U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002
Date Issued: December 15, 1998
Case Nos.: 1996-CAA-03
1996-CAA-07
In the Matter of:
WILLIAM MARCUS, Complainant,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Stephen M. Kohn, Esquire,
David K. Colapinto, Esquire,
For Complainant
Joanne M. Hogan, Esquire,
Melissa Marquez, Esquire,
For Respondent
Before: PAMELA LAKES WOOD
Administrative Law Judge
RECOMMENDED DECISION AND
ORDER
These proceedings arise under the employee protection provisions of the
Clean
Air Act, 42 U.S.C. § 7622 ("CAA"); the Safe Drinking Water Act, 42 U.S.C.
§ 300j-9 ("SDWA"); the Solid Waste Disposal Act, 42 U.S.C. § 6971
1Collectively these statutes will be
referenced
as "the environmental statutes" or "the Six Acts." Another name for the
Solid Waste
Disposal Act is the Resource Recovery and Control Act, another name for
"Superfund" is the
Comprehensive Environmental Response, Compensation, and Liability Act
("CERCLA"), and
another name for the Water Pollution Control Act ("WPCA") is the Clean Water Act
("CWA").
2 A Recommended Decision and
Order
finding in favor of the Complainant, Dr. Marcus, was issued in Case No. 1992-TSC-5 on
December 3, 1992
by Administrative Law Judge David Clarke (CX 1); a motion for a temporary restraining order
and injunction
was referred to the Secretary by Judge Clarke by an Order of December 22, 1993; a Decision and
Order also
finding in Complainant's favor together with an Order denying the requests for injunctive relief
was issued
by the Secretary on February 7, 1994 (CX 2); an Order of Remand was issued by the Secretary
on September
27, 1994 for the purpose of addressing certain factual issues; a Recommended Order of
Settlement was issued
by Judge Clarke on May 15, 1995, which approved the Final Joint Stipulation of the Parties
dated May 8,
1995 (CX 3) that resolved all pending issues; and a Final Order Approving Settlement and
Dismissing
Complaint was issued by the Secretary on July 3, 1995 (CX 4). I take administrative judicial
notice of these
decisions and orders, the substance of which is discussed infra. See
generally 29 C.F.R. 18.201; see also 29 C.F.R. 18.48, 24.6(e).
3The pages of the transcript of
these
proceedings are not numbered sequentially from volume to volume. There is one set numbered
1-682
(volumes I through III) (pertaining to case number 1996-CAA-03) and one set numbered 1-2219
(volumes
IV through XV) (following consolidation of the two cases). Accordingly, references to the
transcript will be
to "Tr." followed by a volume number "I" through "XV"
determined
chronologically and the page number. Complainant's Exhibits will be identified as
"CX";
Respondent's Exhibits as "RX"; and Administrative Law Judge Exhibits as
"ALJ",
respectively, followed by the exhibit number. Multiple references to the same event or matter
will only appear
when deemed to be useful.
4 The fact that deponent Nantkes'
name
appears differently in the two deposition transcripts makes me question the reliability of these
transcripts with
respect to specifics, such as names, dates, and numbers. However, I will take my reservations
into account
in determining how much weight should be given to this evidence.
5 Complainant estimated that prior
to his
termination, but during the period in which he worked from home, he spent about 30 percent of
his time
interacting with other EPA employees. Since his reinstatement, he estimated such interactions
(including his
meetings with Dr. Kuzmack) would occupy about 1 percent of his time. (Tr. VI at 462).
6 Complainant chose not to attend
one
conference in Baltimore where he was given permission to go, but his request to stay overnight
had been
denied. (Tr. IX at 1121).
7 The Office of Water was
planned to
move into a new building in 1999, although that move may not occur. (Tr. XIII at 1865).
8 Only after the Department of
Labor's
investigator began looking into the present complaint did the EPA consider establishing voice
mail for
Complainant. (Tr. XII at 1602).
9 Dr. Kuzmack later testified that
he had
received the Secretary of Labor's decision from the personnel office when Complainant was
reinstated. (Tr.
XII at 1583).
10 According to Dr. Kuzmack,
even
if attendance is approved without reimbursement of expenses, a person may still have parking
and mileage
paid. (Tr. III at 630-31).
11 According to Dr. Kuzmack,
the
ILSA has "a variety of different types of activities including a periodic, maybe monthly or
so, seminar
in Washington on topics in risk assessment." (Tr. XIII at 1664).
12 The Water Quality Institute
is a
series of training courses that are put on in different places around the country dealing with
"the levels
of chemicals that are necessary in the water to protect against either adverse human health effects
or adverse
ecological effects." (Tr. XIII at 1677).
13 Dr. Davies had tried to find
Complainant a position in other offices, so that Complainant would not be in Dr. Davies' chain of
command,
but none were available at the time. (Tr. I at 60).
14 The Great Lakes Initiative is
a
project involving toxicologists studying the effects of mercury on water.
15 The Water Quality Academy
is a
course administered by the Office of Water to instruct people who work in environmental
programs as to
"the background to water quality standards and the regulations and how they can be
implemented and
used in the states." (Tr. II at 290).
16 Neither Complainant nor his
attorneys requested that Holtzclaw make the call that was the subject of his testimony. (Tr. III at
613).
However, it is worth noting that Holtzclaw had also consulted with Dr. Carter as a result of this
prior
representation. (Tr. III at 611).
17 Holtzclaw testified that this
letter
correctly described the conversation he had with Dr. Kuzmack. (Tr. III at 550).
18 Although Fairchild had
previously
been involved in an investigation of Complainant, it is not unusual for the same investigator to
be assigned
to a second complaint regarding the same individual. Fairchild plausibly testified that this
practice is followed
in the interest of economy. (Tr. V at 209). Further, Fairchild testified that when the
investigating officer
makes a report, the officer does not recommend what action should be taken against the subject
of the
investigation. The report merely presents the facts that were uncovered by the investigation. (Tr.
V at 225).
19 While Stasikowski never
sought
out Complainant's advice on matters being considered by her division, she also testified that she
did not seek
help from Complainant's supervisor either. (Tr. VII at 668). Assignments that come into her
division are
normally assigned to individuals who work in that division. (Tr. VII at 697).
20 Gaddy noted that during this
time,
he has not seen a copy of the Decision and Order in the original claim posted at EPA
headquarters as ordered
by that decision. (Tr. VIII at 846).
21 The TSP is "a
voluntary plan
in which our CSRS employees can contribute up to five percent of their biweekly salary, and
other employees
can contribute up to ten percent, as long as it doesn't exceed the IRS tax cap" of $9,500.
(Tr. XV at
1939).
22 Complainant tried to argue
that the
amount must be listed on his pay stub in order for him to be made fully whole. However, Street
testified that
upon inquiry, it was determined that this cannot be done. (Tr. XV at 1975-76). Accordingly, I
find that the
TSP statements are sufficient for this purpose.
23 Sanjour was represented by
Complainant's counsel in all of these proceedings. (Tr. XV at 2099-100).
24 Two depositions of Nantkes
were
submitted into the record. The first deposition was taken on July 2, 1996, and incorrectly refers
to Nantkes
as "Donald Mantkes." This deposition has been admitted into evidence as RX 50A
The second
deposition was taken on November 5, 1996 and has been admitted into evidence as RX 50B.
25 In that case, the Secretary
did not
reach the issue of the applicability of the TSCA because the remaining statutes provided "a
full measure
of relief." Jenkins v. United States Environmental Protection Agency,
92-CAA-6
(Sec'y, May 18, 1994) at 5.
26 The prior version of 29
C.F.R.
§ 29.8 stated expressly that an action for enforcement of any order in cases involving the
Six Acts was
to be brought before a United States District Court, but the version of the regulations effective
March 8, 1998
does not contain such a provision. The entire section relating to "Enforcement
proceedings" and
the entire section relating to "Judicial review" have been removed, according to the
preamble for
both the proposed rule and the final rule, because "[t]hese provisions vary from statute to
statute among
the whistleblower programs" and "the types of judicial review or enforcement
actions which are
available does not need to be the subject of rulemaking since they are prescribed by statute and
concern
judicial remedies." 59 Fed. Reg. 12506 (March 16, 1994); 63 Fed. Reg. 6614 (Feb. 9,
1998).
27 In addition, I note with
respect to
CERCLA that the "Employee protection" provision provides that the order issued by
the Secretary
of Labor is "subject to judicial review in the same manner as orders and decisions are
subject to judicial
review under this chapter," 42 U.S.C. § 9610(b), and the section relating to
"Civil
proceedings" provides (with exceptions not relevant here) that "the United States
district courts
shall have exclusive jurisdiction over all controversies arising under this chapter." 42
U.S.C. §
9613(b). (The chapter referenced is Chapter 103, of which the "Employee
protection" provision
is a part.)
28 Case citations herein have
been
adapted to conform with the Year 2000 format.
29 As indicated
supra, Complainant supplied a laundry list of assignments that he would like to
have.
However, Complainant acknowledged that he has been receiving some job assignments
consistent with his
position and he supplied no evidence that the decisions to assign him to some assignments
instead of others
was in any fashion an adverse action. To the extent that the assignment of projects has resulted
in lackluster
travel and conference attendance, this allegation is included infra.
30 The relief listed does not
include
requests related to claims for which I lack jurisdiction or on which Complainant did not prevail.
31 While Complainant is
allergic to
the present building, testimony was elicited that the Office of Water may be changing buildings.
32 As noted above, the
Secretary
found in the previous suit that the EPA is covered by the SDWA.
33 As amended, the regulations
at
section 24.8(d)(2) of 29 C.F.R. appear to suggest that attorney fees and costs may only be
awarded by the
Administrative Review Board and then only if the matter has been appealed to the Board.
However, the
regulations cannot be read in that way as they would be inconsistent with the statutes cited above
(the Six
Acts).