DATE: May 18, 1994
CASE NO. 92-CAA-6
IN THE MATTER OF
CATE JENKINS,
COMPLAINANT,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Complainant Cate Jenkins brings the captioned complaint
of unlawful discrimination against her employer, the U.S.
Environmental Protection Agency (EPA), under the employee
protection provisions of the Toxic Substances Control Act (TSCA),
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 (SWDA), 42 U.S.C.
§ 6971 (1988); [1] 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 (1993). The case proceeded to hearing before a
Department of Labor Administrative Law Judge (ALJ), and on
December 14, 1992, the ALJ issued a Recommended Decision and
Order (R.D. and O.) in favor of Dr. Jenkins. As discussed below,
I agree with the ALJ that Dr. Jenkins should prevail in her complaint of unlawful
discrimination. The record generally supports the ALJ's factual
findings, and I adopt them as described below.
Waiver of immunity
EPA argues that the above employee protection provisions do
[PAGE 2]
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) (Federal facilities provision). Accordingly,
the CERCLA contains express language subjecting EPA, as an agency
of the United States, to its provisions, including its employee
protection provision. I find EPA to be a "person" within the
meaning of 42 U.S.C. § 9610. Marcus v. U.S.Environmental Protection Agency (Marcus), Case No.
92-TSC-5, Sec. Dec., Feb. 7, 1994, slip op. at 3. 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).
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" 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.
I note that Federal facilities expressly are subject to the
SDWA, an additional indication that Congress intended to waive
[PAGE 3]
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
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"). The SDWA
states in relevant part:
Each Federal agency (1) having jurisdiction
over any federally owned or maintained public
water system or (2) engaged in any activity
resulting, or which may result in,
underground injection which endangers
drinking water . . . shall be subject to, and
comply with, all Federal, State, and local
requirements, administrative authorities, and
process and sanctions respecting the
provision of safe drinking water and
respecting any underground injection program
in the same manner, and to the same extent,
as any nongovernmental entity. The preceding
sentence shall apply (A) to any requirement
whether substantive or procedural . . . .
42 U.S.C. § 300j-6(a).
Employing a similar statutory scheme, the CAA prohibits
discrimination by any "employer," and by any "person." 42 U.S.C.
§ 7622(a) and (b). The term "person" is defined to include
"any agency, department, or instrumentality of the United States
and any officer, agent, or employee thereof." 42 U.S.C. §
7602(e). The CAA Federal facilities provision covers each
Federal agency "(1) having jurisdiction over any property or
facility, or (2) engaged in any activity resulting, or which may
result, in the discharge of air pollutants . . . ." 42 U.S.C.
§ 7418(a). Such agencies "shall be subject to, and comply
with, all Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting
the control and abatement of air pollution in the same manner,
and to the same extent as any nongovernmental entity."
Id.
The CWA Federal facilities provision, which employs language
common to the other environmental statutes mentioned above,
provides in relevant part:
(a) Each department, agency, or
instrumentality of the executive,
legislative, and judicial branches of the
Federal Government (1) having jurisdiction
over any property or facility, or (2) engaged
[PAGE 4]
in any activity resulting, or which may result, in the discharge
or runoff of pollutants . . . shall be subject to, and comply
with, all Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting
the control and abatement of water pollution in the same manner,
and to the same extent as any nongovernmental entity. . . . The
preceding sentence shall apply
(A) to any requirement whether substantive or
procedural. . . .
33 U.S.C. § 1323(a). Accordingly, although the CWA
definition of the term "person," 33 U.S.C. § 1362(5), does
not expressly include the United States Government, Federal
agencies are subject to the CWA employee protection provision "in
the same manner, and to the same extent as any nongovernmental
entity" by means of the CWA Federal facilities provision.
Legislative history supports this application. Congress
pointed out that one of the models for the whistleblower
provision of the CAA was the whistleblower provision of the CWA.
H.R. Rep. No. 294, 95th Cong., 1st Sess. 326, reprinted in
1977 U.S. Code Cong. & Admin. News 1404. The legislative history
of the CAA whistleblower provision states that "[t]his section is
applicable, of course, to Federal . . . employees to the same
extent as any employee of a private employer." Id. at
1405.
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
ControlBd., 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").
[PAGE 5]
Finally, the Federal facilities provision of the SWDA
applies to any Federal agency "(1) having jurisdiction over any
solid waste management facility or disposal site, or (2) engaged
in any activity resulting, or which may result, in the disposal
or management of solid waste or hazardous waste." 42 U.S.C.
§ 6961. Such agencies are subject to "all Federal, State,
interstate, and local requirements, both substantive and
procedural . . . respecting control and abatement of solid waste
or hazardous waste disposal." Id. Although the SWDA,
like the CWA, does not define the term "person" to include the
United States, 42 U.S.C. § 6903(15), the SWDA whistleblower
provision applies by means of the Federal facilities provision.
Accordingly, immunity is waived under the CERLA, SDWA, and
CAA by expressly including the United States within the
definition of the term "person." Moreover, the CERCLA subjects
each agency of the United States to its terms by means of its
Federal facilities provision. The Federal facilities provisions
of the SDWA, CAA, CWA, and SWDA, while describing Federal
agencies reasonably expected to be affected, can be construed to
waive immunity generally, thereby providing Federal employees as
well as nonFederal employees with statutory whistleblower
protection. Even of this were not the case, the instant record
establishes that EPA exercises jurisdiction over affected
properties and facilities and engages in activities affecting
regulated substances and processes, thus constituting an
agency described in the provisions. [2] I previously have held
that the CWA whistleblower provision is a "Federal requirement"
within the meaning of the CWA Federal facilities provision, and I
incorporate that analysis as applying equally to the above
statutes. Conley v. McClellan Air Force Base (Conley),
Case No. 84-WPC-1, Sec. Dec., Sept. 7, 1993, slip op. at 2-9.
Because the statutes discussed above afford Dr. Jenkins a full
measure of relief, I do not reach the issue of waiver under the
TSCA.
The Civil Service Reform Act
EPA next contends that Dr. Jenkins' 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 been rejected under both
the CERCLA and CWA. Marcus, slip op. at 5; Pogue,
slip op. at 13-16; Conley, slip op. at 9-17. For the
reasons set forth in those decisions, [3] I find EPA's instant
argument to be without merit.
The merits[PAGE 6]
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 (prima facie showing). Guttman v. Passaic Valley
Sewerage Comm'rs, Case No. 85-WPC-2, Sec. Dec., Mar.
13, 1992, slip op. at 9, aff'd, 992 F.2d 474 (3d Cir.),
cert. denied, 114 S.Ct. 439 (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 action. St. Mary's
Honor Center v. Hicks, 125 L. Ed.2d 407, 416 (1993).
1. Protected activity
The employee protection provisions of the environmental
statutes at issue afford protection for participation in activity
in furtherance of the statutory objectives and traditionally have
been construed broadly. [4] Here, the parties have stipulated
that Dr. Jenkins engaged in activity protected under the statutes
and that EPA management knew about the activity. Exh. J-1 at 2,
Nos. 10, 17. In fact, Dr. Jenkins served EPA management with
copies of all her protected letters and memoranda.
Employed in 1979 by EPA's Office of Toxic Substances,
Dr. Jenkins transferred in mid-1980 to the Office of Solid Waste
(OSW) to perform "listings" work which entailed developing
regulations under the SWDA. EPA examines industry-generated
wastes and "lists" them upon determining that their incorrect
management would present a hazard. When assigned an industrial
listing, Dr. Jenkins would design studies to gather information
about the waste being regulated, conduct an industry overview,
collect waste samples at industry sites, perform sample analyses
and determine toxicity and environmental "fate," i.e., "if
you spill it on the ground, is it going to just stay there or is
it going to go some place?" Hearing Transcript (T.) 20. The
work also entailed coordinating contractors to perform aspects of
the studies, writing a Federal Register notice for the proposed
rule, responding to comments, and promulgating the final rule.
See T. 19-23.
In June 1988, Dr. Jenkins complained to a number of
congressional oversight subcommittee chairmen about improprieties
at EPA. Specifically, (1) she charged regional EPA officials
responsible for a Superfund site in California with failure to
disclose and address "citizen exposures to high levels of dioxin
and pentachlorophenol in their drinking water, air, and food
[PAGE 7]
chain," Exh. C-9 at 3-8; (2) she charged national EPA officials
with deliberately delaying and obstructing regulation of dioxin
contaminated wood preserving wastes, id. at 8-11; and (3)
she charged EPA with failure to regulate hazardous wastes from 19
industry sources as required under the Hazardous and Solid Waste
Amendments of 1984. Id. at 11-22. Jenkins expressed
particular concern at EPA's so-called "re-listing" initiative, a
form of deregulation which permitted industries to determine for
themselves whether their wastes were hazardous, without EPA
oversight. Id. at 12. In October 1988 and December 1989,
Dr. Jenkins supplemented her congressional charges with accounts
of consultant abuse at EPA, i.e., conflicts of interest,
improper activities, and contract tampering, Exh. C-10 at 2-11,
14-20; and she charged EPA's Office of the Inspector General (IG)
with failing to investigate and concealing evidence of contractor
improprieties. [5] Id. at 7, 11-14. See Exh.
C-11.
In February 1990, Dr. Jenkins complained to congressional
subcommittees about EPA attempts to misrepresent a 1972 study
establishing that Alar, the apple pesticide, and its metabolite
UDMH [6] are potent carcinogens. As project officer for
hazardous waste listing regulations for UDMH, which also
comprises the raw material used to manufacture Alar, Dr. Jenkins
was responsible for the Federal Register response to industry
comments challenging the validity of the 1972 study. Dr. Jenkins
complained that while drafting her response, she was pressured by
EPA's Office of Pesticide Programs (OPP) and by her own OSW
supervisor to downgrade the significance of the study in order to
protect the OPP Assistant Administrator, who had declined to
cancel the sale of Alar. Exh. C-12. Dr. Jenkins refused, and
her draft language characterizing the study ultimately was
approved. [7]
About two weeks later, also in February 1990, Dr. Jenkins
complained internally about fraudulent methods employed by
Monsanto Company in epidemiologic studies which permitted the
studies to show no statistically significant excess cancer deaths
from exposure to dioxin. Exh. C-13. EPA relied on these studies
to conclude that dioxin did not cause cancer or other health
effects in humans, and thus EPA had accorded dioxin a reduced
"carcinogenic potential ranking" for regulatory purposes. Exh.
C-16 at 2. According to Dr. Jenkins, "[t]he Monsanto studies
. . . also have been a key basis for denying compensation to
Vietnam Veterans exposed to Agent Orange and their children
suffering birth defects from such parental exposures."
Id. Jenkins' complaint was forwarded to the National
Institute for Occupational Safety and Health (NIOSH) and EPA's
National Enforcement Investigation Center (NEIC). NIOSH
ultimately refuted the Monsanto finding of no statistically
significant
[PAGE 8]
excess cancers, and NEIC initiated a criminal investigation of
Monsanto. Access to additional information enabled Jenkins to
provide NEIC with further instances of Monsanto's fraudulent
dealings and to explain the extent to which the fraud had
affected EPA regulation. Exhs. C-16 (Nov. 15, 1990, mem.), C-17
(Jan. 24, 1991, mem.).
In September 1991, Dr. Jenkins executed a 150-page affidavit
"supporting a causal relationship between dioxin and human health
effects" for use by Vietnam Veterans in litigation against the
manufacturers of Agent Orange. Exh. C-19; T. 38. Dr. Jenkins
provided a copy of the affidavit to a Washington, D.C., public
interest group to counteract statements by then EPA Administrator
William Reilly that new research had demonstrated dioxin to be
less potent than previously thought. In her covering letter,
Jenkins stated:
What is the motivation for this recent media
blitz by Mr. Reilly and [Centers for Disease
Control] Dr. [Vernon] Houk, before EPA's new
dioxin risk assessment is complete. . . .
Mr. Reilly and Dr. Houk are aware that EPA's
new risk assessment will not be complete for
at least two years. As a result, public
statements purporting to reflect alleged
conclusions of the scientists actually
performing EPA's risk assessment will be
quite useful in swaying the current decisions
of a jury or community. It is my wish that
this affidavit will mitigate the recent
public posturing by high-level government
officials regarding the effects of dioxin,
and prevent the statements of Mr. Reilly
[and] Dr. Houk . . . from biasing the case
being brought by veterans of the Vietnam war.
Exh. C-18. In October 1991, the Attorney General for the State
of Alabama filed with EPA Administrator Reilly a petition for
rulemaking and notice of intent to sue under the CWA which relied
heavily on Dr. Jenkins' dioxin affidavit. Exh. C-20 at 18-20, 24
and n.9.
2. Adverse action
The environmental whistleblower provisions generally
prohibit discrimination with respect to an employee's
compensation, terms, conditions, or privileges of employment,
including transfer to a less desirable position even though no
loss of salary may be involved. DeFord v. Secretary of
Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983) (although rate
of
[PAGE 9]
compensation not changed, transferred employee "found he was not
welcome, that he was no longer a supervisor, and that his job was
by no means secure"). SeeHolsey v. Armour & Co.,
743 F.2d 199, 206-212 (4th Cir. 1984), cert. denied, 470
U.S. 1028 (1985) (manipulation of an employee's bumping
privileges, preventing a black manager from supervising white
employees in her department, and systematic harassment are
examples of adverse action). SeealsoKlein v.
Indiana Univ. Trustees, 766 F.2d 275, 277-278, 280-281 (7th
Cir. 1985) (altering an employee's work schedule); Griffin v.
Michigan Dep't of Corrections, 654 F. Supp. 690, 695 (E.D.
Mich. 1982) (false accusations and setups, intimidating comments,
threats to terminate employment); Sparrow v. Piedmont
Health Sys. Agency, 593 F. Supp. 1107, 1118 (M.D.N.C.
1984) (denial of customary employment recommendation).
Dr. Jenkins testified that shortly after she issued her
February 1990 memoranda concerning the Alar/UDMH rulemaking and
the Monsanto fraud, her work assignments ceased. She testified:
I had been working on two regulations and
there was a lot of paper work because it was
in the final stages . . . you have to get
approvals from different offices; get work
group review or whatever. My paperwork, I
would turn stuff around within a few hours or
a half day and send it forward: It stopped
moving. Essentially, then, in the summer and
the spring, I was not really getting new
assignments. All of my duties pretty much
tapered off and I was always given some
excuse. I asked [Supervisor] Petruska,
"I am sitting around here with nothing to
do. . . ." And he said that it will "be one
of my first priorities; I am going to find
work for you." A year after that. I mean,
not even letter writing -- nothing.
T. 40-41. Then in November 1991, following the State of
Alabama's October citizen suit petition, her supervisors began
discussing her reassignment, which took effect in April 1992.
Dr. Jenkins was transferred to a predominantly administrative
position in OSW's Technical Assessment Branch. With regard to
her new job, Dr. Jenkins testified: "[I]t is totally non-
technical, it is kind of policy analyst budgetary work that I am
doing -- kind of comparisons of numbers and seeing what we have
the money for in the program to do. It is not very good. . . .
It is very isolated." T. 54.
In short, Dr. Jenkins no longer performed the kind of
[PAGE 10]
challenging, technical work that utilized her chemical background
fully and required interaction with the regulated community and
the public. She had excelled at this work during her decade of
tenure at OSW, and she clearly enjoyed it. T. 104. In these
circumstances, I agree with the ALJ that her transfer to an
isolated, administrative position constituted adverse action.
The ALJ's observation, that "putting an employee in isolation
with little to do [can] have as adverse [an] impact on an
employee . . . as reducing his or her pay or even firing the
employee," applies especially to the highly motivated
Dr. Jenkins.
3. Causation
Temporal proximity between a complainant's protected
activity and an employer's adverse action has been held
sufficient to meet the causation requirement of a complainant's
prima facie case. Couty v. Dole, 886 F.2d 147, 148 (8th
Cir. 1989); Mitchell v. Baldrige, 759 F.2d 80, 86 and n.6
(D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas,
Inc., 683 F.2d 339, 343 (1Oth Cir.), cert. denied, 459
U.S. 1071 (1982).
Here, the sequence of events supported Dr. Jenkins' claim.
Within weeks of her February 1990 coercion and fraud complaints,
processing of her previously active listings ceased and she
received no further listings assignments. Both of these
complaints related directly to her listings assignments. Between
mid-1990 and the fall of 1991, Dr. Jenkins assisted in the NEIC
fraud investigation and engaged in outside research for the Agent
Orange litigation. Then, after completion of the dioxin
affidavit in September 1991 and its use in the October 1991
citizen suit petition, EPA decided to transfer Dr. Jenkins to an
essentially administrative position, isolating her from contact
with the regulated community and the public. [8] EPA management
first approached Dr. Jenkins with the possibility of transfer in
November 1991 and completed the paperwork in March 1992.
Furthermore, draft disciplinary memoranda, which addressed
Dr. Jenkins' earlier (1988-1989) as well as later (1990-1991)
protected activity but which never were transmitted to or
discussed with her, suggest EPA's displeasure with her
whistleblowing. Exhs. C-21, C-22, C-23, C-24, C-25. Indeed,
language in her supervisor's draft "memorandum to the file"
suggests that he objected to the content of her "communications
to the public" absent compliance with certain unspecified EPA
procedures. Exh. C-23 at 1, third paragraph. Taken together,
these exhibits document an ongoing, unsuccessful effort by EPA to
find a legitimate reason for disciplining Dr. Jenkins [9] when
the real reason appears to have been her whistleblowing. I find
that this evidence shows causation for purposes of Dr. Jenkins'
prima facie case.
[PAGE 11]
4. EPA's defense
David Bussard, Director of OSW's Characterization and
Assessment Division, made the decision to transfer Dr. Jenkins
to the division's Technical Assessment Branch (TAB). Jenkins
previously had been doing listings work under the supervision of
Michael Petruska, chief of the division's Regulatory Development
Branch, which ordinarily does not perform listings work. The
reason for this arrangement was that Dr. Jenkins had filed
harassment charges against Robert Scarberry, chief of the
division's Waste Identification Branch (WIB), which contained
the Listings Section, and a change in supervision was deemed
appropriate while the charges were pending. Director Bussard
testified that he decided to transfer Dr. Jenkins to the TAB
because her current listings assignments had concluded and
continued supervision by Chief Petruska would prove "awkward" and
"difficult" since he was not responsible for and lacked expertise
in the listings area. T. 111-114.
Bussard's proffered rationale for the transfer is
troublesome, however, and for the following reasons I agree with
the ALJ that it is pretextual. First, the timing is suspect.
Although Petruska had complained about what he viewed as an
unworkable supervisory arrangement throughout its more than two-
year duration, T. 318-319, 327, Bussard took no action until
Jenkins' February 1990 whistleblowing activity began to elicit
results and it became apparent that no legitimate basis existed
for disciplining her.
Second, testimony by EPA listings management revealed
Dr. Jenkins to be "highly skilled" at listings, a "top" candidate
for listings work "from a technical . . . and experience
standpoint," and "brilliant . . . under certain circumstances."
T. 234-235, 238-239. Accordingly, the logical transfer choice
was WIB's Listing Section, especially since WIB Chief Scarberry
no longer worked for EPA. T. 318. WIB listing assignments had
increased dramatically as the result of a settlement reached in a
court action brought against EPA by the Environmental Defense
Fund, Exh. R-20, and the burden placed on the Listings Section as
the result of the settlement exceeded that placed on the TAB.
T. 148, 215-216, 235. Moreover, TAB Chief Alexander McBride
testified that Jenkins was not qualified to perform the work done
by his branch, and he was required to create a special position
for her which alternatively could be filled by an employee of
lesser grade. T. 205, 218-219, 220, 226; Exh. C-2 at 4.
See T. 154-155 (Bussard).
Finally, Edwin Abrams, chief of the Listings Section,
testified that he "made [his] feelings known" that because of her
"zealousness," especially concerning dioxins, he did not want
Dr. Jenkins assigned to his branch. T. 237, 242; Exh. C-3.
See[PAGE 12]
T. 144-145 (Bussard). In a memorandum regarding possible
assignments for Dr. Jenkins, Abrams wrote: "I don't think Cate
should be involved with anything that puts her in direct contact
with the regulated community or the general public. If we insist
on retaining her, place her in some administrative or staff
position (like Bill Sanjour) and not worry about whether she
is happy. . . ." Exh. R-15. Bill Sanjour is a "well known"
whistleblower in EPA's Characterization and Assessment Division
who "either has no duties or if [he] is given duties, they are
definitely of an administrative type." [10] T. 54-55 (Jenkins).
Based on the above considerations, I find that EPA transferred
Dr. Jenkins in retaliation for her protected activity.
ORDER
Respondent U.S. Environmental Protection Agency is ordered
to offer Complainant Dr. Cate Jenkins reinstatement to her former
or comparable position performing the work assigned to the
Listings Section, Waste Identification Branch, Characterization
and Assessment Division, Office of Solid Waste, Office of Solid
Waste and Emergency Response, U.S. EPA. I also adopt the ALJ's
recommendations that this decision be posted and circulated and
that Complainant be compensated for costs and expenses.
Accordingly, counsel for Complainant are granted a period of 20
days from receipt of this decision to submit any petition for
costs and expenses, including attorney fees. Respondent
thereafter may respond to any petition within 20 days of receipt.
The ALJ also has recommended, without discussion, that
Complainant be awarded exemplary damages. Assuming, without
deciding, that exemplary damages are available against the United
States Government, I find that they are not appropriate here.
Beyond the bare statutory violations, the record in this case
suggests that on more than one occasion EPA punished
whistleblowers by removing them from assignments and transferring
them to undesirable positions, and accordingly that EPA routinely
may have dealt with its whistleblowers in this manner. The
record also suggests that EPA carefully scrutinized Dr. Jenkins'
actions in an attempt to find a legitimate basis for its
retaliation. This showing, however, does not appear to meet the
threshold "state of mind" standard for awarding such damages
adopted in Johnson, Hernandez, and Bradley v. Old Dominion
Security, Case Nos. 86-CAA-3, 86-CAA-4, 86-CAA-5, Sec. Dec.,
May 29, 1991, slip op. at 28-30, and I therefore do not award
them. [11]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The SWDA also is known as the Resource Conservation and
Recovery Act (RCRA).
[2]
EPA has jurisdiction over properties and facilities as a
regulator and an occupant. As a regulator, it has jurisdiction
over solid waste management facilities and disposal sites and as
an enforcer it engages in activities resulting in disposal and
management of solid waste and hazardous waste. It also engages
in activity which may endanger drinking water. For example, the
manner in which EPA manages the cleanup of a Superfund site may
result in contaminated drinking water. As part of her regulatory
"listing" activities, Dr. Jenkins assisted an EPA regional office
which was responsible for overseeing the cleanup of a hazardous
waste facility in California. In so doing, she discovered
evidence that omissions by the regional office may have resulted
in prolonged contamination of residential drinking wells. EPA's
attempt to cover up this evidence formed the basis for one of Dr.
Jenkins' whistleblower complaints. See Exh. C-9 at 2-8.
[3]
Those decisions note that the Whistleblower Protection Act of
1989 amended the CSRA to provide that CSRA remedies "shall [not]
be construed to limit any right or remedy available under a
provision of [another] statute." 5 U.S.C. § 1222. As its
legislative history makes clear, that provision was intended to
preserve whistleblower remedies under "a large number of
environmental and labor statutes which provide specific
protection to employees who cooperate with federal agencies."
135 Cong. Rec. 5035 (1989). In the instant case, much of
Dr. Jenkins' protected activity and all of EPA's retaliation
occurred after July 9, 1989, the effective date of the
Whistleblower Protection Act. Seeinfra at 11-16.
[4]
CERCLA Section 9610(a) is quoted above under the "waiver of
immunity" issue. Another example, SDWA 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.
[5]
EPA's IG thereafter became the subject of a congressional
investigation. Exh. C-2 at 13 and 14 n.28.
[6]
UDMH is the chemical unsymmetrical dimethylhydrazine. T. 47.
[7]
At the time that the OPP Branch Chief requested the
misrepresentation, she may have been unaware that the meeting was
being audio-recorded. Exh. C-12 at 7.
[8]
The Chairman of the National Vietnam Veterans Coalition
testified that he was referred to Dr. Jenkins when he contacted
EPA for assistance in conjunction with prospective Agent Orange
legislation and that she assisted him as directed under the
"public interaction" standard in her job description. T. 174-
189.
[9]
Dr. Jenkins was charged with (1) creating confusion about EPA's
official positions by issuing external whistleblower complaints
on agency letterhead, (2) compromising the integrity of the
Alar/UDMH rulemaking by disclosing OPP's "position" that the 1972
study should be downgraded, and (3) disclosing the fact that
Monsanto was being investigated. With regard to the final
charge, EPA's Deputy Assistant Administrator, Office of
Enforcement, in a "confidential, personnel-sensitive" memorandum,
requested that Dr. Jenkins be subject to "appropriate
administrative action" because she may have "damage[d] both the
efficiency of the criminal investigation at issue and the
legitimate interests of companies and individuals who have
neither been charged with, nor convicted of, any crime." Exh.
C-30 at 1-2. After researching the charges, Dr. Jenkins'
supervisor, Branch Chief Petruska, determined that they would not
support discipline. T. 306-316.
[10]
In a separate memorandum concerning Dr. Jenkins, Abrams
cautioned: "I think you (Mike P[etruska]) need to define the
scope of her work very carefully or you'll create another
monster." Exh. C-27 (emphasis in original).
[11]
Under the Old Dominion standard, the threshold inquiry
centers on the wrongdoer's state of mind: did the wrongdoer
demonstrate reckless or callous indifference to the legally
protected rights of others, and did the wrongdoer engage in
conscious action in deliberate disregard of those rights? The
"state of mind" thus is comprised both of intent and the resolve
actually to take action to effect harm. If this state of mind is
present, the inquiry proceeds to whether an award is necessary
for deterrence.
