Pentagon Whistleblower Suffered Years of Retaliation, OSC Says

By NICK SCHWELLENBACH

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.

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."

Nick Schwellenbach is POGO's Director of Investigations.

Photo courtesy of Diem-Thi Le.

Correction 11/10/2011: POGO has learned that the DoD OIG hotline, not DCIS, referred info to DCAA that could enable DCAA to identify Le.

Follow @schwellenbach

Comments

[Walker]

Is DCAA any better today? What value do we add in the perfect working paper DCAA of today? I hate to admit it but metrics may be needed because in the DCAA of today, nothing gets done. We don't audit, we make files that are crazy. Our reports our so qualified, unsuported and adverse that they are of no use at the end of the day, if they ever get issued. The current DCAA Director is not up to the challenge of changing this place. To change DCAA you have to understand how bad it currently is and how beaten down the rank and file are. Time for Mr. Fitzgerald to move on and give someone else a shot at fixing an agency that gets worse by the day. The metrics of old have been replaced by continual second guessing and getting nothing done, at least before we added some value. We do nothing of any value anymore.

[DCAA Auditor]

Incredibly much thanks to Diem Thi Le for speaking out. One can't help to wonder how many quality Auditors were casualties of the abuse and left the agency.
I agree it is appalling the abusive employees still have their jobs. Getting rid of them would be a far stronger message and force for culture change. Granted they were influenced, possibly even directed, by superiors in their actions, but they could have said 'no' and supported Ms. Le's efforts.
I must add one comment: It is disgusting that one would compare mis-handling an abusive management situation to a situation involving rape of children (Penn State & the Catholic Church). However much harm was done by the managers is nothing compared to the life-long suffering endured by the victims at Penn State and the church.

[Private Investigator NYC]

I'm pretty sure that because of that revenge, the whistleblower will suffer a great woe. She tells everything that's why these bad guys do their best just to make her suffer and pay for what she done. Well written article, thanks a lot for that information!!

[Hank]

Now that Robert Brodsky no longer writes for Government Executive, who will expose all that is wrong with DCAA? There is mush more to be exposed.

[NYC Private Investigator]

I admire Diem-Thi Li for her courage to speak out. Whistleblowers like her put their careers on the line when they expose this kind of fraud.

[Steve]

DCAA in my opinion, is an unfixable federal bureaucracy. We are between a rock and a hard place. Congress wants contractors to get lucrative DoD contracts and that is fine but the hard working DCAA employees have to deal with DCAA management who are unable to see the big picture. Many in DCAA management view their fellow employees as the enemy and not as a team working to save the government money. One soon finds that the way to advance in the agency is to say that "all contractors are crooks", our fellow employees are not "Technically Competent" and the more unreasonable you are as a manager, in many cases the higher you will rise. Until we understand and address this no one is well served by this agency. Many of those in management could never hope to do the work of the average auditor as they are so far removed from what we deal with. Managers are more concerned with administrative nonsense than ever working with their auditors to produce a better audit. The very top level of DCAA management is more concerned with advancing their careers and covering for themselves than working as a team. Diem-Thi Le exposed all that is wrong with DCAA. To shut her up they gave her a GS-13 and hid her away somewhere but not until the agency was exposed for what it is. Just like Penn State Universities handling of their assistant football coach and the cover up at the very top, DCAA is really no different. For many the broken DCAA culture has been very, very good to them.

[Emile Zola]

The government is no0thing more than an Ali Baba cave, where among thieves, corruption, honesty is as letal as garlic to Dracula and every organization, not matter if religious or laic, military or civilian it has protective covers to condone, not only crimes, but also reaffirm its existence.
Bless are those, who putting their career in jeopardy for the good of the nation, have been made good, but the adage says: A swallow doesn't the summer make. The majority of whistle blowers aren't not that lucky. I was one of those and I'm sure that there are thousands of them where justice didn't buy them a second of truth.
The problem is that morally and fiscally this nation is bankrupt, and there lies the problem. For a flower to blossom, it has to have the right amount of soil, waterm nutrients to flourish, which is not what happenes to honesty. It is always the criminal that get promoted and if accused of a crime, there are safeguards that not only don't investigate, but promotions are in an a la carte menu, while the brave rot in jail, or become homeless.
The word Hero has been so prostituted that now being a hero doesn't amount to a hill of beans. Jessica Lynch, wounded in an accident, was given one of the highest medals ever, so the corrupt, criminal government of Bush, the retard pervert of Texas, could "buy", some way, honorability to cover his lies galore, his criminal enterprises and what the stupid voters were doing? Well, a la Romans, having their pan et circes and no one gave a rat's ass about our Constitution, our devalued American values and not copngress, not the justice system wanted to toch that war criminal with a ten foot pole. We need more Reverend Jeremiah Wrights, more Cindy Sheehans, more Bernie Sanders, more Dennis Kucinichs than politicians whose only goal in life is to become millionaires selling their constituents to the higher bidder.

[Richard Wyeroski]

She should be given a metal and the recognition for doing the right thing that she deserves.

Our government agencies unfortunately are full of dishonest and unethical supervisors and managers that cover-up fraud waste abuse and criminal activity.

In many cases these managers charge the federal worker with the misconduct that "they" are guilty of.

Throw in a dysfunctional Merit System Protection Board that has the responsibility to protect us and we have a receipt for disaster

Richard Wyeroski
former FAA Inspector
FAA Whistleblowers Alliance Member

[Joyce Kokoska]

It's unfortunate that reprisal suffered by Diem Thi Lei is alive and well in DCAA today, nearly 5 years after the OSC investigation started. Thi's efforts were valiant and responsible for major changes in the way DCAA conducts business. But there are still pockets of abuse scattered about the agency.
Employees are afraid of management retaliation and abusive management survives and flourishes in DCAA. As a former DCAA employee with 40 years of service, I’ve witnessed the same type of reprisal suffered by Thi Lei. DCAA’s upper level executives need to be vigilant and open minded in recognizing the signs of management abuse. Action to stamp out such behavior needs to be swift and even handed.

[Franklin]

DCAA is totally broken and needs to be fixed. All I know is what DCAA is doing now is pathetic. This scandal destroyed the agency and it's only gotten worse.

[Dave Truman]

Marginal news -bad news. Marginal news, Thi gets some recognition for her courage, yet no meritorious service award given out like candy by the new Director this year to the most negligent DCAA managers; bad news, her retaliators get at most a slap on the hand (a suspension) for engaging in prohibited personnel practices, a violation of federal law. How did the DCAA attorney, Greenlee, who provided the GAG memo, get to keep his law license or job? The audit manager retaliators maintained their high pay grade levels in specially created jobs for them and some are now about to be promoted again. I understand the main culprit at the San Ana Branch Office, Angela Thomas, is currently instructing new first level managers and is a special assistant to the regional director, huh?!!! How does she keep her job let alone instruct new first level managers at DCAA? These retaliators simply cannot be trusted to protect the taxpayers' interests and should be fired, period!! Why should the citizens accept this level of negligence in their audit function? The DCAA management regime is a lot like the Catholic church's and Penn State's - protect the negligent so as not to expose the dysfunction of the bigger system.

[Sasha]

The article was very well written and inspirational to us all. Thank you for sharing it.