Pentagon Whistleblower Suffered Years of Retaliation, OSC Says

A senior auditor with the Defense Contract Audit Agency (DCAA) was subjected to years of reprisal in violation of the Whistleblower Protection Act after she blew the whistle on flawed audits produced by DCAA, according to an April 2010 Office of Special Counsel (OSC) investigative report obtained by POGO. According to a press release issued Friday, DCAA has made several corrective actions in response to the OSC report substantiating that the auditor was retaliated against. The auditor, Diem Thi Le, works in DCAA’s Santa Ana, California branch office.

“I’m grateful to Diem-Thi Le for her courage to speak out. Whistleblowers like Diem-Thi Le put their careers on the line when they expose this kind of fraud and abuse,” said Special Counsel Carolyn Lerner in a written statement. “They make our government stronger and they save taxpayer money.” Lerner’s agency, OSC, investigates claims of whistleblower retaliation against federal employees.

OSC says it is making the findings of its investigation on Le public now because corrective actions have been taken recently, with suspensions of the two main officials roughly a month ago, according to an OSC spokeswoman.

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Le’s disclosures catalyzed a chain reaction that radically transformed DCAA and led to the demise of a metrics-oriented culture there that focused on quantity of audits done quickly over quality. POGO has followed the changes closely since they surfaced publicly in 2008.

A previously unreleased redacted 38-page report by OSC from April 2010 into the Le case provides numerous details into Le’s journey as a whistleblower. The OSC report was obtained by POGO (a 5-page summary version was made public by the Orange County Register last week).

The OSC report documents the perilous gauntlet that Le faced.

Blowing the Whistle

It started six years ago when Le submitted a hotline complaint in November 2005 to the Department of Defense Office of Inspector General (DoD OIG), the Pentagon’s internal watchdog, and the Government Accountability Office (GAO), the investigative arm of Congress. She also submitted her complaints to the Defense Criminal Investigative Service (DCIS), the criminal investigative wing of DoD OIG, in February 2006.

Le alleged in her complaints that certain supervisors in the Santa Ana office “issued or caused to be issued unjustified findings that contractors were in compliance with applicable contracting standards,” the OSC report states. Specifically, Le alleged that these supervisors were violating Generally Accepted Government Auditing Standards (GAGAS) “by approving findings of compliance that were not supported by audit work papers or by changing, deleting or having their subordinated change or delete findings of noncompliance without notifying the auditors who made the findings.” Le named Dahrl Thorpe, the Santa Ana office branch manager, and her subordinate supervisory auditors, Angie Thomas and Sharon Kawamoto, as the responsible supervisors.

She pointed to at least ten audits of contractors such as Fluor, Parker Hannifin, and Interstate Electronics as flawed.

“Ultimately, Le’s allegations were, by and large, sustained in reports issued by the OIG, DCIS and GAO,” states the OSC report. The Senate Homeland Security and Government Affairs Committee held a hearing in September 2008 where Le testified.

Investigators Make It Easy for Supervisors to Identify the Whistleblower

But well before she testified, Le’s cover was blown, partly due to a misstep by one of the very investigative agencies that was looking into her complaints: the DoD IG. [The section corrected on 11/10/2011.]

DoD IG “Hotline personnel had in fact referred [Le's] complaint to DCAA Headquarters and that the referral included specific personal identifying information about Le,” Le stated in her written testimony before the Senate in September 2008.

“Plan to Retaliate”

OSC wrote that soon after DCIS interviewed DCAA Santa Ana supervisors in July 2006, those supervisors were having discussions that same month about how to handle an auditor who “was failing to follow directions.” A witness to one of these conversations understood the auditor in question to be Le, according to the report. The OSC noted that “there is no evidence of legitimate management reasons for the decision of Le’s supervisors to seek advice for her alleged deficiencies.” Le had received outstanding performance evaluations for 2003, 2004, 2005, and 2006 (the 2006 rating year ended on June 30, 2006).

The three supervisors suggested to OSC that they could not have planned to retaliate in July 2006 because they did not know that Le was the whistleblower that sparked the DCIS investigation. However, OSC stated that “plentiful evidence contradicts” the three supervisors “on this critical issue.” The OSC report cites two other DCAA supervisors and one DCAA auditor who testified that in 2006 the three supervisors knew Le was the whistleblower or intended to become one.

Angie Thomas, one of the three supervisors in question, told OSC that “'it was relatively easy to connect the dots' about who made the disclosures based on the audits being investigated.”

Over the next two years, Le was subject to retaliation, according to the OSC investigation. In August 2006, Le was not given an annual bonus despite her outstanding performance evaluation for 2006. Every auditor in the Santa Ana office who received an outstanding rating between 2005 and 2008 received an identical award, except for Le in 2006, according to the report. Even some auditors who did not receive an outstanding rating received cash awards during that time period.

Then Le received her 2007 performance rating (June 30, 2007 was the end of the rating year). It had dropped two levels from outstanding. The rating that Le did get meant she went from getting the highest possible performance rating in previous years to being assessed as “near the bottom of all auditors in” the Santa Ana office. The OSC report states that “little objective evidence supports” the lower rating.

Hindering the Whistleblower’s Documentation of Her Reprisal Complaint

Le made a complaint to the OSC alleging she was reprised against because of her whistleblowing. OSC requested their first documents from DCAA in August 2007. Le also sought to provide DCAA documents to OSC to back up her claims.

DCAA provided Le with a memo that said she was “not permitted to access or copy or possess any Agency document for [her] private purposes, including preparation of complaints in any forum,” according to the OSC report, which directly quoted the memo. DCAA Assistant General Counsel John Greenlee drafted the template of the August 31 memo that bore Kawamoto’s signature.

Le wanted clarification. Kawamoto told Greenlee in a September 7, 2007, email that Le wanted to know if she could “access documents related to audits cited in her performance appraisals in order to prepare complaints to OSC and the Equal Employment Opportunity Office,” states the OSC repot. Greenlee responded that Le “may not distribute or disclose those documents to anyone else—period—without asking permission. That permission will not be granted her.”

The OSC report explains that “although the August 31 directive had invited Le to request access to documents that she legitimately needed and promised to fully consider that request, Greenlee’s response revealed that this was a sham.”

In an interview with OSC, Greenlee’s boss, DCAA General Counsel John Farenish “examined the communications between Le, Kawamoto and Greenlee.” Upon reading the communications, “he realized that Greenlee had, indeed, taken the position that Le was not entitled to have copies of her performance appraisals and related e-mails.” That went too far. “Farenish stated that these documents are considered personal in nature, and this employee is always free to turn them over to others,” states the OSC report.

Le Gets a New Supervisor

In October 2007, Le was reassigned from Kawamoto to a relatively new supervisor who soon became critical of Le. Trainor told the OSC that Le “didn’t follow guidance on work paper preparation. She missed seemingly simple areas of risk for the assignment. Her work papers were, how do you say it, lacking substance.” As mentioned earlier, one of Le’s substantiated complaints was that several audits had conclusions not supported adequately by working papers.

But the OSC report argues that “the evidence showed that Trainor harbored an animus against Le because of her whistleblowing.”

Trainor told OSC that the investigations sparked by Le’s disclosures “destroyed the office” and that the August 2008 GAO report was “influenced by a select few,” and its report was “like a half-truth.”

For Le’s 2008 performance evaluation, Trainor gave Le a rating of “fully successful”–a fairly mediocre rating. Trainor told OSC that she could not explain the fully successful rating, except to say, “All I know is we gave her fully successful, probably because we didn’t want to fight with her.”

But others disagreed. Le’s supervisor after Trainor was Ann Pena. The OSC wrote that “Pena said that Le tried ‘really hard,’ dug deep, was able to handle complex audits and could be relied upon to work independently.” The OSC said the criticisms in Trainor’s performance evaluation used to justify the rating “cannot be substantiated.”

Corrective Actions

The OSC press release from Friday states that Patrick Fitzgerald, the current DCAA Director, concurred with the recommendations made in the April 2010 OSC report. According to the press release, the following corrective actions were taken:

• Ms. Le’s appraisals were changed to reflect the highest levels of achievement;
• Ms. Le received retroactive performance awards and her gag order was lifted;
• Subsequently, Ms. Le received a promotion;
• The officials responsible for the retaliatory actions against Ms. Le left government service, were reassigned or were disciplined.

Rob McClain, an OSC investigator, told the Orange County Register, “I don't know a single whistleblower who has had such a profound change on an agency.” When the paper asked Le whether she would blow the whistle again, Le said yes, but “if you have a family to feed, forget it.”