Letter to the Office of Special Counsel from Domenech's Attorney

This complaint is being filed by the deputy Director who denied almost all accounts of management wrogdoing Scott Bloch, Esquire Special Counsel Office of Special Counsel 1730 M Street, NW Suite 218 Washington, DC 20036 Re: Edgar A. Domenech: OSC Report of Possible Prohibited Personnel Practices Dear Mr. Bloch: I am enclosing a copy of a complaint to be filed on behalf of my client, Edgar A. Domenech, alleging that in January 2007, October 2007, and December 2007, his employer, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF" or "the Bureau"), subjected him to prohibited personnel practices in violation of the Whistleblower Protection Act, 5 U.S.C. § 2302 et seq. As detailed in the enclosed complaint and as described below, in retaliation for Mr. Domenech filing a disclosure with the Office of Special Counsel ("OSC") and the Office of the Inspector General of the Department of Justice ("OIG") concerning gross mismanagement and waste on the part of former Director Carl J. Truscott, ATF demoted Mr. Domenech three levels from his position as Deputy Director to the position of Special Agent in Charge; provided him with a downgraded performance appraisal; denied him a 2007 bonus; excluded him from Executive Committee meetings and Working Groups; and denied him the opportunity to apply for two vacant Assistant Director positions. We request that OSC require ATF to restore Mr. Domenech, a 2005 recipient of the President Rank Award, to his position as Deputy Director, and that it seek a stay on his behalf with the Merit Systems Protection Board if ATF is not willing to do so voluntarily. Factual Background Mr. Domenech joined ATF in 1985 and has been a career civil servant with the Bureau ever since. He graduated from the John Jay College of Criminal Justice in 1984 and joined ATF in 1985 where he began his career in enforcement of federal firearms, arson, and explosives law. In 1997, Mr. Domenech was promoted to Assistant Special Agent for the New York Field Division, where he ran the day to day operations of the ATF/NYPD Joint Firearms Task Force and oversaw the ATF Regional Crime Gun Center. In recognition of his exemplary performance, ATF promoted him to Special Agent for the New York Field Division in 1998, where he served as the senior executive for ATF's largest field division, encompassing the greater New York/New Jersey metropolitan area. In 2003, Mr. Domenech became the Deputy Assistant Director for Field Operations at the Washington, D.C. headquarters where he was responsible for oversight of eight field divisions which covered all activity on the East Coast. From 2003 through February of 2007, Mr. Domenech served as the Deputy Director of ATF, an executive level position which placed him in day-to-day management of enforcement and regulatory activities of the Bureau. In this position, he represented ATF at various policy meetings with Department of Justice officials and coordinated and managed ATF's $850 million budget. Additionally, on two separate occasions, Mr. Domenech served as Acting Director as designated by Attorney General John Ashcroft and Deputy Attorney General Paul McNulty. Throughout his tenure at ATF, Mr. Domenech performed his duties in an exemplary manner. In 2001, Mr. Domenech received a Senior Executive Service Award, and in 2005, Mr. Domenech received the Presidential Rank Award, the highest honor in government service. Over the past 4 years, while serving in the position of Deputy Director, Mr. Domenech has consistently been rating "Outstanding." His performance, as described in his appraisals, was "instrumental in ATF's accomplishments," and "nothing short of extraordinary." He was lauded for the manner in which he managed Bureau resources "in the most effective, efficient and accountable manner." As the Deputy Director, Mr. Domenech acted as CEO and second-in-command for the Bureau, under the leadership of Director Carl J. Truscott, who was appointed to the position by Attorney General John Ashcroft in April 2004, and sworn in on May 17, 2004. Almost immediately, Mr. Domenech and other executive level individuals began becoming concerned about Mr. Truscott's hiring practices and financial decisions. Specifically, Mr. Domenech suspected that Mr. Truscott did not comprehend ATF's financial situation since he made many unnecessary expenses which placed the agency at risk of violating the Anti-Deficiency Act by spending funds beyond what had been appropriated to ATF by Congress. As Deputy Director, Mr. Domenech was responsible for weekly contact with the Deputy Attorney General's office ("DAG office") to report and discuss operational issues and oversee ATF's finances. As such, Mr. Domenech instructed his budget staff to put together comprehensive briefings to present to Mr. Truscott to dissuade him from the unnecessary expenses he was incurring. Mr. Truscott's response to such information was to emphasize that he was the director, not Mr. Domenech, and to continue to spend irresponsibly and ask Congress for more money, especially with respect to the building of the new headquarters. Mr. Domenech and [-- omitted for legal reasons --], became very concerned that ATF was going down a precarious path of fiscal mismanagement. Mr. [-- omitted for legal reasons --] was responsible for the operational management of all 23 Field Divisions of ATF. The DAG office regularly consulted both Mr. Domenech and Mr. [-- omitted for legal reasons --] regarding policy decisions and suggestions. Because they shouldered important responsibilities, Mr. Domenech and Mr. [-- omitted for legal reasons --] agreed to approach the DAG office, Deputy Attorney General McNulty's staff, about their concerns. In December 2006, Messrs. Domenech and [-- omitted for legal reasons --] approached two Assistant Principal Attorney Generals, Richard Hertling and Uttam Dhillon, and expressed their concerns over the future of ATF and its current financial situation, which would soon be escalating into a crisis. Mr. Hertling and Mr. Dhillon acknowledged that Mr. Truscott appeared to be in over his head, but since his name came directly from the White House, there was little to be done about the situation. On January 12, 2007, Mr. Domenech met with them once again to convey the dire situation the agency was in due to Mr. Truscott's behavior, but to no avail. Discouraged by the lack of support and concern from the DAG office, and feeling left with no choice but to complain formally, Mr. Domenech and 4 other senior executives decided to submit a formal complaint and disclosure and to the OIG. On January 20, 2006, Mr. Domenech confidentially submitted to the OSC a disclosure of "gross mismanagement of public funds and egregious acts" by Mr. Truscott, describing numerous acts of misuse and mismanagement of public funds, inappropriate utilization of certain employees for tasks outside their job descriptions, excessive expenditures on the new headquarters construction and gymnasium, gratuitous domestic and foreign travel, and inefficient and unnecessary use of Mr. Truscott's time, detracting from his ability to effectively serve the organization. Mr. Domenech simultaneously disclosed the information confidentially to the OIG. On January 25, 2006, the OSC confirmed receipt of Mr. Domenech's disclosure, and on March 9, 2006, the OSC informed Mr. Domenech that it would take no further action as OIG was investigating the allegations. When Mr. Truscott learned of the anonymous complaint, he immediately approached Mr. Domenech and told him that he was relieving himself of all financial responsibility, which would now fall on Mr. Domenech. Mr. Truscott conducted no further one-on-one meetings with Mr. Domenech, did not participate in any budget or staff meetings, and completely disengaged from his responsibilities. This left Mr. Domenech with a significant burden because he had to carry on both his responsibilities and Mr. Truscott's responsibilities. Mr. Domenech suddenly became solely responsible for keeping the agency afloat. He immediately initiated a hiring freeze and made drastic cuts to the new headquarters expenses. Mr. Domenech instituted cuts that were easily in excess of $20 million to prevent the agency from violating the Anti-Deficiency Act. In or around February 2006, while the OIG investigation was underway, Mr. Domenech met with Bill Mercer, then Principal Associate Deputy Attorney General, to convey his concerns about the allegations that had been submitted and the OIG investigation. Mr. Domenech was also seriously concerned that Mr. Truscott had abandoned his job responsibilities to deflect blame away from himself and to scapegoat Mr. Domenech for ATF's serious mismanagement issues. Mr. Mercer was dismissive of Mr. Domenech's concerns and equally dismissive of the complaint that had been filed, expressing his belief, and that of the DAG office, that the complaint was motivated by "disgruntled career staff." He also indicated that he did not see "anything of substance" in the complaint and expressed his disappointment that the allegations and newspaper articles had questioned the cost of ATF's new headquarters building. Mr. Domenech left the meeting believing that he had committed career suicide. During the OIG investigation, Mr. Domenech was instrumental in providing information and documentation to Jonathan Martz, the investigative lead. Mr. Domenech also instructed his staff to prepare briefings and put together financial and hiring documents, which supported the allegations. On August 4, 2006, Mr. Truscott resigned from his position as Director of ATF. Press coverage reported Mr. Truscott's resignation amidst the controversy surrounding the OIG investigation into excessive spending and ethical violations. In particular, the Washington Post highlighted that the new headquarters building was $19 million dollars over budget, with "nearly $300,000 in extras for the new director's suite, including a $65,000 conference table and more than $100,000 for hardwood floors, and other items."1 The Post also reported that Mr. Truscott was being investigated for taking unnecessarily costly trips and for misuse of ATF employees to assist his nephew in assembling a high school video project.2 Following Mr. Truscott's resignation, Mr. Domenech became Acting Director until the new director was appointed. At around the end of August, Mr. Martz requested that Mr. Domenech review a draft of the OIG report and give comments, especially since his name appeared so prominently throughout the report. Mr. Martz informed Mr. Domenech that his name would appear in the report because he was the highest level official under Mr. Truscott and because he had supplied much of the information about Mr. Truscott's activities and misconduct. In September, then Attorney General Gonzales appointed Michael J. Sullivan as Acting Director of ATF. Upon Mr. Sullivan's arrival, Mr. Domenech advised him of the OIG investigation and told him that he was one of the officials that had gone forward to the OSC and OIG regarding former Director Truscott. Mr. Domenech wanted to be transparent about his role as he was fearful of the effect it would have on his career, especially once the OIG report became public. Subsequently, the OIG asked Mr. Domenech to give Mr. Sullivan a copy of the OIG report before it was released, which Mr. Domenech did. Mr. [-- omitted for legal reasons --] also approached Mr. Sullivan to inform him that he had participated in the initial complaint and investigation as well. In October of 2006, OIG released its 149 page report substantiating Mr. Domenech's allegations and finding examples of poor fiscal management beyond those raised in the complaint. Specifically, the report found that Mr. Truscott made poor financial decisions that would have had more devastating effects on ATF had his executive staff (Mr. Domenech and others) not reversed them. Additionally, the report found that Mr. Truscott acted improperly and engaged in ethical violations by directing or authorizing ATF employees to assist his nephew in making a video for a high school project. The OIG report highlighted that throughout the investigation, Mr. Truscott attempted to deflect responsibility to his subordinates, misrepresent his actions, or distance himself from his own decisions.3 Despite these findings, as a result of Mr. Truscott's resignation, he was not disciplined for his fiscal irresponsibility and ethical violations. The report named Mr. Domenech as someone who had expressed concerns about Mr. Truscott and had supplied substantial information in the OIG investigation. Though several people who supplied information were identified by position, Mr. Domenech was the only ATF employee to be specifically named in the report. Indeed, Mr. Domenech's name appeared in the report 209 times. In October 2006, Mr. Sullivan signed off on Mr. Domenech's appraisal with a ranking of Outstanding in all categories. Mr. Domenech believed that everything was proceeding smoothly under Mr. Sullivan, and he resumed functioning in his position as Deputy Director. It soon became apparent, however, that everything was not going to run smoothly for Mr. Domenech and that he was not going to be allowed to simply perform his job. Most significantly, Mr. Sullivan eliminated all of Mr. Domenech's contact with the DAG office, which eliminated a substantial part of his day-to-day activities as he was previously in regular contact with the DAG office about policy matters. The same was true for Mr. [-- omitted for legal reasons --], even though a substantial portion of his job duties also related to communicating with the DAG office directly. Mr. Domenech, wondering what had happened to his job responsibilities and sensing that something was amiss, approached Mr. Sullivan several times to ask if there was anything he should change or do differently, to which Mr. Sullivan consistently responded, "Absolutely not, you are an outstanding employee." Mr. Domenech was surprised that he was no longer able to communicate with the office of the Deputy Attorney General regarding routine matter concerning the DAG office. This direction interfered with his ability to perform his job. Mr. Domenech suspected that the DAG office requested that Mr. Sullivan forbid such contact because they knew that he was at least partially responsible for the filing of the complaint since the allegations mirrored the concerns he raised initially with the DAG office - before the filing of the complaint - and his name appeared so prominently in the report. Despite these early indications, however, it came as a complete surprise when, on January 17, 2007, Mr. Sullivan walked into Mr. Domenech's office and advised him that he wanted to "go in a different direction" and that Mr. Domenech "couldn't take [him] there." Mr. Sullivan then informed Mr. Domenech that he would be removing him from his position as Deputy Director. When Mr. Domenech inquired about where he would be reassigned, Mr. Sullivan informed him that he could not stay in headquarters as executive staff and that his "only option" was to take a Special Agent in Charge position ("SAC"). Mr. Domenech immediately informed Mr. Sullivan that this action was in retaliation for his complaint to the OSC and OIG regarding Mr. Truscott, especially given that this action was a three level demotion. Mr. Domenech also said that he was sure that this action was at the direction of the DAG office who wanted him removed because of his complaint. Mr. Sullivan denied that the Attorney General Gonzales or Deputy Attorney General McNulty had anything to do with Mr. Domenech's reassignment and stated that he was the sole individual responsible for this action. Mr. Domenech then inquired, since Mr. Sullivan claimed to have sole discretion over his reassignment, about the opportunity to try to "move in the direction" that Mr. Sullivan had indicated he wanted to go. Mr. Sullivan refused to engage in this discussion and reiterated that Mr. Domenech could no longer serve on the executive staff and that therefore his only option was to take a SAC reassignment. He then gave Mr. Domenech a week to consider which field office he would join. Also on January 18, 2007, Mr. Sullivan met with Mr. [-- omitted for legal reasons --] to tell him that, even though he was an outstanding employee, he did not possess Mr. Sullivan's "vision" and was being reassigned from his position as Assistant Director of Field Operations. Mr. [-- omitted for legal reasons --], who had served ATF for 20 years and was eligible for retirement at the end of 2007, refused to take a field position. Accordingly, Mr. Sullivan then created a "Special Assistant to the Director" position to allow Mr. [-- omitted for legal reasons --] to work for the balance of his tenure with ATF. The fact that Mr. [-- omitted for legal reasons --] and Mr. Domenech, who had both initially raised concerns to the DAG office before filing the complaint, were reassigned to lower-level positions further confirmed that this action was at the behest of the DAG office in retaliation for their protected activity in raising concerns about Mr. Truscott's gross mismanagement and abuse of office. On January 19, 2007 Mr. Domenech met with Mr. Sullivan's Chief of Staff, Brian Benczkowski, who informed him that Mr. Sullivan appreciated Mr. Domenech's professionalism and had no intention of hurting Mr. Domenech or his family. Mr. Domenech respectfully disagreed and responded that the demotion was clearly retaliatory. On January 22, 2007, per Mr. Sullivan's orders, Mr. Domenech submitted his 3 SAC choices; Washington, D.C., Philadelphia, or NY. Mr. Sullivan subsequently advised him that he would be reassigned to the Washington Field Office with an effective date of February 19, 2007. During the time between Mr. Domenech's reassignment on January 22, 2007 and his start date in his new position on February 19, 2007, Mr. Sullivan repeated on multiple occasions during executive staff meetings that Mr. Domenech's and Mr. [-- omitted for legal reasons --]'s reassignments were not related to the OIG report. He reiterated that both of them were outstanding in their performance, but that Mr. Sullivan wanted to "give others the opportunity to serve." As you are aware, this rationale comports with the rational that the DAG used to fire the eight U.S. Attorneys at around the same time and rang as shallow and pretextual.4 On February 7, 2007, the Associated Press printed an article about ATF's replacement of Mr. Domenech and Mr. [-- omitted for legal reasons --], noting that ATF "would not comment on whether Domenech and [-- omitted for legal reasons --] were transferred as the result of mismanagement allegations and questionable spending decisions that led to the departure . . . of Carl J. Truscott." On February 8, 2007, in response to this article, Mr. Sullivan addressed the executive staff and asserted that the article misrepresented Mr. Domenech and Mr. [-- omitted for legal reasons --]'s reassignments. He reiterated that the reassignments were not a response to the OIG investigation or the removal of Mr. Truscott. Mr. Sullivan further stated that Mr. [-- omitted for legal reasons --] and Mr. Domenech "had done an outstanding job during difficult period with challenges and no one should imply [the reassignments] had anything to do with prior acts." Though Mr. Sullivan presented that message, there is no other reason why Mr. Domenech would be removed from his executive position and demoted three levels down to a field office position similar to the one he was promoted to almost 9 years ago. Mr. Sullivan's repeated insistence that the demotion had "nothing to do" with the OIG investigation only emphasized to Mr. Domenech that there was no other reason, and certainly no performance-based reason, for such an adverse employment action. In May 2007, Mr. Domenech learned that Mr. Truscott was being invited to ATF's annual memorial service. He contacted both Chief of Staff Benczkowski and his replacement, Deputy Director Carter, who stated that they did not think Mr. Truscott would attend, that it was a mistake to invite him, and that they would know how to handle such invitations in the future. Mr. Domenech emphasized that Mr. Truscott's presence would send a terrible message to the rest of the staff about ATF condoning his behavior while in office. He also stated that it was particularly insulting and insensitive to those who had complained about Mr. Truscott's behavior to invite him to this event. Ignoring Mr. Truscott's serious misconduct, Mr. Sullivan invited Mr. Truscott to ATF's annual award ceremony on August 23, 2007. Remarkably, during the ceremony and in front of over 600 ATF employees, Mr. Sullivan thanked Mr. Truscott for "his leadership" to the agency during his tenure, overlooking the fact that the OIG found Mr. Truscott had engaged in grievous wrongdoing. By his statements and public acknowledgement of Mr. Truscott, he once again appeared to disregard the OIG report and disrespect the courage of those who had come forward for the benefit of ATF at a grave, and in Mr. Domenech's case, realized, risk to their careers. One of the duties of the SACs is to fill in for Deputy Assistant Directors when they were on leave or on assignments. SACs rotate through this responsibility, but it is well-known that the SAC for the Washington Field Division is often asked to fill in because he is the local field office and it saves the Bureau the expense of temporarily relocating someone from a different division. Since his demotion to SAC of the Washington Field Division, however, ATF has not asked Mr. Domenech to fill in for Deputy Assistant Directors despite a need on a half dozen occasions. Instead, at more cost to the Bureau, Mr. Sullivan brought in SACs from other field divisions. This effort to keep Mr. Domenech out of headquarters altogether, at an increased expense to ATF, diminished from Mr. Domenech's job duties, sent a clear message that he was not wanted at headquarters under any circumstances, and sent a chilling message to other employees not to report misconduct if they wanted to keep their jobs. On October 15, 2007, Deputy Assistant Director Virginia O'Brien gave Mr. Domenech his annual performance appraisal, rating Mr. Domenech with an overall rating of 3/4 out of 5. This rating was significantly lower than any performance appraisal he had received during his previous 5 years, including in 2005 when he was awarded the prestigious Presidential Rank award. Mr. Domenech questioned Ms. O'Brien about the performance rating. Ms. O'Brien replied that the rating was based on Mr. Domenech's 6 months in the SAC position, since she could not rate his previous 6 months as Deputy Director and, as such, he could not receive "Outstanding" marks for his performance. This attempt to explain a poor evaluation did not satisfy Mr. Domenech for several reasons: ATF performance appraisals evaluate performance in a position, not time in a position; he had successfully performed the same job functions before when he was the SAC of the New York Field Division; and he had exceeded performance measures put in place by headquarters. He explained this to Ms. O'Brien and stated that he was being punished for being reassigned to a lower position at mid-year. Mr. Domenech then met with Assistant Director William Hoover that same afternoon, who questioned Mr. Domenech's concerns and stated that he did not understand why he was upset. Mr. Domenech again asked how his performance level could have dropped to a 3/4 rating when his level of responsibility had dropped and he had exceeded all measures. At Mr. Domenech's insistence, Mr. Hoover agreed to re-read the evaluation. Mr. Domenech also informed him that, because there seemed to be some inconsistencies with determining performance ratings, he would address the issue with Deputy Director Carter and with Mr. Sullivan since they had both approved this depressed and uncharacteristic rating, in what seemed to be an attempt to further retaliate against him. Later that day Mr. Carter explained that he had discussed Mr. Domenech's performance appraisal with Mr. Sullivan and that the lower marks "were a mistake," not retaliation. Mr. Carter had no more information about the faulty process used in determining his evaluation. Mr. Carter subsequently changed the overall rating to "Outstanding." Mr. Hoover then apologized to Mr. Domenech for the "oversight," and acknowledged that Mr. Domenech did indeed deserve a rating of "Outstanding." When Mr. Domenech asked Mr. Hoover why Mr. Sullivan had not picked up on this obvious mistake when he discussed the evaluation with Deputy Director Carter, Mr. Hoover had no response. Though Mr. Domenech's performance appraisal was changed to "Outstanding," in December 2007, Mr. Carter told him that he would not be given a bonus award for 2007 because bonus decisions were made before his performance evaluation was corrected. He further explained that the decision not to award him a bonus was made pursuant to the old and incorrect performance appraisal. Mr. Domenech was rightly suspicious of this explanation – which is singularly unconvincing -- as the whole performance appraisal debacle was clearly an attempt to both blemish his career and deny him his bonus in further retaliation for reporting Mr. Truscott's misconduct. Furthermore, ATF took the same action against Mr. [-- omitted for legal reasons --]: he was given a low performance review which he contested during the same week in October and succeeded in changing. A week later, Mr. [-- omitted for legal reasons --] was told that he would be getting a bonus, and he subsequently received a $10,000 bonus. Based upon his outstanding performance, Mr. Domenech expected to receive a bonus for Fiscal Year 2007, as he had in past 5 years in the range of $9,000 to $26,000. Given that bonuses are given with the concurrence and at the discretion of the Director, the only conclusion that can be drawn from what has occurred is that Mr. Sullivan deliberately denied Mr. Domenech a bonus in an effort to further retaliate against him. The denial of a bonus indicates that Mr. Domenech went from being in the top 5 percent of SES performers within ATF to dropping below at least 20 of the 45 SES positions currently filled in ATF, something which is not reflected in his performance appraisal and is contrary to his many years of service to ATF. Mr. Sullivan continues to exclude Mr. Domenech from Executive Committee meetings and Working Groups even though other SACs are invited to participate. Additionally, two Assistant Director positions have become open in February 2008, and despite Mr. Domenech's extensive experience and qualifications - and Mr. Sullivan's assertions that his "reassignment" was not performance-related - Mr. Sullivan has not invited Mr. Domenech to interview for these positions. ATF's actions have caused untold damage to Mr. Domenech's professional reputation and serious emotional distress. Legal Analysis Through the foregoing actions, ATF has violated the Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2302 et seq. The WPA makes it a "prohibited personnel practice" to take or threaten to take a personnel action against an employee "because of any disclosure of information . . . which the employee reasonably believes evidences . . . a violation of law, rule or regulation or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety." 5 U.S.C. § 2302(b)(8). The employee must show that he engaged in protected activity, that a "personnel action" was taken against him, that the individual responsible for the personnel action knew that he had engaged in protected activity, and that the action was taken because of the protected activity. See id. Each one of these elements is satisfied in this case. Mr. Domenech clearly engaged in protected activity by filing a complaint with the OSC and OIG regarding Mr. Truscott's misuse of public funds and misconduct. He also engaged in protected activity by cooperating with the OIG's investigation and disclosing his knowledge of Mr. Truscott's misuse of funds and government resources. This represents a protected disclosure not only under 5 U.S.C. § 2302(b)(8), but also under 5 U.S.C. § 2302(b)(9), which prohibits retaliation against federal employees for "cooperating with or disclosing information to the Inspector General of an agency." Id. Following these disclosures, ATF subjected Mr. Domenech to adverse personnel actions. First, ATF removed some of Mr. Domenech's job responsibilities to prevent him from having any contact with the DAG office. Then, ATF "reassigned" Mr. Domenech to another position, office, and division by removing him from his Deputy Director position, forbidding him from transitioning to another executive level position, and giving him only the option of placement as a Special Agent in Charge of a field division. See 5 U.S.C. § 2302(a)(2)(A)(iv) (defining "a detail, transfer, or reassignment," as an adverse personnel action under the WPA). ATF transferred Mr. Domenech into a position with substantially diminished job duties, authority, and working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xi) (defining a "significant change in duties, responsibilities, or working conditions" as an adverse personnel action under the WPA); Onasch v. Dept. of Transp., 63 M.S.P.R. 158, 163 (1994) (changes in duties and responsibilities, including reduction in number of subordinates, may constitute a prohibited personnel practice, even if job title, pay, and grade have not changed). Mr. Domenech was in an executive level position as a Deputy Director, and ATF demoted him three levels down to a SAC position. While in his SAC position, Mr. Domenech was denied the opportunity to fill in for Deputy Assistant Directors when needed, a historic job function of the Washington Field Division SAC. Additionally, ATF gave Mr. Domenech a depressed performance review, knowing that his performance had been outstanding and consistent with his previous track record as a high performer. lower his performance appraisal score is a covered personnel action under 5 U.S.C. § 2302(a)(2)(A)."). ATF provided Mr. Domenech with a bogus reason as to why his performance appraisal was so low. Then, when Mr. Domenech insisted on being provided with an explanation as to what measures ATF had employed to award him such a low rating, ATF disingenuously stated that it had made a mistake. Even after acknowledging that Mr. Domenech's performance was "Outstanding," it still denied him his yearly bonus with the excuse that his bonus determination was made based on the incorrect performance appraisal. It is beyond dispute that Mr. Sullivan knew of Mr. Domenech's protected activity. Mr. Domenech was very open with him about his involvement in drafting the complaint to OSC and OIG, and he informed Mr. Sullivan of his role when he became Acting Director. Moreover, his name is mentioned hundreds of times in the OIG report as a witness who provided information about Mr. Truscott's misconduct. Furthermore, it is highly unlikely that Mr. Sullivan alone was behind Mr. Domenech's reassignment. The offices of the Attorney General and Deputy Attorney General knew that Mr. Domenech engaged in this protected activity. Mr. Domenech approached Mr. Hertling and Mr. Dhillon in the DAG office in December 2005 and early January 2006 about his concerns; these concerns were mirrored in the anonymous complaint that he and other submitted to the OSC and OIG, his name appeared prominently in the OIG report, and the OIG report substantiated the very concerns and events that he had initially approached the DAG office about. The evidence strongly suggests that the DAG office knew of Mr. Domenech's disclosure and participated in, or instigated, the decision to "reassign" Mr. Domenech. Causal connection is clear in this case. First, an employee can establish an inference of causal connection by showing a close temporal proximity between his protected activity and the adverse personnel actions taken against him. See Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1379 (N.D. Ga. 2004) (close temporal proximity "suggest[s] that protected activity was a contributing factor to the unfavorable personnel action," denying government agency's motion for summary judgment) (Florida WPA); Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. 1995) (same, affirming judgment for plaintiff under whistleblower protection provisions of Energy Reorganization Act); Carney v. American University, 151 F.3d 1090, 1095 (D.C. Cir. 1998). Here, after the release of the OIG report, Mr. Sullivan immediately began removing job duties from Mr. Domenech. Furthermore, Mr. Sullivan informed Mr. Domenech of his demotion and transfer a mere three months after the OIG report became public. Merely "the circumstantial evidence of knowledge of the protected disclosure and a reasonable relationship between the time of the protected disclosure and the time of the personnel action will establish, prima facie, that the disclosure was a contributing factor to the personnel action." Kewley v. Department of Health and Human Services, 153 F.3d 1357, 1362 (Fed. Cir. 1998) (citing Horton v. Department of the Navy, 66 F.3d 279 (Fed. Cir. 1995); 5 U.S.C. § 1221(e)(2)). This close temporal proximity, without anything more, shifts the burden to ATF to demonstrate, by a "clear and convincing evidence" standard, that it would have taken the same personnel action even in the absence of the protected activity. See Kewley, 153 F.3d at 1364 (Fed. Cir. 1998) (citing Horton, 66 F.3d at 284).5 Additionally, the highly pretextual nature of ATF's reassignment of Mr. Domenech lends tremendous further support to his charge of retaliation. See Quinn v. West, 140 F. Supp. 2d 725, 734 (W.D. Tex. 2001) (WPA plaintiff can prevail by demonstrating that the purported reasons for adverse personnel actions are false or not worthy of credence) (denying government agency's motion for summary judgment); Mongird v. Department of Navy, 33 M.S.P.R. 504, 507 (1987) (vacating judgment due to judge's failure to permit evidence that personnel action was pretext for retaliation); Special Counsel v. Department of Housing and Urban Development, 9 M.S.P.R. 569, 570 (1982). Mr. Sullivan gave no reason for the reassignment other than wanting to "go in a different direction." Curiously, this was also the same type of reason he gave for reassigning Mr. [-- omitted for legal reasons --], who had participated in submitting the OSC/OIG complaint. Mr. Sullivan has a clear pattern of reassigning those who participated in the complaint against Mr. Truscott. Though he stated that the reason for Mr. Domenech's reassignment was to allow other employees an "opportunity to serve," he only "reassigned" executive staff members who were instrumental in filing the complaint. Finally, ATF's justifications for Mr. Domenech's low performance appraisal and subsequent denial of his bonus are similarly pretextual. First, ATF gave Mr. Domenech a low performance appraisal for no apparent reason. When Mr. Domenech inquired about the standards for determining such low performance, ATF told him that the performance was based upon his length of time in the position. This has never been the standard for performance appraisals, and Mr. Domenech questioned the reasoning behind this excuse, especially given that he had successfully performed the same job duties when he was a SAC from 1999-2003. After a series of flimsy excuses and explanations and after Mr. Domenech expressed that he was being further retaliated against, ATF changed its tune and informed Mr. Domenech that it had made a mistake and would change his performance review, which had been approved by Mr. Sullivan, to the "Outstanding" mark that he deserved. The fact that ATF changed its story adds to Mr. Domenech's showing of pretext. See Abramson v. William Paterson College of N.J., 260 F.3d 265, 284 (3d Cir. 2001) (inconsistencies in or changes to employer's justification can be used by plaintiff to show pretext); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (same); Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334, 1344 (D.C. Cir. 1995) (shifting explanations for employer's decision is evidence of pretext and therefore of discrimination). Furthermore, ATF denied Mr. Domenech his earned bonus, claiming that the bonus determination had been made during the regular time period for bonus determinations when they relied on the old incorrect performance review. This reason is clearly pretextual and a further effort to drive Mr. Domenech out of his job. Conclusion We request that OSC investigate this matter and order appropriate relief to remedy ATF's unlawful decisions to demote Mr. Domenech, depress his performance reviews, deny him his 2007 bonus, and restrict his job duties in retaliation for his OSC and OIG disclosure regarding Mr. Truscott's mismanagement, waste of funds, and abuse of authority.