OFFICE OF 

INSPECTOR GENERAL 

U.S.DEPARTMENT OFTHE INTERIOR 

INVESTIGATION 

Alleged Reprisal by 

USGS Director 

This is a revised version of the report prepared for public release. 

Report Number: 19-0360 Date Posted on Web: October 29, 2020 
 

 

 

 

 

 

 

 

 

 

 

 

 

I. EXECUTIVE SUMMARY

We investigated an allegation that U.S. Geological Survey (USGS) Director James Reilly 

retaliated against a USGS whistleblower after the employee filed a complaint with our office 

about Reilly’s conduct. We substantiated the allegation. 

We presented our findings to relevant U.S. Department of the Interior (DOI) officials. At the 

DOI’s request, we then engaged with the DOI Employment and Labor Law Unit on a variety of 

factual and legal issues. We resolved a number of those issues and reissued our report to the 

DOI, incorporating additional facts and legal analysis as warranted. The following summarizes 

the findings presented in our full report, which was provided to the Secretary of the Interior for 

any action deemed appropriate. 

II. HOW WE ANALYZED THE EVIDENCE

The Whistleblower Protection Act (WPA) prohibits reprisal against Federal employees for 

exercising any appeal, complaint, or grievance right granted by law, rule, or regulation. The 

WPA specifically protects employees who cooperate with or disclose information to an Office of 

Inspector General (OIG) or other component that is responsible for internal investigation or 

review of an agency. 

We applied the WPA’s burden-shifting framework to our analysis of the whistleblower reprisal 

allegations against Reilly. Under this framework, the complainant must first meet four elements 

to establish a prima facie case of reprisal by a preponderance of the evidence; that is, the 

complainant must show that each element is more likely than not true. Specifically, the 

complainant must show that: 

1. They engaged in protected activity

2. The responsible management official knew about the protected activity

3. A personnel action was taken, threatened, or not taken after the protected activity

4. The protected activity was a contributing factor in the personnel action taken, threatened,

or not taken

If the complainant meets these four elements, the burden shifts to the agency to prove by clear 

and convincing evidence that it would have taken the same personnel action even if the protected 

activity had not occurred. Factors that are considered in this analysis include: 

1. The strength of the agency’s evidence in support of its action

2. The existence and strength of any motive to retaliate on the part of agency officials

involved in the decision

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3. Any evidence that the agency takes similar actions against similarly situated employees 

who are not whistleblowers 

Our findings based on these standards are discussed below. 

III. THE COMPLAINANT MET THE FOUR ELEMENTS FOR 

ESTABLISHING A PRIMA FACIE REPRISAL CASE 

A. Elements 1 and 2: Reilly Knew the Complainant Filed an OIG Complaint Against Him 

As we stated above, to establish a prima facie case of whistleblower reprisal under the WPA, the 

complainant must show, in part, that they engaged in a protected activity and that the 

management official who took the personnel action knew about the protected activity at the time 

of the decision. 

In this case, the complainant filed a complaint with us about Reilly’s alleged retaliation against 

the complainant, and Reilly learned soon afterward that the complainant had done so. Therefore, 

a preponderance of the evidence established that the complainant satisfied the first two elements 

of the analysis. 

B. Element 3: The Complainant Was Reassigned to a Different Position 

The third element of the prima facie analysis requires the complainant to show that the 

responsible management official took or failed to take, or threatened to take or fail to take, a 

personnel action against them. A personnel action can include a detail, transfer, or reassignment, 

or any significant change in duties, responsibilities, or working conditions. 

We concluded that Reilly caused USGS employees to reassign the complainant to a different 

position, as reflected in a Notification of Personnel Action (Standard Form 50). This position had 

different responsibilities and working conditions. The complainant did not request this 

reassignment, and no one discussed it with the complainant. Although the position was the same 

series, grade, and pay as the previous position, we concluded that this reassignment qualified as a 

personnel action under the WPA. The complainant therefore satisfied the third element of the 

analysis. 

C. Element 4: The OIG Complaint Was a Contributing Factor in Reilly’s Decision to 

Reassign the Complainant 

As part of a prima facie case of reprisal, the complainant must also establish that the protected 

activity was a contributing factor in the responsible management official’s decision to take the 

personnel action. Evidence of a contributing factor may be established through the so-called 

knowledge/timing test, which focuses on the timing between the protected activity and the action 

taken, on the one hand, and the responsible management official’s knowledge of the protected 

activity, on the other. 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The knowledge/timing test can be satisfied if the personnel action took place less than 2 years 

after the protected activity. In this case, less than a year passed between the time that Reilly 

learned of the complaint to us and the subsequent reassignment of the complainant. Therefore, 

the complainant satisfied the knowledge/timing test and the fourth element of the analysis. In 

addition, Reilly’s own comments, which are discussed below, provided sufficient evidence that 

the complaint to our office was a contributing factor in the personnel action at issue. 

IV. THE DOI DID NOT MEET ITS BURDEN OF ESTABLISHING BY 

CLEAR AND CONVINCING EVIDENCE THAT THE 

REASSIGNMENT WOULD HAVE OCCURRED ABSENT THE 

COMPLAINANT’S PROTECTED ACTIVITY 

As we stated in Section II, if the complainant satisfies the elements for a prima facie reprisal 

case, the agency must provide clear and convincing evidence that it would have taken the 

personnel action even absent the protected activity. In determining whether the agency met its 

burden here, we considered factors articulated by the Federal courts and discussed below. After 

considering all pertinent evidence in light of these factors, we concluded that the agency did not 

meet its burden. 

A. Factor 1: Strength of the Agency’s Evidence in Support of Its Action 

Reilly offered various reasons for the complainant’s reassignment, but the evidence provided did 

not meet the clear and convincing evidence standard. 

Reilly told us in an interview that one reason for the reassignment was the complainant’s 

inability to get along with another staff member. In interviews, however, this staff member 

acknowledged some tensions during a particular period but also described a generally cordial 

working relationship with the complainant. Moreover, the staff member attributed the 

complainant’s reassignment primarily to Reilly’s distrust of the complainant. The staff member 

could not identify a particular reason for this distrust except that Reilly “wouldn’t trust those that 

had complaints on him.” A witness also told us that Reilly had described the complainant as 

“evil” without explaining why he believed this, and Reilly ultimately acknowledged that he said 

in front of others that the complainant had an “evil streak,” or words to that effect, which he 

admitted “was a very poor choice of words.” 

In addition, Reilly asserted that the complainant was a “negative influence” in their office. He 

named two USGS staff members who, he said, corroborated his assertions about the 

complainant’s conduct. Although these staff members expressed the belief that the complainant’s 

supervisor unduly favored the complainant, they did not state that the complainant’s own 

conduct disrupted the workplace, and we found no evidence that any concerns by these 

employees prompted the reassignment. Two other employees we interviewed described the 

complainant as “friendly” and “professional,” respectively. 

Reilly also told us that he preferred to address employee issues directly but acknowledged that he 

never spoke with the complainant about his concerns or asked anyone else to do so. This 

undermines Reilly’s contention that the complainant’s workplace conduct was the motivation for 

3 
 

 

 

 

 

 

 

 

 

 

 

 

the reassignment. Moreover, a review of the complainant’s personnel files revealed no history of 

conduct or performance issues. In fact, the complainant consistently received high performance 

ratings. 

Other explanations offered by the agency—for example, that the complainant’s position had 

been filled or that the complainant had requested the reassignment—were not supported by the 

evidence. 

B. Factor 2: Motive To Retaliate by Agency Official Involved in the Decision 

In determining whether a deciding official had a motive to retaliate, case law permits 

consideration of any motive to retaliate on the part of the agency official who ordered the action. 

Relevant factors in assessing motive include whether the deciding official was the subject of the 

whistleblower complaint, whether the complaint reflected poorly on the deciding official, and 

whether the deciding official had knowledge of the complaint. 

Reilly’s motive to retaliate was particularly strong. Reilly was the Director of the USGS, he was 

the subject of the complainant’s complaint, and he knew about the complaint. Reilly also 

expressed displeasure about the fact that the complaint had been filed. During his interview, 

Reilly was asked about any issues he had with the complainant. He answered, “Well, there’s one 

very large one that’s sitting in this room. It’s this investigation, to be perfectly honest.” 

One witness described a meeting in which Reilly said that the complainant had “weaponized the 

IG process” against him, and the witness’ contemporaneous notes corroborate that statement. 

This witness also recalled Reilly asking whether certain actions could be taken against the 

complainant, such as giving the complainant assignments or deadlines that could not be met so 

the complainant could be fired, or transferring the complainant to an office that was farther 

away. 

USGS personnel also confirmed that Reilly asked whether employees had filed complaints 

against him with the Equal Employment Opportunity Commission, the Office of Special 

Counsel, our office, or Congress. The USGS personnel said Reilly wanted to know of anyone 

filing such complaints so that he could “move them.” 

Reilly acknowledged that he “probably did” ask about employees filing complaints, although he 

told us he did so because he wanted to address employee problems directly rather than have the 

employees go to our office. Moreover, while Reilly said he did not specifically recall stating that 

the complainant had “weaponized the IG process,” he told us that “there is an element of filing 

complaints where it’s a death by 1,000 cuts.” Reilly stated, “I would have made the comment to 

the fact that it can be weaponized . . . and that when it’s weaponized, there’s no consequence.” 

This evidence, taken together, including Reilly’s own statements, strongly indicates that he had a 

motive to retaliate against the complainant. 

4 
 

 

 

 

 

 

 

 

 

C. Factor 3: Evidence the Agency Takes Similar Actions Against Similarly Situated 

Employees Who Are Not Whistleblowers 

We neither found nor were provided with evidence that there were other “similarly situated” 

employees, that is, employees who were not whistleblowers who were involuntarily reassigned. 

A USGS staff member gave us a list of employees who had been reassigned during Reilly’s time 

at the USGS, but the staff member was not able to provide comparators because, as the staff 

member explained, the USGS does not track whether management-directed reassignments are 

voluntary or involuntary. 

Although the DOI eventually asserted that one employee was “similarly situated,” this employee 

requested to be reassigned, and thus we determined that this person was not comparable to the 

complainant. 

V. CONCLUSION 

Based on all the evidence, we concluded that (1) the complainant met the elements needed to 

establish a prima facie reprisal case against Reilly and (2) the agency did not meet its burden of 

establishing by clear and convincing evidence that it would have reassigned the complainant to a 

different position even if the complainant had not engaged in a protected activity. We came to 

these conclusions after analyzing the factors discussed above and considering all the evidence in 

the aggregate. While the DOI provided some evidence of other motivations that may have played 

a role in its personnel decision, it failed to disentangle those motivations from the evidence of 

impermissible, retaliatory motive found during our investigation. 

We therefore substantiated the allegation of reprisal under the WPA. We have submitted our full 

report of this investigation to the Secretary of the Interior for any action deemed appropriate. 

5 
Report Fraud, Waste,

and Mismanagement

Fraud, waste, and mismanagement in

Government concern everyone: Office 

of Inspector General staff, departmental 

employees, and the general public. We 

actively solicit allegations of any 

inefficient and wasteful practices, fraud, 

and mismanagement related to 

departmental or Insular Area programs 

and operations. You can report 

allegations to us in several ways.

 By Internet: www.doioig.gov

 By Phone: 24-Hour Toll Free: 800-424-5081

Washington Metro Area: 202-208-5300

 By Fax: 703-487-5402

 By Mail: U.S. Department of the Interior

Office of Inspector General

Mail Stop 4428 MIB

1849 C Street, NW.

Washington, DC 20240