IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CASE NO. C2-00-1157
JUDGE EDMUND A. SARGUS, JR.
STATE OF OHIO ENVIRONMENTAL
PROTECTION AGENCY,
Plaintiff,
v.
UNITED STATES OF AMERICA
DEPARTMENT OF LABOR, ET AL.,
Defendants.
OPINION AND ORDER
This matter is before the Court upon motion of the
Plaintiff State of Ohio Environmental Protection Agency ("State of Ohio") for a
preliminary injunction. (Doc. # 2). After the filing of Plaintiff's motion, Plaintiff further moved to
consolidate the preliminary injunction hearing with the trial on the merits of this action. (Doc. # 4).
The Motion being unopposed, this Court orally granted the same at a hearing held on November 6,
2000. Further, on November 3, 2000, the parties reached a stipulation of fact which essentially
consists of the record compiled before the Department of Labor in the course of the administrative
proceeding described below. The stipulated facts comprise the entire record before this Court.
Upon consideration of the briefs submitted by the
parties, a review of the record submitted by agreement, as well as arguments presented on November
6, 2000, the Court orally ruled from the bench that the Plaintiff is conditionally entitled to the
injunctive relief requested in Count III of the Complaint, unless within thirty (30) days from the date
of this Court's order, the United States Department of Labor intervenes in the administrative process
now pending before
[Slip op., Page 2]
the United States Department of Labor and seeks relief against the State of Ohio as preliminarily
ordered by Administrative Law Judge Thomas F. Phalen, Jr., United States Department of Labor,
on October 3, 2000. For reasons more fully described below, the Court finds that the Plaintiff is
further entitled to declaratory relief on Count I of its Complaint.
I.
On July 28, 1998, Defendant Paul Jayco, who was
employed by the Ohio Environmental Protection Agency in a position known as Environmental
Specialist II, filed a complaint for discrimination with the Occupational Safety and Health
Administration ("OSHA"). In the summer of 1997, Jayco became the site coordinator
with regard to an environmental investigation at the River Valley Schools in Marion, Ohio. The
schools had been constructed on a site formerly used by the U.S. Department of Defense and its
predecessor agencies during World War II.
Jayco was integrally involved in an investigation to
determine whether the incidence of leukemia was higher in and around Marion, Ohio as a result of
potential carcinogens deposited on or near the school grounds. While a number of various federal
and state agencies were also involved in the site investigation, Jayco was initially designated to
coordinate a review of the site and to insure compliance with no fewer than seven federal
environmental statutes, including the Toxic Substances Control Act ("TSCA"), 15
U.S.C. §2622; the Federal Water Pollution Prevention and Control Act
("FWPPCA"), 33 U.S.C. §1367; the Safe Drinking Water Act
("SDWA"), 42 U.S.C. §300j-9(I); the Clean Air Act ("CAA"), 42
U.S.C. §7622(a); the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), 42
[Slip op., Page 3]
U.S.C. §9610; the Energy Reorganization Act ("ERA"), 42 U.S.C. §5851;
and the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. §6901.
Jayco was actively involved in the coordination of the
efforts made to investigate environmental contaminants at the site from June 26, 1997 through July
30, 1998. On the latter date, the Director of the OEPA suspended Jayco from employment for a
period of ten days and removed him as site coordinator on the Marion project.
for the handling of complaints of employment discrimination under the various Acts. Seegenerally 15 U.S.C. §2622; 33 U.S.C. §1367; 42 U.S.C 300j-9(I). The
Secretary of Labor has promulgated a regulation which states in pertinent part:
(a) No employer subject to the provisions of any of the Federal statutes listed in
§24.1(a) ... may discharge any employee ... because the employee, or any
person acting pursuant to the employee's request, engaged in any of the activities
specified in this section.
(b) Any employer is deemed to have violated the particular federal law and the
regulations in this part if such employer intimidates, threatens, restrains, coerces,
blacklists, discharges, or in any other manner discriminates against any employee
because the employee has:
(1) Commenced or caused to be commenced, or is about to
commenced or cause to be commenced, a proceeding under
one of the Federal statutes listed in §24.1(a) or a
proceeding for the administration or enforcement of any
requirement imposed under such Federal statute;
(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 such
Federal statute.
29 C.F.R. §24.2.
After Jayco filed his complaint with OSHA, the agency
conducted an investigation as required by the foregoing. On December 29, 1999, OSHA determined
that the OEPA had violated the whistleblower protection of all seven environmental acts. OSHA
[Slip op., Page 6]
directed the OEPA to provide Jayco with full back pay for the ten days he was suspended, to
reinstate him to his former position as site coordinator, and to pay attorneys fees which he had
incurred. Thereafter, OEPA formally notified the Department of Labor, Office of Administrative
Law Judges, that it was challenging the determination made by OSHA and sought a formal hearing
as to the findings.
Following extensive discovery between OEPA and
Jayco, a two week hearing was conducted by Administrative Law Judge Thomas J. Phalen. On
October 2, 2000, Judge Phalen issued his decision directing the Ohio EPA to reinstate Jayco, to pay
him $45,000 in back pay, $45,000 in compensatory damages, and $45,000 in punitive damages. The
Administrative Law Judge reserved ruling on an award of attorneys fees to Jayco's counsel.
In a lengthy, detailed and thorough Recommended
Decision and Order and Preliminary Order ("ALJ Order"), the Administrative Law Judge
found that Jayco had engaged in a course of conduct which was protected under all of the seven
statutes referenced above. From the early stages of his involvement at the Marion site through the
time of his removal as supervisor, Jayco asserted that the OEPA had suspended him from
employment and removed him as site supervisor because he had insisted that a detailed investigation
be conducted in conformity with federal environmental statutes. (See ALJ Order at 86-89.)
Specifically, the Administrative Law Judge found that Jayco's removal from the site and ten day
suspension were based on pretextual allegations; the actual motivation for the adverse employment
action was retaliation for Jayco's efforts to ensure an investigation in compliance with federal
environmental law. Id. at 77-78.
1As noted by Administrative Law Judge
Thomas Phalen, Jr. in his Recommended Decision and Order, dated October 3, 2000, at 56-58:
The purposes and employee protections of the Seven Environmental Acts are as
follows:
The Clean Air Act ["CAA"] aims to "protect and enhance
the quality of the nation's air resources." 42 U.S.C. 7401(b). The Act states that
"[n]o employer" may discriminate with respect to compensation, terms,
conditions or privileges of employment, of any employee who has "commenced
caused to be commenced, or is about to commence a proceeding" under the
Act, or testified, or is about to testify in any proceeding, or who has "assisted
or participated or is about to participate in any manner in such a proceeding or in any
other action in "carrying out the purposes of the act." 42 U.S.C. 7622(3).
The objective of the Safe Drinking Water Act ["SDWA"], 42
U.S.C. 300j-9, a subdivision of the Public Health Service Act, ["PHSA"],
is to promote safe drinking water. It also states that "[n]o employer" may
discharge or otherwise discriminate against employees who have engaged in any of
the same actions as those forth in the CAA, or have assisted in a "proceeding
to carry out the purposes of this subchapter."
The primary purpose of the The Toxic Substances Control Act
["TSCA"], 15 U.S.C. 2622, is to "assure that chemical
substances and mixtures do not present unreasonable risks of injury to health or the
environment." It also states that "[n]o employer" may discriminate
against a person because that person has taken any of the same actions as those listed
in the CAA, to carry out the purposes of the TSCA, except that there is no specific
reference to "a proceeding for the administration" of the Act. 15 U.S.C.
2601(b)(3). Subsection 2602(2)(B)(iv) exempts "special source material,"
"special nuclear material" and "byproduct material" as
defined by the Atomic Energy Act (42 U.S.C.2014) from the ambit of the statute.
The purpose of the Solid Waste Disposal Act ["SWDA"], 42 U .S.C.
6971, is to "assure that hazardous waste management practices are conducted
in a manner that protects human health and the environment [and to] minimize the
generation of hazardous waste." 42 U.S.C. 6902(a). The Act prohibits any
"person" from firing or otherwise discriminating against any employee
who has "filed, instituted or caused to be filed or instituted any
proceeding," under the Act, or testified, or is about to testify in any proceeding
in any proceeding resulting from administration of the act." 42 U.S.C. 6971(a).
The objective of the Comprehensive environmental Response, Compensation
and Liability Act ["CERCLA"], 42 U.S.C. 9601, et seq. is
to prevent the release of hazardous substances into the air or water. Similar to the
SWDA, it prohibits any "person" from firing or otherwise discriminating
against any employee who has provided information to a State or Federal
Government, filed instituted or caused to be filed or instituted any proceeding under
the Act, or has testified in "any proceeding resulting from the administration
or enforcement" of the act. 42 U.S.C. 9610(a).
The The Federal Water Pollution Prevention and Control Act
["WPCA"] commonly referred to as the Clean Water Act
["CWA"], 33 U.S.C. 1251, is designed to "restore and
maintain chemical, physical, and biological integrity of the Nation's water."
The Act also prohibits any "person" from firing or otherwise
discriminating against any employee that has filed, instituted, or caused to file or
institute, or has either testified or is about to testify concerning proceedings under the
Act. 33 U.S.C. 1367.
The Energy Reorganization Act ["ERA"], 42 U.S.C. Section
5851, addresses "whistleblower" protection against harassment and
retaliation by an "employer" for employees involved in the nuclear
industry, who, in addition to the other protections set forth in the six other Acts: (1)
notify their employer of an alleged violation, (2) oppose a practice that would be a
violation of the Atomic Energy Act of 1954, or (3) testify before Congress or any
Federal or State agency regarding a violation of the Atomic Energy Act of 1954.
Similar to the wording of the CAA, SDWA and the TSCA, it states that "[n]o
employer" may discharge or otherwise discriminate against any employee with respect
to compensation, terms, conditions or privileges of employment because the employee
engaged in the above activities, or has assisted or participated or is about to assist or
participate in any manner in such proceedings as those listed, "or in any other action
to carry out the purposes of this chapter or the Atomic Energy Act of 1954." The other
three Acts state that, "[n]o person" may engage in such discriminatory conduct
against an employee for protected conduct.
The ERA differs from the other six Acts in that, once the complainant
establishes a prima facie case, the employer must establish by clear and convincing
evidence that it would have taken the same unfavorable action, i.e. taken its
unfavorable action for a legitimate, nondiscriminatory business reason, as it would
have taken, in the absence of the employee's protected activity, rather than merely
"articulating" or stating the legitimate business reasons for the action, as
is the case with the other six Acts. Another difference is that the employer may be
directed to "abate" certain effects of the employer's unfavorable
personnel action (which means that the discriminatee may be ordered reinstated with
back pay) except compensatory damages, pending court review of the final decision
of the Secretary of Labor.
2The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United States by citizens
of another state, or by citizens or subjects of any foreign state.
3The Fourteenth Amendment to the
United States Constitution states, in relevant part:
Section 1. All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws.
* * *
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
U.S. CONST. Amend. XIV
442 U.S.C. §1983 states in part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
5The Toxic Substances Control Act,
15 U.S.C. §2622 does not expressly apply to the states.
6Administrative Law Judges are
appointed pursuant to 5 U.S.C. §3105 which requires that their duties within an agency
"may not [be] inconsistent with their duties and responsibilities as administrative law
judges." The Supreme Court recognized in Butz v. Economou, 438 U.S. 478, 513
(1978) that an Administrative Law Judge is to perform adjudicatory duties free from pressure within
the agency.
7The regulations further provide that
"the Assistant Secretary may participate as a party or participate as amicus curiae at any time
in the proceedings." 29 C.F.R. 24.6(f)(1). Consequently, the Department of Labor enjoys
discretion to join as a party at any stage of the case.
828 U.S.C. §2201 provides that,
except in certain cases, a federal court "may declare the rights and other legal relations of any
interested party."
9The Plaintiff has raised various
claims under the Tenth Amendment to the Constitution in Count II of its Complaint. The Plaintiff
has not pursued such claims in the briefing of this case. The same are therefore DENIED as having
been abandoned.