4. By failing to properly restore all of his lost fringe benefits and retirement benefits, such as the Thrift Savings Plan [TSP]; and

5. By taking adverse action against him through the circulation of false and/or misleading negative comments to a member of the U.S. Congress concerning Complainant's testimony during special hearings on the Waco incident and through the conducting of an investigation related thereto.

See generally Complainant's Post-Hearing Brief, Findings of Fact and Conclusions of Law at 10-11.

   Complainant was employed as a GS-15 Toxicologist and Senior Science Advisor with Respondent as of May 13, 1992, at which point Complainant was terminated. (CX 1 at p. 2). Complainant had worked for Respondent for approximately eighteen years as of that time. Complainant filed suit under the Six Acts, alleging that he had been terminated for drafting and releasing a memorandum warning of potential harm from the use of fluoride, which was contrary to Respondent's official position at the time. Id. An administrative law judge determined that this termination was in fact a result of Complainant's engaging in protected activity and ordered the EPA to reinstate Complainant to his former position and to refrain from taking adverse actions in the future. (CX 1 at 27-31). Back pay with interest, reimbursement for fringe benefits, and additional compensatory damages in the amount of $50,000 were also awarded. Respondent was further ordered to post a copy of the Decision and Order in a prominent place in Respondent's headquarters and to distribute it to all persons who exercise supervisory control over Complainant. (CX 1 at 1).

   The Recommended Decision and Order was accepted by the Secretary of Labor with the exception of the determination of interest due. Accordingly, Respondent was ordered to reinstate Claimant "to his former or comparable position together with the compensation terms, conditions, and privileges of his former employment." (CX 2 at 9-10). Respondent and Complainant entered into a joint stipulation regarding how this would be implemented that also resolved pending issues concerning damages. The Stipulation was approved by the Secretary of Labor (as recommended by the administrative law judge). (CX 4).

   As a result of this previous case, Complainant was reinstated by Respondent on June 7, 1994. While he was not returned to his previous position, Complainant was given a position that was purported to be comparable, and was allegedly given the status of a GS-15 Toxicologist and Senior Science Advisor.

Testimony

Dr. William Marcus, Complainant

   Complainant has a doctorate in pharmacology and is a Board Certified Toxicologist. (Tr. IV at 72-74; CX 6). He began working for the EPA in January of 1974 as a

toxicologist. (Tr. IV at 75). He was subsequently promoted to senior scientist and remained in that position until 1979, when he was selected as the Branch Chief of Toxicology in the Office of Drinking Water. (Tr. IV at 75-76). After a year in that position, an attempt was made to remove Complainant for lack of performance. Complainant testified that he had sufficient materials to rebut this charge. However, instead of fighting the removal, Complainant agreed to take the position of senior science advisor, which he viewed as a promotion. (Tr. IX at 1005-06). He had been in that position title since 1980. (Tr. IV at 76).

   In 1989, Complainant was granted his request to work from his home, after it was determined that he had an "acute allergic reaction" to the building in which his office was housed. (CX 44). Because of this allergy, Complainant has a difficult time attending meetings held in the current EPA office building and becomes ill after about two hours in the building, although his reaction has slightly improved. (Tr. VI at 515).

   As a result of his work, Complainant has been published a number of times and received bronze medals from the EPA, as well as recognition for his expertise from other sources. (Tr. IV at 104-06, 121-33; CX 47, 49-54, 59, 75). In spite of these accolades, Complainant was involved in a performance approval plan for unsatisfactory performance prior to his termination. (Tr. IX at 1007).

   According to Complainant, the ability to attend conferences has had a significant impact on his career and has allowed him to attain his reputation. (Tr. IV at 79-81). Actual attendance is preferable to reading about the study in the relevant literature, as an attendee has greater access to the analyses of the author and is able to see the conclusions prior to publication. (Tr. IV at 82-83). Such meetings helped Complainant in his study of the effects of lead, benzene and pesticides. (Tr. IV at 83-102; CX 49, 58, 59). Complainant further testified that interaction with other offices in the EPA was crucial to carrying out his duties as senior science advisor. (Tr. IV at 98, 103). Prior to his termination, Complainant went to about six or seven local meetings a year and one or two meetings which would require him leaving the area. (Tr. IX at 1054).

   In 1990, Complainant wrote a memorandum on fluoride. (Tr. IV at 114). Because of this memorandum, Complainant began to be relieved of his duties as senior science advisor, and was ultimately terminated from the EPA in March of 1992. (Tr. IV at 115; CX 1 & 2). He was reinstated as a result of a previous whistleblower lawsuit on June 7, 1994. (Tr. IV at 115-16; CX 1 & 2).

   Complainant reviewed his current position description at the hearing. (CX 29). Complainant testified that he had been assigned some work involving some of the listed duties. (Tr. IV at 139-40). However, he had not been assigned any work regarding scientific liaison with the Office of Research and Development. In fact, Complainant testified that he had been prevented

Kuzmack, as discussed infra. Complainant was surprised that anyone at the EPA would have had such a conversation with someone he did not know. This conversation led Complainant to employ Documented Reference Check ("DRC") and to amend his complaint. (Tr. X at 1207-09). After reviewing the report from DRC (CX 14, discussed infra), Complainant testified that he felt hopeless regarding his current position within the EPA. He felt that if these statements would be made once, they would be made other times as well. It is also his opinion that these statements could do a great deal of damage to his professional reputation. (Tr. IV at 163-73). Complainant testified that reviewing this document was very emotionally disturbing. (Tr. IV at 174-75). On cross examination, Complainant did admit that outside of the DRC inquiry, he had not used any of these people for references, with the exception of Dr. Ohanion, who had not given Complainant a bad recommendation. (Tr. X at 1174-79).

   When he was being reinstated, Complainant was pleased to learn that he was being reassigned to Dr. Kuzmack. They had met previously, and Complainant felt as if they had a cordial relationship. (Tr. IV at 175). When he read Holtzclaw's notes regarding his conversation with Dr. Kuzmack, Complainant could not believe it. Complainant stated that reading Dr. Kuzmack's comments was devastating. (Tr. IV at 175-77). The combined effect of these statements was that Complainant felt as if it would "make it impossible for me to get my reputation back." (Tr. IV at 196). According to Complainant, the stress from these incidents manifested itself in physical symptoms such as difficulty concentrating, difficulty sleeping, GI tract symptoms, and a "whopping" headache. Id. It also made him "grouchy and snappy," and he had difficulty eating. (Tr. IV at 197).

   Complainant alleges that his mail is being opened prior to being forwarded to him. According to Complainant, everything that was sent to him from outside of the EPA was opened in this manner. (Tr. VI at 517). He also alleged that once, some stamps that a friend sent him had been removed. Complainant stated that he made several complaints to the secretaries whom he assumed were forwarding the mail. (Tr. VI at 518).

   Complainant is also concerned about the amount of money that is reflected on his pay stub as being contained in his CSRS (Civil Service Retirement System) account and his TSP (Thrift Savings Plan) account. (Tr. VI at 520). Because of the inaccuracy on the pay stub, Complainant believes that the amounts that he earned prior to his termination have not been returned to his account. (Tr. VI at 520-22).

   On July 26, 1995, Complainant was asked to testify at a Congressional hearing regarding the incident at Waco, Texas. A July 11, 1995 letter was sent to him by facsimile by Congressman William H. Zeliff, Jr., Chairman of the Subcommittee on National Security, International Affairs & Criminal Justice, inviting him to appear as a witness on topics that would be given to him telephonically. (CX 32 at 35-36 [exhibit 5]). Complainant addressed Congress regarding the toxicology and adverse effects of "CS gas" (a form of tear gas), specifically, the effects it would have on women, children, the elderly and the infirm. (Tr. VI at 599;

CX 32, 56). Complainant informed Dr. Kuzmack of the impending testimony, and it was Complaint's impression that Dr. Kuzmack would allow him to spend his time preparing for the testimony. (Tr. VI at 602). Further, Complainant was not told to take leave when he actually testified before Congress. (Tr. VI at 602). Because Complainant prepared the report "as an EPA employee," he placed it on EPA letterhead. (Tr. VI at 604). He did not intend to indicate that it was an official position of the EPA. (Tr. VI at 605). However, the report itself did not indicate that it represented his personal views as opposed to those of the EPA. (CX 32 at 21-30 [exhibit 3]).

   A transcript of the Waco Congressional hearing indicates that Dr. Marcus opened his testimony by stating the following:

    Mr. Chairman, members of the committee. I am very honored to be here to present a talk. I am a Senior Science Advisor at U.S. EPA. I am in the Office of Drinking Water. I usually confine my studies to compounds that get into drinking water and cause problems in public water supplies.

    I was asked to look into CS gas. I did my usual analysis because at EPA -- I have been there for about 21 years -- and my job has been, over that time, to look at the information I could gather about a particular chemical, whether it be animal or human data, analyze the data, and determine what the effects are on people. Try to elicit which particular subgroup is most susceptible and, then, based on all these considerations, determine at what level no effect would be found in the most susceptible subgroup.

    As a Government toxicologist, I have no particular axe to grind. I am not a Republican or a Democrat. I am just a Government employee.

(CX 56 at 17.) He later stated, in response to questions concerning his consulting work that he could not appear on behalf of a private party "if the Government is a party, even peripherally to the case, I cannot appear" and went on to say, "If it weren't for the fact that I am appearing here for the EPA, I would consider this a conflict of interest." (CX 56 at 55.)

   Later during the Congressional hearing, after information was received from EPA indicating that he was not representing the agency, Complainant was asked if he was representing the EPA. (CX 56 at 65). Complainant testified that while he was not representing the EPA "in terms of policy or anything I say can be attributed to them," he was before them "as an EPA employee, as opposed to a private citizen" and was "on Government time. . . getting paid by the Government to be here." (Tr. VI at 615; CX 56). His rationale for that answer was that the EPA was paying him to attend the hearing. (Tr. VI at 615-18). While there was some confusion regarding his status, a letter from Robert Perciasepe, Assistant Administrator ("the Perciasepe letter"), stating that Complainant was not representing

the EPA's official position seemed to clarify the matter. (CX 32 at 6 [exhibit 1]; RX 44; Tr. VI at 624). The Perciasepe letter was jointly addressed to the Chairman of the Subcommittee on National Security, International Affairs and Criminal Justice (Honorable William H. Zeliff, Jr.) and to the Chairman of the Subcommittee on Crime (Honorable William McCollum) and was dated July 26, 1995, the date of the hearing. (CX 32 at 6 [exhibit 1]; RX 44.)

   Subsequent to this testimony, Congressman Brewster sent an inquiry to the EPA to clarify Complainant's status at the time of his testimony. (Tr. VI at 619). Jonathan Z. Cannon, General Counsel for the EPA, responded to this inquiry in a November 1, 1995 letter that appears as CX 71 ("the Cannon letter"). The Cannon letter first addressed Complainant's use of EPA letterhead ("Use of Government Property"). It stated that Complainant's "use of EPA letterhead stationery for his testimony appears to contravene" the standards used by the Office of Water in determining when to use letterhead and that "[b]ased upon our review, Dr. Marcus' use of EPA letterhead stationery and other office supplies or equipment to prepare materials for use in other than authorized purposes was not consistent with the applicable government-wide policy." It also stated that "in order to prevent future occurrences of this type of problem, the Office of Water is developing guidance further clarifying the circumstances under which employees may use EPA stationery" and that Complainant's supervisor had "counselled him regarding the appropriate use of EPA property." (CX 71 at 1-2). As to the leave issue ("Employment Status During Testimony," the Cannon letter stated conclusively that Complainant was on an excused absence (although it indicated that he should have made it clear that he was not testifying on behalf of the EPA or presenting an EPA position on the issues.) (CX 71 at 2-3). Finally the Cannon letter stated, with respect to Complainant's possible conflict of interest (Employment as Private Consultant), that there is no limitation as to testimony on Federal employees appearing before Congress such as there is in court or administrative proceedings and that Complainant's testimony concerning a potential conflict of interest reflected his misunderstanding. (CX 71 at 3-4).

   Complainant interpreted the Cannon letter as a representation by the EPA that he had lied to Congress. (Tr. VI at 629). It is his opinion that he was on regular pay time, not an excused absence or administrative leave. (Tr. VI at 638).

   Because of the confusion surrounding his testimony, the Inspector General's office began an investigation of Complainant. Complainant testified that he did not know of the Inspector General's investigation into his Waco testimony until after he had filed the current suit. (Tr. VI at 592-93; CX 32). When he learned of the investigation, he could not understand why the Inspector General's office would be interested in his Congressional testimony regarding the Waco matter. (Tr. VI at 597). The Special Agent informed Complainant that they wanted to speak to him without his attorney. (Tr. VI at 598). According to the Complainant, this incident caused him and his wife to experience several stress-related symptoms. (Tr. VI at 598-99). The investigation did not uncover any wrongdoing on the part of Complainant. (CX 32; RX 32).

   Complainant does not believe that he has been restored fully to his position as senior science advisor. (Tr. VI at 640). Since his reinstatement, he has not had the opportunity to read and review "the science" done within the Office of Water that contained material regarding the health effects of chemicals on people and animals. Prior to his termination, such review was a major part of his position. (Tr. VII at 659-60). Basically, Complainant feels that prior to his termination, he was able to go to a lot of different meetings, never had trouble getting travel approved, could interact with his peers both inside and outside the EPA, and was directly involved with a lot of the research that was going on within the EPA. Now, Complainant feels as if he is in a "sterile environment." (Tr. X at 1266). He does not believe that his working at home has caused this isolation. (Tr. X at 1267-68).

   There have been instances where Complainant misrepresented his qualifications under oath when being called as an expert witness. Some of these instances were even at issue in the prior case. (Tr. IX at 978, 984, 990-1001; Tr. X at 1180, 1220-27; CX 127). Even considering these instances, I find that Complainant's testimony in these proceedings regarding the conditions and aspects of his position before and after his termination is credible.

Testimony of Dr. Arnold Kuzmack

   In this respect, Dr. Kuzmack remembered receiving a call from Brian Holtzclaw requesting Complainant's telephone number in regards to a Superfund site. During this conversation, Dr. Kuzmack informed Holtzclaw about Complainant's past history with the EPA and explained that the EPA had tried to fire Dr. Marcus. Dr. Kuzmack also recalled responding to a question of Holtzclaw's that while he may be casting Complainant in a bad light, he needed to protect the agency. He specifically mentioned that Complainant had been involved with fluoride, and had taken a position contrary to that of the agency. Dr. Kuzmack mentioned this call to Dr. Davies. (Tr. III at 505-12). He did not recall making the other statements contained in CX 15, a letter which incorporates Brian Holtzclaw's written summary of the conversation. (Tr. III at 514-15). He did not feel that the statements he made in the conversation constituted "bad mouthing" Complainant. (Tr. III at 516). This was the only occasion where he received a request such as this, and he felt that it was abnormal as it was outside the normal agency channels. (Tr. III at 519-20). Even after reading the decision in the previous case, Dr. Kuzmack still felt that it was his responsibility to inform the agency's representative of Complainant's history. (Tr. III at 652).

attendance as he is not their supervisor. Further, he did not believe that the topics of these meetings and conferences were within Complainant's specialty or that they were of general interest to him. (Tr. III at 639-46, 662; Tr. XIII at 1673-86).

he told the investigator. (Tr. XII at 1588). The notes indicate that Dr. Kuzmack had a discussion with Dr. Davies concerning Complainant's leave time. (CX 32 at 38). It is Dr. Kuzmack's recollection that he told the investigator that he had briefly mentioned it to Dr. Davies. (Tr. XII at 1588-89).

   When Dr. Kuzmack became aware that Complainant had placed his testimony in the Waco hearings on agency letterhead, he confronted Complainant as to why he had done so. Complainant told him that he was afraid that it was a no-win situation as to whether it was on letterhead or was not. (Tr. XII at 1594). Dr. Kuzmack did not inform Complainant at this point that he should not have used letterhead. (Tr. XIII at 1760). Dr. Kuzmack testified that he agreed with the agency's response to the Congressional inquiry regarding Complainant's testimony as to both the letterhead and the leave issue. (Tr. XII at 1596-97; RX 35). Dr. Kuzmack did not feel that Complainant sufficiently explained the manner of his appearance in the testimony. (Tr. XII at 1599).

Testimony of Dr. Tudor Davies

further stated that while he could not recall saying that Complainant's interpersonal skills were "no good," he could not deny saying that either. (Tr. I at 79-80). Dr. Davies also stated that he did say something along the lines of one quote reported by Rankin, to the effect that "[Complainant] has taken positions on things like fluoride, which he takes his own opinion outside and represented his opinion as somewhat as the agency's opinion, and we are not in concurrence on his opinion with fluoride." (Tr. I at 81). Dr. Davies also thought that he may have discussed Complainant's stance on fluoride with other people since his reinstatement. (Tr. I at 82). On cross-examination, Dr. Davies stated that he thought Complainant's interpersonal skills are very good. His concern "was how he dealt with management decisions." (Tr. II at 355).

   Travel is prioritized for employees who are giving invited papers, participating in the organization of a meeting, or representing the EPA at a conference for some policy reason. An employee can be at any level or have any job description and still have his or her travel prioritized due to a particular role at a conference. (Tr. II at 444). Dr. Kuzmack, whose primary specialty is in systems, was selected to attend some of these scientific conferences. (Tr. II at 434-35). Dr. Davies' testimony reflects that both he and Hanlon, who would have been involved in approving travel to conferences, appeared confused as to Complainant's exact role (if any) in the office. (Tr. II at 374).

Testimony of Dr. Edwin Carter

   As noted above, Dr. Edwin Carter's testimony is under seal and will be discussed in an Addendum that is also under seal.

Testimony of Brian Holtzclaw

   Brian Holtzclaw is currently employed by the EPA as an Enforcement Project Manager for the cost recovery section in Region IV in Atlanta. He has been working for the EPA since 1988. (Tr. III at 545). This position, based in the waste management division, relates to the Superfund Program. His primary duties include investigation, compliance, and enforcement of the laws that pertain to cost recovery in Superfund clean-ups. (Tr. 546).

number. Further, Dr. Kuzmack asked, "Aren't you aware that the EPA tried to fire Dr. Marcus and they did not succeed? Aren't you aware that he argued against fluoridation?" (CX 15; CX 16).

Testimony of Charles Cothern

   Charles Cothern is a GS-14 Senior Program Analyst with the EPA, and has been employed in that capacity for 18 years. (Tr. IV at 40). His current position is a "temporary assignment" with the Sustainable Development Indicators Group, which is not a part of the EPA, but is connected to the Counsel of Environmental Quality and housed in the Department of the Interior. (Tr. IV at 40-41). Cothern is a friend and colleague of Complainant's. They have worked together for over 15 years, and have published several papers together. (Tr. IV at 43-44). Cothern holds Complainant in the "highest regard" as a scientist, and even considers him an international expert on arsenic, a subject on which they had written an article. (Tr. IV at 44-45).

   Cothern testified to the importance of attending scientific meetings as vehicles for learning what research was being done and for keeping abreast of the current thinking. (Tr. IV at 46). Cothern had worked with Complainant while he was Senior Science Advisor with the EPA, and is familiar with the role of these positions in the agency. (Tr. IV at 48-51). Cothern stated that it is essential for a person in such a role to attend conferences to keep current with the contaminants which are handled by the EPA. (Tr. IV at 51-52). However, he did understand that travel had been curtailed by the EPA in 1996 due to budgetary restraints. (Tr. IV at 59). Further, Cothern agreed that the topics of these conferences should be relevant to the person's position. (Tr. IV at 65-66).

Testimony of Michael Rankin

   Michael Rankin is Chief Service Officer for Documented Reference Check ("DRC"). (Tr. V at 344). In his position with DRC, Rankin checks the references of clients by contacting these references and duplicating "the same process that a personnel manager would go through if they were considering that applicant for employment." Rankin has conducted numerous reference checks over the past six years. (Tr. V at 345). Rankin does not try to conduct these checks so as to obtain a negative report. (Tr. V at 391). In the majority of cases, DRC does not receive negative information from those contacted. (Tr. V at 355).

   Clients do not give the questions to be asked during these checks; rather, representatives of DRC base their questioning on either the client's resume or the names and addresses of former employers. (Tr. V at 353-54). Rankin takes notes while conducting these reference checks, and then transcribes them into a report for his client. He tries not to be too leading or intense in conducting these checks. (Tr. V at 346). While the transcriptions are not certifiably accurate, DRC does take care to reduce the errors within the transcript. Rankin starts with a written outline of questions written prior to the conversation, most of which are general questions asked in

every situation. (Tr. V at 382-84). As the conversation progresses, Rankin may ask follow up questions to fit the situation. (Tr. V at 384-85). The answers are then written down during the conversation, and transcribed immediately thereafter. (Tr. V at 347-48; 352). Further, once the notes are transcribed, a second person checks the transcription against the notes. (Tr. V at 402).    DRC and Rankin were hired to conduct such a reference check for Complainant. (CX 14). Rankin conducted "reference checks" of Dr. Edward Ohanian, Dr. Tudor Davies, Margaret Stasikowski, and Jennifer Zavaleta. (CX 14). Rankin stated that the transcription contained in Complainant's Exhibit 14 accurately reflects the conversations that he had with these people. (Tr. V at 348-51).

   Of the reference checks conducted on behalf of Complainant, two provide cause for concern: those of Dr. Tudor Davies and Margaret Stasikowski.

   According to Rankin's report, when he asked Dr. Davies about Complainant's interpersonal skills with management, Dr. Davies replied, "No good." (CX 14 at 3). Rankin followed up by inquiring into the problem with those skills. Dr. Davies answered that it may be that Complainant was not diplomatic enough. Further, when asked about his comment as to Complainant's having "his own opinion about things," Davies responded, "He has taken opinions on things like fluoride, which he takes his own opinion outside, and represented his position as somewhat the [EPA]'s opinion, and we are not in concurrence on his position with fluoride." (CX 14 at 3-4).

   The other reference check that is relevant to these proceedings is that of Margaret Stasikowski. After providing the background, Rankin stated that, in regards to Complainant, "we do show a title of Board Certified Toxicologist?" to which Stasikowski stated, "Well, this is going to be a problem." (CX 14 at 4). When Rankin inquired as to what the problem was, Stasikowski indicated that she would rather not speak about Complainant, which led to the following exchange:

MIKE RANKIN: "Is there anyone you would suggest that we should speak to?"

MARGARET STASIKOWSKI: "Well, it's sort of a difficult situation."

MIKE RANKIN: "What do you mean?"

MARGARET STASIKOWSKI: "I would like to be honest, but this has been a very difficult personnel issue for quite a long period of time for us in the agency."

MIKE RANKIN: "My goodness."

MARGARET STASIKOWSKI: "I almost feel like I need to call someone in our General Counsel's Office to see what's the best approach in dealing with that."

MIKE RANKIN: "You mentioned General Counsel, is this a matter of litigation?"

MARGARET STASIKOWSKI: "Yes, I think there was a litigation between the agency and Mr. Marcus and the agency lost."

MIKE RANKIN: "Every employer's nightmare."

MARGARET STASIKOWSKI: "So if you have access to such records, that would probably give you a lot of information."

(CX 14 at 5).

Testimony of Lorraine Fairchild

   Lorraine Fairchild is "team leader for the General Crimes Unit, Office of Investigations, Washington Field Division, Environmental Protection Agency" which is part of the Office of Inspector General. (Tr. V at 204). It was Fairchild's responsibility, upon receipt of a complaint from Perciasepe, to investigate whether Complainant had made false statements to Congress, in particular dealing with what type of leave, if any, Complainant was on when he testified in the Waco proceedings. (Tr. V at 212-13). As a result of this inquiry, Fairchild determined that Dr. Marcus had been given permission to testify on government time, "but that he was to testify as a private citizen." (Tr. V at 216).

Testimony of Margaret Stasikowski

   Margaret Stasikowski is currently the Director of the Health and Ecological Criteria Division in the Office of Water, Office of Science and Technology in the EPA. (Tr. VII at 662). Prior to taking this position, she was the Director of Drinking Water Health and Criteria and Standards Division, Office of Drinking Water, Office of Water. In this position, she was Complainant's supervisor as of the time of his termination from the EPA. (Tr. VII at 663). In fact, Stasikowski was the official at the EPA that drafted the proposed letter of termination. (Tr. VII at 664).

calls. She knew that he worked from his home, but would not give out his home phone number because it is "never" done. (Tr. VII at 747). If Dr. Kuzmack were not available, the callers would be instructed to leave a message on his voice mail. (Tr. VII at 759). No voice mail had been established for Complainant at that time. (Tr. VII at 760).

   When Harrison receives mail for Complainant, she usually sends it to him as soon as she receives it via first class mail. Occasionally, she has inadvertently opened his mail. When that happens, she staples it closed, writes "opened by mistake," and signs her name. (Tr. VII at 748). She has no knowledge of anyone else in the office opening Complainant's mail. All of his mail is delivered to her desk, although occasionally some of his mail is erroneously placed in Dr. Kuzmack's box. (Tr. VII at 749-50). Complainant has never expressed any concerns regarding his mail to her. (Tr. VII at 750). Finally, when notices of professional conferences were being distributed, Harrison did not mail these to Complainant and was not instructed to do so. (Tr. VII at 765).

Testimony of Mary Platt

   Mary Platt is a Program Analyst in the budget and program management staff at the EPA. (Tr. VII at 789). She is located in the Office of Water, Office of Science and Technology, where she has worked for over 23 years. (Tr. VII at 789-90).

   As a part of her job, Platt tracks the resources available for travel and the expenditures for the fiscal year, although she is not responsible for approval of travel. (Tr. VII at 790). Platt is also responsible for periodically updating the phone number listings for the Office of Science and Technology, and for "generating paperwork for hires, reassignments, promotions, that type of thing." (Tr. VII at 791-92).

   It was because of these duties that Platt was involved in the reinstatement of Complainant. Platt filled out the necessary time cards for his back pay and generated the personnel action that actually reinstated Complainant into his current position. (Tr. VII at 792-93).

   Platt is not sure who made the decision to list the main office as Complainant's phone number in the EPA phone book. (Tr. VII at 807). However, Complainant has not asked Platt to put his home number in the EPA phone book, and Platt was not aware of anyone that has a home number so listed. (Tr. VII at 800).

   Platt testified that in 1996, the EPA placed restrictions on travel. The agency did not receive an appropriation, and was thus working with an extremely limited budget. Although some people did travel, individuals could not necessarily count on going to a conference just because of an interest. (Tr. VII at 800-01). Further, she testified that there is an administrative fund outside of the travel budget that may be used to pay for registration at conferences. (Tr. VII at 808-09).

Testimony of Michael Gaddy

   According to Hanlon, it is appropriate for a senior science advisor to "keep himself or herself current on the state of science." (Tr. VIII at 923). However, due to limited travel resources, decisions must be made regarding who to send to particular conferences. As a result, people are generally sent to those conferences "that directly relate to the current assignment or what may be expected or anticipated as an assignment for individuals on the staff." (Tr. VIII at 924). However, Complainant was never added to any interoffice routing slips due to "administrative simplicity." (Tr. VIII at 926). When Hanlon was questioned regarding the exact number of senior science advisors within the office, Hanlon responded, "Senior science advisors within the Office of Science and Technology include Arnie Kuzmack and [Complainant] and only one of those senior science advisors works directly for Mr. Davies, and that's Mr. Kuzmack." (Tr. VIII at 927).

Testimony of Dr. Ralph Barocas

   As noted above, the testimony of Dr. Ralph Barocas (which is essentially rebuttal testimony to that of Dr. Edwin Carter) is under seal and will be discussed in an Addendum that is also under seal.

Testimony of Lynne Ross

   Lynne Ross is the Legislative Director of the Legislative Division of the Office of Congressional and Legislative Affairs with the EPA. (Tr. XIII at 1622). Her duties are focused on Congressional inquiries. She coordinates testimony, handles briefings, and drafts and clears particular testimony. Id.

   On approximately July 26, 1995 (the date of the Waco Congressional hearing), Ross received an inquiry from Bob Brink, the Deputy Assistant Attorney General at the Justice Department in the Office of Legislative Affairs. Brink's inquiry regarded whether Complainant's testimony in regard to the Waco hearings was being done in his official capacity. (Tr. XIII at 1623). The reason for the inquiry was that Complainant's testimony had been submitted on EPA letterhead, and the committee had some question as to Complainant's status. (Tr. XIII at 1624). Ross checked her documentation, and determined that Complainant was testifying in his individual capacity. (Tr. XIII at 1629-30; RX 45).

   Brink then requested that Ross submit a letter to the subcommittee clarifying that Complainant was not there as an EPA representative. She began this letter immediately, and sought advice from the EPA's Office of General Counsel. She worked with Gary Guzzi, General Counsel Jonathan Cannon, and a little with Bob Perciasepe, and produced a clarification within an hour (the Perciasepe letter). (Tr. XIII at 1631-32; RX 44). However, there had been no discussions regarding exactly what status Complainant would have during his testimony. (Tr. XIII at 1640-41). Further, Ross had no knowledge regarding any conversations Complainant had with his supervisor in regard to his status at the time of the testimony. (Tr. XIII at 1646).

Testimony of Robert Thorlakson

   Robert Thorlakson is a Human Resources Supervisor for the EPA in its Servicing Personnel Office. He provides human resources and original services to the Office of Water and the Office of Research and Development. (Tr. XIII at 1789).

   In the summer of 1995, discussions were held regarding possible reductions in force in the EPA. To facilitate this, the office sent out a memorandum to each employee which contained an employment profile. The employees were asked to check these profiles for accuracy, correct them, and return them. (Tr. XIII at 1789-91). Almost fifty percent of these profiles were returned with some sort of error to correct. (Tr. XIII at 1792). A second profile was distributed to confirm that the proper corrections had been made. (Tr. XIII at 1794).

   Complainant's profile still contained errors at the time the second profile was generated. However, Thorlakson believes that all of these were corrected and that Complainant's third profile was correct. (Tr. XIII at 1794-95). One of the changes that Complainant requested involved his title. The profile stated that he was a toxicologist; Complainant wanted that changed to senior science advisor. Thorlakson would not make that change, as "toxicologist" is the official personnel title for his job series while "senior science advisor" refers to the type of work performed. (Tr. XIII at 1797).

Testimony of Michael Hamlin

   Michael Hamlin is the Senior Personnel Management Specialist in the Policy Division of the Human Resources Office of the EPA. (Tr. XIV at 1870-71). Hamlin has been in the human resources area for sixteen years. (Tr. XIV at 1871).

   Hamlin testified to the appropriate uses of excused absences, as envisioned by the Code of Federal Regulations and the Office of Personnel Management manual. According to Hamlin, "there's a lot of leeway in what administrative leave or excused absences should be granted for" and basically, "[i]t's within the discretion of the supervisor" to grant such leave. (Tr. XIV at 1873). The EPA's leave manual was revised in 1987, and the 1987 version, which is currently in effect, "tracks almost identically" the OPM manual and includes those provisions concerning supervisory leeway. (RX 33; Tr. XIV at 1874). The manual defines "Excused Absence" as "[a]n absence from duty administratively authorized without loss of pay and without charge to leave" and indicates that the term is synonymous with "administrative leave." (RX 33, at Chapter 9, 9-1 and Appendix, A-2.)

Testimony of Francis Bonds

   Francis Bonds, a legal technician, works with the Office of General Counsel at the EPA as a legal technician. (Tr. XIV at 1903). Bonds handled the posting of the decision from

the original claim. He was instructed that the decision should be posted for a period of thirty days, and he was to contact the proper people so as to have it posted. (Tr. XIV at 1904-05). Bonds typed on the front page that anyone who was interested could request a copy of the decision. Seventy-five copies were made and posted at various agency bulletin boards. (Tr. XIV at 1905). Bonds saw the decision posted and observed other employees asking for copies of the decision. (Tr. XIV at 1906).

Testimony of Severa Wilson

   Severa Wilson is a Support Services Specialist for the facilities operations branch. One of her responsibilities at the time she started was "project officer for a contractor that handles our signage coordination." (Tr. XIV at 1910-1912). Anyone that wanted anything posted or any signs made had to talk to Wilson. (Tr. XIV at 1912).

   Wilson spoke with Bonds regarding the posting of the decision from the original claim. She told him that they would need 75 copies to cover all of the bulletin boards. After she received the copies, she contacted her signage coordinator who posted the copies throughout the building. (Tr. XIV at 1912-1913). She also gave copies to the building managers of the branch offices for posting there. (Tr. XIV at 1915).

Testimony of Julie Street

   On June 7, 1995, Street received a letter from Complainant asking for her help on a variety of issues. (RX 47). Street was only able to help with those issues dealing specifically with benefits. (Tr. XV at 1946). She referred the remainder of the issues to people that she thought would be able to assist Complainant. (Tr. XV at 1962-63).

   Once Complainant made his decisions regarding withholdings and contributions, he submitted the pertinent forms to Street. (Tr. XV at 1979; CX 144). Street then marked them with the appropriate effective dates and submitted them to the payroll office. (Tr. XV at 1981). Around May 31, 1995, Street received a letter from Complainant discussing his concern that the current TSP deductions had not yet begun. (CX 145). Street thus made an inquiry into this matter. (CX 146). After a few months, she made a follow-up inquiry and discovered that the problem had not been fully resolved. (Tr. XV at 1989). According to Street, the TSP problem arose because the amount invested is subject to the yearly IRS cap, regardless of whether the deductions are from back pay or current wages. (Tr. XV at 2010-11). She did not know what, if any, instruction was given as to the TSP deductions for the back pay, i.e., whether the National Finance Center was instructed to treat the deductions as if they were from 1995 and not 1996. (Tr. XV at 2036).

Testimony of Simon Miller

   Simon Miller is Associate Regional Counsel with the EPA Region IV in Atlanta, Georgia. He has been an attorney for 8 years. In this position, Miller worked on a case known as "the Shaver's Farm case." Miller met Holtzclaw and worked with him as a result of that case. (Tr. XV at 2090).

   Miller never asked Holtzclaw to retain an expert witness for the case. However, Holtzclaw mentioned that he might know of someone who could serve as an expert if necessary. Miller passed that information along to the attorney that was handling the case for the Department of Justice. Miller does not recall the name of the witness that Holtzclaw indicated he could provide. (Tr. XV at 2090-92).

Testimony of William Sanjour

never informed that he should put any disclaimer on these letters or that it was improper to use the letterhead in this fashion. (Tr. XV at 2105). Further, Sanjour testified as to several instances where he had used EPA letterhead to communicate his own opinion to inquirers. (Tr. XV at 2112-17; CX 129-133). Sanjour also testified that another EPA employee, Kate Jenkins, had been involved in using letterhead, but that the issue was disposed of in her claim against the EPA. (Tr. XV at 2121-27; CX 134-135). Sanjour testified that employees use letterhead when posting comments on the public docket, which are by their nature critical of the EPA's position. (Tr. XV at 2137-39; CX137-143).

Deposition Testimony of Michael Petruska

   Michael Petruska works at the EPA and was involved in a prior whistleblower case against the agency (Jenkins, Case No. 1992-CAA-6). (Petruska September 17, 1996 Deposition, CX 149 at 4-5). At that time he was a branch chief involved in Dr. Jenkins' use of letterhead for testimony to Congress that did not necessarily represent the opinion of the agency. (CX 149 at 13-17, 26.) Petruska contacted the General Counsel's office to find out whether such use was permissible, because of his concerns that such use might cause confusion as to whether the communication reflected EPA policy. However, he received no firm answer from the General Counsel's office. (CX 149 at 14-21, 58-59.) Petruska indicated that he was not aware of any official EPA policy regarding the use of letterhead, apart from the general prohibition against use of public property for private use. However, he did temper this testimony with the comment that he had not looked into such a policy in the past five years. (CX 149 at 18-19, 22-23.) He testified that Dr. Jenkins was not disciplined for her use of letterhead in this manner because the rules were not clear cut enough. (CX 149 at 25-26).

talked to Dr. Kuzmack and stated that "excused absence, administrative leave" was the best way to describe Complainant's leave status. (RX 50A at 16-17). As to Complainant's use of letterhead, it is Nantkes' opinion that since February 3, 1993, the ethics regulations provide "a much firmer basis for saying that there is a rule against use of government stationery for your personal activities." (RX 50A at 29). He feels that an EPA employee may only use agency letterhead for official purposes, due to the prohibition against using government property for private purposes. (RX 50A at 27).    Nantkes stated that he thought the EPA's prior decision to terminate Complainant was correct. (RX 50A at 10). However, he did not discuss that opinion with either Cannon or Perciasepe. (RX 50A at 14). Nantkes also stated that it might be appropriate to discipline Complainant for his actions relating to his testimony in the Waco matter. (RX 50A at 42).

Deposition Testimony of Jonathan Cannon

   Jonathan Cannon is currently the General Counsel for the EPA. (Cannon July 15, 1996 Deposition, RX 51 at 4). Cannon did not recall ever having seen the orders in the previous case. (RX 51 at 12).

   Cannon stated that he became aware of Complainant's testimony at the Waco hearing when he was advised about Chairman Brewster's Congressional inquiry as to Complainant's status. He remembered discussing the response with Robert Perciasepe and helping Perciasepe draft the initial response (the Perciasepe letter). (RX 51 at 24-25). He does not recall discussing Complainant's prior claim at that time. (RX 51 at 27). He understood from Perciasepe that Complainant was not representing the EPA with his testimony and was not authorized to do so, and he assisted in drafting the response accordingly. (RX 51 at 27-30). He did not do any follow up as to the letter. (RX 51 at 30). Some time later, he became aware that the Inspector General's Office was investigating this incident. (RX 51 at 31).

   Subsequently, a letter from Congressman Brewster was referred to him for a response. (RX 51 at 32-33). He received a draft of the November 1, 1995 response (the Cannon letter), and, although he did not consult with anyone from the Office of Water, he asked his staff to do so. (RX 51 at 34-36). The draft was prepared primarily by Nantkes. (RX 51 at 36).

Applicable Law

   As discussed above, the instant case has been brought under the employee protection provisions of the Six Acts. These "whistleblower" provisions are designed to "protect employees from retaliation for protected activities such as complaining, testifying, or commencing proceedings against an employer for a violation of one of these federal statutes." Devereux v. Wyoming Association of Rural Water, 93-ERA-18

(Sec'y, October 1, 1993). See also 29 C.F.R. § 24.2. The employee protection provisions have been construed broadly to afford protection for participation in activities in furtherance of the statutory objectives. See Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6, 95-CAA-5 (Administrative Review Board, June 14, 1996).

   The employee protection provision in the Clean Air Act ("CAA") provides, in relevant part:

(a) Discharge or discrimination prohibited

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) --

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration of enforcement of any requirement imposed under this chapter or under any applicable implementation plan,

(2) testified or is about to testify in any such proceeding, or

(3) 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 Act.

42 U.S.C. § 7622. Almost identical wording appears in this provision's counterparts in the Safe Drinking Water Act, 42 U.S.C. § 300j-9 ("SDWA") and the Toxic Substances Control Act, 15 U.S.C. § 2622 ("TSCA"). A similar provision appears in the Solid Waste Disposal Act, 42 U.S.C. § 6971 ("SWDA"); the Water Pollution Control Act (or Clean Water Act), 33 U.S.C. § 1367 ("WPCA"); and the Superfund law, 42 U.S.C. § 9610 ("CERCLA").

Jurisdiction

   Before reaching the merits of these consolidated cases, I must first determine whether this Office has the jurisdiction over the complaints. The EPA contends that the current complaints constitute enforcement actions; therefore, the complaints should be dismissed as improperly before this Office. Complainant contends that I have jurisdiction over the complaints on two separate bases: First, any adverse action is a new and separate violation of the environmental acts, i.e., the actions are in retaliation for the filing of the first suit. Second, Complainant contends that this Office has enforcement jurisdiction over the prior decision and order.

Complainant's contention that the allegations in the instant case also set forth new (and continuing) causes of action, in that Complainant alleges adverse actions taken as a result of Complainant's participation in his initial whistleblower suit. Such new causes of action would be available under the Six Acts even if the Complainant had not prevailed in any way in the prior case, provided that the retaliatory actions were taken against him as a result of his participation in the prior proceedings. Accordingly, I will consider the following allegations only to the extent that they allege new adverse actions under the Six Acts based upon EPA's retaliation for Complainant's participation in the prior suit.

Elements of Prima Facie case

   The first element of the prima facie case has been satisfied. Complainant has established that he engaged in protected activity; the protected activity in this matter is Complainant's previous whistleblower suit against the EPA. As such a suit is "a proceeding under this chapter or a proceeding for the administration of enforcement of any

requirement imposed under this chapter," such a suit is expressly included as a protected activity under the Clean Air Act. 42 U.S.C. § 7622(a)(1). There are similar provisions in the other Six Acts. As the prior proceeding involved all Six Acts, the protected activity also involves all Six Acts.

2. Respondent aware of protected activity

   The second element has also been satisfied. As the EPA was the respondent in the first suit, it is axiomatic that it was aware of this protected activity. Further, as the EPA was required by the original decision to post copies of the original decision, it cannot assert that it was unaware of the protected activity.

3. Adverse action

   With respect to the third element, the CAA describes the prohibited activities in terms of discharging or otherwise discriminating against employees with respect to compensation, terms, conditions, or privileges of employment, all of which may be characterized as adverse actions. Similar provisions appear in two of the other Six Acts, while the remaining three proscribe discharging or otherwise discriminating. An "adverse action" has been defined as "simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997) (defining adverse action in the context of an Energy Reorganization Act case). Under 29 C.F.R. § 24.2(b), as amended, an employer is deemed to have violated the particular statutes and regulations "if such employer intimidates, threatens, restrains, coerces, blacklists, discharges or in any other manner discriminates against any employee" because of protected activities.

   Complainant alleged several adverse actions in his complaint, some of which are cognizable under the Six Acts as new adverse actions resulting from EPA's retaliation for his participation in the prior suit, while others relate to the enforcement of the decisions and orders issued in the prior case. The alleged adverse actions are discussed sequentially below.

4. Inference that such action is in part due to protected activity

   The final element in the prima facie case requires Complainant to produce enough evidence to raise the inference that the motivation for the adverse action was his protected activity. The inference may be raised by temporal proximity between the whistleblowing activities and the adverse actions. Tyndall v. U.S. Environmental Protection Agency, 1993-CAA-6, 1995-CAA-5 (Administrative Review Board, June 14, 1996), citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). See also Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995). If the Complainant establishes that he received disparate treatment -- i.e., that he was

subjected to adverse action not provided to similarly situated employees who did not engage in whistleblowing activities -- he will have raised such an inference. See 29 C.F.R. § 24.2.

   This issue is interrelated with the adverse actions alleged and will be discussed along with each such adverse action alleged.

Specific Allegations of Adverse Actions

1. Orally communicating negative information about Complainant and negatively commenting on his protected activities ("Bad mouthing").

   During the hearing, evidence was presented dealing with two episodes of so-called bad mouthing: (1) the comments made by Dr. Kuzmack to Brian Holtzclaw concerning Complainant's potential as an expert witness for EPA and (2) the negative references EPA managers gave to Michael Rankin of Documented Reference Check ("DRC") concerning Complainant's employment at EPA.

   With respect to the first category of "bad mouthing," Holtzclaw and Dr. Kuzmack have different recollections as to the exact tenor of the conversation between them. Holtzclaw insists that Dr. Kuzmack was insistently questioning him as to his need for Complainant's number. In fact, Holtzclaw's notes indicate that Dr. Kuzmack stated, "Aren't you aware that the EPA tried to fire [Complainant] and they did not succeed? Aren't you aware that he argued against fluoridation?" (CX 15; CX 16). Dr. Kusmack doesn't recall the conversation being that confrontational. However, he did admit that he mentioned Complainant's past history with the EPA and that Complainant had been involved with a report on fluoride. (Tr. III at 505-15). Dr. Kuzmack's rationale was that he needed to protect the agency in any matter where an employee may be speaking on its behalf. (Tr. III at 652).

   The second category of "bad mouthing" alleged in this complaint is even more blatant. As discussed above, after Complainant was informed of the conversation between Holtzclaw and Dr. Kuzmack, he hired Mike Rankin of Documented Reference Check (DRC) to discover the extent of the bad mouthing. (CX 14). In conducting this check, several comments were made by the people who were asked to provide references. These comments were transcribed contemporaneously. (Tr. V at 347-48; 352). Dr. Davies stated "[Complainant] takes his own opinion outside, and represented his position as somewhat as the agency's opinion, and we are not in concurrence on his position with fluoride." (CX 14 at 4). Margaret Stasikowski stated "this will be a problem" when questioned. When asked who could provide information concerning Complainant, Stasikowski became flustered and mentioned the General Counsel's office as Complainant had been a "very difficult personnel issue for quite a long period of time" and that "there was litigation between the agency and

[Complainant] and the agency lost." (CX 14 at 4-5). At the hearing, Dr. Davies and Staskikowski did not deny making these statements; they merely indicated that while they discussed such matters, they could not confirm the exact content of the conversation. (Tr. I at 81-82; Tr. VII at 686-90 & 710-12).

   Based on a broad definition of adverse actions, these statements by EPA officials would constitute prohibited adverse actions against Complainant, and are thus new violations of the whistleblower protection provisions. Further, a review of the case law supports this decision.

   The Secretary has held that an employer commits a prohibited adverse action against an employee when it references the employee's complaint regarding discrimination when providing information regarding that person's employment. Gaballa v. Arizona Public Service Co. and The Atlantic Group, 1994-ERA-9 (Sec'y Jan.18, 1996). See Odom v. Anchor Lithkemko, 1996-WPC-1 (Administrative Review Board Oct. 10, 1997) (citing Gaballa for the proposition that a negative recommendation is an adverse action where the employer explicitly mentions "the employee's protected complaint of retaliation). Further, the Secretary has explicitly approved a finding of an adverse action where the person to whom the negative recommendation was supplied was from Documented Reference Check, and thus was someone who was not seeking to actually hire or interview the employee. Leveille v. New York Air Nat'l Guard, 1994-TSC-3 (Sec'y Dec. 11, 1995). Considering the case law and the statutes, I find that the above listed episodes of "bad mouthing" Complainant were adverse actions.

   The statements that comprise the "bad mouthing" allegations expressly refer to Complainant's protected activity. As such, I find that Complainant has raised the inference that the motive for this adverse action was his protected activity. Complainant has therefore established a prima facie case of discrimination in regard to the "bad mouthing" allegations.

2. Failure to properly post and circulate the reinstatement order or other decisions and orders issued in Complainant's case.

   This allegation of the initial complaint does not allege any cognizable cause of action. The substance of this allegation merely requests enforcement of the order in the prior case. As such, I do not have jurisdiction over this allegation of the complaint. See Jurisdiction, supra.

3. Failure to adequately train EPA employees and managers, so that Complainant and other whistleblowers can obtain fair treatment and be restored to the full terms and conditions of employment.

   Apart from its interrelationship with some of the other allegations, such as that

relating to "bad mouthing", this allegation of the complaint does not allege a separate, cognizable cause of action. To the extent that this allegation of the complaint may be deemed to request enforcement of the order in the prior case, I have found that I do not have jurisdiction over it. See Jurisdiction, supra.

4. Failure to restore Complainant to all of the privileges of employment, and specifically failure to authorize or assign travel and attendance at meetings and conferences in a manner consistent with the order of the Secretary of Labor, failure to assign him work consistent with his job description, and failure to otherwise allow him to perform as a Senior Science Advisor ("Isolation").

   Aspects of this group of allegations include a request for enforcement, to the extent that they relate to whether the Complainant was treated in a manner consistent with the Secretary's decision and order in the previous claim, and I have found that I lack jurisdiction to enforce the prior decisions and orders. However, this group of allegations also comprises an allegation in regard to additional adverse actions resulting from Complainant's filing of and participation in the original suit, as essentially Complainant has taken the position that he has become isolated and has received no meaningful work assignments or opportunities for professional development as a result of his status as a former whistleblower. I have jurisdiction and will consider this allegation to the extent that it encompasses such complaints of "isolation."

   One basis for this "isolation" allegation is that since his reinstatement, Complainant has not been assigned any projects that would allow his attendance at conferences and meetings. Complainant explicitly testified that such attendance is necessary in order for him to fully function and enjoy all the privileges of employment as a Senior Science Advisor. The EPA responded that the travel budget was limited during this period and that most of the conferences and meetings listed by Complainant were better suited to others within the agency. Further, the EPA insisted that Complainant did not request to attend many of these meetings.

   Also included within this "isolation" allegation are the EPA's methods of handling Complainant's mail and phone calls, the lack of assignments consistent with his position description and the fact that no one seeks Complainant for technical advice within the agency. EPA has attributed these problems primarily to Complainant's home duty station.

   Some of these allegations are insufficient to reflect disparate treatment or rise to the level of an adverse action. Specifically, Complainant did not produce enough evidence regarding the delivery of his mail to indicate that it was an adverse action. Nor did Complainant produce enough evidence to show that the failure of people to seek his advice within the agency reflects disparate treatment, outside of the side effects of his limited travel and attendance at meetings and the interception of his telephone calls. Moreover, Complainant did not provide enough

privileges of employment. Accordingly, the failure to allow Complainant to attend conferences and meetings or to integrate him into the office does equate to an adverse action.

   When an adverse action follows in close proximity to a protected activity, that alone is sufficient to create the inference that the motive for the adverse action was the complainant's protected activity. Scerbo v. Consolidated Edison Co. of New York, Inc., 1989-CAA-2 (Sec'y Nov. 13, 1992). The failure to allocate travel to Complainant began as soon as he was reinstated as a result of his protected activity, and continued to the time of the hearing. The screening of Complainant's telephone calls and mail also postdated the protected activity and continued. I find that the temporal proximity of the adverse actions to Complainant's protected activity is sufficient to raise the necessary inference. Accordingly, Complainant has established a prima facie case in regard to the lack of travel and attendance at meetings and isolation aspect of his complaint.

5. Failure to make Complainant "whole" in terms of his Thrift Savings Plan and Other Fringe Benefits.

   This allegation of the initial complaint appears to related solely to a request for enforcement of the order in the prior case. As such, I have found that I do not have jurisdiction over it. See Jurisdiction, supra.

6. Filing of a false and derogatory letter to the U.S. Congress concerning Complainant's testimony during special hearings on the Waco incident and instituting an investigation thereof.

   The final allegation involved in these actions, raised in the second complaint, is that the EPA committed an adverse action by responding to the Congressional inquiry as to Complainant's status regarding his testimony in such a manner as to indicate that he had lied and by instituting an Inspector General investigation into his testimony.

   The letter that forms the basis for this allegation (the "Cannon letter") was sent on November 1, 1995, in response to an inquiry from a representative from the Committee before which Complainant had testified. As noted above, Complainant stated at the hearing that he was appearing for the EPA and was being paid by the EPA to give his testimony, and only later stated that the views expressed were his own. Complainant had also submitted a written copy of his testimony on letterhead, and the written testimony did not indicate that the views presented were not the official agency views. These actions apparently caused confusion amongst the Committee members as to Complainant's exact status.

   Complainant contends that the Cannon letter, and specifically its discussion of the leave and letterhead issues, constitutes another adverse action in the present claim. As to Complainant's use of letterhead, the letter states that Complainant's use "appears to

contravene" the standard of not implying that a person's actions are that of the agency. (CX 71 at 1). The letter further states that his use of EPA letterhead seems to violate the agency standard concerning the use of office supplies for other than authorized purposes, as well as general prohibitions regarding the use of Federal Government property. (CX 71 at 2). As to Complainant's work status, the letter states that Complainant was on an excused absence. (CX 71 at 3). Complainant alleges that this letter is a blatant fabrication with the purpose of deriding Complainant to Congress.

   While the letter is not false and derogatory to the extent that Complainant alleges, the text was written in a manner suggesting that Complainant was culpable in his testimony before the Committee and may even have been guilty of misconduct. Such assertions appear to go far beyond the clarification required by the Committee. As such, the sending of the Cannon letter (and its inclusion of gratuitous criticism of Complainant) constitutes an "unpleasant" event which meets the definition of an adverse action. Further, Complainant has produced enough evidence so that the inference can be drawn that this action was in part the result of his protected activity. The testimony of Donnell Nantkes, who was primarily responsible for drafting the Cannon letter, indicates that he knew of the prior suit and reveals his opinion that the agency was correct in terminating Complainant. Moreover, his testimony reflects his negative opinion of Complainant. Such evidence is enough to raise the inference that Nantkes may have written this response on the basis of his personal feelings towards Complainant. Accordingly, Complainant has established a prima facie case regarding the letter of explanation signed by Cannon.

   As a final matter, I find that the Complainant has not established a prima facie case regarding the Inspector General investigation itself. Although the investigation would appear to constitute an adverse action, no basis has been shown for drawing the inference that the investigation was in any way motivated by the Complainant's protected activity. Rather, it appears that the investigation was an appropriate response given the confusion caused in part by Complainant's failure to make his status at the hearing clear.

Nondiscriminatory reasons for actions

   As discussed above, Complainant has shown that the EPA committed adverse actions against him (by "bad mouthing" him, by effectively isolating him from the rest of the agency, and by writing a letter to Congress disparaging Complainant), thereby shifting the burden of production to the EPA. To satisfy this burden, EPA must prove that it had legitimate, nondiscriminatory reasons for its action. See Bausemer v. TU Electric, 1991-ERA-20 (Sec'y Oct. 31, 1995), citing Kahn v. United States Secretary of Labor, 64 F.3d 271, 278 (7th Cir. 1995).

   In the present case, the EPA did not rebut Complainant's evidence of "bad mouthing." The EPA tried to rely on the testimony of the alleged "bad mouthers" to prove that the accounts by Holtzclaw and Rankin were inaccurate. However, the

rebuttal testimony merely indicates that the "bad mouthers" (Dr. Tudor Davies, Dr. Arnold Kuzmack and Margaret Stasikowski) could not remember the exact content of the conversations, which they admitted took place. They expressly could not testify with any certainty that they did not make any of the statements attributed to them and did not offer any possible justification. As a result, the EPA has failed to produce any nondiscriminatory reason for this action, and Complainant has proven his complaint in respect to this allegation.

   As to the isolation allegations, the EPA did produce evidence of nondiscriminatory reasons for the alleged adverse actions. First, with respect to the travel allegations, the EPA introduced evidence regarding the financial state of the EPA during the relevant time period. According to this documentation, the EPA was experiencing financial difficulty. Thus, travel would be limited. Further, the EPA presented evidence that Complainant was not assigned to the topics being presented at many of the conferences and meetings on his "wish" list. He failed to request that he be allowed to participate in other conferences, and testimony revealed that Complainant did not even attend one meeting due to his concern about availability of parking. Evidence at the hearing also indicated that the isolation Complainant is experiencing is partly attributable to the fact that Complainant works from his home. Many of the pertinent meetings take place within the EPA's building, and Complainant's inability to spend much time in the building has, to some extent, prevented his attendance. Moreover, EPA argued that Complainant's home duty station prevented him from receiving his phone messages, being placed on the voice mail system, or otherwise participating in office functions. Obviously, if the Complainant were working in the EPA building, he would not have been isolated in this manner. EPA also noted that Complainant did not suggest that information be routed to him in some other manner due to his home location. Accordingly, I find that the EPA has suggested nondiscriminatory reasons and has met its burden of production with respect to the isolation allegations.

   Finally, as to the allegedly derogatory Cannon letter, the EPA presented the employees who were involved in the drafting of this letter. Only one of these employees was directly involved in the prior litigation, Donnell Nantkes. As noted above, Nantes did state in his testimony that he thought Complainant should have been terminated for his prior activities. However, he also testified that the letter correctly states the proper use of letterhead within the EPA, and the letter was approved of, and signed by, the General Counsel. While the gratuitous comments concerning the appropriateness of the Complainant's actions may have been unnecessary, they were nevertheless consistent with the assignment of the letter preparation to the General Counsel and the purpose of clarifying the pertinent law and regulations for the inquiring Congressman. Therefore, the EPA has met its burden of production in regard to this adverse action as well.

Pretext for Retaliation

   To the extent that the EPA has produced evidence of nondiscriminatory motives behind the adverse actions, the burden shifts back to Complainant to demonstrate for each that the articulated reason is merely a pretext and that the action was based on a discriminatory

motive. See Zinn v. University of Missouri, 1993-ERA-34 and 36 (Sec'y Jan. 18, 1996); Scerbo v. Consolidated Edison Co. of New York, Inc., 1989-CAA-2 (Sec'y Nov. 13, 1992). Complainant "may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (Title VII case) (citation omitted). See also Nichols v. Bechtel Construction, Inc., 1987-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 13.

   The EPA was not able to rebut the prima facie case regarding the "bad mouthing" allegation, and I find that Complainant has proven that this adverse action was taken as a result of his participation in his prior whistleblowing suit. To prevail on the remaining allegations, Complainant must prove by a preponderance of the evidence that the EPA had a discriminatory motive in effectively isolating Complainant with respect to travel and phone messages, as well as in drafting its response to the Congressional inquiry regarding his Waco testimony.

   The "isolation" allegation has numerous components. Complainant testified that he was not given the same amount of "interesting" assignments and was not being made available to assist others in the EPA. Complainant was not asked to attend meetings or conferences. His telephone calls and mail were screened. The underlying theme of this allegation is that Complainant was, in effect, relegated to a position of seclusion with his only liaison being Dr. Kuzmack and that this isolation was the result of his previous whistleblower claim.

   The EPA has relied on numerous reasons to explain Complainant's isolation. These explanations include: There was a reduction in travel funds due to budgetary shortages (which limited travel funds to persons directly involved in specific projects); Complainant was unable to work in the main EPA building due to health problems (which prevented his inclusion in the telephone or voice mail system); Complainant evidenced a lack of desire to attend meetings (as reflected by his failure to attend some of those suggested to him); Complainant failed to make specific requests (such as requesting that the EPA keep him informed of things relevant to his position); and Complainant's attendance at meetings and conferences would be unnecessary and duplicative (as these duties were already attended to by Dr. Kuzmack). Essentially, EPA's defenses to his isolation are premised in large part upon the isolation itself, combined with the notion that he was essentially an unnecessary employee, as the real senior science adviser position was held by Dr. Kuzmack.

   In essence, these defenses by EPA provide some support for Complainant's assertions of disparate treatment and adverse action. In this regard, if Complainant's isolation were confined to any single component of the overall isolation of Complainant, such as reduction in travel, failure to implement a specific policy regarding mail and telephone inquiries, failure to

properly route conference announcements, or failure to request attendance at staff meetings, these excuses of the EPA might seem credible. However, all of these actions together demonstrate a pattern of conduct, the motive of which could only be to completely isolate Complainant from the rest of the agency. Such a conclusion is further bolstered by Complainant's testimony, which I find credible, that none of these factors were problems prior to his termination and reassignment. It is obvious that the EPA has pigeonholed Complainant in a meaningless position where his actions can be closely monitored.

   With respect to the travel allegations, it is quite evident that the agency had a budget shortage and, as a result, cut back on the amount of travel. However, this was only for a limited period, and does not fully address the reasons for failing to allow Complainant to attend meetings and to fully inform him of the actions of the agency. Other employees who had more meaningful work assignments, including Dr. Kuzmack, had travel approved during the same period. A mere lack of funds cannot fully explain EPA's treatment of Complainant.

   With respect to the phone messages, there is evidence that not only was Complainant not placed on the voice mail system, but Dr. Kuzmack actually intercepted Complainant's phone messages. In an least one instance, Dr. Kuzmack interrogated the caller as to why he wanted to get in touch with Complainant because of a perceived need to protect the agency. EPA has neither produced evidence showing that screening of telephone calls was routine for persons who worked at home nor provided any cogent explanation for the fact that Complainant's phone messages were not directly referred to him.

   Here, the evidence suggests that Complainant was placed in his current position to keep him from causing any more trouble. The Secretary has found that an employer's nondiscriminatory reasons for the conduct were a pretext where the effect was to remove a complainant from the area where the whistle would most likely be blown. Scerbo v. Consolidated Edison Co. of New York, Inc., 1989-CAA-2 (Sec'y Nov. 13, 1992). In the instant case as well, I find that the EPA's purported nondiscriminatory reasons for its actions were a pretext. Accordingly, I find that Complainant has proven his case in regard to the allegation that the actions of the EPA have effectively isolated him and kept him from performing his position as a result of his protected activity.

   As to the Cannon letter to Congress, however, Complainant has not met this burden. Complainant has failed to show that the explanations offered by EPA concerning the letter's discussion of his use of EPA letterhead or his leave status were mere pretexts.

   As to the language regarding the use of letterhead, the Cannon letter does suggest Complainant's actions were inappropriate and even violative of both EPA and Government-wide standards, and indicates he had been counselled concerning his actions. Specifically, the letter stated that Complainant's use of letterhead "appears to contravene" the standard of not implying that a person's actions are that of the agency and that his use of EPA letterhead seems to

violate the standard of using office supplies for other than authorized purposes. (CX 71 at 1-2). The letter goes on to say that "the Office of Water is developing guidance further clarifying" this issue "[i]n order to prevent future occurrences of this type of problem." (CX 71 at 2). This statement clearly indicates an admission that the EPA's policy regarding the use of letterhead is unclear. The letter goes on to indicate that his supervisors would have instructed Complainant not to use the letterhead if they had known his intention, and that Complainant's supervisor had "counselled him regarding the appropriate use of EPA property." (CX 71 at 1-2). While these statements about Complainant are clearly negative, a review of the report and testimony indicates that Complainant himself was primarily responsible for the confusion concerning his status at the time he gave his testimony, and his initial testimony is even somewhat misleading. Although his status was clarified during his later questioning by Committee members as well as by the initial letter sent from EPA (the Perciasepe letter), a further response was requested. A more detailed clarification by the General Counsel was clearly warranted in view of the confusion of Committee members to which Complainant himself contributed. It also appears that EPA was placed on the defensive by the need to further clarify the status of Complainant's testimony as well as by its own unclear policies. Further, Nantkes' testimony that the letter correctly states his view of the proper use of letterhead within the agency, combined with the participation of other EPA employees in drafting the letter, lends credence to the idea that the drafting of this letter was done for a proper purpose.

   As to Complainant's leave status, despite its pejorative tone, the letter accurately states Complainant's leave status at the hearing. Dr. Kuzmack, while not expressly stating that Complainant would be on an excused absence, did tell him to state that he was not testifying on behalf of the agency. The letter so states. The letter does not expressly contradict Complainant's statements at the hearing regarding his status. It merely puts Complainant's status into its official nomenclature, an "excused absence" (also known as "administrative leave.") The term "excused absence" merely indicates that Complainant was given permission to be away from his normal duties without taking leave, as is reflected by the agency leave manual. In his brief, Complainant tries to allege that since the Inspector General's Office concluded that he was on normal duty hours during his testimony, the statement that he was granted an excused absence is false. I disagree. The statement that he was on an excused absence does not challenge the overall idea that Complainant was in official pay status nor does it "directly contradict" a statement that he was being paid by the EPA for his time before Congress. This was born out by Agent Gaddy's testimony that the letter was not totally in conflict with Complainant's testimony and essentially there was no practical distinction. It is true that the letter could have been worded differently so as to completely rule out any possible construction that would lead a person to believe that Complainant's statements before Congress were inaccurate. However, Complainant's own difficulty in describing his pay status to Congress in a clear manner as well as Dr. Kuzmack's failure to clarify the matter in advance contributed to the confusion regarding this area, necessitating some clarification.

   In view of the above, Complainant has failed to satisfy his burden of proof with respect to the Cannon letter. While Nantkes admittedly believed that Complainant should have

been terminated for his previous conduct, Complainant has simply not proven by a preponderance of the evidence that this was the animus behind the drafting of this letter, as the actions Complainant took at the hearing in and of themselves provided adequate motivation. As the ultimate burden of proof lies with Complainant, this aspect of the claim must fail.

Conclusion

   For the reasons set forth above, I find that Complainant has satisfied his ultimate burden of persuasion and has proven that the EPA took adverse action against him based upon his protected activities in regard to the "bad mouthing" allegation and those allegations that deal with his effective isolation within the EPA. Further, I find that EPA's justification for these actions is a mere pretext and Complainant has satisfied his ultimate burden of persuasion. Accordingly, Complainant is entitled to relief.

Damages / Relief

    In the previous action, Complainant was awarded $50,000 by the administrative law judge as compensatory damages for "[t]he mental and physical anguish that Complainant has suffered . . . as a result of job termination together with the potential damage to his personal and professional reputations," and the Secretary agreed with the award of compensatory damages. Subsequently the parties entered into a Stipulation that related to other specified categories of damages, but the compensatory damages award was not altered.

   Upon the evidence in this record, I find no basis for awarding Complainant compensatory damages due to additional injury to his reputation. The only negative recommendations that Complainant proved were to Rankin from Documented Reference Check and to Holtzclaw, both of whom gave the recommendation only to Complainant and were in some way associated with this lawsuit or other whistleblower litigation conducted by Complainant's lawyers.

Although these negative references may have constituted an attempt to diminish Claimant's employment potential, there is no evidence to suggest that any prospective employers received it or, indeed, that Complainant was seriously seeking other employment. In fact, Complainant specifically testified that he had not used any of these people as references. Thus, Complainant has failed to demonstrate that he suffered any actual damage or injury to his reputation, apart from that which he already suffered in connection with the prior suit.

   As is more fully discussed in the Addendum, I note that the Claimant was found entitled to compensatory damages of $50,000 based upon mental and physical anguish (as well as potential damage to personal and professional reputations) in the previous case and I further find that the situation in the instant case is far more egregious than in the previous case. As such, I find that Complainant is entitled to a significantly greater compensatory award than in the prior case, and I award him $100,000 in compensatory damages for mental and physical anguish and emotional distress.

2. Affirmative Relief

   Complainant additionally seeks affirmative relief in the form of a detailed order specifically stating all of the terms of employment that must be undertaken in order to remedy the effects of these adverse actions. In order to deal with the complexity of these issues, Complainant specifically requests that the parties be required to enter a consent agreement as to the means to be taken in order to reach such a remedy. He feels that such an agreement is necessary due to the difficulties that have been encountered as a result of his previous reinstatement.

   I agree with Complainant that a detailed agreement (or Order) is necessary. If the parties had been able to successfully integrate Complainant back into the EPA, the present suit would not have been necessary. Accordingly, I order the parties to attempt to reach a mutually agreeable plan to integrate Complainant back into the agency.

that would be potentially damaging to his personal or professional reputation or privacy interests absent good cause. Finally, the agreement should, at a minimum, contain some procedure for training Complainant's supervisors and other managers as to the prohibition of adverse actions against whistleblowers and for guiding EPA managers in how to deal with situations such as requests for references or for expert testimony.

3. Oversight / Enforcement

   Complainant requests that I retain jurisdiction over this complaint and require the filing of monthly reports until such time as it is apparent that the ordered relief has been implemented. However, the Six Acts and the implementing regulations do not provide any authority for an administrative law judge to retain such oversight power. Further, Complainant has provided no authority suggesting that such relief would be available. Moreover, such relief is at bottom a request that I retain enforcement power over the relief to be implemented, and I have found above that such enforcement power lies with the United States District Court. Accordingly, this relief is denied.

4. Punitive or Exemplary Damages

routinely punished whistleblowers through such assignments). Accordingly, I find that Complainant is not entitled to an award of punitive damages.

5. Attorney's Fees and Costs

   Upon consideration of the entire record, I find that Complainant has provided sufficient evidence to show that the EPA committed adverse actions in "bad mouthing" him (with respect to job references and his potential as an expert witness), in engaging in conduct that was tantamount to isolating Complainant from his fellow employees and peers (particularly with respect to travel and phone messages), and in drafting the Cannon response letter to Congress regarding Complainant's Waco testimony. The EPA did not present any evidence of nondiscriminatory reasons for the "bad mouthing" and I find that Complainant satisfied his burden of proof and persuasion with respect to this adverse action. Although the EPA did present evidence that other, nondiscriminatory reasons existed that could account for the isolation, this evidence was not sufficient to prove that the adverse action would have been taken absent Complainant's protected activity and I found these reasons to be pretexts. With respect to the Cannon letter, the EPA was able to present proper, nondiscriminatory reasons for the response, and the Complainant was unable to prove by a preponderance of the evidence that these reasons were mere pretexts for discrimination. Accordingly, Complainant has proven his case in respect to the attempts to "bad mouth" him and his effective isolation. Complainant is thus entitled to relief under the Six Acts, as set forth above.

   IT IS HEREBY ORDERED that Complainant's claim be, and hereby is, GRANTED to the extent set forth above, and:

1. The Respondent Environmental Protection Agency shall pay to Complainant, Dr. William Marcus, the sum of $100,000.00 in compensatory damages for mental and physical anguish and emotional distress;

2. Complainant's attorneys shall submit an attorney fee petition and bill of costs within thirty (30) days of the date of this decision and order, and Respondent shall file any objections within thirty (30) days of service of the fee petition and bill of costs; and

3. The parties shall enter into a consent agreement providing for affirmative relief within sixty (60) days of the date of issuance of this decision and order, consistent with the above discussion, provided, that if the parties are unable to reach an agreement, each party shall submit a proposed Order addressing the same matters.

       PAMELA LAKES WOOD
       Administrative Law Judge

Washington, D.C.

NOTICE: In accordance with Departmental regulations, as amended January 30, 1998, this Recommended Decision and Order will become the final order of the Secretary unless a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210. Copies of the petition must also be served on the Assistant Secretary, Occupational Safety and Health Administration, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, D.C. 20210. To be timely filed, a petition for review must be filed within ten (10) business days of the date of this Recommended Decision and Order. See 29 C.F.R. §§ 24.7, 24.8; 63 Fed. Reg. 6614 (February 9, 1998).