b)(6)(7)(C) on September 16, 2019, and constructively
discharged Quinonez on October 3, 2019, within 2 hours of a protected disclosure to Harper asking
how to file a grievance with the Board, both well within the 1-year standard outlined above. See
id. Having met all four elements described above, Quinonez has established a prima facie case of
retaliation based on the protected disclosures made to Harper and the CDC.

Employer Burden: Is there clear and convincing evidence that the personnel action would have
occurred in the absence of the protected conduct?

If Quinonez establishes by a preponderance of the evidence that a protected disclosure contributed

to an unfavorable personnel action, the burden shifts to the employer to establish by clear and
convincing evidence that it would have taken the same personnel action absent the protected
disclosure. See 5 U.S.C. § 1221(e); Carr v. SSA, 185 F.3d 1318, 1322 (Fed. Cir. 1999). In
assessing whether the employer has met this burden, the following factors are considered: (1) the
strength of the employer’s evidence in support of its personnel action, (2) the existence and
strength of any motive to retaliate on the part of the officials who were involved in the decision,
and (3) any evidence that the employer takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. See id. at 1323.

Strength of Evidence

Harper and Walsh were not able to provide compelling evidence as to why they issued Quinonez
a PIP or why they constructively discharged Quinonez. The PIP identified Quinonez’s issues as
failing to follow policy, procedure, and publications protocol. Quinonez “asked a lot of questions”
during the meeting about the elements and found after the meeting that some items in the PIP that
were cited as “policy and procedure” were not covered by a written policy, Quinonez said. That
same day, Quinonez sent an email to Harper asking her to specify the policies she violated that
“corresponds with each point,” but Harper did not respond to the email.

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When the investigators asked Harper and Walsh why they issued a PIP to Quinonez, both were
unable to present correlating answers that matched their own reasons for the issuance. Harper said
it came “from the advice of Kathy” and only remembered the plan related to issues Harper was
having with Quinonez regarding “attendance” and “communication.” Harper explained to
investigators having “considered it [the PIP] only because of the attendance.” Harper also
explained having sent the PIP to Walsh and (b)(6)(7)(C) to “approve it per se or add to it” because
Walsh “wanted to see it before I institute[d] it.” Email communications among Walsh, Harper,
and (b)(6)(7)(C) show their collaboration and suggestions for the specific language used in the PIP.
However, Walsh stated being unaware that any other Coalition staff assisted in drafting the PIP.
Walsh said, “I think after Dawn [Harper] drafted it [the PIP], I think she . . . showed me a copy
of it. But I was not involved in drafting it.” Walsh went so far as to say it was Harper who had
concerns about Quinonez’s discussions with CDC because she contacted them against Harper and
Walsh’s directive—an apparent admission of issuing the PIP as a direct result of Quinonez’s
protected disclosures to (b)(6)(7)(C)

Quinonez on September 27, 2019, sent a text to Harper stating “needless to say I’m definitely on
my way out . . . this is a toxic workplace and I want nothing to do with it.” On October 2, 2019,
Quinonez sent Harper an email requesting information on how to file a grievance against Walsh
to the Coalition Board of Directors. On October 3, 2019, at 10:07 a.m., Quinonez sent an email to
Harper with a reminder to send Quinonez the Board’s grievance filing information. At 10:59 a.m.,
Harper responded to Quinonez’s email with instructions on how to submit a grievance. Shortly
before responding with instructions on how to file a grievance, emails among Harper, Walsh, and
(b)(6)(7)(C) show that they wondered how to interpret the text messages. Not only did they have

doubts, but they did not follow up with Quinonez to clarify their understanding. At 11:14 a.m.,
(b)(6)(7)(C) emailed a severance letter to Quinonez’s personal email address. When Quinonez
received the severance letter, Quinonez sent Harper a text saying that she did not mean she was
resigning when she sent the text on September 27, 2019, but that she was resigning now.

When asked why they terminated Quinonez, both Harper and Walsh insisted that Quinonez had
resigned. When asked to explain why they would interpret a text message saying “needless to say
I’m definitely on my way out” as a resignation, neither could succinctly describe why they thought
so, nor could they provide evidence of a past “resignation” from a vague text message. When asked
about typical ways staff have notified the Coalition that they were leaving the organization, Walsh
admitted, “Generally, it’s a letter of resignation.” Walsh explained that, upon reviewing the text
messages Quinonez sent Harper, (b)(6)(7)(C) interpreted the texts as a resignation. The investigators
concluded Harper and Walsh did not believe the text constituted a resignation because emails
among Harper, Walsh, and (b)(6)(7)(C) show the severance letter was sent within minutes of their
discussing how to respond to Quinonez’s grievance request. Furthermore, nothing in Quinonez’s
October 2 and 3, 2019, emails to Harper—in which Quinonez requested information on how to
file a grievance—indicated Quinonez intended to resign from the Coalition.

Motive to Retaliate

Harper and Walsh had a motive to retaliate against Quinonez when they issued the PIP. On
September 16, 2019—the day before the PIP was issued—Quinonez sent an email to CDC project
officer (b)(6)(7)(C) copying Walsh and Harper, requesting to have a conference call to clarify

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 guidance on which activities were billed to the DELTA grant; specifically, Quinonez
(b)(6)(7)(C)

was concerned that Walsh and Harper were asking Quinonez to perform TA calls, which were not
grant-approved, even though she was paid entirely by grant funds. (b)(6)(7)(C) responded by email
that same day to Walsh confirming that Walsh would “put in writing exactly what [Quinonez] was
being asked to do.”

The CDC monitors DELTA grants across the country, including those at the Coalition. It is
reasonable to believe that Harper and Walsh could be embarrassed by questioning grant-approved
activities to (b)(6)(7)(C) the representative of the grant provider. It is also reasonable to believe
Harper and Walsh would be embarrassed that (b)(6)(7)(C) told Walsh to put in writing exactly what
Quinonez was being asked to do after Quinonez verbalized confusion to (b)(6)(7)(C) This motive is
further substantiated by the fact that an element of Quinonez’s PIP, which was issued 3 days after
the email was sent to (b)(6)(7)(C) was to no longer communicate with (b)(6)(7)(C) It also is reasonable
to believe that Harper and Walsh would be concerned that the CDC would be notified of potential
misuse of funds in light of the Tennessee Comptroller of the Treasury’s unfavorable audit finding
regarding timekeeping against the Coalition. Furthermore, it is reasonable that Harper and Walsh
may have been concerned that the CDC would ask for the misused funds back, institute
corrective action against the Coalition, or that they would have to find alternative funds for the TA
work.

Harper and Walsh also had a motive to retaliate against Quinonez when they worked with
(b)(6)(7)(C) to issue Quinonez the severance letter. Harper and Walsh knew that Quinonez was
preparing to file a complaint against Walsh with the Board, a situation that Walsh likely
wanted to avoid. It is reasonable to believe Walsh would be embarrassed—and nervous that she
would be potentially fired—if a Coalition employee filed a complaint against Walsh with the
Board.

Moreover, accounts by other Coalition employees suggest that Walsh in particular had a reputation
for targeting employees who disagreed with Walsh. (b)(6)(7)(C)

(b)(6)(7)(C)

(b)(6)(7)(C) Consequently, we have

found sufficient evidence to suggest the responsible management officials had a motive to retaliate
against Quinonez.

Similarly Situated Individuals

For an employee to be considered similarly situated to an individual who is disciplined, it

must be shown that the conduct and the circumstances surrounding the conduct of the
comparison employee are similar to those of the disciplined individual. See, e.g., Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1373 (Fed. Cir. 2012). The evidence reviewed in
this investigation suggests that Walsh and Harper have issued PIPs to and constructively
discharged other individuals during their tenures at the Coalition. There is insufficient evidence,
however, to assess the conduct and circumstances surrounding the other employees’ personnel

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actions and whether Quinonez’s situation is comparable. 10 We are therefore unable to address the
similarly situated factor in this analysis. See id. at 1374 (holding that “Carr does not impose an
affirmative burden on the agency to produce evidence with respect to each and every one of the
three Carr factors to weigh them each individually in the agency's favor. The factors are merely
appropriate and pertinent considerations for determining whether the agency carries its burden of
proving by clear and convincing evidence that the same action would have been taken absent the
whistleblowing . . . . Indeed, the absence of any evidence relating to Carr factor three can
effectively remove that factor from the analysis.”) (internal citations omitted).

Based on the lack of documented reasons for issuing Quinonez a PIP and constructively
discharging Quinonez, in addition to the RMOs’ retaliatory motives, there is not clear and
convincing evidence that Quinonez would have been issued a PIP or constructively discharged
absent her protected disclosures from May 2019 through October 2019.

VII. CONCLUSION

Based on the information and facts presented, OIG finds that the Tennessee Coalition to End Sexual
and Domestic Violence committed an unlawful act of reprisal. OIG substantiated Quinonez’s
allegation that her constructive discharge and PIP were in reprisal for protected disclosures in
violation of the National Defense Authorization Act for Fiscal Year 2013, 41 U.S.C. § 4712.

VIII. RECOMMENDATION

OIG recommends that whistleblower protection training be required for the grantee and its
employees, as well as for CDC employees who work in the DELTA program. OIG also
recommends that Quinonez be made whole in the form of backpay since her constructive
discharge. HHS may seek to impose alternative or additional recommended actions as deemed
appropriate.

(b)(6)(7)(C)

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