EPA whistleblower case remanded to DOL judge

Michael P. Tremoglie Aug. 15, 2012, 2:43pm

WASHINGTON (Legal Newsline) -- The case of an Environmental Protection Agency employee who filed a whistleblower complaint with the Occupational Safety and Health Administration has been remanded back to the Department of Labor after the complaint was dismissed in 2010.

Douglas Evans was an Environmental Protection Specialist in its Radiation and Indoor Environments Laboratory (R&IE) in Las Vegas, Nevada. He wrote a letter to the EPA administrator in 2004 accusing EPA of forcing employees to participate in emergency response duties for which they were not trained and expressed concerns that management had assigned hazardous duty responsibilities that were previously not part of the employees' job descriptions.

EPA accused Evans, in May 2006, of making threats of violence at work and suspended him. Evans, within a few weeks, submitted to the Occupational Safety and Health Administration a whistleblower retaliation complaint. He alleged that he was engaged in protected activities such as raising compliance issues with management about the risks of untrained personnel performing emergency response work. He also noted violations.

This activity he felt led to his suspension. Evans wanted reinstatement, back pay, expungement of any disciplinary action in Evans' employment records, and compensatory damages for emotional distress.

Evans was notified on July 19, 2006, that he was being considered for "removal for inappropriate conduct and failure to follow supervisory instructions." He responded and EPA reduced the discipline to a one-week suspension with pay and an involuntary transfer.

He then filed numerous amended complaints with OSHA. Evans states that he "filed supplemental complaints with OSHA on September 19 and October 29, 2006, and on June 15, August 5 and September 29, 2007."

According to official documents, OSHA said Evans "filed several amendments to his original complaint. In each amendment, [Evans] allege[d] at least one adverse action that occurred within 30 days of filing the amendment." Evans contends that after he filed his OSHA complaint, "management suspended [him], required him to participate in EAP counseling, and then transferred him to work in a space dominated by those hostile to his concerns."

The counselor, according to Evans' attorney Richard Renner, recommended he not return to the work place. He was fired shortly after this in 2007.

OSHA subsequently dismissed Evans' complaint on November 21, 2007. An Administrative Law Judge (ALJ) dismissed the complaint on March 11, 2008. The ALJ concluded that Evans "fail[ed] to state a claim upon which relief can be granted."

Evans then petitioned the Administrative Review Board (ARB) for review. The ARB affirmed the ALJ on April 30, 2010. Official documents state that the ARB said that Evans' complaint "failed to state a claim for relief under the legal precedent established in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Board also held, in the alternative, that EPA was entitled to summary decision, and that the ALJ did not err in denying Evans further discovery to respond to the Motion to Dismiss. On August 18, 2010, the Board denied Evans' motion for reconsideration of the Final Decision."

This ruling was appealed to the United States Court of Appeals for the Ninth Circuit. While the case was pending before the court, the Solicitor of Labor requested that the case be remanded to the ARB.

The Ninth Circuit Court granted the request July 11, 2011. The case was considered by the ARB. The Labor Department Solicitor filed a brief in favor of Evans.

The ARB concluded that the ALJ "erred by granting EPA's Motion to Dismiss Evans' complaint." The ARB vacated the ALJ's April 30, 2010 ruling. It reversed and remanded the case to "the ALJ for further proceedings consistent with this opinion."

Richard Renner, the attorney representing Evans, wrote about the case on the blog, "Whistleblowers Protection Blog."

He said, "(ARB Judge) Brown's dissent makes some important points for whistleblowers and practitioners who face motions to dismiss before an Administrative Law Judge (ALJ). He notes that the majority's discussion of how ALJ's can handle motions to dismiss is 'but dicta.' ...

"He finds that the majority 'cites neither statutory nor regulatory authority prescribe new procedures by which ALJs are now to resolve motions seeking dismissal of whistleblower retaliation complaints for failure to state a claim for relief.' ... Thus, whistleblowers and their lawyers can cite to this concurring and dissenting opinion in response to any motion to dismiss, and preserve an issue for which the Department of Labor will be poorly equipped to refute on further review."

Renner also noted that, "(ARB Judge) Corchado explains what he will be looking for in reviewing complaints. To allege protected activity, he wants Evans to allege "facts about what activities his co-workers might be expected to do and why Evans believed that such acts would violate one or more of the environmental laws. ... It is a lesson about the importance of making clear exactly what is the whistleblower's protected activity."

John Raudabaugh a labor law professor at Ave Maria University and former National Labor Relations Board member commented on the case.

"While I am definitely not an OSHA, EPA, etc. or whistleblower expert, I believe that the filing of a complaint (whether meritorious or not) is protected activity, I do agree with the concurring opinion of Luis Corchado. Without some degree of factual specificity, the process becomes full-employment for administrative law judges," he said.

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U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
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