In the Matter of:
ROBERT E. TYNDALL,                      CASE NOS. 93-CAA-6  
                                                  95-CAA-5
          COMPLAINANT,
                                        DATE:   June 14, 1996
     v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

          RESPONDENT.



BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1] 
          
          
                         DECISION AND REMAND ORDER
     These consolidated cases arise under the employee protection
provision of the Clean Air Act (CAA), 42 U.S.C. § 7622
(1988).  In the first case, No. 93-CAA-6, the Administrative Law
Judge (ALJ) recommended dismissal of the complaint for failure to
state a claim under the CAA.[2]   A different ALJ found that the
second case, No. 95-CAA-5, concerns an alleged continuation of
the same discriminatory acts that were the subject of the first
complaint.  The ALJ recommended dismissing the second complaint
while the first complaint was pending before the Secretary.[3]  
We disagree with the ALJs' recommendations and remand the cases
for further proceedings, including a hearing.
                            FACTUAL BACKGROUND
     Complainant, Robert E. Tyndall, was employed as a special
agent in the Procurement Fraud Division of the Office of the
Inspector General (OIG) of Respondent, the United States
Environmental Protection Agency (EPA).[4]   Tyndall was assigned
to conduct an investigation of EPA employee Rickie A. Linthurst,
who awarded a contract to Kilkelly Environmental Associates
(Kilkelly) to provide computer modeling for, and study, the
environmental effects of acid rain ("the acid rain contract"). 
Tyndall discovered improprieties in the awarding and
administration of the acid rain contract, including the fact that
Linthurst's live-in companion was Kilkelly's project officer on 
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the acid rain contract.  Tyndall also contends that the acid rain
contract was "wired" to Kilkelly, which had a long history of
doing the same type of study for coal-burning utilities that
opposed legislation to reduce acid rain.
     Tyndall alleges that he engaged in protected activities
under the CAA by reporting official misconduct and alleged
wrongful interference by OIG management in the Linthurst
investigation, and by filing his first CAA complaint.  Tyndall
further alleges that the EPA's continued retaliatory acts
constitute a hostile work environment.  He contends that the EPA
retaliated by subjecting him to threats, intimidation,
harassment, physical assaults, involuntary transfer, and the
withholding of earned overtime pay and reimbursement for travel
expenses.  He seeks back pay, pension enhancements, compensatory
damages, costs, attorney fees, and an order requiring the EPA to
take affirmative action to cease discriminating against
whistleblowers.
                                DISCUSSION
     The ALJ dismissed the first complaint because the
allegations "are not related to environmental safety or
violations of the CAA" and afforded no basis for relief.  R.O. I
at 2.  Such a dismissal is analogous to one under Fed. R. Civ. P.
12(6)(b) for failure to state a claim upon which relief may be
granted.  In considering dismissal for failure to state a claim,
"all reasonable inferences are made in favor of the non-moving
party . . . .  Studer v. Flowers Baking Co. of Tennessee,
Inc., Case No. 93-CAA-00011, Dec. and Remand Ord., June 19,
1995, slip op. at 2; Helmstetter v. Pacific Gas & Elec.
Co., Case No. 91-TSC-1, Dec. and Rem. Ord., Jan. 13, 1993,
slip op. at 4; Estelle v. Gamble, 429 U.S. 97 (1976). 
Dismissal should be denied "unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief."  Gillespie v.
Civiletti, 629 F.2d 637, 640 (9th Cir. 1980); accord,
Helmstetter, slip op. at 4.  If the alleged facts could state
a prima facie case under the CAA's employee protection
provision, dismissal is not proper.  Studer, slip op. at
5; Bassett v. Niagara Mohawk Power Co., Case No. 86-ERA-2,
Sec. Remand Ord., July 9, 1986, slip op. at 8.
     The CAA's employee protection provision provides in relevant
part:
     No employer may discharge any employee or otherwise
     discriminate against any employee with respect to his
     compensation, terms, conditions, or privileges of
     employment because the employee. . .
          (1) commenced, caused to be commenced, or is
          about  to commence a proceeding under this
          chapter. . .

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                                      * * *
          (3) assisted or participate or is about to
          assist or participate in any manner in such a
          proceeding or in any other action to carry
          out the purposes of this chapter.

42 U.S.C. § 7622(a).  To establish a prima facie case
of a violation of the CAA's employee protection provision, a
complainant must show that he engaged in protected activity of
which the respondent was aware, and must raise the inference that
the protected activity was the likely reason for the respondent's
adverse actions against him.  Crosby slip op. at 21;
see also Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 8 (under analogous
provision of Energy Reorganization Act). 
     Tyndall alleges in his first complaint that his EPA
superiors directed him to "disregard certain evidence" and to
conduct the investigation of Linthurst in a manner that he
believed "was unethical and would distort the facts, thereby
denying the proper execution of justice."  Mar. 3, 1993 Complaint
at 2.  He also complains that after he sent a memorandum to the
EPA's Inspector General criticizing the interference in the
investigation and recusing himself from it, the EPA disregarded
his recusal and forced him to lead the investigation.  Id.
At 3. 
     The ALJ found that these allegations do not state a claim
for relief under the CAA because they "are not related to
environmental safety or violations of the CAA."  R. O. I at 2. 
The Secretary has held that an employee's complaint must be
"grounded in conditions constituting reasonably perceived
violations" of environmental acts, such as the CAA. 
Crosby, slip op. at 26; Johnson v. Old Dominion
Security, Case Nos. 86-CAA-3 et seq., Final Dec. And Order,
May 29, 1991, slip op. at 15.
     We find the Secretary's decision in Jenkins v. U.S.
Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec.
And Ord., May 18, 1994, instructive concerning the breadth of
activities protected under the CAA.  In Jenkins, slip op.
at 12, the complainant's protected activities included, inter
alia, complaining to Congress about conflicts of interest and
contract tampering at the EPA.  Jenkins also charged EPA OIG with
failure to investigate and concealing evidence of contractor
improprieties.  Id.
      Here, Tyndall made internal complaints to EPA managers
about the same types of improprieties that Jenkins raised.  It is
not a valid distinction that Tyndall complained within the EPA
and not to some external entity such as the Congress, because
internal complaints to managers are protected under the CAA. 
See Crosby, slip op. at 24-25, and cases cited there.

[PAGE 4]
     The Secretary has stated that the CAA's employee protection
provision "afford[s] protection for participation in activity in
furtherance of the statutory objectives and traditionally [has]
been construed broadly," Jenkins, slip op. at 10, and we
find that Tyndall's allegations of protected activities meet that
broad construction.  At a hearing, Tyndall could establish that
his managers' interference in the Linthurst investigation would
lead the EPA to rely upon acid rain studies that understate the
harmful effects of acid rain.  He may also show that the EPA's
reliance on those studies could lead to regulate less stringent
regulation of the air emissions that cause acid rain.  Therefore,
since it is possible that Tyndall's complaints about interference
were in furtherance of the statutory objectives of the CAA, they
may constitute protected activities.  See, e.g., Marcus v.
U.S. Environmental Protection Agency, Case No. 92-TSC-5, Sec.
Dec. and Ord., Feb. 7, 1994, slip op. at 7 (EPA employee's
memorandum criticizing a draft report concerning toxicology and
carcinogenesis studies that might be used in regulating fluoride
levels constituted protected activity under CAA, among other
environmental statutes).
     Turning to the remaining elements of a prima facie
case, Tyndall clearly alleged that the EPA was aware of his
complaints to his managers.  See Complaint at 3: copies of
Tyndall's confidential memorandum complaining about the Linthurst
investigation were made available to the OIG managers about whom
Tyndall complained.
     Tyndall also complained that the EPA took actions that
adversely affected the compensation, terms, and conditions of his
employment.  See Complaint at 4-6:  alleging that the EPA
directed Tyndall's reassignment to a different office, did not
provide him advance money to travel to his new assignment, did
not provide a properly signed performance appraisal for fiscal
year 1991, subjected him to an unprecedented "quarterly
performance review," and did not pay certain earned overtime pay.

     Temporal proximity between a complainant's protected
activities and a respondent's adverse actions may be sufficient
to raise the inference that the adverse actions were taken in
retaliation for the protected activities.  Couty v. Dole,
886 F.2d 147, 148 (8th Cir. 1989).  Tyndall alleged that he
was assigned the Linthurst investigation in October 1991 and
complained about it to the Inspector General in a December 1991
memorandum.  He contends that in retaliation, the EPA gave him a
punitive quarterly performance review in February 1992, directed
his reassignment in August 1992, failed to provide a travel
advance in November 1992, and did not pay him overtime for the
fourth quarter of FY 1992 (June - August).  He therefore alleged 
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adverse actions that occurred between two and eleven months after
his protected activity.  We find that the temporal proximity
alleged here is sufficient to raise an inference of causation and
therefore to establish a prima facie case.  Thomas v.
Arizona Public Svc. Co., Case No. 89-ERA-19, Sec. Final Dec.
and Ord., Sept. 17, 1993, slip op. at 19 (elapse of one year
between protected activities and adverse actions sufficient to
infer causation) and Goldstein v. Ebasco Constructors, Inc.,
Case No. 86-ERA-36, Sec. Dec., Dec. 7, 1992, slip op. at 1-
12, rev'd on other grounds sub nom. Ebasco Constructors Inc.
v. Martin, No. 92-4567 (5th Cir. Feb. 19, 1993) (7 or 8
months sufficient).
     Tyndall also complains that the interference by his EPA
managers may have violated either the civil service laws or the
Inspector General Act.  See Mar. 3, 1993 Complaint at 3
(pursuant to his rights under the Inspector General Act of 1978,
Tyndall went outside the "chain of command" by sending a
complaint letter to the Inspector General, but was subjected to
retribution for doing so).  The allegation of a violation of
other statutes does not defeat the claim under the employee
protection provision.  The Board has authority to rule only upon
the CAA claim; it will express no opinion as to violations of the
other statutes.
     Tyndall's second complaint alleges that the EPA continued
retaliating against him because of the first CAA complaint.  
Dec. 1, 1994 Complaint at 2-4.  He further alleged that after the
ALJ recommended dismissing his first complaint, EPA officials
intimidated and assaulted him and also failed to investigate his
internal complaint about the intimidation and assault. 
Id. at 3.
     The filing of his first CAA complaint clearly constituted
protected activity.  Bassett v. Niagara Mohawk Power Co.,
Sec. Final Dec. and Ord., Sept. 28, 1993, slip op. at 7 (filing a
complaint under ERA employee protection provision is a protected
activity).  Further, the EPA obviously was aware of Tyndall's
first complaint, which named the EPA as respondent.  Tyndall also
alleged adverse actions in his enumeration of a series of adverse
acts that he contends constituted an ongoing hostile work
environment.  Dec. 1, 1994 Complaint at 2-4.  We find that
Tyndall's second complaint states a prima facie case of a
CAA violation and that he is entitled to a hearing on that
complainant.
     In a letter dated March 14, 1996, Tyndall requested that, if
remanded, 93-CAA-6 and 95-CAA-5 complaints should be consolidated
with a third complaint that was scheduled for hearing on May 1,
1996.  We find that 95-CAA-6 and 95-CAA-5 should be consolidated
because of the common questions of law and fact.  The request to
consolidate these two cases with a third case may be moot if the 
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hearing on the third complaint has already taken place.  Even if
that hearing has not yet occurred, however, since we have no
knowledge of the substance of that complaint, we express no
opinion on whether these complaints should be consolidated with
that third complaint.
                                CONCLUSION
     The complaints in Nos. 93-CAA-6 and 95-CAA-5 are
consolidated remanded to the Chief ALJ for a hearing.  
     SO ORDERED.



                              _____________________
                              DAVID A. O'BRIEN
                              Chair



                              _____________________
                              KARL J. SANDSTROM
                              Member


     
                              _____________________
                              JOYCE D. MILLER
                              Alternate Member




[ENDNOTES]
           
[1]   These cases were filed before the Secretary of Labor
pursuant to the Clean Air Act and 29 C.F.R. Part 24.  On April
17, 1996, the Secretary delegated jurisdiction to issue final
agency decisions under this statute and these regulations to the
newly created Administrative Review Board (the Board). 
Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978,
May 3, 1996 (copy attached).  

[2]   The first ALJ's decision is referred to as "R.O. I" and the
second as "R.O. II."

[3]   The Administrative Review Board had not yet been created.

[4]   We expressly make no findings of fact, but rather recite
allegations from the complaints and supporting papers.  Tyndall
has now retired from the EPA, but does not contend that his
retirement was coerced or discriminatory.