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EPA gets favorable ruling in dispute
An agency supervisor wasn't punished for backing a whistle-blower, a fact-finder said.
Saturday, January 22, 2000
The Ohio EPA's management acted properly when it cracked down on a supervisor, and was not punishing him for testifying on behalf of an agency whistle-blower, a U.S. Department of Labor investigator concluded this week.
The investigator's report likely will end the case against the Environmental Protection Agency filed by Bruce Dunlavy, a supervisor in the agency's northwest district office in Bowling Green, Dunlavy's attorney said yesterday.
Dunlavy had contended his supervisors retaliated against him because he testified honestly in a federal whistle-blower case filed by EPA investigator Paul Jayko, the former lead investigator into possible toxic contamination at the River Valley Schools near Marion, Ohio.
Like Jayko, Dunlavy filed for protection under the state's whistle- blower law, which protects government employees from retaliation when they speak out about possible violations of environmental laws.
In a complaint filed last month with the Labor Department, Dunlavy said that shortly after he testified, his bosses punished him with a memo that detailed several new procedures for him to follow. According to the memo, Dunlavy was to provide his bosses with copies of all communications with his colleagues, including minutes of staff meetings.
The Nov. 9 memo, however, "was the direct result of well-documented deficiencies'' in Dunlavy's performance, said the Labor Department investigator, Arnis Andersons, director of the Occupational Safety and Health Administration's Toledo office.
"All the evidence examined during the fact-finding investigation supports the conclusion that the memorandum was not intended as an adverse action,'' Andersons wrote in the report, issued Tuesday.
Ohio EPA Director Christopher Jones was pleased by the decision. "We felt all along that this is not a situation involving any retaliation of any sort,'' he said. "This was an appropriate management action on the part of the agency.''
A year ago this month, Andersons ripped the EPA for its action in the Jayko case. He said Jayko was illegally punished for writing critical memos about the lack of thoroughness in the River Valley investigation.
Dunlavy was Jayko's supervisor during the first year of the River Valley investigation. The continuing investigation began because state health officials reported an unusually high level of leukemia among River Valley graduates.
River Valley middle and high schools were built near an old Army waste pit, and investigators have found toxic wastes throughout the campus.
After Jayko raised questions about the thoroughness of the investigation, and after he filed for whistle-blower protection, the EPA accused him of drinking on the job and padding his expense account.
Jayko was suspended 10 days, but Andersons ordered the agency to reimburse Jayko for lost wages and to reinstate him as the lead investigator in Marion.
The EPA appealed Jayko's case to the administrative law section of the Department of Labor, and hearings were held in July. Dunlavy testified that Jayko was removed from his job because top management in the district office thought Jayko was "a pipeline for information to the media that might be embarrassing to the agency.''
The EPA's appeal is pending. Dunlavy has until Tuesday to appeal the decision in his case, but probably will not, said his attorney, Dennis Muchnicki.
Muchnicki said the Labor Department investigation could not find any damages to Dunlavy, such as a suspension or lost wages. If the agency tries to suspend or demote Dunlavy in the future, another complaint will be filed, Muchnicki said.
Jones said the agency hopes to eventually win the Jayko case as well, and said he does not plan to put Jayko back in charge of the River Valley investigation.
"We have a number of senior managers involved in that investigation. I'm personally involved,'' Jones said. "I don't think it is necessary to put Mr. Jayko back.''
Copyright © 2000, The Columbus Dispatch