DATE: February 7, 1994
CASE NO. 92-TSC-5
IN THE MATTER OF
WILLIAM L. MARCUS,
COMPLAINANT,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER; ORDER
DENYING COMPLAINANT'S MOTION FOR TEMPORARY
RESTRAINING ORDER AND AN INJUNCTION
Complainant William L. Marcus brings the captioned complaint
of unlawful discrimination against his former employer, the U.S.
Environmental Protection Agency (EPA), under the employee
protection provisions of the Toxic Substances Control Act,
15 U.S.C. § 2622 (1988); Safe Drinking Water Act (SDWA),
42 U.S.C. § 300j-9(i) (1988); Clean Air Act (CAA), 42 U.S.C.
§ 7622 (1988); Solid Waste Disposal Act, 42 U.S.C. §
6971 (1988); Water Pollution Control Act or Clean Water Act
(CWA), 33 U.S.C. § 1367 (1988); Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610
(1988); and the applicable regulations which appear at 29 C.F.R.
Part 24. The case proceeded to hearing before a Department of
Labor Administrative Law Judge (ALJ), and on December 3, 1992,
the ALJ issued a Recommended Decision and Order (R.D. and O.) in
favor of Dr. Marcus. As discussed below, I agree with the ALJ
that Dr. Marcus should prevail in his complaint of unlawful
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discrimination. The record fully supports the ALJ's factual
findings, and I adopt them.
A.
As a preliminary matter, EPA argues that the above employee
protection provisions do not apply to Federal employees. I note,
however, that at least one of those provisions, arising within
the context of the CERCLA, incorporates exceptionally broad
coverage. In particular,
No person shall fire or in any other
way discriminate against, or cause to be
fired or discriminated against, any employee
or any authorized representative of employees
by reason of the fact that such employee or
representative has provided information to a
State or to the Federal Government, filed,
instituted, or caused to be filed or
instituted any proceeding under this chapter,
or has testified or is about to testify in
any proceeding resulting from the
administration or enforcement of the
provisions of this chapter.
42 U.S.C. § 9610(a) (emphasis added). Under the CERCLA,
"[t]he term 'person' means . . . the United States Government. .
. ." 42 U.S.C. § 9601(21). Moreover, "[e]ach department,
agency, and instrumentality of the United States (including the
executive, legislative, and judicial branches of government)
shall be subject to, and comply with, this chapter in the same
manner and to the same extent, both procedurally and
substantively, as any nongovernmental entity. . . ." 42 U.S.C. §
9620(a)(1). Accordingly, the CERCLA contains express language
subjecting EPA, as an agency of the United States, to its provisions,
including its employee protection provision. As Dr. Marcus' complaint
concerned exposure to an allegedly hazardous substance in
drinking water, it touched on the CERCLA objective of controlling
environmental health hazards. I find EPA to be a "person" within
the meaning of 42 U.S.C. § 9610. Cf. Pogue v.
U.S. Department of the Navy Mare Island Shipyard (Pogue),
Case No. 87-ERA-21, Sec. Dec., May 10, 1990, slip op. at 4-12,
rev'd on other grounds, 940 F.2d 1287 (9th Cir. 1990)
(Department of the Navy subject to CERCLA employee protection
provision).
Directly applicable here, the SDWA also contemplates broad
coverage. Its employee protection provision refers
interchangeably to "employer[s]" and "person[s]" as being subject
to its prohibitions. 42 U.S.C. § 300j-9(i)(1) and (2).
While the SDWA does not define the term employer for purposes of
Section 300j-9(i), "[t]he term 'person' means [a] Federal agency"
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which in turn is defined as "any department, agency, or
instrumentality of the United States." 42 U.S.C. §
300(f)(11) and (12). I deem this language sufficient to subject
EPA to the SDWA employee protection provision. [1]
I also note that, as is the case under the CWA and the CAA,
federal facilities expressly are subject to the SDWA, an
additional indication that Congress intended to waive
governmental immunity. 42 U.S.C. § 300j-6(a). See
H.R. Rep. No. 338, 95th Cong., 1st Sess. 12-13, reprinted
in 1977 U.S. Code Cong. & Admin. News 3659 (federal agency
provision of SDWA amended to make clear that "Federal facilities
would have to comply with State and local requirements including
recordkeeping or reporting requirements, permit requirements, and
any other type of Federal, State, or local requirements").
Prior to 1977, the CWA and the CAA required federal
facilities to comply with Federal, State, interstate and local
requirements respecting control and abatement of pollution to the
same extent that any person is subject to such requirements.
Relying on principles of sovereign immunity and on legislative
history arguably limiting the term "requirements" to "effluent
limitations and standards and schedules of compliance," the
Supreme Court held that federal facilities were not subject to
State permit requirements. EPA v. State Water Resources
Control Bd., 426 U.S. 200, 215, 227 (1976); Hancock v.
Train, 426 U.S. 167 (1976). Thereafter, Congress amended the
federal facilities provisions of the CWA and the CAA to overrule
EPA and Hancock and to clarify that the Federal
Government was required to comply with State permit, reporting
and other procedural requirements. S. Rep. No. 370, 95th Cong.,
1st Sess. 67, reprinted in 1977 U.S. Code Cong. & Admin.
News 4326, 4392; H.R. Rep. No. 6161, 95th Cong., 1st Sess. 12,
reprinted in 1977 U.S. Code Cong. & Admin. News 1077,
1089-1090. Congress's concern that federal facilities comply
with all State requirements suggests that it also intended all
requirements of the Federal statutes to apply. See 1977
U.S. Code Cong. & Admin. News 4392 (amendment to CWA Section 1323
clarifies that "all Federal facilities must comply with all
substantive and procedural requirements of Federal, State, or
local water pollution control laws").
B.
EPA next contends that Dr. Marcus' exclusive remedy arises
under the Civil Service Reform Act (CSRA), which provides
protection for whistleblowers. See 5 U.S.C. §
2302(b)(8) (Supp. IV 1992). This argument essentially is one of
implied repeal, specifically that the CSRA, with its
comprehensive scheme of remedies to enforce personnel
prohibitions, effectively has repealed the environmental
whistleblower statutes as they apply to Federal Government
employees. This argument previously has
[PAGE 4]
been rejected under both the CERCLA and CWA. Pogue, slip
op. at 13-16; Conley v. McClellan Air Force Base, Case No. 84-
WPC-1, Sec. Dec., Sept. 7, 1993, slip op. at 13-16. For the
reasons set forth in those decisions, I find EPA's instant
argument to be without merit.
C.
EPA finally contends that the ALJ's disposition on the
merits is erroneous. To prevail on a whistleblower complaint,
a complainant must establish that the respondent took adverse
employment action against him because he engaged in an activity
protected under the applicable statute. A complainant initially
must show that it was likely that the adverse action was
motivated by a protected activity. Guttman v. Passaic Valley
Sewerage Comm'rs, Case No. 85-WPC-2, Sec. Dec., Mar. 13,
1992, slip op. at 9, aff'd, No. 92-3261 (3d Cir. Apr. 16,
1993). The respondent may rebut such a showing by producing evidence
that the adverse action was motivated by a legitimate,
nondiscriminatory reason. The complainant then must prove that
the proffered reason was not the true reason for the adverse
action and that the complainant's protected activity was the
reason for the discharge. St. Mary's Honor Center v.
Hicks, 125 L. Ed.2d 407, 416 (1993).
SWDA Section 300j-9(i) provides:
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 (or any person acting
pursuant to a request of the employee) has --
(A) commenced, caused to be commenced,
or is about to commence or cause to be
commenced a proceeding under this subchapter
or a proceeding for the administration or
enforcement of drinking water regulations or
underground injection control programs of a
State,
(B) testified or is about to testify in
any such proceeding, or
(C) assisted or participated 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 subchapter.
42 U.S.C. § 300j-9(i)(1). Quoted previously, the CERCLA
employee
[PAGE 5]
protection provision constitutes a similar "participation"
provision. In the instant case, the ALJ found Dr. Marcus to have
engaged in protected activity when he authored and disseminated a
memorandum criticizing a draft report, concerning toxicology and
carcinogenesis studies, which EPA contemplated using in
regulating fluoride levels. Hearing Transcript (T.) 491-499;
Complainant's Exhibit 56. In so doing, Dr. Marcus clearly
participated in a proceeding for the administration of
regulations under the SDWA and, in a broad sense, his
participation contributed to the identification of hazardous
substances under the CERCLA. Accordingly, Dr. Marcus engaged in
protected activity.
Moreover, EPA unquestionably engaged in adverse action when
it discharged Dr. Marcus. Finally, the ALJ correctly found
causation based on EPA's treatment of Dr. Marcus following his
protected activity which eventually culminated in his discharge.
Accordingly, Dr. Marcus succeeded in showing that his discharge
likely was motivated by his protected activity.
In its defense, EPA claims that it discharged Dr. Marcus
based on a report issued by its Inspector General (IG). I agree
with the ALJ that this rationale is pretextual and that the true
reason for the discharge was retaliation. See R.D. and O.
at 27. In this regard, I find the following considerations
persuasive.
1. Marc Smolonsky, Chief Investigator for the U.S.
Congressional Subcommittee on Human Resources and
Intergovernmental Relations, investigated Dr. Marcus' discharge
because of Marcus' prior involvement with the subcommittee on
fluoride issues. T. 44-45. As part of the investigation, he
interviewed Francis Kiley, the supervisory agent assigned to the
Marcus IG investigation. Smolonsky testified:
Mr. Kiley also told me that he was aware that
Dr. Marcus' supervisors did not like him,
that they welcomed the IG's investigation,
that they were hopeful the IG's investigation
would lead to his removal, and that they
were, independent of all that, concerned
. . . about his activities, whistle-blowing
on the fluoride issue.
T. 46. Lorraine Farchild, the EPA IG special agent who
investigated Dr. Marcus, testified that Michael Cook, Marcus'
immediate supervisor, was not happy with him "[a]nd that it was
related to the fluoride issue." T. 126. (Farchild also
testified that exculpatory material obtained during the
investigation was not included in the final IG report and that
Agent Kiley directed her to destroy investigation materials
prematurely. T. 138-143, 716-724.) In this connection, it is
[PAGE 6]
significant that the sole chemical that Dr. Marcus was precluded
from working on following issuance of his memorandum was
fluoride. T. 881-885. As a senior science advisor, Marcus
clearly was responsible for acquiring information about this
chemical. T. 449-450, 488, 520-522; Complainant's Exhibit 65.
2. Margaret Stasikowski, Director of Dr. Marcus' division
at EPA, recommended that he be discharged, and Dr. Tudor Davies,
Director of the Office of Drinking Water, made the final
discharge decision. Respondent's Exhibits 1 and 2. Both the
recommendation and decision were premised on uncritical
acceptance of the IG's findings, which is contrary to accepted
personnel practice. T. 282-284.
3. The ALJ found many of the IG's charges to be
unsubstantiated. It is difficult to believe that Dr. Davies did
not question these charges especially after hearing Dr. Marcus'
rebuttal. I find particularly disturbing Davies' acceptance of
the abuse of leave charge in the absence of any convincing
documentation.
4. Finally, I find Dr. Davies' stated rationale for the
discharge decision unconvincing. Davies cited Marcus' supposed
recalcitrance in limiting his outside consulting activities as
precipitating his decision. T. 1068-1070. Marcus, however, had
been more than conscientious about coordinating his activities.
Although he initially was given blanket approval to consult,
Marcus frequently discussed his activities with EPA ethics
personnel in order to avoid the appearance of conflict, and when
management began monitoring his activities more closely, he
complied in all respects. Had Davies determined to withdraw
Marcus' approval completely, there is no suggestion that Marcus
would not have complied. In these circumstances, discharge,
rather than some form of intermediary discipline coupled with a
direction not to consult, was unduly harsh in light of EPA's
disciplinary practices and, indeed, convinces me that the true
reason for Marcus' discharge was his protected activity.
ORDER
Respondent U.S. Environmental Protection Agency is ordered
to offer Complainant Dr. William L. Marcus reinstatement to his
former or comparable position together with the compensation,
terms, conditions, and privileges of his former employment. I
otherwise agree with and adopt the remainder of the ALJ's
recommended order, R.D. and O. at 30-31, with the exception of
item 4. Rather, interest shall be computed at the rate specified
under Section 6621 of the Internal Revenue Code for use in
computing interest charged on underpayment of Federal taxes.
Assuming, without deciding, that exemplary damages are available
against the United States Government, I agree with the ALJ that
they are not appropriate here. I also agree with the ALJ's award
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of compensatory damages.
Counsel for Complainant are granted a period of 20 days from
receipt of this Decision and Order to submit any petition for
costs and expenses, including attorney fees. Respondent
thereafter may respond to any petition within 20 days of receipt.
On December 15, 1993, Complainant filed with the ALJ a
motion for a temporary restraining order and an injunction
preventing termination of his employee health insurance plan
coverage which had been continued only temporarily following his
discharge and allegedly was due to expire on December 16. On
December 22, 1993, the ALJ referred Complainant's motion to me
for disposition.
Upon consideration, I deny the motion as moot because
Respondent is now required by this decision and order to provide
Dr. Marcus with health insurance coverage pursuant to his
reinstatement as an employee and to compensate him for any out-
of-pocket expenses that he has incurred as the result of changes
in his insurance coverage attributable to his discriminatory
discharge. Accordingly, Complainant's motion IS DENIED. Should
Complainant suffer further damage as the result of plan coverage
termination, he may move for consideration of whether an
additional award is appropriate.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Because the CERCLA and the SDWA afford Dr. Marcus a full
measure of relief, I do not discuss coverage under the remaining
environmental whistleblower statutes.
