DATE: December 3, 1992

CASE NO.: 92-TSC-5

In the Matter of:

WILLIAM L. MARCUS, PH.D.,
    Complainant,

    v.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
    Respondent

Appearances:

Stephen M. Kohn, Esq.
Michael Kohn, Esq.
Kohn, Kohn and Colapinto, P.C.
517 Florida Avenue, N.W.
Washington, D.C. 20210
    For Complainant

Bridget C. Shea, Esq.
Office of General Counsel
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
    For Respondent

Before David A. Clarke, Jr.
    Administrative Law Judge

    This proceeding arises under the Toxic Substances Control Act, 15 U.S.C. § 2622; the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i); the Clean Air Act, 42 U.S.C. § 7622; the Solid Waste Disposal Act, 42 U.S.C. § 6971; the Water Pollution Control Act, 33 U.S.C. § 1367; and the Comprehensive Environmental Response,

Compensation and Liability Act, 42 U.S.C. § 9610, and under the regulations found at 29 C.F.R. Part 24.

    A hearing was held on July 14 through 17 and August 4 and 5, 1992, in Washington, D.C. The parties were represented by counsel and were given an opportunity to present evidence and arguments. The record closed on October 19, 1992, with receipt of post hearing submissions from the parties.

    Dr. William Marcus (Complainant) alleges that he was subjected to a hostile work environment and later terminated because of a memo he drafted and released that warned of potential harm from the use of fluoride, contrary to the U.S. Environmental Protection Agency's official position concerning the safety of fluoride use.

    The U.S. Environmental Protection Agency (E.P.A.) (Respondent) contends that it terminated Dr. Marcus after an investigation by the Inspector General's office, which alleged that Dr. Marcus was (1) using official information for private gain; (2) engaging in private business activities that resulted in or created the appearance of a conflict of interest; (3) failing to follow established leave procedures; and (4) failing to obtain administrative approval for outside employment. E.P.A. contends that while it was aware of Dr. Marcus' controversial memo, it was not a factor in the decision to terminate Dr. Marcus, employment.

    Dr. William Marcus was employed as an environmental toxicologist by the U.S. Environmental Protection Agency for approximately eighteen years, ending on May 13, 1992. Dr. Marcus has a Ph.D. in pharmacology, with a subspecialty in toxicology. He also has a post doctorate degree in teratology and is one of approximately three hundred board certified toxicologists in the United States. (Tr. at 444, 456-58, 448.) While employed by E.P.A., Dr. Marcus served in various positions in the Office of Toxic Substances and as Branch Chief in the Office of Drinking Water. (Tr. at 446-47.) In addition, he received two bronze medals from E.P.A. for distinguished service. (Tr. at 451-52.) In the early 1980's, Dr. Marcus became a Senior Science Advisor

within the Criteria and Standards Division of the office of Drinking water, at a grade 15 level. (Tr. at 448.)

    In addition to being employed at E.P.A., sometime around 1983 or 1984 Dr. Marcus began to engage in outside work as a consultant in civil cases dealing with toxic chemical substances. In conjunction with this activity Dr. Marcus provided expert testimony for a fee at depositions and trials.

    At about the same time he began outside work, Dr. Marcus met with Dr. Joseph Cotruvo (his immediate supervisor), Victor Kimm (Deputy Ethics Official for the Office of Drinking Water and Dr. Cotruvo's immediate supervisor), Dr. Arnold Kuzmack (Director, Program Development and Evaluation Division), and Donnell Nantkus (the Alternate Agency Ethics Official, Office of General Counsel) to discuss his outside employment. As a result of meetings with the these E.P.A. officials, Dr. Marcus believed he had "blanket approval", to be a paid expert witness in litigation matters outside of his employment with E.P.A. (Tr. at 461-65; Cl. Ex. 156.)

    E.P.A. was aware of Dr. Marcus' outside activities. Dr. Marcus would occasionally meet with Mr. Nantkus to describe anticipated testimony to determine whether there were any improprieties. (Tr. at 470.) Additionally, Dr. Cotruvo received a complaint about Dr. Marcus' testimony sometime prior to June, 1987, and approached Dr. Marcus for a response. (Tr. at 472-74.) Moreover, on August 4, 1989, Dr. Cotruvo received a phone call from an attorney representing a litigant against whom Dr. Marcus was testifying; Dr. Cotruvo told the caller about the parameters of Dr. Marcus' authority to testify, as established by E.P.A. supervisors, and suggested she call Mr. Nantkes for specifics. (Tr. at 475-76; Cl. Ex. 51.)

    Dr. Marcus, official job title at E.P.A. was "Toxicologist," and his "Organizational Title" was "Senior Science Advisor." (Tr. at 971-77; Cl. Ex. 65.) However, Dr. Marcus adopted the title "Chief Toxicologist," without explicit E.P.A. approval. Dr. Marcus frequently used this title in both the E.P.A. workplace and his private consulting business. (Tr. at 363-64; Cl. Ex. 8; Tr. at 839-40 and 850; Res. Ex. 3, tab 5.) The fact that Dr. Marcus was using the title of "Chief Toxicologist" was known to E.P.A. supervisory personnel including Dr. Cotruvo and Mr. Kimm. (Tr. at 466-67; Cl. Ex. 8.) The

record does not reflect any effort on their part to curtail the use of this title by Dr. Marcus prior to the issuance of his fluoride memo. (Tr. at 841)

    During this same time period, E.P.A. moved its facilities to the newly constructed Waterside Mall complex. Because many employees complained that materials in the new building were causing adverse health effects, E.P.A. allowed some employees, including Dr. Marcus, to work at home.

    As Dr. Marcus' consulting business progressed, the line between his official E.P.A. responsibilities and his consulting business blurred. For example, while Dr. Marcus introduced his expert testimony by claiming that he was appearing as a private individual and not on behalf of E.P.A., he sometimes used the term "we" as if he were speaking for the Office of Drinking Water. (Tr. at 845.)

    In 1985 Dr. Marcus went to his supervisor, Dr. Cotruvo, and questioned the scientific responsibility of a background document being used by E.P.A. to regulate fluoride use. (Tr. at 485.) In the years that followed, Dr. Marcus' interest in fluoride research remained acute because of its peripheral relationship to osteosarcoma, a bone cancer he was researching. (Tr. at 492-94.)

    In 1988, Dr. Marcus was hired to give expert testimony in the civil case of Ableman v. Velsicol Corp., wherein it was alleged that use of chlordane in a pesticide had caused human illness and death. (Tr. at 478-79.) On April 12, 1988, attorneys from Spriggs, Bode, & Hollingsworth, the law firm representing the pesticide manufacturer, complained to E.P.A. that during the trial Dr. Marcus was using confidential information, which he had obtained through his official position at E.P.A. (Cl. Ex. 155 and 158.) Because of this complaint, E.P.A.'s Office of the Inspector General (Inspector General) initiated an investigation into Dr. Marcus' outside employment activities. (Cl. Ex. 155 and 158.)

    The investigation remained open for three and one half years. At times the investigation was very active, with Special Agents Tracy Connell or Lori Fairchild interviewing individuals and/or receiving information from various private law firms. (Cl. Ex. 155.) At other times the investigation was dormant, with six periods of approximately two months or greater having no

activity at all. (Id.) Dr. Marcus was not aware of the investigation.

    On May 1, 1990, Dr. Marcus submitted a memo to Alan Hais (his immediate supervisor and the Acting Director of the Criteria & Standards Division) outlining in great detail a potential for widespread adverse affects that fluoride use may have upon the general public. (Tr. at 500; Cl. Ex. 56.) When Dr. Marcus perceived that E.P.A. was ignoring this highly critical memo, he released the memo to Dr. Robert Carton, an E.P.A. environmental scientist and union representative who was interested in the fluoride controversy. (Tr. at 500-01.)

    Dr. Carton released the memo to William Reilly (Administrator of E.P.A.), the press, and various citizen's groups. (Tr. at 369.) The memo received widespread public attention and was featured in a July 1990 television documentary, hosted by Roberta Baskin, questioning fluoride safety. In the documentary, Michael Cook (Director, Office of Drinking Water and Dr. Marcus, second line supervisor) was interviewed. (Cl. Ex. 202.) During the program, Dr. Marcus' memo was used to directly refute the E.P.A. position expressed by Mr. Cook. (Tr. at 502, Cl. Ex. 202.)

    On July 27, 1990, Dr. Edward Ohanian, Chief of the Health Effects Branch, circulated a memo to Margaret Stasikowski (Director of Criteria Standards Division and Dr. Marcus, immediate supervisor). (Cl. Ex. 63.) The memo complained of Dr. Marcus, fluoride memo and the impact of the Roberta Baskin show. (Id.) Dr. Ohanian stated that Dr. Marcus' memo "sends the wrong message to the public and scientific community" and "created some chaos and turmoil." (Tr. at 938-40; Cl. Ex. 63.) Dr. Ohanian's memo was also sent to Michael Cook (Stasikowski's supervisor, who had been interviewed on the television documentary), Peter Cook (Michael Cook's assistant) and Alan Hais. (Cl. Ex. 63.)

    Shortly thereafter, Dr. Marcus' supervisor asked him to prepare weekly activity reports and meet regularly with her. (Tr. at 888-90.) He was instructed to recertify his inability to work in the Waterside Mall complex. He was instructed to inform E.P.A. management of, and seek prior approval for, all occasions when he was to appear as an expert witness in matters outside his employment with E.P.A. (Tr. at 508-10.) Ms. Stasikowski limited Dr. Marcus' official duties to the least controversial

chemicals. (Tr. at 524.) She also forbade Dr. Marcus from working on fluoride related matters during E.P.A. hours. (Tr. at 880-85.) Dr. Marcus was no longer given assignments reviewing his colleagues, work. (Tr. at 524-25.) Also, Dr. Marcus' request for administrative leave to speak before the American Chemical Society was denied. (Tr. at 505-07.)

    These changes, according to Ms. Stasikowski, were instituted shortly after she was appointed Division Director in June of 1990. (Tr. at 890-93.) She stated that the changes were made to enable her to learn more about her subordinates' performance and better manage the division. (Id.)

    On August 28, 1990, Mr. Michael Cook sent a memo to Dr. Marcus concerning outside employment. The memo began, "[a]s you know, you have had blanket approval to engage in outside employment as an advisor and expert witness on the health effects of toxic substances." (Tr. at 508-09; Cl. Ex. 66.) Mr. Cook then went on to say, "I am withdrawing my approval of your outside employment." (Id.)

    On October 2, 1990, Special Agent Fairchild and Special Agent Francis Kiley (Special Agent in charge of the Washington, D.C. field office and Fairchild's supervisor) met for the first time with Michael Cook and Peter Cook. (Tr. at 742-44.) During this meeting Dr. Marcus' involvement in the fluoride controversy was discussed. (Id.)

    Shortly thereafter, the tenor of the Inspector General's investigation changed. After having remained dormant for six months, from March to September of 1990, no month passed from that time forward without investigative activity by Special Agents Fairchild and/or Kiley. (Cl. Ex. 155.)

    In November 1990, Ms. Stasikowski drafted a memo that accused Dr. Marcus of aberrant and violent behavior, such as carrying a firearm and threatening E.P.A. staff. (Cl. Ex. 73.) Ms. Stasikowski informally circulated the memo to supervisory personnel, including the Assistant Administrator of E.P.A., and to security. (Cl. Ex. 73; Tr. at 528-34; Tr. at 958-62.) Ms. Stasikowski formed this opinion of Dr. Marcus from statements she heard second hand; when she later came to know Dr. Marcus through work experiences, she realized that this description of Dr. Marcus was incorrect. (Tr. at 866-69 and 961-62.) However, she

did not approach the Assistant Administrator or other E.P.A. personnel to correct her earlier misstatements. (Tr. at 961-62.)

    On May 28, 1991, the Honorable Paul McGuckian, Associate Judge for the Sixth Judicial Circuit of Maryland, wrote to E.P.A. Administrator Reilly. (Tr. at 863-64 and 727.) In his letter Judge McGuckian complained of improprieties by Dr. Marcus, who had testified two weeks earlier at a trial over which Judge McGuckian presided. (Tr. at 863-64 and 727; Res. Ex. 4.) Special Agent Fairchild referred the matter to the State's Attorney for Frederick County, Maryland, who declined to prosecute. (Tr. at 726-30; Cl. Ex. 155; Res. Ex. 3, tab 11.)

    On September 25, 1991, Special Agent Fairchild interviewed Dr. Marcus. (Tr. at 783-84.) Dr. Rufus Morrison, an E.P.A. ecologist and union steward, attended the meeting. (Id.) Special Agent Fairchild presented Dr. Marcus with a list of dates, each of which were purported to represent a work day when he was appearing as a paid witness while his timecards indicated that he was either on E.P.A. time or using sick leave. (Tr. at 783-86.) When asked by Special Agent Fairchild to explain these discrepancies, Dr. Marcus responded that there must be an error, that the timecards should indicate that annual leave was taken, and that he had no objection to paying back any salary not due him. (Tr. at 576-78; Tr. at 334-38.)

    On November 7, 1991, the Inspector General concluded its investigation of Dr. Marcus and released its report. (Res. Ex. 3.) The report charged that Dr. Marcus did not receive approval for his outside work; failed to report financial gain from his outside work; falsely described his E.P.A. duties and responsibilities; released confidential information; and misused leave. (Res. Ex. 3.)

    The Inspector General's report was based, in part, on the results of interviews with E.P.A. personnel and others. Special Agents Fairchild and Kiley shredded all investigation notes made contemporaneously during interviews. (Tr. at 99.) The destruction of this evidence occurred on the authority of an erroneously issued closing report and while Special Agent Kiley was aware of an ongoing Wage and Hour Investigation, a Freedom of Information Act (FOIA) request by Dr. Marcus and his attorney, an administrative proceeding for the removal of Dr. Marcus, two Capital Hill inquiries into possible whistleblower violations by

E.P.A., and questions to Administrator Reilly concerning the Marcus firing. (Tr. at 213-26.) The handwritten notes were destroyed on March 25, 1992, in violation of E.P.A. FOIA Regulations at 40 C.F.R. Part 2.111 (a). (Joint Stipulations.)

    On January 13, 1992, Ms. Stasikowski, relying upon the Inspector General's report, proposed that Dr. Marcus be fired; she listed five charges against Dr. Marcus. (Res. Ex. 2.) On May 13, 1992, Dr. Davies concurred with Ms. Stasikowski and terminated Dr. Marcus, employment with E.P.A. (Res. Ex. 1.) Of the five charges made by Ms. Stasikowski, Dr. Davies found that four were substantiated. (Tr. at 1015-16.) The four charges, or reasons for dismissal, were:

1. Using official information for private gain;

3. Engaging in private business activities that result in or create the appearance of a conflict of interest;

4. Failing to follow established leave procedures;

5. Failing to obtain administrative approval for outside employment.

(Res. Ex. 1 and 2; Tr. at 825-26, 1015-16.) Charge number two, Conduct Which Is Generally Criminal, Infamous, Dishonest or Notoriously Disgraceful, was not used as a reason for dismissal. (Res. Ex. 2, p. 4.)

    Dr. Davies testified that his decision to terminate Dr. Marcus, employment was based on the evidence contained in the Inspector General's report; the accompanying transmittal memo from Special Agent Kiley; the material submitted by Paul A. McGuckian, Associate Judge for the Sixth Judicial Court of Maryland; Ms. Stasikowski's memo Proposed Removal; and an interview with Dr. Marcus. (Tr. at 1013-15 and 1043-46.) Dr. Davies also testified that if one or two of the charges were found not to be substantiated, he would have to reconsider his decision to terminate Dr. Marcus, employment. (Tr. at 1064.)

    Dr. Davies testified that while he was aware of Dr. Marcus' activities concerning fluoride, and while he was "bothered" by congressional interest and inquiry caused by Dr. Marcus, views,

they in no way influenced his decision to terminate Dr. Marcus' employment. (Tr. at 1050-52.)

    Between 1984 and January 13, 1992, Dr. Marcus was not disciplined by E.P.A. for (1) using official information for private gain; (2) engaging in private business activities that result in or create the appearance of a conflict of interest; (3) failing to follow established leave procedures; and (4) failing to obtain administrative approval for outside employment. (Tr. at 574 and 325.) Dr. Davies testified that he was not aware of the extent of Dr. Marcus, outside consulting activities until receipt of the Inspector General's report in 1991. (Tr. at 1045- 46.)

    In an alleged retaliatory adverse action case, such as this, the employee bears the ultimate burden of proof that intentional discrimination has occurred. Dean Darty, No. 82-ERA- 2, slip op. at 6-7 (Sec'y of Labor, April 23, 1983) citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). In such cases, the employee must initially present a prima facie case showing that (1) she or he engaged in protected activity, (2) the employer was aware of such activity, and (3) the employer took adverse action against the employee. McDonell Douglas Corp. v. Green, 411 U.S. 792, 803 (1972).

    If the employee establishes a prima facie case, the employer must rebut the presumption of retaliatory action by articulating a legitimate, nondiscriminatory reason for the adverse action. Dean Darty, at 8; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

    Should the employer successfully rebut the employee's prima facie, case, the employee must present evidence showing that the employer's proffered reason is a pretext. Dean Darty, at 8; Burdine, at 253. In order for the employee to meet this burden, the employee must prove by a preponderance of the evidence that a retaliatory reason more likely than not motivated the employer or that the employer's proffered explanation is not credible. Dean Darty, at 8; Burdine, at 256.

    Dr. Marcus' evidence established a prima facie case. It showed that he had engaged in protected activity, that his employer was aware of this activity, and that adverse action was taken against him. In rebuttal, E.P.A. presented evidence that it terminated Dr. Marcus, employment for four reasons, none of which included Dr. Marcus' fluoride activities. The four reasons, identified as charges by Dr. Davies, must be considered to determine if they are legitimate reasons for terminating Dr. Marcus' employment, or as Dr. Marcus contends, pretexts.

    Dr. Davies and Ms. Stasikowski cited E.P.A. regulations at 40 C.F.R. §§ 3.103 (b) and (d) (1) as the framework for deciding whether Dr. Marcus violated official policy. To review the reasons offered for dismissal, Dr. Marcus' conduct must be scrutinized against these regulations, which read as follows:

    Employees may not use their official positions for private gain or act in such a manner that creates the reasonable appearance of doing so.

    Employees therefore must not:

(b) Use information acquired through EPA duties that has not been made available to the general public to further their private interests;

(d) Take any action, whether specifically prohibited or not, which would result in or create the reasonable appearance of:

(1) Using public office for private gain . . . .

    The cited subsections cover two separate situations. The first, § 3.103 (b), prohibits using information that is not available to the general public for private gain. This regulation, as applied to Dr. Marcus, does not necessarily prohibit the use of official information. Rather, permissibility is determined by whether the information is available to the general public.

    The second, § 3.103 (d) (1), is a catchall provision that is somewhat vague and could be interpreted to cover a myriad of

activities. The E.P.A. Office of General Counsel has interpreted this regulation to prohibit accepting payment for any article or appearance, including testimony, that focuses specifically on the employee's official duties or on the responsibilities, policies and programs of the E.P.A. (Res. Ex. 3, tab 58, p. 3 and tab 57.)

    Dr. Davies referenced examples of alleged wrongdoing in his memo entitled Final Decision on the Notice of Proposed Dismissal. These examples constituted the basis of his determination that Dr. Marcus had used official information for private gain.

    In example number one, Dr. Davies alleged that an October 11, 1986, letter, which Dr. Marcus wrote to an attorney soliciting private employment as an expert witness, gave the impression that Dr. Marcus had access to and use of restricted information through his position at E.P.A. In that letter, Dr. Marcus referred to two chlordane studies, which were classified by the E.P.A. Office of Pesticide Programs as "Confidential Business Information" (CBI). (Res. Ex. 3, tab 5.) In his letter, Dr. Marcus stated that he had access to the "summaries" of the studies, which were not "CBI," and that he would be sending them to Attorney Tippit. (Id.) At the end of the letter, Dr. Marcus listed his fee schedule as an expert witness. (Id.)

    Dr. Marcus' letter did not refer to his employment at E.P.A. The letterhead listed Dr. Marcus' name, that he was "Board Certified" and a "Consulting Toxicologist," and his home address. The letter offered the nonconfidential summaries of the studies, not the studies themselves. The summaries were available to the general public. (Tr. at 563-64.) Therefore, Dr. Marcus neither used nonpublic information nor solicited payment for information that focused specifically on his official duties or on the responsibilities, policies and programs of the E.P.A. Accordingly, this allegation is not substantiated.

    In example number two, Dr. Davies alleged that Dr. Marcus impermissibly attended an E.P.A. Reference Dose Group (RfD) meeting concerning the chemical chlordane, in that he was not a member of the group and not assigned to work with chlordane, and that Dr. Marcus' purpose was to use official knowledge that he gained at this meeting for his own private gain.

    At the hearing, Dr. Marcus produced an E.P.A. manual listing "William Marcus, Ph.D. (OW)" as an Office of Drinking Water representative to the RfD group. (Tr. at 552-54; Cl. Ex. 137.) Dr. Marcus also produced the minutes on E.P.A. letterhead of an RfD meeting which stated that chlordane was discussed by the group and that Dr. Marcus was present. (Tr. at 563-64; Cl. Ex. 9.)

    In regard to section 3.103 (b), Dr. Davies did not allege that the information Dr. Marcus obtained at the RfD meeting was not available to the public. Therefore, the allegation that Dr. Marcus used nonpublic information regarding chlordane for private gain is not substantiated. In regard to section 3.103 (d) (1), Dr. Davies did not allege that the chlordane information focused specifically on Dr. Marcus' official duties or on the responsibilities, policies and programs of E.P.A. Accordingly, this allegation is not substantiated.

    In example number three, Dr. Davies alleged that Dr. Marcus had used an abstract of the Yonamura study in paid testimony, but because Dr. Marcus had not filed a FOIA request he must have obtained the study through his work as an E.P.A. employee, violating E.P.A. regulations at 40 C.F.R. § 3.103 (b), (d) (1). The Inspector General's report stated that the Yonamura study did not contain confidential business information and was available to the general public. (Res. Ex. 3, tab 9.)

    Dr. Davies assumed that because there was no FOIA request on file, Dr. Marcus must have either gone directly to the Information Services Branch or accessed the information through another E.P.A. employee. This assumption is pure conjecture and speculation, and as such can not support the decision to terminate Dr. Marcus, employment. (Res. Ex. 2, p. 3.)

    Additionally, I credit Dr. Marcus' testimony that the Yonamura study was used by the RfD group to support certain regulatory conclusions, and that the information is available to the general public. Finally, the Yonumura abstract is not a decision making process or procedure. Accordingly, this allegation is not substantiated.

    In example number four, Dr. Davies alleged that a document Dr. Marcus used, Addendum to the Health Assessment Document for Trichlorethylene, which was stamped "do not cite or quote," had

limited public access. (Tr. at 1019-21.) Dr. Marcus produced the document at trial. (Cl. Ex. 134.) The document had been circulated for peer review to scientists outside the E.P.A., with no prohibition against redistribution, and is available to the general public through the National Technical Information Service at the price of $30.95. The "do not cite or quote" notation means that the document should not be cited as authority in scholarly writings or presentations. This document is available to the public; therefore Dr. Marcus did not violate section 3.103 (b). Additionally, the document did not focus specifically on Dr. Marcus' official duties or on the responsibilities, policies and programs of E.P.A.; therefore, Dr. Marcus did not violate § 3.103 (d) (1). Accordingly, this allegation is not substantiated.

    The next cited example is number six. In this example Dr. Davies alleged that a French scientific document, which Dr. Marcus translated for use during private testimony in the case of Carroll v. Litton Systems, Inc., was not generally available to the public. At the hearing, Dr. Marcus testified that the document was first published in 1897 and is available at the public library. (Tr. at 633-35.) This document is public information and does not focus specifically on Dr. Marcus, official duties or on the responsibilities, policies and programs of E.P.A. Accordingly, this allegation is not substantiated.

    As demonstrated by the above analysis, the five examples relied on by Dr. Davies to support the first of his four reasons for terminating Dr. Marcus, employment are not supportable in fact or law.

    Dr. Davies reviewed this charge made by Ms. Stasikowski in her memo entitled Proposed Removal. He found that Dr. Marcus' actions did not sustain this charge. Therefore, he did not rely on it to support his decision to terminate Dr. Marcus' employment.

    Section 3.103 (d) (1), as discussed previously, prohibits

accepting payment for any written article or appearance, including testimony, that focuses specifically on the employee's official duties or on the responsibilities, policies and programs of the E.P.A. (Res. Ex. 3, tab 58, p. 3 and tab 57.)

    Dr. Davies cited the E.P.A. regulations at 40 C.F.R. § 3.103 and explained that this section, as applied to Dr. Marcus, prohibits him, when testifying as a private citizen, from discussing the E.P.A. regulatory decision making processes, policies and the employees involved in such activities. (Res. Ex. 1, p. 4.)

    Example number one contained two allegations against Dr. Marcus. First, Dr. Davies alleged that Dr. Marcus misrepresented his position and authority at E.P.A. by referring to himself as the "Chief Toxicologist" for the Office of Drinking Water, for the purpose of bolstering his stature as a paid witness. Dr. Marcus' E.P.A. position description lists his job title as Toxicologist and his organizational title of position as Senior Science Advisor. (Cl. Ex. 65, p. 5.) At the hearing, Dr. Marcus explained that he adopted the "Chief Toxicologist" title with the informal permission of his immediate supervisor, Dr. Cotruvo, and that E.P.A. personnel were aware of his use of the title "Chief Toxicologist" for several years. (Tr. at 454-55.)

    The "Chief Toxicologist" title was adopted by Dr. Marcus and was not assigned to him by the agency. Therefore, Dr. Marcus represented himself by a title that was not his position of record at E.P.A. However, it is not uncommon in Government offices for employees to adopt unofficial job titles with the actual or tacit approval of their supervisors. That appears to have been the case in this instance. I credit Dr. Marcus' testimony in this regard.

    Second, Dr. Davies alleged that Dr. Marcus gave the impression he was appearing as a representative of the E.P.A. when he was deposed in the case of Kanode v. Trans-Tech, Inc. In his deposition, Dr. Marcus testified that he signed off on the "DWEL" for trichloroethylene, and that he agreed with the finalization because it was a good compromise based on the data. (Res. Ex. 3, tab 25, p. 152.) Additionally, Dr. Marcus testified that "DWELs" are part of a Health Advisory; that the Health Advisory is revisited every three years; that if significant new data is developed, the Health Advisory is redone; and that Dr.

Marcus would participate in that process. (Id. at p. 153.)

    Since Dr. Marcus discussed his specific duties regarding the "DWEL" for trichloroethylene and the promulgation of Health Advisories during his testimony as a paid witness, Dr. Marcus accepted payment for an appearance that focused specifically on his official duties or on the responsibilities, policies and programs of the E.P.A. Therefore, he violated section 3.103 (d) (1). Accordingly, this allegation against Dr. Marcus is substantiated.

    In the next example given, labeled Examples 2 & 3, Dr. Davies made three allegations. First, he alleged that Dr. Marcus began his deposition in the case of Ableman v. Velsicol Chemical Corp. by mischaracterizing E.P.A. ethics regulations and falsely stating that he had authority to testify as a private citizen. In his testimony, Dr. Marcus began with the following disclaimer:

For the record, I am here as a private individual. My opinions are strictly those of a private individual and do not necessarily represent those of my employer, the United States Environmental Protection Agency.

(Res. Ex. 3, tab 28, p. 9.) When asked to explain this statement, Dr. Marcus testified:

As part of the agreement I have with my employer, when I engage in outside employment I am to do it as a private citizen and to include as part of the record that it is strictly my personal opinion. (Id. at p. 9.)

    As will be discussed later, the evidence shows that Dr. Marcus did have administrative approval to appear as a paid witness. Therefore, the allegation that Dr. Marcus mischaracterized E.P.A. ethics regulations and falsely stated that he had authority to testify as a private citizen is not substantiated.

    Second, Dr. Davies alleged that Dr. Marcus described E.P.A. procedures and policies and related a discussion between E.P.A. and Velsicol Corporation employees in his testimony in the deposition in the case of Ableman v. Velsicol Chemical Corp. In his testimony, Dr. Marcus discussed he following topics:

• E.P.A.'s investigation of the problems of pesticide application;

• his duties at E.P.A. regarding evaluating the allowable levels of chlordane and heptachlor, when airborne;

• his E.P.A. duties concerning chlordane and heptachlor use as termiticides;

• that E.P.A. had compelled Velsicol to provide test information concerning exposure for crawl space homes and for slab-based homes;

• that he was involved in work that established the E.P.A. standard for cyclodienes and that Velsicol withdrew its product from the market when it learned that E.P.A. was preparing to suspend its approval of the product; and that E.P.A. had concluded that chlordane and heptachlor are animal carcinogens.

(Res. Ex. 3, tab 28, pp. 107-10, 114-15, 148, 152-53, 170-73, 182-83.)

    It appears that Dr. Marcus testified about his specific duties or about the responsibilities, policies and programs of the E.P.A. Therefore, he violated § 3.103 (d) (1), and this allegation against him is substantiated.

    Third, Dr. Davies alleged that Dr. Marcus, in his deposition testimony in the case of Abelman v. Velsicol Chemical Corp., consistently used the term "well in discussing E.P.A. policies and procedures, for the purpose of conveying the impression that he was testifying as an official E.P.A. representative. In his testimony, Dr. Marcus discussed evaluating chlordane and heptachlor. He said:

Remember, we are strictly the Office of Drinking Water and we don't ordinarily, unless specifically requested, make some conversions; but, if say you would like to know, I would be happy to try.

(Res. Ex. 3, tab 28, p. 115.) In addition, when testifying about how he formed the conclusion that Velsicol had decided to withdraw its chemical from the market rather than have it

suspended by E.P.A., Dr. Marcus said:

What happened at EPA was we, "we" being the Office of Drinking Water and my responsibility, were in the midst of writing or revising our standards. As part of my responsibility, I was to keep track of the ongoing actions in the chemicals we have already had . . . .¹

(Res. Ex. 3, tab 28, p. 173.)

    In his testimony, Dr. Marcus used the pronoun "we" as if he were speaking for the E.P.A. Such statements were probably intended to bolster his credibility and authority as an expert witness. In this regard, as well as because Dr. Marcus' testimony concerned his specific duties and the responsibilities, policies and programs of the E.P.A., Dr. Marcus violated § 3.103 (d) (1). Accordingly, this allegation is substantiated.

    In example number four, Dr. Davies alleged that in his testimony in the case of Brushel v. Alternate Energy Resources, Inc., Dr. Marcus discussed his regulatory responsibilities and represented himself as a representative of the E.P.A. In his testimony, Dr. Marcus referred to an E.P.A. regulation that had been proposed but not yet promulgated. (Res. Ex. 3, tab 29, p. 66.) In addition, Dr. Marcus used the pronoun "we" in describing the Office of Drinking Water's responsibilities concerning health advisories. (Res. Ex. 3, tab 29, p. 66.)

    A review of his testimony indicates that Dr. Marcus used the pronoun "we" as if he were speaking for the E.P.A. Such statements would likely bolster his credibility and authority as an expert witness. In this regard, as well as because Dr. Marcus, testimony concerned his specific duties and the regulatory responsibilities, policies and programs of the E.P.A., Dr. Marcus violated § 3.103 (d) (1). Accordingly, this allegation is substantiated.

    In example number five, Dr. Davies alleged that in his testimony in the case of Weir v. Exxon Corp., Dr. Marcus discussed internal E.P.A. processes and procedures about regulatory actions in which he had participated when working in the Office of Drinking Water. In his deposition, Dr. Marcus discussed benzene in drinking water and his role in drafting the

signed an affidavit during work hours, E.P.A. offered no evidence to show that the signing occurred during work hours. Considering the nature of the evidence, I find that the timecards relied on by the Inspector General, and subsequently by Dr. Davies, were of questionable accuracy and therefore not sufficient to support the decision to terminate Dr. Marcus' employment.² Moreover, Dr. Marcus, willingness to repay salary if leave records are inaccurate is not viewed as an admission of wrongdoing, but rather a willingness to make restitution if warranted.

    Accordingly, I find that this charge is not substantiated in law or fact.

    Evidence was presented at the hearing concerning disciplinary actions taken by E.P.A. against several employees who committed offenses similar to those committed by Dr. Marcus. In 1987, an employee who misstated qualifications on an application for employment and who made false statements in an official investigation was suspended for three days. (Tr. at 794.) In 1988, an employee who falsified timecard signatures and fraudulently accrued 102 hours of overtime was suspended for one day. (Tr. at 794.) In 1988, an employee who fraudulently altered timecards by adding overtime hours and deleting sick leave and who forged signatures on timecards was suspended for seven days. (Tr. 795.) Of particular interest, in 1991, an employee charged with engaging in private business activities which resulted in or gave the appearance of a conflict of interest was suspended for fifteen days.³ (Tr. at 796-97.)

    Except for new employees still on initial probation, no evidence was presented that any E.P.A. employee had been dismissed for infractions similar to those committed by Dr. Marcus. (Tr. at 798.) Dr. Davies testified that he had previously discharged only one employee. (Tr. at 1070-71.) Moreover, Dr. Davies testified that that termination decision had been based on continued nonperformance by the employee. (Id.)

    This evidence of prior disciplinary actions by E.P.A. suggests that the disciplinary action taken against Dr. Marcus was extreme and not consistent with discipline previously given to employees who had committed similar violations of E.P.A. regulations.

    The record reflects that scientists at E.P.A. began to oppose the agency's fluoride position during the mid 1980's. (Tr. at 360.) During this time Dr. Marcus enjoyed a reasonably stable working environment at E.P.A. However, after he issued his fluoride memo in 1990, critical of E.P.A.'s fluoride policy, his situation began to change.

    Because three of the four charges against Dr. Marcus are not supportable in fact or law and therefore do not support the termination decision; and because no other E.P.A. employee who committed violations similar to those committed by Dr. Marcus was fired from her or his employment at E.P.A. and considering the treatment Dr. Marcus received from his supervisors before and after he issued his fluoride memo, I conclude that the reasons given for Dr. Marcus, firing were a pretext and that his employment was terminated because he publicly questioned and opposed E.P.A.'s fluoride policy. This action by the agency constitutes a wrongful termination of Dr. Marcus, employment under applicable law.⁴ Relief is warranted.

¹ The entire statement made by Dr. Marcus is not quoted here Because it was not provided in the Inspector General's report, which contained only excerpts of the deposition transcript.

² The Inspector General submitted Dr. Marcus' leave records to Federal authorities for prosecution on the issue of alleged leave abuse. on June 6, 1991, the Public Integrity Section of the U.S. Department of Justice declined to pursue prosecution because

The available evidence shows that of the twenty-two known days in which Marcus testified at a trial or a deposition, he failed to take leave for only one of those days. The value of that one day of leave is below our threshold for prosecution.

    Moreover, on March 12, 1992, the Investigation Division of the Office of the Inspector General declined to pursue prosecution under the Program Fraud Civil Remedies Act because the timecards were not sufficient to support charges when neither Dr. Marcus' timekeeper nor his immediate supervisor could recall "telephonic leave requests over three years ago." (Cl. Ex. 177; Tr. at 737-38.) These two instances of declined prosecution suggest that the Inspector General was aware of the lack of evidence supporting its claim that Dr. Marcus engaged in a pattern of abusing leave procedures. (Res. Ex. 1, p. 6.)

³ That employee, an Environmental Engineer GS-14, received remuneration to speak on behalf of a commercial chemical company at a public meeting; the employee introduced himself as a representative of E.P.A. (Cl. Ex. 211, p. 239.) In the proposed disciplinary memo, the E.P.A. supervisor made four charges against the employee and proposed a sixty day suspension. (Id.)

⁴ In so finding, I do not credit the testimony of Ms. Stasikowski and Dr. Davies that Dr. Marcus, fluoride activities played no role in the decision to terminate Dr. Marcus' employment.