U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-090 ALJ CASE NO. 95-CAA-7 DATE:FEB 13 1997
In the Matter of:
BRIAN L. HOLTZCLAW, COMPLAINANT,
v.
COMMONWEALTH OF KENTUCKY NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET, RESPONDENT.
BEFORE: THE ADMINISTRATIVE BOARD
FINAL DECISION AND ORDER
The Administrative Law Judge submitted a Recommended Decision
and Order (R. D. & O.) in this case arising under the employee protection provisions of the Clean
Air Act, 42 U.S.C. § 7622 (1988), the Safe Drinking Water Act, 42 U.S.C. § 300j-9
(1988), the Solid Waste Disposal Act, 42 U.S.C. § 6971 (1988), the Water Pollution Control
Act, 33 U.S.C. § 1367 (1988), the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. § 9610 (1988), and the Toxic Substances Control Act, 15
U.S.C. § 2622 (1988) (the Acts), finding that Complainant Brian L. Holtzclaw failed to
prove that Respondent Commonwealth of Kentucky Natural Resources and Envirom-nental
Cabinet (Kentucky) discriminated against him in violation of the Acts and recommending that the
complaint be dismissed. R. D. & O. at 23. For the reasons discussed below, we adopt the ALJ's
recommendation and the complaint in this case will be denied. 29 C.F.R. § 24.6(b)(4)
(1996).
Background
Complainant, an employee of the United States Environmental
Protection Agency (EPA), worked for Kentucky from December 1992 to December 1994 under an
Intergovernmental Personnel Act agreement (IPA), an arrangement under which federal and state
employees can be "loaned" between agencies. R. D. & O. at 4. Kentucky assigned
[Page 2]
Complainant to work as the coordinator of two "geographic initiatives," partnerships
among federal, state and local agencies and private industry and local citizens, for the study of the
impact of industry on the environment and public health in two geographic areas of the state.
Id. at 3.
In the course of his coordination duties, Complainant sought the
assistance of a particular scientist at EPA, Dr. John Stockwell, but believed that EPA unreasonably
thwarted those attempts. Complainant prepared a detailed summary of the events and the
comments, statements, thoughts and beliefs of those involved in this incident, which he entitled
"The Stockwell Brief." See R. D. & O. at 5-11. Complainant asserts that his
preparation of this document and his providing a copy of it to Dr. Stockwell, with the
understanding that it would be provided to the Inspector General of EPA, constituted one protected
activity that motivated certain adverse actions against him by Kentucky.
1Complainant's brief also refers to a
May 29, 1994 memorandum, but there is no document in the record with that date.
2Complainant's IPA expired in
December 1994, but he was notified on November 18, 1994 by EPA that it would not be renewed.
3 We note that we have serious
doubts whether Complainant's actions in connection with his attempts to obtain the assistance of
Dr. Stockwell, including the Stockwell Brief, are protected activities. Absent a showing that Dr.
Stockwell possessed some truly unique abilities or insights without which the geographic
initiatives would have been significantly impaired, fighting a personnel battle over the assignment
of a specific employee to a particular project is probably too remote from protection of the
environment to be protected under the Acts. See, e.g., Crosby v. Hughes Aircraft Co.,
Case No. 85-TSC-2, Sec'y. Dec. Aug. 17, 1993, slip op. at 28-30 (complaints not based on
reasonable perception of violation or potential violation of environmental acts not protected). In
view of our disposition of this case on other grounds, it is not necessary for us to decide this
question.