|ORGANIZATION ISSUES MONEY/POLITICS NEWS INDEX|
Recommended decision and order and preliminary order
U.S. Department of Labor
DATE: October 2, 2000
CASE No. 1999-CAA-5
PAUL JAYKO, Complainant,
OHIO ENVIRONMENTAL PROTECTION AGENCY, Respondent.
For the Complainant
Jack W. Decker, Esq.
Before: THOMAS F. PHALEN, JR.
These proceedings arise under the employee protection provisions of the Energy Reorganization Act ["ERA"], 42 U.S.C. Section 5851; the Clean Air Act ["CAA"], 42 U.S.C. Section 7622 (a); the Solid Waste Disposal Act ["SWDA"], 42 U.S.C. Section 6971; the Toxic Substances Control Act [ "TSCA"], 15 U.S.C. Section 2622; the Federal Water Pollution Prevention and Control Act ["FWPCA"], 33 U.S.C. Section 1367; the Safe Drinking Water Act, ["SDWA"], or Public Health Service Act ["PHSA"], 42 U.S.C. Section 300j-9; and the Comprehensive Environmental Response, Compensation and Liability Act ["CERCLA"], 42 U.S.C. Section 9610; implementing regulations appear at 29 C.F.R. Part 24.1. Such provisions protect employees from discrimination for attempting to carry out the purposes of the environmental statutes of which they are a part, and specifically for preventing employees from being retaliated against with regard to the terms and conditions of their employment for filing "whistleblower" complaints or for taking other action relating to the fulfillment of environmental health and safety or other requirements of these statutes.
A hearing in these consolidated cases was held from June 21-25, 1999 and July 26-30, 1999. The parties were represented by counsel and were given an opportunity to present evidence and arguments.
STATEMENT OF THE CASE:
On July 28, 1998, Mr. Jayko filed a complaint of discrimination under Section 322 of the Clean Air Act; Section 1450 of the Safe Drinking Water Act; and 507 of the Federal Water Pollution Control Act; Section 7001 of the Solid Waste Disposal Act; Section 110 of the Comprehensive Environmental Response, Compensation, and Liability Act; Section 23 of the Toxic Substances Control Act; and Section 211 of the Energy Reorganization Act. The complaint was investigated and found to have merit. On January 4, 1999, the Ohio Environmental Protection Agency ["OEPA"] requested a formal hearing in this case. A hearing in these consolidated cases was held from June 21-25, 1999 in Bowling Green, Ohio and July 26-30, 1999 in Perrysburg, Ohio.
1. Whether the respondent is an "employer" under the Acts;
2. Whether respondent is immune from liability;
3. Whether complainant engaged in protected activity under the Acts;
4. Whether the respondent knew or had knowledge that the complainant engaged in protected activity;
5. Whether respondent committed adverse action against complainant;
6. Whether the actions taken against the Complainant were motivated, at least in part, by Complainant’s engagement in protected activity; and
7. What damages, if any, the complainant is entitled to as a result of the retaliatory actions taken by respondent.
SUMMARY OF THE FACTS:
Complainant Paul Jayko was hired by the Respondent, OEPA, an agency of the State of Ohio, as an Environmental Specialist 2 ["ES2"], effective December 30, 1990. Mr. Jayko has remained in the ES2 classification at all material times thereafter. Mr. Jayko was assigned to OEPA’s Northwest District Office ["NWDO"], located in Bowling Green, Ohio. Since his hire, Mr. Jayko has been assigned to the Division of Emergency and Remedial Response ["DERR"] at NWDO as a site coordinator.
By the Summer of 1997, Jayko had been assigned as "site coordinator" for three "sites" in the Marion, Ohio area - the River Valley Schools ["RVS"], the Marion Engineering Depot ["MED"], and the Scioto Ordnance Plant ["SOP"].
On May 21, 1997, Mr. Jayko, along with his immediate supervisor, Jeff Steers, and Mr. McLane, also a supervisor at OEPA, attended a dinner at Pizza Hut in Marion, Ohio, between an afternoon pre-meeting, and a scheduled walking tour of the affected site, to be followed by a meeting with the public, there. At that Pizza Hut dinner, Mr. Jayko consumed two beers, and was later brought-up on disciplinary charges by Mr. Steers. They alleged that he was either drinking on duty, or before a public meeting in violation of OEPA work standards. He was later charged with having engaged in either theft, fraud or deceit in submitting a travel voucher for reimbursement of either an excessive amount, or for reimbursement for the alcoholic drinks arising out of the same incident, also in violation of OEPA work standards.
On June 29, 1998, Mr. Jayko was informed that he would no longer be functioning as "site coordinator" for the RVS, MED and SOP sites. Instead, Mr. Jayko was assigned other sites to supervise. On July 30, 1998, Mr. Jayko was informed by letter from OEPA Director, Don R. Schregardus that he was being suspended without pay for a period of ten working days, beginning August 3, 1998, and ending prior to August 17, 1998. The suspension was for charges arising out of his having consumed the two beers, and having submitted a request for the travel reimbursement which included the two beers. This suspension, according to OEPA Officials, was separate from Mr. Jayko’s removal as site coordinator.
At the time of the hearing, Mr. Jayko remained employed by OEPA, NWDO DERR, as an ES2 in the Remedial Response Section, in another site coordinator position.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT:
Stipulations of Fact:
a. Complainant Paul Jayko was hired by the Respondent, OEPA, an agency of the State of Ohio, as an Environmental Specialist 2 ["ES2"], effective December 30, 1990. Mr. Jayko has remained in the ES2 classification at all material times thereafter. Mr. Jayko was assigned to OEPA’s NWDO, located in Bowling Green, Ohio. Since his hire, Mr. Jayko has been assigned to the DERR at NWDO as a site coordinator.
a. At all times material hereto, and until January 8, 1999, Donald Schregardus was OEPA’s Director, a cabinet-level position within the government of the State of Ohio. Mr. Schregardus was OEPA’s chief executive officer and appointing authority, the OEPA official authorized by Ohio law to hire, suspend or discharge OEPA employees.
a. At all times material hereto, NWDO’s District Chief was Ed Hammett, who reported to Mr. Schregardus and its Assistant Chief was Jeff Steers. At all times material hereto, the Environmental Manager in charge of NWDO DERR was Bruce Dunlavy, who reported to Mr. Steers. NWDO DERR was divided into Remedial Response and Emergency Reponse Sections, and the supervisor in charge of each section reported to Mr. Dunlavy. Throughout his employment with OEPA, Jayko was a member of the Remedial Response Section, and his supervisors there included Jeff Wander, Ellen Gerber and Archie Lunsey.
a. At all times material hereto, Mr. Jayko has been a member of a collective bargaining unit whose recognized exclusive representative, pursuant to O.R.C. Chapter 4117, is the Ohio Civil Service Employees Association ["OCSEA"]. At all times material hereto, a collective bargaining agreement has been in effect between OCSEA and the State of Ohio which governs many of the terms and conditions of Mr. Jayko’s employment pursuant to O.R.C. § 4117.10.
a. By the Summer of 1997, Mr. Jayko had been assigned as "site coordinator" for three "sites" in the Marion, Ohio area - the RVS, the MED, and the SOP. The parties are unable to stipulate as to Mr. Jayko’s precise duties as "site coordinator."
a. On June 29, 1998, Mr. Jayko was informed that he would no longer be functioning as "site coordinator" for the RVS, MED and SOP sites. Instead, Mr. Jayko was assigned other sites to supervise.
a. On July 30, 1998, Mr. Jayko was informed by letter from Mr. Schregardus that he was being suspended without pay for a period of ten working days, beginning August 3, 1998, and ending prior to August 17, 1998. At the time of his suspension, Mr. Jayko’s rate of pay, including longevity supplements, was $23.65 per hour.
a. Mr. Jayko remained employed by OEPA, NWDO DERR, as an ES2 in the Remedial Response Section, as of the time of hearing.
1. Paul Jayko was employed as an Environmental Specialist (ESA), Site Coordinator for the North West District Office (NWDO), Division of Emergency and Remedial Response (DERR) of the Ohio EPA, starting with the agency on December 30, 1990, and continuing in that position on various projects through the date of the hearing. (T 139, 1443, 1844,)
1. Mr. Jayko’s credentials at the time of his hire included Bachelor of Arts and Masters of Business Administration degrees from Bowling Green State University in 1979 and 1986, respectively; employment in the environmental field for the OHM Corporation, in Findlay, Ohio, where he worked in the thermal-technologies group, dealing with incineration systems and disposal of PCBs involving dioxins governed by TSCA, (the Toxic Substances Control Act), and military service with continuing "immediately deployable," ready reserve status as a U.S. Army, Special Forces ("Green Beret") officer with nuclear, biological and chemical warfare training, presently being considered for the rank of Lt. Colonel. (T 1444, 1451-56, 1462)
1. As a site coordinator, Mr. Jayko had varied duties, depending on specific assignments, such as: initiating investigations; reviewing and giving comments on other investigations that had been done; requesting or reviewing "scopes of work;" reviewing and approving plans that had been prepared by other entities such as contractors; meeting with public officials or citizen groups to discuss what had been done to direct the progress of investigations; making recommendations on feasability studies such as the preferred remediation alternatives that would be employed at sites; overseeing the work that had been done physically on the ground, and actual field sampling. (T 1439-40)
1. In June 1997, Mr. Jayko was reporting to Ellen Gerber, who supervised the Remedial Response section, until November 1997, when Archie Lunsey transferred from his supervisory position with the Emergency Response section, and continued in a technical supervisory capacity over Mr. Jayko, while "functional" supervision on a day-to-day basis was in the hands of either Jeff Steers, Assistant Chief of the NWDO, or Bruce Dunlavy, Supervisor of the Division of Emergency Response (DERR) who reported to Mr. Steers. (T 174, 329-31; 923-25 )
1. Mr. Steers reported to Ed Hammatt, Chief of the NWDO, who reported to Don Schregardus, Director of the OEPA, a Cabinet Member position of then Ohio Governor, George Voinovich. (T 923)
1. As will be discussed further herein, on June 1, 1998, Mike Czeczele, who was an Assistant to Director Schregardus in the Columbus, Ohio, Central Office (CO), and was involved in the budgetary process concerning the Marion investigation, took a two level cut to be transferred to the NWDO and was inserted into the supervisory position vacated by Mr. Lunsey, to assume a direct, active role in the Marion investigation, reporting to Mr. Dunlavy. (T 329-31; 923-24, 1172-76)
1. Initially, Mr. Jayko’s duties as site coordinator also routinely included communicating with members of the public and the media about projects that were under investigation and assigned to him and interfacing with officials of ODH, such as Robert Indian, Investigator, and those of the U.S. Army Corps of Engineers ("USACOE" or "the Corps," herein) such as Kenneth Crawford, Chief of the Louisville Division, and Investigator Wes Watson on Formerly Used Defense Sites (FUDS). (T 1439)
1. OEPA’s functions in relation to the U.S. Government’s role at FUDS are governed by the Department of Defense and State Memorandum of Agreement (DSMOA) , which was entered into pursuant to a July 18, 1989, invitation addressed to interested States by the United States Department of Defense (DOD), and the Ohio Environmental Protection Agency (OEPA) on September 10, 1992, which provided that the DOD and the OEPA approved the agreement:
1. Attachment A to the DSMOA, included FUDS and sites on the National Priorities List at that time, plus those that might be submitted for emergency treatment upon notice to the DOD by the State. (Id. @ p. 5)
1. Under cover of a letter from the Department of the Army (DOA) of May 27, 1998, the DOA agreed to an amended list of sites under DSMOA Attachment A, specifically including as Item No. 31, the Marion Engineering Depot (MED) where the River Valley Local Schools (RVLS) were located, and Item No. 46, the Scioto Ordnance Plant (SOP), a much larger FUDS site, part of which was located within a few hundred feet of the MED. (RX 93, p. 23; RX 129-131)
1. By the account of Wes Watson Investigator for USACOE, and OEPA Supervisor, Jeff Steers, the role of OEPA under the DSMOA is to enforce and ensure consistency with the federal clean-up program, involving thereunder, the two State of Ohio cabinet agencies, OEPA and the Ohio Department of Health (ODH), the USACOE and the Agency for Toxic Substances and Disease Registrar (ATSDR), a branch of the Center for Disease Control (CDR), for the U.S. Government. (T 496-500; 546-47)
1. To perform the duties as site coordinator, Mr. Jayko had the knowledge to involve nearly every one of the environmental disciplines, including the air pollution, solid waste, hazardous waste, surface water and the drinking water groups, and the ability to interact with chemists, engineers and those with other professional backgrounds, involving nearly every (environmental) authority, such as CERCLA (the Comprehensive Environmental Response Compensation and Liability Act, i.e. the Superfund), and insuring that they were acting consistent with the National Contingency Plan (NCP)and other legislative acts. (T 1440-43, 1451)
1. Mr. Jayko also had sufficient knowledge to initiate investigations involving the discovery of the existence of radiation contamination and its sources, which included contaminants subject to provisions of the Energy Reorganization Act (ERA). (T 1862-63, 1903-18)
1. Prior to Mr. Jayko’s assignment as site coordinator for the River Valley Schools, Marion, Ohio project, he served as site coordinator for various projects within the jurisdiction of the Northwest District Office of the Ohio EPA, including the Dura Landfill project and the Baker Wood creosote plant project, near the Little Scioto River, within the Marion County area. (T 1844)
1. In 1992, Mr. Jayko submitted a written request for a "Level of Effort" (LOE) evaluation of the Baker Wood site, (RX 48, Attachment) which was forwarded to the Central Office of the OEPA in Columbus, Ohio by his supervisor, Bruce Dunlavy, (RX 48) and was never acted upon by that office, (T 542) through no fault of Mr. Jayko. (T 1801-02)
1. Throughout the period from the time of his employment through at least 1995, all of Mr. Jayko’s evaluations were satisfactory ("meets expectations") or above, with specific "outstanding achievement" awards and commendations for the manner in which he acted on specific projects, wrote his reports and communicated his actions, particularly related to the Dura Landfill Project in 1994 and 1995, and other public service awards in 1998 and 1999. (CX. 7, 8, 12 , 58 and 59, JXs. 9-11, T 1607-09)
1. Summarizing Mr. Jayko’s evaluations as of the end of 1997, the last evaluation before his transfer in July 1998, Mr. Dunlavy stated:
I thought that his work was quite competent; that he had a very well-developed ability to keep track of what was going on in different areas, to handle multiple priorities and to keep a schedule, and keep effective and complete records of what he was doing. From that standpoint, I thought his work was effective. (T 932)
1. Mr. Dunlavy noted as weaknesses of Mr. Jayko that did not present a problem to him, stating:
He has a manner, a personality trait that is off-putting to some people in that he has a style that I describe as smart-alecky. If you are the kind of person who expects things to be what they seem to be and you take all these things seriously, it can make it difficult to deal with him. If you recognize it for what it is ... and ... don’t take it seriously and move into the real aspects of the work, it is not a problem. (T 933)
1. The only specific adverse comments or complaints concerning Mr. Jayko’s performance before his assignment as site coordinator for the RVS project, involved limited day-to-day criticisms from supervisors performed during the normal course of their duties, that did not adversely affect Mr. Jayko’s overall performance or ratings in any formal rating system that was presented into evidence at the hearing.
1. I find that none of the matters raised at the hearing concerning allegations of failing to participate in conferences on such matters as the 1996 Dura Landfill project, or lack of cooperation at any other specific point in time with any of the witnesses during that period, were intended to be made formal personnel actions as a part of Mr. Jayko’s permanent record. Therefore, I also find that Mr. Jayko’s record as of the time of his appointment to the Marion, River Valley Schools project site coordinator position, must be considered "clean" for purposes of this decision and order, and that the assignment was made without reference to any such prior perceived misconduct.
The Marion, Ohio and River Valley Local Schools Investigation:
Phase I - June 26, 1997 - October 14, 1997
1. On or about June 26, 1997, Mr. Jayko began receiving citizen calls from people who lived in Marion stating they had an increase in leukemia in that area that was far above what should have been there. (T 1611)
2. The citizen leukemia calls resulted in a memo dated August 1, 1997, from Paul Jayko to Ed Hammett, District Chief, NWDO, entitled Cancer Cases, River Valley School District, Marion, Ohio, recommending "in the strongest possible way" that an "immediate" LOE investigation of the RVS grounds and property be commenced through an LOE contractor, considering that the RVS buildings were built on the ground of a former military installation; that it was highly probable that disposal of carcinogenic solvents, along with the burning and burying of unknown materials took place on soils that were either immediately adjacent to the school or then a part of the school athletic fields; that the RVS would resume their academic calendar on August 26, 1997, thereby placing 1,000 plus individuals into a situation of unknown risk, and that the only way of assuring that the students, faculty, and staff at the RVS are not returning to an area of eminent risk is to conduct environmental sampling of soils, air, surface and ground waters, there. (CX 60, T 1616)
1. In addition, on August 8, 1997, Mr. Jayko drafted a comprehensive summation of the Ohio EPA’s Marion investigation from July 2, 1997 through August 7, 1997, which he addressed to Robert Indian at ODH, regarding the Marion Engineer Depot (MED) and Scioto Ordnance Plant (SOP), and emphasizing possible contaminants shown in those studies, and those resulting from recent investigations. (RX. EX. 113, T 1616-17)
1. The above histories stated that the Marion sites included as some of the possible contaminants, radioactive materials, carbon tetrachloride and trichloroethylene, and an unidentified, on site, disposable area. (RX. EX. 113 at p. b3)
1. To this point in time (August 1997), there had also been a limited investigation by the U.S. Army Corps of Engineers, (the Corps) involving radiological contamination, due to U.S. Army and Atomic Energy Commission (AEC)property ownership as outlined in the Limited Site Investigation Report, for the Manhattan Project, which had determined that there were no "gross radiological contamination" findings, and gave it a "No further Action" rating in each one of those categories. (RX. 113 at p. b3)
2. Mr. Jayko conducted additional investigations at a portion of the MED, now known as the Marion Industrial Depot, which included a physical inspection within and around the area, and found numerous business tanks used for agriculture, fertilizer, paper, charcoal, personal consumption products, and lighting purposes. (RX. 113 at p.6)
1. In the conclusion to his August 7, 1997 report, Mr. Jayko stated that he had confirmation that the River Valley Local Schools had been built on a portion of the former Marion Engineer Depot; that the MED continued to operate until the property was acquired by the Board of Education through a quit-claim deed; that there were "known and suspected carcinogenic materials used in it’s day-to-day operations; that it was highly probable that many of these materials were disposed of by releasing them to the ground, now occupied by the River Valley Schools and adjacent properties; and that it was suspected that military training, which utilized radioactive materials, occurred on or around the school property; that not all of the materials that had been toxic, radioactive or hazardous materials were removed from the former sites; that they remained there until as late as 1989, and that while once discovered, and removed, it is uncertain whether there are any other sources of toxic or hazardous materials remaining at the site. (Rx. Ex. 113 at p.8)
1. Mr. Jayko’s log book entries demonstrate that he immediately grasped the scope of the project that was being confronted for the first time at the NWDO when he contacted OEPA’s FUDS site coordinators and the U.S. Army Corps of Engineers (USACOE) representatives in June and July 1997, and later, on August 4 and 6, emphasized ODH’s responsibility as the lead agency in that phase of the investigation, with USACOE probably taking the ultimate responsibility for it, (JX 18 @ p. 1-4, & 6) if and when the U.S. Government was finally determined to be the "PRP." (Primary Responsible Party). (T 515)
1. Concluding that there was a "strong potential for human health risk" and recognizing that the RVS was to resume it’s academic calendar on August 26, 1997, "placing 1,000 plus individuals into a situation of unknown risk," Mr. Jayko suggested that the only way of assuring that the students, faculty and staff of RVS are not returning to an area of "eminent" risk is to conduct environmental sampling to include: "a radiation survey, a soil gas investigation, air monitoring, and shallow soils" and that "OEPA commence an immediate investigation of the RVS grounds as well as the adjacent areas," stating "this recommendation has the support of the Office of the Director, Ohio EPA." (RX 113 at p. 9)
1. I fully credit this well researched account by Mr. Jayko, as constituting both protected activity and the substantial basis for his reasonable belief about the health and safety of students at RVS and the contaminants existing at the time of his report, and recommended action about possible causes for the excessive rates of leukemia in Marion, Ohio, thereby invoking all the protections of the applicable statutes including, in my opinion, those of the ERA.
1. Toward the end of August 1997, the staff at Ohio EPA received an undenied directive from Ohio Governor Voinovich’s office through the Ohio Department of Health (ODH) and Jeff Steers, Ohio EPA DERR, Assistant Environmental Administrator, of the Northwest District Office (NWDO), to commence an investigation, and to "leave no stone unturned," in the investigation of the Marion, Ohio, River Valley Schools matter. (T 1612-13, 1678)
1. I find that, partially as a result of Mr. Jayko’s report to ODH, on August 20, 1997, ODH notified the U. S. Nuclear Regulatory Commission (NRC) that it would perform surveys at the RVS middle and high schools; that it’s gamma spectrum analysis had resulted in the identification of an unlicenced one millicurie radium-226 source, discovered in the high school chemistry room, and a second source on the school grounds approximately 100 feet from the school buildings; that its resulting report, Radiological Screening Survey of the River Valley Schools, dated September 11, 1997 revealed that it had uncovered a box containing rocks and a one milligram Ra-226 source found in a high school classroom with a reading of 1000 uR/Hr.; that it was issuing an order for its removal, and that it believed that there was no relationship to the elevated incidences of leukemia in the area. (Rx. Ex. 116 at p. 2)
1. As a result of the ODH reports, on September 16, 1997, the Corps exhumed a .5 millicurie radium-226 disc, and radioactive material identified as a radium-226 source from the high school laboratory, both of which were removed to a Wright Patterson Air Force Base laboratory; that other soil samples were being analyzed, and that, after remediation, readings of the area indicated only background levels of radiation. (See, NRC Preliminary Notification of Event or Unusual Occurrence of Event PNO-III-97-007 and PNO-III-97-007A, of August 27, 1997 and September 17, 1997. JX 11 & JX 12)
1. The initial NRC, Preliminary Notification of Event or Unusual Occurrence of Event, stated: "The former Department of the Army facility apparently did not hold any NRC/AEC licenses," which I find to be inconclusive on the subject of whether radioactive materials were ever stored on the sites. (JX 11)
1. Upon return from a scheduled vacation on August 22, 1997, Mr. Jayko discovered that the requested sampling had not been ordered from Lawhon (Lawhon & Associates’ Interim Report); that, OEPA’s Site Investigation Field Unit (SIFU) had been ordered to collect samples for which normal informational meetings had not been held; that the sampling had not been started, and it appeared that it could not be completed satisfactorily before the first day of school. (T 1619)
1. On August 22, 1997, Mr. Jayko and Mr. Steers met with SIFU’s Jeff Wander at the RVS property, and, on finding that he did not know what to sample, walked him through the grounds, explaining the former military occupation of the site which he did not know about, and recommending a full scan analysis. (T 1623-25)
1. Also in the last half of August 1997, OEPA Drinking Water Program Manager, Doug Scharp and Dale McLane took drinking water samples from the RVS faucets and following unspecified tests, declared that those samples represented that the water was safe, and of no concern to the opening of the schools. (T 1566-85)
1. Municipal water providers are required under the SWDA to periodically test for substances on a "maximum contaminant level" (MCL) list promulgated by the USEPA, which does not specifically include a test for gamma radiation. (T 1892)
1. I find that this drinking water sampling encompassed only a portion of that requested by Mr. Jayko, and that it did not meet broader based concerns about the school grounds otherwise expressed by him.
1. On the evening of Monday, August 25, 1997, RVS Superintendent of Schools, Dr. Kirkton, who had not been provided with the August 20, 1997, ODH gamma spectrum analysis report, received a call from a reporter of the Columbus Dispatch at his unlisted, home telephone number, asking if he intended to open school the next day when there was radioactivity in the front yard and cancer causing agents on the athletic fields. (CX 61, T 1626)
1. On August 26, 1997, the opening day of school at RVS, television stations 4 and 10, and newspaper reporters were already at Superintendent Kirkton’s office when he arrived, and he ejected them from the school lobby. (CX. 61, T 1627)
1. Shortly thereafter, Mr. Jayko, who also had not received the report, heard of Superintendent Kirkton’s encounter with the reporters, and called Dr. Kirkton, who repeated his anger at Ohio EPA, and his disappointment in its failure to let him be the first to know of the results before being made public. (T 1627)
1. On Friday, August 29, 1997, Mr. Jayko received the SIFU log sheets revealing the number and places of the drinking water samples, and late in the afternoon, at 5:00 p.m. the first pages of the incomplete test result data were faxed from Craig Butler of the PIC (Public Information Center). (CX 61 @ p. 1)
1. On September 2, 1997, while Mr. Jayko was scheduled to meet with members of the public at RVS at 3:30 p.m., and left in time to do so, further incomplete copies of SIFU drinking water test results were first misdirected to the Northeast District office in Twinsburg, Ohio, and then re-sent to Mr. Jayko’s office at 3:37 p.m., too late for the meeting. (CX 61 @ pp. 1 - 2)
1. While there is no evidence of Mr. Jayko’s thoughts having been otherwise communicated to Ohio EPA management, his notes fourteen days after the above sampling by SIFU (about September 9, 1997) reveal concerns about: the chain of custody of the water samples; the compositing of 10 samples from 20 to 30 locations; the identification of the number of samples actually sampled; the submission sheets with results for only some of the samples; the inability to match all samples with sample result sheets; the fact that there was no specific data on VOCs, or Pesticides/PCB’s as of September 2, 1997; an August 26, 1996 letter from Ed Pfau indicating review for VOCs with no related results; the data provided by Hathy Haas, DES and, regarding the September 2, 1997 Ioannedies sampling report, that only 4 of the 5 samples with VOCs and SVOCs were tested of the 10 taken, and on 2 of the 4 samples tested, only 2 others were clearly identified, with one a composite of unknown location, and again, no specific VOCs sample results. (CX 61 @ pp. 2 - 3)
1. From September 11, 1997 - October 10, 1997, Mr. Jayko had continuous daily involvement in the investigation, including contacts with the various departments of Ohio EPA, ODH and the Corps, and these included input to the formation of the Lawhon Plan, the draft proposal of which was presented for comment on October 10,1997, in a meeting with Lawhon and others in Westerville, Ohio (JX 18, p. 19 - 31) and a draft of Robert Indian’s report which was also discussed by ODH Directors with the Ohio EPA Director in Columbus, on that date.
1. In mid-October 1997, Director Schregardus anticipated questions about the Marion public water supply by directing collection of water samples of city water with at least the same parameters that the City utilizes to validate its data. (T 529-35)
1. On October 14, 1997, Mr. Jayko sent a memo to his supervisor, Jeff Steers, about news articles on elevated PAHs in the Scioto River, (RX 62) and had discussions with Doug Scharp, and, Ruth Vandegrift Supervisor of the ODH Bureau of Radiation Protection, and Mr. Steers about the memo and a plan of Ohio American Water to send Drinking Water Program representative Majewski, to Marion to collect samples that day, including EPA requirements for alpha, beta and gamma rays, and other chemical tests. (T 528, 1630-32)
1. Ms. Vandergrift had told Mr. Jayko that there were too many radiologic unknowns, and suggested that such radioactive contaminants may have been in the area and that improper disposal may have occurred historically, leaving a potential that they may have gotten to the water shed, and traveled to the area that Ohio American uses for their river intakes. (T 1632-33)
2. Upon inquiry about the October 14, 1997 drinking water samples that had been completed, of which Mr. Steers testified that everything seemed fine with the quality of the intake samples with no elevated PAHs, (T 534) Mr. Jayko was told that only a couple of the parameters that he was interested in could be added due to the sample constraints (size, type of jars, etc.) on the samples already taken, which the lab agreed to add. (T 1633)
Phase II - October 15, 1997 - December 31, 1997:
1. On October 15, 1997, Mr. Steers sent a memo to Mr. Scharp, referring in part to Mr. Jayko’s letter of the previous day, phrased in terms of an attempt to "rule out" the water supply as a source of radiation, and some of the concerns that "Paul has with PAHs and other stuff that appears to persist in the water plant intake and well field." (T 532; RX 63)
1. On October 15, 1997, Mr. Jayko drafted an interoffice (internal) communication to Jeff Steers, expressing concerns regarding the collection of Ohio American Water’s raw water supply and finished waters that were collected on October 14, 1997, objecting to the fact that the records office had initiated the collection in order to "rule out the municipal supply as a potential link to the cancers in Marion," and expressing six concerns as follows:
Concern No. 1: The Biological, Sediment and Water Quality Study of the Little Scioto River, Marion, Ohio, dated April 8, 1994 demonstrates that 17 PAHs exist in the Little Scioto River (5 of which are known or suspected carcinogens). Twenty three metals and cyanide were measured in the river. DDT metabolites were measured at highly elevated levels.
Concern No. 2: The normal test parameters that are required of Ohio American Water Company do not address the great majority of these cancer causing agents.
Concern No. 3: The samples that were collected on October 14, 1997 were submitted to the laboratory for the standard Ohio American Water Company parameter list. Due to the methods of collection (ie: containers and preservatives), the analysis will be the same as is normally conducted by Ohio American, with the following exceptions: gamma radiation, cadmium, and selenium. Not analyzed are PAHs, trinitrotoluene, pesticides, and metals.
Concern No. 4: The raw water intake from the Little Scioto River is located within one-quarter mile of the most highly contaminated area of the river.
Concern No. 5: Parameters that will remain for analysis, in order to insure that the water entering distribution lines is actually free of contaminants would include: full metals analysis, pesticides, and semi-volatiles to include total PAH.
Concern No. 5[sic]: DDAGW has now been tasked by the Director’s office on two occasions (August 22 and October 14) to collect samples of municipal waters. It is my suggestion, that prior to a third tasking, a sampling work plan be prepared and be followed. (JX 6)
1. Mr. Jayko received immediate feedback from Archie Lunsey and Bruce Dunlavy on management’s reaction to the memorandum, letting him know that it was not well received; that Mr. Jayko had committed something to writing again that they did not want memorialized; and that, as Mr. Lunsey told him, management viewed this as "making them look foolish, making them look like they didn’t know what they were doing [and that] ... they weren’t doing the job they were supposed to be doing," (T 1647-48) which is also confirmed by Mr. Steers, (T 454-74) with different reasons for the reaction. (T 534-41)
1. On October 16, 1997, OEPA spokespersons Carole Hester and Al Franks, issued a Weekly Report to OEPA Press Secretary, Mike Dawson, and copies to others, but not Mr. Jayko, (JX 7) which stated:
Marion Health Study - We are designating Beth Gianforcaro and Jim Leach as primary spokespersons. Beth will be in Marion and Columbus for the various briefings/ meetings today. Jeff Steers will be the sole district spokesperson if something technical is needed. We will make sure that both the citizens and the media are kept advised as the sampling/ investigation proceeds during the coming weeks. (JX 7)
1. Director Schregardus has testified that he was involved in the original decision to appoint agency spokespersons for the Marion investigation, but maintains that it was not due to Mr. Jayko’s October 15, 1997 memo. (T 773-74)
1. I find that there is no evidence of actual appointment of a single or sole agency spokesperson until after Mr. Jayko’s October 15, 1997 memo, as described above.
1. It is my opinion that this was one of the most significant initial reactions of Ohio EPA management to Mr. Jayko’s pressure to have adequate testing performed.
1. I find that Mr. Jayko’s October 15, 1997 Concerns memo constituted a correct and appropriate internal documentation of his professional opinion regarding his concerns about the direction of the investigation at that point in time; that it was a protected public health and safety document under the acts; that management’s reaction to it was unwarranted; and that it’s conduct has never been explained to the satisfaction of the undersigned.
1. On October 17, 1997, Mr. Jayko was told by Jeff Steers that he needed to be at his desk waiting for a conference call involving Marion, and sat there for a half an hour or so, but, when it never came, he was told that they could not find the conference call and they were not going to have it, and later learned that instead, there was a meeting in the NWDO building that he was not invited to attend with Hammett, Dunlavy, Lunsey, and others, and that a task force for Marion would be formed to continue the Marion project. (JX. EX. 18, p. 33, T 1779-80)
1. I take judicial notice that also on October 17, 1997, ODH issued a report entitled, Leukemia Mortality Among Residents of Marion, Ohio, 1966 - 1995, drafted by Robert W. Indian, M.S., which confirmed that the leukemia mortality rate for the City of Marion for these years was higher than the "Remainder of Marion County" and the State of Ohio, having risen "over 122% over the last three decades," with against a 30% decline for the remainder of the county and an 8% decline for the State over the same period; . I find the document admissible in its entirety on the basis of this reference alone, as well as constituting a public document derived from a scientific, medical or technical process, within the provisions of 29 CFR 18. 201(a)(3), and therefore admissible on the basis of judicial notice. Additionally one court ruled: "documents that are referred to at a hearing do become part of the record." Zenith Radio Corp. v. Matsushita Electrical Industrial Co., 529 F. Supp. 866, 900 (E.D.Pa. 1981). "[A] rule that arbitrarily excluded from the judicial record documents that were not presented to the court individually and in their entirety would not serve the important purposes of the common law right to inspect and copy." Id. at 901. In another, it was decided that the trial judge’s decision to admit an entire report, even though there were questions concerning trustworthiness of certain portions of the report, was not an error, as long as the report was used to help fill in a causation gap, and the plaintiffs did not rely on the report to establish a desired point. In Re Korean Air Lines Disaster of September1, 1983, 932 F.2d 1475, 1483 (D.C. Cir. 1991).
2. I find that, due in great part to the pressure of Mr. Jayko to do so, on October 17 and 27, 1997, the ODH labs conducted gamma ray tests on the drinking water samples taken on October 14, 1997, and that they proved to be lower levels than those of concern specifications.
1. I also find that, while there was no legal requirement that OEPA conduct the gamma testing that Mr. Jayko sought in his October 15, 1997 memo, it was a legitimate and appropriate request when considering that they had been ordered to "leave no stone unturned" in the attempt to find the cause of the incidences of leukemia, one of which potentially involved radiation.
1. Whether Mr. Jayko had knowledge of the present existence of uranium-polluted water or not, the number of documents demonstrating a potential for radiation sources combined with the knowledge of dumping grounds with unidentified waste in the near proximity to those named locations, and the presence of abnormally high leukemia cases believed to exist in the area, provided a reasonable basis for an investigator such as Mr. Jayko to sample those areas, and to have a reasonable basis to believe that OEPA might violate laws if it did not test for it.
1. On October 22, 1997, a memorandum was sent from Jeff Steers to Mr. Balduf, Mr. Hammett, Mr. Lunsey, Mr. Dunlavy and others, regarding a meeting to discuss: the Marion situation; formation of a multimedia team to follow-up on environmental areas of concerns with ODH, on "expectations that Ed, the Director and I have on intended outcomes," and on meeting expected recommendations; expanding the investigation of environmental pathways into the City of Marion, and wherever else they needed to be done; providing reasonable assurances to the citizens of Marion and Marion County that there was currently nothing in the environment which was detrimental to their health as their end goal, and informing them that they may never be able to find a cause and effect relationship between leukemias and something in the environment. (CX. EX. 52; T 333-34)
1. Mr. Jayko was not copied with this document. (CX EX. 52)
1. I find that the above described course of conduct following Mr. Jayko’s October 15, 1997 memo constituted the initiation of a deliberate exclusion of Mr. Jayko from important elements of the investigation as site coordinator, the likes of which have not been demonstrated by substantial evidence regarding any other OEPA site coordinator, thereby changing a basic term and condition of his employment as the RVS site coordinator.
1. On October 30 and 31, 1997, ODH screened MED Building 517, finding residual radiation and asking USACOE to sample for radionuclides known to have been stored there for alpha, beta and gamma ray measurements, with the discovery and removal of lead 210, (a daughter of radium fixed into a pipe in one corner of the wall, and possibly the wall itself); the installation of a chain link, barbed-wire, padlocked fence, and the posting of the building, and further testimony recommended in the surrounding soils. (RX. EX. 118, p.p. 1-7)
1. I find that there is no evidence that the OEPA was a contractor or subcontractor of a Nuclear Regulatory Commission (NRC) licensee.
1. On October 31, 1997, after the above meeting, Mr. Steers circulated a memo to all of the staff verifying that, "The team has been instructed to work closely with ODH in seeking out information which can allow us to conclude that the existing ‘environmental’ conditions in the local community(s) do not pose a threat to human health," to which is attached the list of team members. (CX 13; T 343)
1. The above team listing included Bruce Dunlavy as the Team Leader, and Paul Jayko as the RVSD (Director) of Investigations. (Ibid.)
1. At the hearing, Mr. Steers attempted to explain what he was trying to say in both memos as follows: the community was looking for assurances that ideally, they would want to determine in the end that, hopefully, that there wasn’t anything in the environment "currently" (at that time) that’s "posing a risk to human health;" that the "intended outcome" was to provide such reasonable assurances to the City of Marion and Marion County, and that he was not trying to prejudge what would be an ideal outcome. (T 342)
1. I find that the testimony of Mr. Steers was confusing and contradictory on this point, finally admitting that he could have used a better choice of words in the memoranda.
1. I also find that the actual wording of the memoranda spoke for themselves and meant what was stated in them, not what was stated in the obviously prepared testimony of Mr. Steers; that basically he was attempting to rewrite the memoranda at the hearing, and that he intended to convey his thinking to the team that he wanted them to limit their investigation and findings to one thing: that there was nothing in the "current" or present environment that was causing a threat to human health; that they should not, at least at that time, investigate past environmental contaminants which might have caused the leukemia cases, and that this was based upon a philosophy of the management of the OEPA that they might, "never be able to go back in history and find out why people contracted leukemia," as stated by Mr. Steers. (T 343)
1. In this regard, Mr. Steers acknowledged having received an e-mail in June or July from the Columbus office stating that in his meeting with a Marion reporter, "Don Schregardus said he wants us to be very aggressive in telling reporters there is no evidence linking the sites to leukemia." (CX 44; T 348).
1. In addition, I find that I am unable to credit a statement this early in the investigation that represents that, "there is nothing in the current environment that is causing a threat to human health," when all testing for both present and past causes of leukemia have not been exhausted and finally determined not to exist, and that such a statement to the public would constitute a misrepresentation of possible threats to human health that might be found to be present in tests yet to be performed.
1. More importantly, this leads me to discredit the entire policy of the OEPA management as such a misrepresentation of the Marion investigation, since it would affect both the employees of the agency charged with the obligation to carry out that misrepresentation, and the public pronouncements concerning the investigation.
1. These directives had the effect of contradicting that of the Governor, "to leave no stone unturned" in finding the causes of the leukemia.
1. As a result, Mr. Jayko, justifiably, could not accept some of these decisions to limit the investigation, especially those concerning the sampling, and Mr. Steers confirmed that by so doing, he was not considered a "team player." (T 344-46)
1. In addition to the above, at the hearing, Mr. Steers raised two other points that had not been previously documented or raised: (1) That Mr. Jayko had never submitted a "work plan," for the Marion project; (T 539) and, (2) That the failure to act on the 1992 Baker Woods LOE request that had been submitted by Mr. Jayko to OEPA management, (RX 48) which, in part had implications on his October 15th Concerns memo, was the fault of Mr. Jayko because he did not follow-up on the LOE request. (T 541; FF 12)
1. I find that there is insufficient evidence presented by OEPA in this record that any other type of a "work plan" than Mr. Jayko’s reports and requests set forth herein, and his participation in the formulation of the Lawhon Plan, was required, or would justify its reaction to the memo.
1. I also find that in presenting the 1992 Baker Woods LOE request to Mr. Dunlavy, who, in turn, submitted it to OEPA’s Central Office in Columbus, Ohio, which allowed it to go unanswered, (T 542) Mr. Jayko did all that was required of him to do, and the fault, if any, in failing to act on the LOE request was solely that of OEPA management, since, as stated by Mr. Steers, "I cannot explain why nothing was done ...." (T 453; FF 112)
1. On November 14, 1997, Mr. Jayko participated in a conference call at the Central Office involving Mr. Dunlavy, Mr. Lunsey, and other individuals regarding their decision, over his objection, to eliminate two of the primary analyses that had been called for in the Lawhon Work Plan for dioxins and microtoxins. (JX. Ex. 18, p. 37, T 1652)
1. While Mr. Jayko was, in fact, "debating" the issue, primarily with Heidi Soren, who, contrary to Mr. Jayko, wanted dioxins and mycotoxins eliminated and wanted handheld meters used to achieve the same results that Mr. Jayko wanted, Mike Czeczele, who was then an Assistant Director in Columbus, Ohio, with the concurrence of another Assistant Director Jenny Tiel, said that he would be willing to gamble on doing a "phase(d) approach" as suggested by Ms. Soren, resulting in both dioxins and mycotoxins tests being eliminated and the rejection of Mr. Jayko’s air monitoring demands. (T 1652-53)
2. Respondent witnesses contend that Mr. Jayko did not actively participate in this telephone conference, and that he did not speak up when the issues that he was advocating were being discussed, (T 423-26; 558-59) when the purpose of the call was obviously to contest the recommendations that Mr. Jayko himself had made, and the opposition was simply being presented from several sources, and Mr. Steers could not recall any question being directed to Mr. Jayko. (T 430)
1. I credit both Mr. Jayko’s testimony and that of Mr. Lunsey that Mr. Jayko explained during that particular conference call his rationale for structuring the sampling, arguing that dioxins and mycotoxins were suspected leukemia causing agents; his specific recall that Mr. McLane did not participate in it; his specific argument with Heidi Soren about his positions referred to above; the fact that they all knew his positions on the Lawhon proposals; that their presence is suggested by PCBs previously found to exist in the August testing, and that any lack of participation that existed was primarily in the minds of respondent’s witnesses, which, if it existed, had no impact on the outcome of the decisions made to eliminate his proposed tests anyway.
1. Mr. Steers, Mr. Czeczele and Ms. Tiel maintain that the reason for the elimination from the Lawhon Plan of the dioxin and mycotoxin studies was budgetary, (T 361) and would have been $150,000.00 in lab costs, while the more comprehensive air monitoring studies, Ms. Tiel felt could be accomplished without "throwing money" at them. (T 1928-29)
1. Even though tests for dioxins and mycotoxins were finally done seven or eight months later in February 1998, (T 362) the tests that Mr. Jayko was seeking in October and November of 1997, were sarcastically referred to by the respondent as the "Cadillac" version in its brief in an attempt to discredit the legitimacy of the advocacy of his investigation, despite the introduction of the term by Mr. Steers, who testified that he advised Mr. Jayko to ask for a "Cadillac" version to see what funding they could get. (T 553)
1. As a result, I find that this characterization was unwarranted, inappropriate, and more revealing about its own biased conclusions than one to shed light upon what otherwise might have been considered legitimate arguments in support of its position.
1. I also find that there is no substantial evidence of any timely statement to the public that the investigation was being limited by budgetary constraints, or that those constraints could only be alleviated by transfer of the investigation to the USACOE.
1. I also find that this constitutes further substantiation that there was no substantial evidence to support a view that a complete current investigation was being performed, since elements that would have affected such an investigation involving an important issue of public health, even if limited to current causes of leukemia as contended by OEPA officials, were being eliminated from the testing.
1. I also find that any disconnection that may have been suffered or exhibited by Mr. Jayko by this point in November 1997, such as indicated by Mr. Steers, (T 560) was the effect of his treatment, rather than the cause of problems that he was some how initiating, and that further frustration and withdrawal or non-participation after that time in certain meetings and conference calls were likewise the effect rather than the cause of such problems.
1. Several documents from the RVS public file at the Northwest office reveal that years after Mr. Jayko made the suggestions on including tests for dioxins and mycotoxins, the course of action suggested by him was taken, and thereby reinforcing the reasonable basis that he had for advocating the related tests. (CXs. 67, 68 and 70, T 1655-56)
1. OEPA witnesses propose that OEPA allows its staff to freely discuss issues with the media; that its staff may involve PIC if they are uncomfortable; that when the project is large or carries significant media attention, OEPA will designate a spokesperson to communicate or coordinate media inquiries; that PIC is also designated to respond to national news inquiries, and that a single spokesperson for the Marion investigation based, in part, on Mr. Jayko’s October 15, 1997 memo that was internal. (FF 56)
1. On November 15, 1997, the Columbus Dispatch published an article, Drinking water link to leukemia still unproven, containing quotes from Mr. Jayko about PAHs discovered in the 1992 investigation that paralleled one in his October 15, 1997 Concerns memo about the drinking water intake being 1/4 mile upstream from the intake, without mentioning attributing it to the 1992 report, (CX 56, p.2) and OEPA officials concluded that he was the source of leaks concerning the current investigation. (T 1787-90)
1. Despite the reference to the other 1992 quotation of Mr. Jayko in the article, Mr. Hammett then called Mr. Jayko to the office and forcefully expressed his anger to him about the quotations, to which Mr. Jayko had to explain the present references to the past Dispatch article, and the fact that he had not given a current interview on the subject. (T 1789-90, 2030)
1. No evidence was presented to support any OEPA position that Mr. Jayko did not have the right to make the statements that he did in 1992, nor was there an inquiry by Mr. Hammett to determine whether Mr. Jayko might have been interviewed or making statements in his private capacity as a citizen, as Mr. Steers maintained that OEPA employees may do.
1. In fact, no evidence has ever been produced that Mr. Jayko ever discussed the current investigation with the media after some initial interviews in the summer of 1997, until after his removal as site coordinator in July 1998; and, in fact, there is no evidence to contradict Mr. Jayko’s testimony that he directed all inquiries about Marion to either Mr. Steers or Ms. Gianforcaro, as instructed. (T 1696-97)
1. I find that the actions of Mr. Hammett in calling Mr. Jayko to task over the November 15th Dispatch article was facially unwarranted, and that its timing and forcefulness was anything but an inquiry of a supportive supervisor into a circumstance that might otherwise have merely required some more limitations or discretion on the part of a subordinate on a newly stated policy, with the effect that it had a chilling effect upon Mr. Jayko’s performance as site coordinator, nowhere more apparent than in the following.
1. Mr. Jayko received the following e-mail memorandum from Jeff Steers dated November 17, 1997, which stated:
This is a reminder to everyone involved in anything Marion. No interviews, tours or discussions with Media unless its coordinated through PIC. Such media contact should at a minimum include Jim Leach, or in his absence, Beth G. (CX 14)
1. Contrary to Mr. Steers’ contention at the hearing that the media could contact Mr. Jayko concerning RVS matters, (T 550) Mr. Jayko’s name as site coordinator was not included in the memo as a person to contact; and as one of the people most informed of what was going on, he was being directed not to have any type of discussions, interviews, or tours on those matters. (T 1765)
1. Pat Heider was present at a November 1997, staff meeting in the Division of Drinking and Ground Water, when he asked Mr. Hammett about a site called Textile Leather, expressing his concern that some of the water would volatize and pose a health risk, and stating that he wanted to write an IOC memo documenting the potential for human exposure to such risks, even though OEPA regulations did not require such testing. (T 1061-62)
1. After a heated conversation between the two, Mr. Hammett told Mr. Heider not to put such an IOC or note in the project file, and made reference to a site coordinator in DERR who was doing this that was causing problems, to which Mr. Heider replied that he knew the site coordinator in DERR, that he had read the IOC’s, and that they contained facts. (T 1062-65)
2. I conclude by the inferences to be drawn from the undenied evidence regarding this matter, and the fact that there was no other evidence presented regarding any other site coordinator to whom the reference to "causing trouble" by putting such factual information into the file could refer, that it could only have referred to Mr. Jayko who was causing trouble by putting legitimate investigative information into the file.
1. A second item insisted upon by Mr. Jayko in the Lawhon plan that was eliminated involved ground air monitoring.
1. There was also a dispute between Mr. Jayko, and the Central Office staff, in order to save money at OEPA when "clip data" from lab tests by CERCLA certified Contract Lab Program [CPL] labs to ensure quality was eliminated from the Lawhon Plan to save money, but resulting in reports that Mr. Jayko believed would be unreliable. (T 1946-47)
1. On December 31, 1997, the Lawhon contract expired with actual field work ceasing in mid-December, and all the work they were doing had to be completed in order to get their final reports together. (T 1675, 1933)
1. Since there was no contractor in place to continue Lawhon’s work, Ohio EPA District staff members were faced with an 18 inch stack of raw data which was not work that they were normally required to review, not validated and not of clip quality data. (T 571-72, 1675-76)
1. On January 8, 1998, Mr. Jayko sent a letter to Mr. Steers regarding the status of the Lawhon investigation as of its December 19, 1997 Interim Report, revealing a summary of incomplete work and other problem areas, plus eight areas of "Anomalies," three of which involved: (1) A 200' X 300' area within the RVS baseball and football fields with buried metallic objects possibly containing waste material with a high electrical conductivity property such as in sludge; (2) Another 400' X 400" area south of the first with similar findings, but a different "signature," possibly involving munitions; and (3) A third, under the parking area, involving either waste or utilities. (JX 8)
1. On January 23, 1998, Mr. Jayko sent a memo to all of the team members setting forth a comprehensive list of sixteen areas that might otherwise require investigations by OEPA, ODH and the Corps for other possible leukemia associations or environmental impacts on the Marion area, including a recommended expansion of studies to cancers and illnesses other than leukemia, and studies of the drinking water at various times of the year, at different locations and at varying depths, (JX 9) to which Mr. Steers testified that he did not object since he had solicited guidance from all team members on possible sources of leukemia in the environment, (T 565) following Mr. Jayko’s letter on the effects of the loss of the Lawhon contract.
1. Mr. Jayko also felt that the public was under the assumption something was being done, that it was not, and that no communication was being made to the public of that fact. (T 1678)
1. Mr. Jayko also knew that in order for any type of action to be taken under the public drinking water program, four consecutive quarters of monitoring were required to find consecutive quarters of "ascendance’s" (increases in the readings), so he wanted to know what their plans were to monitor them for the additional quarters. (T 1765)
1. In January 1998, Mr. Jayko was asked to review a letter to Governor Voinovich regarding an inquiry from Mr. Krumanaker, when he noticed that there was a statement in it that he felt was inaccurate to the effect that "no evidence had been found with . . . problems in the municipal drinking water in Marion," to which he replied in a memorandum dated January 23, 1998, as follows:
It is not accurate to state that the Ohio EPA has found no evidence of any problems with the municipal drinking water in Marion. Trihalomethanes (carcinogens) were detected in August 1997 sampling at the RVLS. (CX 19, T 1765)
1. On January 29, 1998, Mr. Steers sent two memos to Nancy Whetsto of Central Office Support, with copies to Mr. Czeczele, Ms. Gianforcaro and Mr. Hammett, one remarking on his being back in charge of "the whole thing," with their game plan, with roles for the whole staff, and repeating that he had instructed the NWDO staff not to talk to any media, since he wanted, "to stop, all disconnected info so that anything we say is said with the bigger picture spin on it;" (emphasis added) and the other clarifying that he had talked to Ed Hammett about discussing the Lawhon report’s "preliminary data," since it was "all raw data," emphasizing that no conclusions could be drawn from it, and that Director Schregardus should be given a "heads up" on it. (CX 18)
1. Mr. Jayko was not copied with this memorandum, and first saw it after the discovery process for the present litigation. (T 1767)
1. Mr. Steers maintained at the hearing, that aside from Ms. Gianforcaro and himself, the media could contact Mr. Jayko, (T 550) if available, although none of the documents support that position.
1. Claimant’s counsel asked him if he saw anything inconsistent between the memoranda, and Mr. Jayko stated that since they had discussed the trihalomethanes as preliminary data, there was a message going out that they weren’t to talk about it. (T 1768) With regard to his understanding of what the "bigger picture spin" was supposed to be, I find that Mr. Jayko believed that it was that there was no evidence of risk on the data that OEPA was finding. (T 1770)
1. It is my conclusion that Mr. Jayko’s understanding was an accurate one about what was happening with the "spin" being given to the release of data by the OEPA as stated by Mr. Steers, which was that there was no evidence of risk on the data that it was finding.
1. With regard to Mr. Steer’s testimony that from January to April 1998, Mr. Jayko was getting frustrated and seemed discouraged, I find that Mr. Jayko justifiably was frustrated and concerned, and that he was also justifiably never hesitant to communicate to management his dissatisfaction with the situation.
1. Some time during this January 1998, time period, Mr. Steers appointed Diane McClure to summarize the Lawhon data, since it was his belief that the USACOE was going to take the project over, and would need a summary. (T 573)
1. On April 2, 1998, Mr. Jayko received word from the Central Office that the contract with another contractor, PSARA Technologies which was in negotiations to be the successor to Lawhon, had been demobilized, and their contract had been terminated as of March 20th, and the OEPA Environmental Investigation of Marion was at a "standstill." (T 1677-78)
1. As of April 2, 1998, Mr. Jayko was convinced that there was no progress being made on the work plan; that the program was unfinished, and that, it appeared that the EPA had "dropped the ball," contrary to the directive of Govenor George Voinovich, that the mission was to "leave no stone unturned." (T 1678)
1. In terms of who was left to be running the investigation, it appeared to Mr. Jayko that no one for EPA was; they appeared to be waiting for the Corps of Engineers to get a contractor in place, and then put a work plan together and implement it, and that it would have to duplicate a lot of their work already done to do so. (T 1680)
1. On April 8, 1998, Jeff Steers sent a memorandum to Director Schregardus (CX 20) regarding a trenching (sampling) operation by USACOE that was performed at RVS in March 1998, and reported on March 30, 1998, noting that soil excavated from the trench revealed various concentrations of solvents and other organic chemicals, and stating:
While not in excessive concentrations, such as would be characteristic of a hazardous waste, there is concern that they were found at a depth of only three feet in an area that is regularly saturated with water. (CX 20)
1. The memo also noted that the Columbus Dispatch had published an article the previous Sunday, in which the Corps described its findings, but did not include a description of the petroleum/solvent contaminated soils; that, while the article appears alarming, they have attempted to stress that the findings are yet another piece of the investigation which can be used to build on past studies, so they thought it important that caution continue to be exercised around the exclusion zone previously established in the athletic fields, and that they would be conducting a soil gas survey of the surface to determine if any chemical vapors were being released from the surface contamination, to be done as soon as practical - in three to four weeks. (Ibid.)
1. The memorandum concluded that, "there is no evidence to suggest that there is a health threat to persons on other portions of the school grounds." (Ibid.)
1. Mr. Jayko was involved in the oversight of that trenching operation, and was aware of the results which were correctly stated in the memo, and that the material that was sampled and sent out for analysis came back as a reactive sulfide, and that it had to be, and in fact was, manifested as a hazardous waste for handling and disposition. (T 1775)
1. On April 9, 1998, there was an exchange of e-mails including one from Kevin Jasper to Jeff Steers that was setting up a conference call which stated that the next thing they had to discuss was: "Is [there] risk at RVS? What risk does the contamination in the anomolies (as we know it now) pose? Do we separate the Risk of the Arsenic in the ditches from the anomolies?", (CX. EX. 21) and also asked: "Do you want to include Paul Jayko in on these calls? Please pass the number [to call] along if so."
1. In the second part of the April 9, 1998 e-mail exchange, in a reply from Kenneth Crawford of the Corps to Jeff, Kevin and "All," to the first, he referred to "lessons learned the hard way" that "reporters are always looking for conflict, sometimes finding it where it doesn’t exist," reminded them that they had stood together and were working hand-in-hand to resolve the matter with them (OEPA)," and stated that in his years working with environmental problems, he had, "never seen such outstanding interagency cooperation." (Ibid)
1. Mr. Jayko did not get a copy of the above e-mail exchange until after he was removed from the project, and would definitely [have] expected to have been included in the conference call. (T 1777-78)
1. It is my conclusion that a deliberate determination was made in April not to include Mr. Jayko as the site coordinator, on either the compliments that had been rendered by the Corps to OEPA for things that he had been a direct part of, or the telephone conference, or the future plans, and that he ended up totally unaware of the exclusion, until the hearing discovery process.
1. In late April 1998, a Director from Central Office told Mr. Jayko to gather all of the paperwork, all the documents and all the data and everything that he had pertaining to the investigation for a repository in Marion, which was a section of the library where the documents would be kept. (T 1681)
1. Mr. Jayko was going to be leaving for two days so he put all of the documents to be delivered in the repository under the table that was behind him, showing them to an administrative assistant, Emelia, stating that everything on the table needed to be photocopied. (T 1682)
1. Included in the documents to be deposited in the repository was his chronology,(JT. Ex. 18) concerning which he made a point in telling the administrative assistant to give Jeff Steers another chance to look this chronology over, and on his return on Monday there was a yellow post-it on it that said something to the effect that "its okay." (T 1682)
1. All the material was collected, and the last he saw of it, it was staged in the front lobby, apparently to be sent down to Marion. (T 1682)
1. In July of 1998, Jeff Steers came down to his cubicle with supervisor Archie Lunsey and told Mr. Jayko that if he had a copy of the chronology it should be in the public file. (T 1682)
1. Mr. Jayko looked through one or two public file drawers, pulled it out and handed it to him, after which Mr. Steers took it away, apparently without comment. (T 1682-83)
1. Mr. Jayko had also put together status reports or updates and monthly reports to Mr. Dunlavy, all based on the chronology, as he had done traditionally, including the past Dura report, where he used such a log for the same purposes involving status reports, updates, and monthly reports. (T 1683)
1. Director Schregardus appeared to be offering some criticism of Mr. Jayko’s chronology or log when he stated words to the effect that he felt that the documents should look like what he considered to be a "field notebook" in which the person would put down the particulars of a site sample, the parameters, what the results were at the time the sample was taken. (T 1688)
1. Mr. Jayko explained that his chronology or log was not that type of a document; that while the term "log" had been used throughout the hearing, he had always maintained them as "chronologies," the first page of which said so at the top; that these are documents that he used merely to record the mechanics of the day-to-day operations of how we got from point A to B, and the type of commitments he made to someone or that someone made to him. (T 1689)
1. Mr. Jayko agreed that the distinction drawn appeared to be one between a national laboratory kind of a manual document that would be kept with notes on experiments and so on, and a personal log of what’s happening, in which the log would be a bound book where the pages are not easily removed, and each page sequentially numbered when you first received the book, which would be the kind of exhibit that could be entered into a hearing or litigation, saying this is the agency that found they did some sampling on your site. (T 1689-90)
1. I find that Mr. Jayko did not keep such a sample log because at no time on the project did he physically take any samples; that such a log would have been reserved for the technicians, who actually did the sampling, and that SIFU would have or should have been keeping that type of documentation, because they physically took the samples. (T 1690)
1. Mr. Jayko understood that with regard to environmental matters, what the Director was referring to was the type of field book that would be numbered, and submitted in a proceeding as evidence of a criminal wrongdoing; that, with regard to whether there was any kind of manual or regulatory provision within the OEPA for the keeping of either type of log or chronology, the only thing that he was aware of were the USEPA guidance documents that described how log books should be kept on field sampling, how it was to be conducted, and what other types of information should be recorded, such as date, time of sample, method of preservation, etc.; and that with regard to internal regulations on the keeping of such documents as the chronology, he did not know of any, or of anything prohibiting or encouraging it.
1. In November of 1998, five months after Mr. Jayko had been removed, the OEPA put out a document entitled Sampling Plan and Evaluation of Marion’s Drinking Water, informing the public that starting November 30th, the EPA would again test the Marion water supply at the treatment plant and at the River Valley School complex, which would be an ongoing evaluation of the public water supply and a "hydraulic evaluation" of the water line system near the school complex, and listing contacts as Jeff Steers (technical contact), Sophia Antjas (general questions), and Jim Leach (media questions). (CX. EX. 64)
1. The above report referred to a prior report of May 20, 1998, entitled "Summary of Contaminant Sampling at Ohio American Water Company’s Marion Public Water System" summarizing sampling efforts by OAW and Ohio EPA and the results of the monitoring, stating that, with the exception of one family of chemicals which are byproducts of the chlorination process, the supply met the federal drinking water standards, and stating Volatile and Semi-Volatile Organic Compounds (VOCs & SVOCs) had not been detected in the raw and finished water, including the buildings surrounding the campus.
1. Mr. Jayko commented on the part of the May 20th report, which stated that based on the flow direction and perhaps given enough time, perhaps thousands of years contamination from Baker Woods could possibly reach the well field, and that he was taken back by the fact that anyone would print something like that, stating that to him, it was a very deliberate effort to down play the gravity of the situation and thought that it was definitely not substantiated by factual information. (T 1763)
1. The Baker Woods site had involved the use of creosote when logs were dipped into it, and set into a particular area to drip on the ground, which had been in existence for approximately 100 years, and had resulted in excessive contamination in the river and was beyond the well fields, including Benzoa Pyrene (definitely a component of creosote) which does not naturally occur 100 feet down in the well. (T 1763, and see also RX. EX. 48)
Phase III - The May 21, 1998 Pizza Hut, Beer Drinking Incident:
I have deliberately separated my findings of fact concerning the Pizza Hut, beer drinking incident, and Mr. Jayko’s alleged fraud and deceit in the handling of his request for reimbursement of related travel expenses and resulting ten day suspension, which covered a time period from May 21, 1998 - July 28, 1998, and hereby find as follows:
1. Several things occurred on May 21, 1998, starting with a trip to Marion by Jeff Steers, Dale McLane, and Mr. Jayko, who drove together in the same state car driven by Mr. Jayko; stopping at a building that had been set up for a pre-meeting at the Juvenile Children’s Services Building in Marion; attending a meeting there that involved a few local officials, such as the county health department, the Corps of Engineers and their contractor, and individuals from the State Health Department and Ohio EPA. (CX 62 - a sign in/ sign out log for that day, JX. EX. 13 and T 1717-19.)
1. The calendar shows a record of Mr. Jayko’s time which was made after he got back to the District Office after the meetings; that there was a pre-meeting at Marion; that five hours of the day was charged to the U.S. Army of Corps of Engineers between 11:30 and 4:30 (including travel time); that Mr. Jayko charged seven hours to the Corps of Engineers for a public meeting in Marion, from 4:30 to 12:30, a total of eight hours (one of which was his dinner and not chargeable); and that anything after 4:30 was logged as overtime. (T 1723-24)
1. After the pre-meeting, when it was adjourned for dinner, most of those going to the public meeting went to the Pizza Hut Restaurant just down the street in Marion, for dinner, and were all at the end of a long table, with Mr. Jayko seated at the very end, with no one to his left, and Wes Watson, Project Manager for the Corps, sitting directly in front of him, with whom he had most of his conversation; and across from him was Jeff LeBlanc from the Corp’s contractor, Montgomery Watson and someone else on his right. (T 1725)
1. During dinner, all they talked about was that Mr. Watson and he were amateur carpenters with home repairs being made; that Mr. Watson has a motorcycle and Mr. Jayko rides horses. (T 1726)
1. Mr. Jayko did not consider himself to be on the clock, and if there were any conversations concerning the Marion business meetings, they were short and he did not recall their content. (T 1726)
1. They ordered a bunch of large pizzas, and Mr. Jayko ordered two draft beers with his dinner, to which no one at the table objected, including Mr. McClane and Mr. Steers. (T 1727-28)
1. Mr. Jayko did not have a scheduled speaking role at the evening meeting; he was not on the stage, and he was merely going to sit in the audience, take notes and be aware of what happened. (T 1728)
1. They left the restaurant by 5:30 p.m. (T 1728)
1. The walking tour began around 30 minutes before the 7:00 p.m. scheduled public meeting, conducted by Wes Watson, and Mr. Jayko stayed to the back of the crowd, talking with Mike Griffith, one of the citizens that he had dealt with for quite awhile, and then moved to the front to listen to Mr. Watson. (T 1728-30)
1. During the meeting, Mr. Jayko sat in the center section of the auditorium to the far left, maintained notes on the type of business issues that were addressed, and then took notes on the questions that the citizens asked the panel. (T 1730)
1. No remark was made to him at all during the dinner, the tour or the meeting about his breath having alcohol, or his conduct being inappropriate, either by Mr. McLane or Mr. Steers, or anyone else. (T 1728)
1. Following the walking tour, they went into the auditorium where the public meeting commenced, ran late, and adjourned before 10:30 p.m. (T 1729)
1. Mr. Jayko "loitered" in the parking lot for a while talking with Wes Watson, and actually got into the car at 10:30 p.m., heading toward Bowling Green. (T 1729)
1. Both Mr. Steers and Mr. McLane were again in the state car with Mr. Jayko on the drive back, neither of whom, in particular Mr. Steers, said anything about the inappropriateness of his having consumed the beer at the Pizza Hut at 6:00 p.m., nor did they object to riding in the car with him. (T 370, 373-74, 394, 1729)
1. They arrived back in Bowling Green at about 11:30 p.m., after which he went to his office, and did various things such as unloading materials, and an attache case with Dale McLane; after which he took them into the building; went to his desk and checked his voice mail, and e-mails, and wrote up his notes. (CX. Ex. 23 at p. 2, T 1730)
1. Upon leaving the office for the evening, Mr. Jayko signed out, on the sign in/sign out log; (JT. EX. 13) he testified that when he first made his entry he wrote down 11:30 p.m. and "caught my mistake and wrote the 12:30 on top of it." (T 1733) In a companion exhibit to Exhibit 23, which were the log entries for Thursday, May 21, 1998, the log entries for Friday, May 22, 1998 were also introduced into evidence. (CX. EX. 63)
1. There has been no evidence presented by the respondent that anything other than this account is the truth about what happened regarding the mistaken original entry of 11:30 and immediately catching his mistake and writing 12:30 over it, and his account of the work that he performed between 11:30 p.m. and 12:30 a.m., was without credible contradiction, and adequately accounted for the one hour time period involved.
1. Respondent cited its Exhibit 35, which shows the arrival time for coming back to the office as indicating 11:30 p.m., to support its view that Mr. Jayko may have left at 11:30 p.m., but the card shows actual travel time, not a work day, so the 11:30 p.m. shown in the last column, is the time that Mr. Jayko arrived back at the District Office in Marion, not when he left the office after that. (T 1735-36)
1. Therefore, I credit Mr. Jayko’s account, and his account of the time schedule in its entirety from the time of his having left Bowling Green on May 21, 1998, until the time of his leaving the office there at 12:30 a.m. on May 22, 1998, and find no evidence that the change on his Sign-in/ Sign-out Log was anything other than as stated by Mr. Jayko.
1. To this date, no supervisor ever told Mr. Jayko what, if anything, they thought was improper in the procedure that had been followed and utilized in the time cards.
2. The first indication to Mr. Jayko that he had done anything wrong was when he received a discipline slip handed to Mr. Jayko by Archie Lunsey, based upon a June 4, 1998 memo by Jeff Steers to Ed Hammett, called, Investigation to Recent Conduct of Paul Jayko, (JT. EX. 17) which stated:
The purpose of this memo is document several recent events which have involved inappropriate conduct or behavior by Paul Jayko in to which management has been a witness. I believe that the conduct exhibited by Mr. Jayko is subject to appropriate discipline per Agency policy and the Bargaining Unit Contract. (JT. EX. 17, T 1739-40)
1. This was followed by three paragraphs each relating to an item that he felt involved inappropriate conduct or behavior subject to discipline, involving, first, the May 21 Pizza Hut/ beer drinking incident described above, where Mr. Steers observed Mr. Jayko consuming alcohol, specifically beer, while the rest of the staff were drinking soft drinks; second, at which at least two beers were consumed; third, confirming that Mr. Jayko did not appear intoxicated but stating that he indicated to Mr. Jayko that he shouldn’t be driving a state owned vehicle but he drove anyhow, and "didn’t seem to care of my concerns." (T 1740)
1. I credit Mr. Jayko’s account that he was "shocked" and "dumbfounded," sitting in his chair in front of Mr. Lunsey’s desk "just looking at this thing, wondering what’s going on."
1. The testimony of Mr. Steers, as if on cross examination, that he did not say anything to Mr. Jayko about not drinking the two beers at the incident, and that the most he might have said was to ask him if he was ok; (T 370, 373-74, 394, 1729) I find that Mr. Steers did not say anything to him at the time of the incident in the nature of any belief that he was engaged in an infraction of OEPA rules. (FF 161)
1. After the notice, Mr. Jayko spoke with his union representative, Linda Tilse, which resulted in the two of them traveling to Columbus for a pre-disciplinary hearing with Bill Kirk, taking a copy of the sign in/sign out sheet, (JT. EX. 13) a copy of the electronic time card, (RX. EX. 37) and a copy of his personal calendar on which he showed the time, and how he had charged it to the meeting with Bill Kirk, because it appeared that the issue was whether or not he was on the clock during the dinner. (T 1740-43)
1. The documents substantiate that he did not charge the state for the hour of dinner, and he was not on the clock. (T 1741)
1. From Mr. Jayko’s calendar it appears that this first pre-disciplinary meeting was held on June 22, 1998. (T 1743)
1. When he first got there, Mr. Kirk’s demeanor seemed to be that of a very happy individual, smiling, very jovial and just glad to see them. (T 1741, 2472)
1. I credit Mr. Jayko’s account, backed by that of Linda Tilse, that Mr. Kirk had a change in demeanor; that he turned a bright shade of red and became very antagonistic, characterizing it as being "just absolutely pissed;" and that Mr. Kirk did not anticipate that they were going to bring documentation to support his claim. (T 1741-42, 2472; 2482)
1. Before they drove back to Bowling Green, Mr. Kirk provided Mr. Jayko and Linda Tilse with a copy of the above June 4 memo from Jeff Steers which was the first time he ever saw the memo that Steers had written. (T 1742)
1. Linda Tilse later informed Mr. Jayko that as soon as they returned, Bill Kirk called their office a number of times; (T 2474-75; 2480) that he had recommended that Mr. Jayko be investigated for falsification of a receipt as criminal activity, and that the Highway Patrol was going to be notified for further investigation; (T 2478) that it referred the matter to the Highway Patrol on June 24, 1998, (RX 33 p.2) and that the Governor’s office advised that the matter concerning an alleged theft of less than $10.00 be handled administratively, i.e., without a formal investigation by the Highway Patrol, although it would help in any investigation, if necessary. (RX 33, p. 1, T 1743-44))
1. On June 25, 1998, Mike Czeczele spoke to USACOE representative Wes Watson and confirmed in a letter to Mr. Schregardus that Mr. Watson felt that the "River Valley Team" would suffer without Mr. Jayko’s participation; that he saw Mr. Jayko consume two, eleven ounce beers at the May 21st Pizza Hut dinner; that he saw him leave $15.00 on the table before they left, and that Mr. Jayko had always acted professionally during times that they worked together. (CX 29)
1. On June 25, 1998, Mr. Watson wrote a letter to Linda Tilse documenting the observations that he had done for Mr. Czeczele, and, in addition, confirmed that all of the time periods on May 21st that he had spent with Mr. Jayko, including the break from the pre-meeting at 5:00 p.m. the Pizza Hut dinner, the walking tour meeting at 6:30 p.m., and the meeting thereafter until 10:30 p.m.; that they discussed their hobbies rather than business during that dinner; that Mr. Jayko was not only professional in his behavior, but that he never saw Mr. Jayko exhibit any behavioral evidence of intoxication, lack of coordination, mental acuity or any other type of behavior evidencing consumption of alcoholic beverages; that his behavior was unquestionably above reproach, and that he was concerned about the potential for turbulence and divisiveness on the investigative team that the situation presented, "within an otherwise exceptionally cooperative and mutually supportive team." (CX 30)
1. On July 13, 1998, the pre-disciplinary hearing "reconvened," and Mr. Jayko had to "explain [his] side of the receipt issue, showing an affidavit that he had people in the division sign, regarding the policy used for submitting blank receipts, which was dated June 24, 1998 and stated: Recently, a question has come up regarding the use of an "other than original" receipt accompanying an expense for travel reimbursement. It has been standard practice in the Division of Emergency & Remedial Response (DERR) (NWDO), and supported by our unit supervisor, that if an original receipt for an entitled meal is not available, the employee will substitute a blank receipt. The employee is aware that no reimbursement will be made that is in access of that allowed by the reimbursement schedule, regardless of the amount indicated on the receipt. The DERR employees below can confirm this and has been a customary practice for several years. (CX. EX. 27, T 1745)
1. This document was signed by Mr. Jayko, and four other employees, who were Ed Onyia, Ali Moazed, Ghassan Tafla, and Patrick Heider. (CX. EX. 27, T 1746)
1. Mr. Jayko credibly explained that historically, if an employee was traveling and did not have an actual receipt for whatever reason, they could take a blank, fill in the amount of money that they had spent, and that it could be submitted. (T 1746)
1. He also credibly explained that Bruce Dunlavy had said if an employee is going to use a blank receipt, it didn’t look appropriate to fill in "even dollar amounts," so he said to just put down something that is under what you spent, put down a dollar amount and some change; so, Mr. Jayko put down $14.52, which was less than he actually spent, since he actually spent $15.00 at the Pizza Hut. (RX 35, p.3, is a photocopy of a blank receipt that he used for that particular meal; p. 1 is the actual amount reimbursed, $13.00, and page 2 is the agenda of the meeting involved for the reimbursement; T 1747)
1. Mr. Jayko credibly testified, and I so conclude as a matter of fact, that at the time he was not aware or thinking about the fact that the $15.00 amount actually spent included the beer as a prohibited item; that he merely had it as a beverage with the pizza, knowing that the highest reimbursement he would receive was $13.00 for the meal, regardless of what was spent on it, and that he never did cash the check. (T 1748)
1. On July 30, 1998 Director Schregardus sent the following letter to Mr. Jayko, which stated in part:
This letter is to inform you that you are being suspended without pay for a period of 10 working days based upon the events described in your pre-disciplinary meetings of June 22, 1998 and July 13, 1998. (JX 24, T 2001)
1. On July 31, 1998, Mr. Schregardus addressed a letter to Governor Voinovich attempting to explain the action taken toward Mr. Jayko, in which he stated, in part:
[I] want to inform you about the personnel issue with respect to Mr. Jayko which has prompted the media coverage this week. In June, Mr. Jayko was removed from the Marion investigation team while the Agency investigated allegation involving falsifying meal receipts and drinking on duty. This investigation recently concluded and I have suspended Mr. Jayko for 10 days for those activities. Mr. Jayko has had difficulty working with the investigation team and communicating effectively with other team members. Based upon this, when Mr. Jayko returns from his suspension he will no longer function as the site coordinator but will be consulted as needed. (JX 25)
1. I find that in the July 30, 1998 disciplinary letter from Mr. Schregardus, Mr. Jayko was being given the ten day suspension for all of the allegations discussed over both sessions, regardless of whether he had a reasonable explanation for any of them, and despite the fact that the respondent, acting through Mr. Kirk, had failed to acknowledge in those "Pre-disciplinary meetings" which of them had merit, and which did not, and then adding to the allegations, on two different occasions when evidence was presented that they were without foundation; the first being when Mr. Kirk added the fraud, deceit and theft allegations in claiming reimbursement for expenses without a proper receipt, and the second being when he added the claimed reimbursement for an alcoholic beverage as part of the allegations.
1. In addition to the above evidence presented by Mr. Jayko, I credit his testimony that, at the time he submitted his expense report, he was unaware of any written policy that prohibited alcohol as being part of a meal since he did not travel frequently; that the first time he saw it’s Policy on Reimbursible Expenses, (RX 33) was during the litigation; that he relied on Emelia Martinez, his Administrative Assistant, to handle such matters, and that Mr. Kirk advised Mr. Jayko that it was his responsibility to have a better handle on it.
1. I find that, considering that there is no evidence that there was any other reasonable rule of OEPA other than that of Mr. Dunlavy designed to cover circumstances in which either specific receipts are not given for small amounts or in which one bill is presented and split among a number of participants without specific receipts being given to them, Mr. Dunlavy’s rule was reasonable in light of the omission or ambiguity in the rules; that, under the circumstance, Mr. Jayko had a right to rely on that rule for his travel reimbursement submission, making his request for a $14.52 reimbursement, instead of the full amount of $15.00 a reasonable one, and that he had a right to request an amount over $13.00, knowing that the maximum he would receive would be $13.00, since the rule limits the amount reimbursed rather than the amount requested.
1. I also find, as a matter of fact that there may or may not have been an inclusion of two beers in the requested reimbursement; that no one has ever produced the original check to established what, if any portion of the check included the two beers; that Mr. Jayko did not cash the reimbursement check, and that, therefore, Mr. Jayko never, in fact, received monetary reimbursement for the two beers that he drank at the Pizza Hut on the evening of May 21, 1998 from funds of the State of Ohio.
1. I find that there is no evidence Mr. Jayko had ever previously submitted any inaccurate requests for reimbursement, or that he had ever received any sort of a warning for submitting such incorrect travel reimbursement requests.
1. I also find, that, even if it could be established that a portion of the request for reimbursement included the two beers, this circumstance, at the most, required affirmative action at the lower-most level of management; since I have also found that he did not drink two beers on state time; that he did not work, attend a public meeting or drive a state car while intoxicated; that his conduct did not constitute fraud, deceit or theft, and that management had no substantial evidence to conclude that he did; that the inclusion of alcoholic beverages on the travel voucher, if it took place, was the sole possible violation; that this should have, at the most, warranted some sort of a verbal warning in the graduated disciplinary system since he had never engaged in that sort of conduct, and that he should have been given the opportunity to either reimburse or contest whatever paltry sum may have been involved after recognizing that he had paid for more than his share, and would have only been reimbursed for a portion of the total amount that he actually paid.
1. I conclude that by adding to the allegations against Mr. Jayko as an outcome of matters presented in the pre-disciplinary hearing procedure followed by Mr. Kirk, this constituted a violation of basic principles of due process, and a misuse of the contractual grievance procedure, by adding new allegations to the existing allegations once he had actually presented exculpatory evidence; each time "upping the ante" on Mr. Jayko with new allegations that had not been previously presented, and that he had yet to meet, one of which was the addition of the allegation on fraud and deceit, then calling it theft, and then, in the final ten day suspension letter of July 28, 1998, adding the inclusion of the reimbursement for the two beers, which was revealed at the hearing.
1. I conclude that the way that Mr. Jayko was treated through-out the incident by notifying the Highway Patrol before even working through the incident with Mr. Jayko, may only be explained by the disfavor in which he was held by the management of OEPA based upon his otherwise protected activity as site coordinator for the RVS.
1. I, therefore, conclude that Mr Jayko’s ten day suspension for the alleged Pizza Hut, beer drinking and fraud and deceit reimbursement misconduct, was without substantial and reasonable foundation; that it was motivated by the general disregard in which Mr. Jayko was held for his differing points of view on the direction of the investigation; that this condition existed because of his protected activity in furtherance of his own deeply held convictions on how the investigation should proceed with the evidence already discovered, and that his suspension was, at least in part, motivated by that activity, and that he would not have been suspended but for his protected activity.
1. The OEPA Work Standards Policy, adopted in 1997 pursuant to Section 124.34 of the Ohio Revised Code (ORC), states that employees must , "not be intoxicated by alcohol or drugs while on the job or on state property;" and that employees operating a "state owned vehicle" must not do so, "under the influence" of "alcohol or drugs." (CX 38, pp. 1 & 2)
1. The OEPA Discipline Policy, Guidelines, provide for progressive stages of discipline for, "Reporting to work under the influence of alcohol or consuming alcohol while on duty," which may begin with "suspension or removal," and, Misuse or unauthorized use of state vehicles, which may begin with an "oral or written" disciplinary action. (CX 38, p. 4)
1. I find from the following testimony of those present at the May 21, 1998 Pizza Hut, beer drinking incident, that no evidence was presented that Mr. Jayko was either intoxicated or acting under the influence of alcohol, or that any OEPA work standards were violated by Mr. Jayko when he had two beers before the public meeting, based upon: (1) the consistent credible testimony of Mr. Jayko which I have credited throughout; (2) the testimony of Mr. Watson which is the most credibly detailed description of Mr. Jayko’s appropriate conduct there, and lack of manifestation of any conduct that he was acting under the influence of alcohol, and (3) that of Mr. Steers, who, in accepting Mr. Jayko’s statement that he was "fine," (even if he did say something) thereby permitted him to drive without objection, and verified that he was not reporting to work under the influence of alcohol, or driving a state vehicle while under the influence of alcohol.
1. I find that the position of Mr. Steers, that he was charging Mr. Jayko with drinking before a public meeting, rather than drinking on state time, or property, does not allege a violation of any known OEPA rule; that the pre-disciplinary meetings of Mr. Kirk with Mr. Jayko primarily involved the question of whether he was drinking on state time; that the evidence was presented solely on the "state time" point; and that there is, therefore, no substantial basis for finding a violation of agency rules in Mr. Jayko having consumed two beers before a public meeting.
1. By July 28, 1998, the above cited protected activity also included the filing of the charges in the present case, the timing and effect of this conduct leads me to further conclude that the suspension was in retaliation for the filing of those charges, despite OEPA management’s vehement protests to the contrary, which I discredit.
Phase IV - June 1, 1998 through June 30, 1998 Removal as Site Coordinator:
1. On June 1, 1998, Mr. Czeczele officially began his new job at the OEPA NWDO in Bowling Green, Ohio, pursuant to his expected move from his position as Acting Chief of DERR in Columbus to his new position as a as the new Environmental Supervisor, between Mr. Steers and Mr Jayko. (T 1159, 1179)
1. Also, on June 1, 1998, following a two day meeting with USACOE, represented by Wes Watson, the Corp’s contractor; Montgomery Watson (unrelated to Wes Watson), and the ODH, in which they discussed the timing and necessity for an ecological risk assessment at RVS, but placed it on the "back burner" for the time being, Mr. Jayko drafted a three point memorandum, to Mr. Czeczele and asked him to, "Please check on the following three items:"
(1) The ability of the Agency to arrange for aerial photography of the former Scioto Ordnance Plant. These photographs will provide the best asset for locating former installation buildings and lines. This project must be expedited in order to support the rapidly moving USACOE work plan for the area.
(2) Investigate the necessity and practicality of involving the Attorney General’s Office in the decision making process which the OEPA and the Ohio Department of Health are currently taking.
(3) Investigate the need and necessity of the OEPA developing data concurrently with the USACOE which can be used to support the ecological risk assessment. (JT. EX. 15, T 1698-1702)
1. After Mr. Czeczele’s conversation with Mr. Jayko on June 1, 1998, he recounted it in a memo to Mr. Steers, stating that he asked Mr. Jayko to fill in a form requesting aerial photography of the Scioto Ordnance site; that Mr Jayko suggested that he should do it to learn about those things; that he, in turn should do it; that Mr. Jayko questioned him about what his role was, with an exchange about it; that Mr. Jayko suggested that Mr. Czeczele needed to gain Mr. Jayko’s respect; that if he had to ask how to do that, it was not a good sign; but that, "whatever I asked him to do, he would do;" that Mr. Czeczele told him to think for himself, manage the site, and keep him informed; that Mr. Steers was concerned about Mr. Jayko putting everything in writing; that they should talk before doing so; and, on questioning whether he wanted to be working on the project, Mr. Jayko responded that he gets paid every two weeks whether he was working on the Marion project or something else. (JX 16)
1. As a result of Mr. Jayko’s memo, was called into Bruce Dunlavy’s office, along with Archie Lunsey, and was told that the memo was not well received by management; that it was an embarrassing memo, and that the overall perception or tone was that it was not well received. (T 1703)
1. Subsequently, Mr. Czeczele let Mr. Jayko know that it was Mr. Steers and Mr. Hammett who were upset with it, feeling that this was another memo that they felt made them look foolish, and if they didn’t do some of the things stated, they were going to look as if they were neglecting their responsibility or remiss in their duties; facts which were verified by Mr. Steers, albeit, for claimed differing reasons, but admitting that he did not know whose job securing the aerial photography would be between Mr. Czeczele and Mr. Jayko. (T 449-53; 595-96, 1703-04)
1. Insofar as the ecological risk assessment was confirmed, it was agreed by the Corps, the Ohio Department of Health, and Ohio EPA Risk Assessment staff, that the top priority for the investigation would be to address the public health issues, and that, while it was ongoing, evaluate the feasibility to perform an ecological risk assessment, the language of which was included in the final work plan for the Scioto Ordnance Plant. (CX. EX. 66, T 1701)
1. With regard to the contact with the Attorney General, he stated that he discussed it with Mr. Steers, and that the project had an attorney assigned to it, who investigates the need for AG involvement. (CX. EX. 66, T 1700-01)
1. Since no particulars or instructions had been given to Mr. Jayko on to how to interact with Mr. Czeczele, Mr. Jayko used as a basis for the new relationship with Mr. Czeczele, the one that he had maintained with Archie Lunsey, which was a very close with his staff, assisting where possible, and would be there to work with you rather than simply provide oversight.
1. This mind-set may have contributed to some misunderstandings at the beginning, which were reflected in the reaction to Mr. Jayko’s June 1 memo asking him to check on the three items; first, either as a manager who would have the authority to make some decisions, or have him be the first link in the chain of command to the people that wouldmake them; and second, assuming that he would probably want to make some of the actual work provisions and get physically involved in some of the work that was going on.
1. Mr. Czeczele later told Mr. Jayko that he did not do that, kind of work, as he was there simply to oversee and to supervise. (T 1706)
1. Mr. Czeczele felt that Mr. Jayko was directing him to do work, and Mr. Jayko felt that was not his intention, since making such a request with Archie Lunsey should not cause that kind of disturbance. (T 1706-07)
1. Mr. Czeczele had stopped by his cubicle, and told Mr. Jayko that he thought that this was a directive from him to fill out the template to get the aerial contract, and that he was not getting the respect he felt he deserved, apparently, Mr. Jayko thought, from the group, and remembered telling him that just because he was previously the acting chief of the division and was now a group leader, people were not just going to give him their respect, since it was an older crowd he was dealing with, and they want to see a little proof before they bestowed their blessings on him. (T 1707-10)
1. Mr. Jayko said that he thought that Mr. Czeczele immediately felt that he was rendering his opinion on him and that he did not respect him, and that was not what he had intended. (T 1710)
1. Mr. Jayko confirmed that he said something about earning respect; that Mr. Czeczele asked him what he should do in order to earn his respect; that he told him basically that if he had to ask, that was not a good sign and that people would see through him; and that he was not aware, at the time, how offended Mr. Czeczele was from the conversation. (T 1710)
1. Mr. Jayko and Mr, Czeczele had a follow-up conversation when he came back; that Mr. Jayko had talked to Jeff Steers about the conversation; that Jeff Steers had taken some things out of context, and that he remembered replying to Mike, saying that he had actually made a big step forward, at least in his eyes, by having the personal courage to come back and actually tell him something like that; to which Mr. Czeczele replied that he was relieved that they had, and had worked out what he perceived to be a problem, and that they then had an "amicable relationship," finally telling Mr. Czeczele that he would do whatever Mr. Czeczele asked him to do. (JX EX. 16, T 1711)
1. At that point, Mr. Jayko thought that he and Mr. Czeczele had resolved their differences; that he was looking forward to working with him on the project, and that they did not have any further disagreements. (T 1711)
1. After his removal as site coordinator, Mr. Jayko approached Mr. Czeczele and asked questions about why he had been removed, to which Mr. Czeczele replied that he did not know the particulars, but that the directive "came from upstairs," indicating that Steers and Hammett had made the decision. (T 1711-12)
2. In another memo to Mr. Steers by Mr. Czeczele , captioned "Responses to Inquiries of 06/01/98," dated November 2, 1998, with regard to the three items raised, and he stated that concerning the aerial photography based upon Mr. Jayko’s requests, he contacted Pam Wilson in the DERR Central Office contracts; informed them of when he was available; filled out the request and forwarded it to "Carl" on 6/8/98 for his review; told him to make changes that he felt were necessary, and forwarded it to the Central Office, (CX. EX. 66) which I consider evidence of the fact that differences between Mr. Jayko and Mr. Czeczele had finally been resolved, long before Mr. Jayko’s transfer.
1. Respondent also raised an issue concerning Mr. Steers having observed Mr. Jayko’s behavior in watching a "South Park" TV episode video on June 3, 1998 with several others, after having been previously cautioned against so doing by him, when he ducked into the conference room to ask whether anyone had been contacted by NBC’s Dateline, to which Mr. Steers did not say anything, either to Mr. Jayko, or to any of the others present, and did not check to see whether they were on their 15 minute break allowed by the collective bargaining agreement. (T 1336-37)
1. I find that, due to the unrelated subject matter of the alleged "South Park" TV infraction, and the failure of Mr. Steers to raise the issue either at that time, or until after the incident had taken place, either to Mr. Jayko until well after the incident, or to any of the others present at all, that it has no relevancy or weight in my consideration of Mr. Jayko’s removal as site coordinator or to the alleged Pizza Hut, beer drinking or reimbursement infractions.
1. From the comparative behavior and demeanor on the witness stand, consistent with what I have observed about Mr. Jayko’s own consistency and demeanor throughout the hearing, I credit Mr. Jayko’s version of the discussion and events that took place on June 1, 1997, over that of Mr. Czeczele.
1. Even in Mr. Czeczele’s memo of June 1, 1997, wherein he recounts his own version of the encounter with Mr. Jayko, he acknowledges that Mr. Jayko told him that he would do whatever Mr. Czeczele told him to do, as is his basic, undeniable characteristic as demonstrated throughout the course of events during the Marion investigation, and at the hearing, and I consider the matter between them to have been resolved.
1. I specifically disregard Mr. Jayko’s quip in response to Mr. Czeczele that implied that he would not take a proactive role in the investigation because he gets paid every two weeks whether he’s working on this or something else, for the simple reason that his actions throughout the investigation were anything but those of a person who merely put in his time: through his active investigation and advocacy, he ultimately put his entire job and career on the line, and there was, and continues to be, no reason to believe that he would do otherwise in seeing it through to its completion.
1. The Jeff Steers memo to Ed Hammett of June 4, 1997, recounted the above Pizza Hut/ beer drinking/alleged receipt falsification issue, the June 1st confrontation with Mr. Jayko as characterized by Mr. Czeczele, the June 3rd television viewing incident, and another matter of disagreement, previously unmentioned, involving the King Rd. Landfill project, which had been the subject of a Jayko report but not acted upon. (T 1739)
1. For reasons discussed in detail above, I do not give the first three any weight, and the fourth, regarding the King Rd. Landfill project is subject to the same disposition as others preceding the Marion investigation since the RVS site coordinator position was extended to Mr. Jayko on the basis of my finding that he had a "clean record" at the time of his assignment to that position.
1. To the extent that the June 4, 1997 Steers memo to Hammett served as a purported, legitimate basis for Mr. Jayko’s removal as a site coordinator for the Marion investigation, I give the letter no weight at all.
1. I find that Mr. Jayko’s June 1, 1997 memo to Mr. Czeczele on his first day on the job as Environmental Supervisor by leaving it on his chair, was a completely appropriate internal method of communicating what he thought should be done over the next few days or weeks, but that the conversation between Mr. Jayko and Mr. Czeczele of that date, as recounted by the June 1st memo of Mr. Czeczele was more heated and demonstrative of the damage that had been done by failing to brief Mr. Jayko and Mr. Czeczele on their respective roles.
1. From observing the demeanor of both of the participants on the witness stand in describing what had taken place when a new level of supervision had been inserted between him and Mr. Steers without direction on how they were to proceed, that Mr. Jayko’s reaction was to be expected, and those of Mr. Czeczele’s constituted an understandable immediate response under the circumstances, but which were accelerated into an overreaction by Mr. Steers and Mr. Hammett that was both inappropriate and unwarranted; and concerning which, Mr. Dunlavy had the proper view to take.
1. I also find that the actions of Mr. Steers and Mr. Hammett in letting Mr. Jayko know through Mr. Czeczele they were upset with his internal memo, and failing to distinguish the legitimacy of the memo from the conversation between Mr. Jayko and Mr. Czeczele, had the same effect upon Mr. Jayko as was the case with his October 15, 1997 memorandum, in that it chilled the exercise of his protected right to remain free in the expression of his opinions about what should be done on the Marion project to protect the health and welfare of Marion residents and RVS students.
1. Other June, 1997 memoranda, summarized in Appendix C attached hereto, contributed to the highly charged atmosphere described previously by Mr. Jayko in the meeting at the District Office, (CX. EX. 24, 25 and 26) each with instructions on how to deal with Dateline, NBC’s investigation of the problem of Marion and RVS, which Mr. Jayko saw early June of 1998 when the atmosphere regarding media relations or media contacts was fairly tense and was "probably heightened" by the notification of the arrival of Dateline, NBC.
1. Since the June 10, 1998 memo acknowledges the possibility of finding a significant amount of radiation, as a possible scenario in its Public Affairs Strategy (RX. Ex. 26, p. 4; RX. 26 Summary) - Appendix D, hereto. I find that Mr. Jayko’s apprehension about sources of radiation as a possible cause of leukemia, was no less justified than that of the Corps, and, again provides justification for finding a substantial basis or reason for his concerns as an alleged whistleblower under the ERA.
1. Early in June, 1998, Mr. Steers asked Mr. Jayko if he had heard that Tim Sandler of Dateline was coming to do a story, and, since Mike Czeczele had shown him a copy of the Hertzer memo (CX 24, Appendix D summary), he acknowledged a taped reply telling him that all of their media contacts were supposed to be going through either Jeff Steers or Beth Gianforcaro. (T 1786-87)
1. Complainant’s counsel asked whether Mr. Jayko had ever disobeyed the directives about not talking to the press, and he responded that he had not; confirming only that he had received inquiries from the press wanting to talk about his views concerning the Marion case, for example from Randy Edwards of the Columbus Dispatch, the above message from Dateline’s Tim Sandler, to which he returned messages that they should go to either Jeff Steers or Beth Gianforcaro. (T 1787-90)
1. In response to another question as to whether he had ever been accused of being the source of leaks of information concerning the Marion case to the media, he stated that he had, and that Ed Hammett had called him to his office when the above cited November 17, 1997 newspaper article was printed in the Columbus Dispatch, captioned, Drinking Water Linked to Leukemia Still Unproven, under the by-lines of Jill Rippenhoff and Randall Edwards; (CX. EX. 56); that an article, Bernie Clark, Manager of Enforcement and Water Quality at OEPA, had previously announced that the Ohio Department of Health was the lead agency because of the high rate of leukemia deaths in Marion County; that the history of the site, in particular the river’s problems, was set forth in the latter article, citing the creosote and other chemicals such as benzopyrene in the Little Scioto River, which has three times the PAH levels of most contaminated sites; that they quoted Paul Jayko’s 1992 statement: "The raw water intake from the Little Scioto River is located within one-quarter mile of the most highly contaminated area of the river;" (CX 56, p. 2; CX 48) ODH had issued an advisory in 1992 against swimming, wading or catching fish from the 4-mile stretch of river; that the same year Mr. Jayko had asked his supervisors to pay for an independent contractor to investigate the Baker Wood creosote plant that had been closed nearly 40 years ago; that they stated that they suspected that much of the PAH contamination in the Little Scioto had come from the thick lining of creosote on the river’s bottom; that Mr. Jayko was quoted as saying, "I wanted to find out if those PAHs are still leaking there, and if they are, are they moving?"; that the article notes that his request was not approved; that Mr. Clark stated that the testing determined existing conditions and did not prove that there had never been contamination of the drinking water, and that Jeff Steers had been quoted as saying "We still need to clean up the Little Scioto River. It’s a river in need of repair, but we don’t have the resources to clean it up." (Ibid)
2. I find that Mr. Hammett’s reaction to the article was immediately biased and accusatory toward Mr. Jayko, rather than investigative and supportive of Marion’s key team member to that point in time; in contrast with the lack of evidence that Mr. Steers was likewise confronted by Mr. Hammett for his quotation.
1. Mr. Steers took the lead in branding Mr. Jayko, not a "team player," because Mr. Jayko wanted a more extensive investigation, and was not willing to accept the limitations imposed by the OEPA on it. (T 346)
1. Mr. Steers admitted that this occurred since he was under the directive of Mr. Schregardus to tell reporters his position that there was no evidence linked to leukemia in the Marion site, and he did not want messages conveyed to the public that the site was a dangerous site. (CX 44; T 348, 585 )
1. While Mr. Steers did not have any objections to Mr. Jayko’s technical work, and was unable to name a time when Mr. Jayko was not participating in the investigation, he was bothered by Mr. Jayko’s internal memos, because they received some distribution outside the agency, to ODH (whose members were part of the investigation team!) and he felt that they were embarrassing to the OEPA team.
1. Mr. Steers maintained that the site coordinator transfer was unrelated to personnel matters, i.e., the Pizza Hut disciplinary matter, but his primary reason for approving the realignment/reorganization was the conflict between Mr. Jayko and Mr. Czeczele, quoting Mr. Czeczele to have said, "It’s either him or me." (T 618)
1. Mr. Steers was unaware of any plan by Jayko to talk to NBC Dateline, and made no mention of "under-staffing" problems refered to by Lunsey as a reason for the reorganization. (T 626)
1. Archie Lunsey, who was Mr. Jayko’s supervisor immediately before Mr Steers, was opposed to his removal as site coordinator, feeling that that Mr. Jayko’s immediate knowledge of the site would be hard to duplicate in a short period of time, and he also did not perceive any deficiencies in Jayko’s job performance. (T 196-98)
1. Considering his performance reviews, Mr. Lunsey stated that Mr. Jayko had received three recognitions including an Outstanding Employee Award, Public Employee of the Year Award and most recently, he received recognition in May of 1999 for his performance within the NWDO. (T 199-00)
1. Mr. Lunsey also addressed the June 4, 1998 memo from Mr. Steers to Mr. Hammett, which alleged that Mr. Jayko had failed to inform his "supervisor" of the submission of the King Road Landfill project, testifying, as Mr. Jayko’s supervisor at the time of that project, that the allegation was false. (T 178-79)
1. As Mr. Jayko’s supervisor at the time of the Kings Mill Landfill project, and based upon his own forthrightness and demeanor during his testimony, I credit the testimony of Mr. Lunsey, and discredit that of Mr. Steers as stated in his June 4, 1998 memo, giving no weight to this point in Mr. Steers’ memo, or to Mr. Hammett’s reliance on it.
1. Mr. Lunsey testified that Mr. Steers expressed concerns about Mr. Jayko’s interoffice memos which he felt could lead the public to infer that the OEPA was failing to do something; that people in the agency suspected that Jayko was leaking information to the media, namely, the Columbus Dispatch, and that he was never told why Jayko was removed from the Marion project, but that the common perception of the NWDO was that Jayko was removed for the beer drinking incident. (T 180, 184)
1. Prior to working as his supervisor on June 1, 1998, Mr. Czeczele testified that he had problems with Mr. Jayko, namely, lack of participation in conference calls, (which I have discredited as not having been part of the consideration when they made him site coordinator of the RVS portion of the Marion project), and as stated above, in Mr. Jayko’s June 1, 1998 memo requesting aerial photos of the Marion site, he was bothered by the memo because he did not want Mr. Jayko telling him what to do. (T 1180-81)
1. When he showed the above memo to Mr. Steeers, he told Mr. Czeczele that you had to be careful about what you put in writing about Marion, and he asked Mr. Czeczele to caution Mr. Jayko about what he put in writing; after which Mr. Czeczele confronted Mr. Jayko about it, and Mr. Jayko told him that Mr. Czeczele had not earned his respect. (T 1387-88)
1. Mr. Czeczele testified that he and Jayko got off to a really bad start, but that Mr. Jayko told him that he would do whatever he wanted him to do and that he did not act insubordinate after that. (T 2318-19)
1. Mr. Czeczele testified that Mr. Jayko was removed because of the realignment plan, and that he never requested that Mr. Jayko be removed from the Marion project, stating that, "I may have had differences or communication problems that, you know, were difficult. But I would have worked through them. I mean, the real reason, to me, was realignment." (T 2337)
1. In explaining the realignment/reorganization plan, which Mr. Czeczele stated that he had brought up for purposes of clarifying the chain of command before June 1, 1998, he testified that the Remedial Response Group, which Archie Lunsey ran, was understaffed and that Mr. Jayko would help the under staffing problem; that Steve Snyder, who already was being supervised by Mr. Czeczele, could assume the Marion project since his job duties were less than originally thought, and that Mr. Czeczele’s personal goal in the realignment was to have a clear chain of command, which could have involved more direct supervision over Mr. Jayko. (T 2322-23)
1. In early June, Mr. Hammett claimed that he did not want to transfer Mr. Jayko, and thought the problems between Mr. Jayko and Mr. Czeczele would be worked out; that in late June, early July, although he was unable to recall a specific incident which changed his mind, he felt that it was clear to him that the situation between Mr. Czeczele and Mr. Jayko was not working, and that he then changed his mind and decided to transfer Mr. Jayko. (T 2389-90)
1. Mr. Hammett claims that he made the ultimate determination to transfer Jayko, deciding that Mr. Jayko’s conduct was very similar to what he had personally observed as reported to him in terms of the Dura investigation on a prior project; that he had difficulties drawing opinions and positions out of Mr. Jayko, who would not be totally forthcoming, and that he had "periodically" expressed that it didn’t make any difference what he did, he was going to get paid every two weeks no matter what. (T 2392-93)
1. Near the end of the hearing, Mr. Hammett was called as a witness by the respondent to, among other things, explain the determination to transfer Mr. Jayko as site coordinator. (T 2433-40)
1. Mr. Hammett testified on cross examination, that he had worked on the Dura Avenue project with Mr. Jayko by sitting in on discussions with the agency team, to be made aware of what was happening there, and claims that the "impression" he got was that Mr. Jayko was not contributing to the decisions that were being made, as was being alleged against him on the Marion project, so he would ask Mr. Jayko periodically for an impression or opinion about what was being done, and that he did "not really" give his opinion, and that this allegedly involved his "withdrawal" from that project in a manner similar to what was being alleged concerning the Marion project. (T 2408-09)
1. At this point I asked Mr. Hammett how Mr. Jayko had gone from all good to all bad on the Dura project, all at one time; to which he admitted that he was a very competent individual, with a lot of skills and talent, and that he had done a good job in overseeing the project, but that when it came to the next phase involving the team’s interaction with attorneys and others, he did not participate, while admitting that he did not have a specific point or documentation of the condition. (T 2410-12)
1. Mr. Hammett admitted that while he insists that he did talk to Mr. Jayko’s supervisors and urged them to counsel him on his participation, he did not talk to him directly, and there is no documentation of this objection to Mr. Jayko’s participation, either on the Dura project or on other prior allegations of lack of participation in projects. (T 2412-13)
1. For the reasons previously stated, in particular the lack of any documentation of evidence in the record that outstanding allegations of lack of participation was considered as any part at all in the appointment of Mr. Jayko as site coordinator on the RVS portion of the Marion project, I discredit the testimony of Mr. Hammett on this point, and give it no weight.
1. I have already determined that the comment or quip by Mr. Jayko to Mr. Czeczele about it not mattering what he did, "he was going to be paid anyway," was just that, a quip; that it was belied by his actual attention to the investigation and lack of complaints by Mr. Czeczele; that it has been discounted by me because of that attention, and is, therefore, given no weight in support of Mr. Hammett’s determination about Mr. Jayko’s transfer.
1. Most importantly, in transferring Mr. Jayko, Mr. Hammett claimed that he wanted to resolve the supervisory conflict between Mr. Jayko and Mr. Czeczele, when even Mr. Czeczele testified that it had been resolved, and he did not want Mr. Jayko transferred. (T 2394)
1. Mr. Hammett also testified about discussions of the realignment of DERR during late June and early July, among the OEPA supervisory staff, but was unable to "recall" the extent to which he had made his recommendation, who participated in the realignment decision and what the exact recommendation was. ( T 2391-92; 2403)
1. With respect to the discipline issue, Mr. Hammett continued to maintain that the site coordinator reassignment and Pizza Hut, beer drinking, travel reimbursement disciplinary suspension were two separate issues, which I have also otherwise discredited herein.
1. Mr. Hammett professed that he was uncertain whether discussions to transfer Mr. Jayko had started in May, but that when the transfer of Mr. Czeczele to the NWDO occurred on June 1, 1998, they were trying to delineate the responsibilities of Mr. Lunsety and Mr. Czeczele, and discussed how they would reorganize, possibility not having Mr. Jayko work on the Marion investigation, but, without explaining why, other than the fact that differences were arising between Mr. Jayko and Mr. Czeczele at that time. (T 2387-88)
1. At the time of the preparation of the June 4, 1998 memo to Mr. Hammett, Mr. Jayko was clearly involved in the Marion investigation, and Mr. Hammett said that he had no firm position; that Mr. Dunlavy felt that an arrangement could be worked out between Mr. Jayko and Mr. Czeczele, and he told Mr. Dunlavy that that was "fine" with him. (T 2388-90)
1. While Mr. Hammett could not recall a specific incident, when he returned from a week trip in June, he felt that it had not been worked out, and that he wanted to make a change in responsibilities, in order to remain certain tha Mr. Czeczele would be able to remain active in the Marion investigation. (T 2390-91)
1. In terms of his own explanation for the reassignment of Mr. Jayko, Mr. Hammett stated: that, in the above discussion, he had given the principle reasons for the action, and that the one that was uppermost in his mind was that:
I had a supervisor and an employee that was not cooperating with the supervisor, and a supervisor that I very much needed involved in the Marion investigation. (T 2394)
1. Mr. Hammett verified, at this point in his testimony, that he forwarded the June 4, 1998 memo from Jeff Steers to Mr. Kirk, in Columbus, and that he hand delivered copies of communications for Mr. Kirk regarding the disciplinary investigation and action, but had no direct involvement in the discipline. (T 1742)
1. When asked what Mr. Czeczele was doing in June with regard to his new position in the Marion investigation, he could not recall any specific facts other than the June 4, 1998 Steers memo, stating that when he returned from his trip in June the state of the facts had not improved, so that, therefore, they made the decision to make the reassignment at that point, "But, I don’t have specific facts." (T 2399).
1. Mr. Hammett, when asked whether he had had any communications with Mr. Schregardus about the transfer of Mr. Jayko, despite feeling strongly that he should make the change, could not recall having had such a conversation, but insisted that he never denied having had such a conversation. (T 2401)
1. I find that this testimony of Mr. Hammett, bridging as it should have done, the most crucial period being covered in his testimony between the forwarding of the June 4th memo and Mr. Jayko’s transfer as site coordinator, coming as it did, closely on the heels of Mr. Czeczele’s transfer to the NWDO on June 1, 1998, was deliberately evasive, and lacking in the presentation of any reasonable basis for the transfer of Mr. Jayko from this critical position in the Marion investigation at that time.
1. Mr. Czeczele himself had negated the reason for the transfer, (CX EX. 66) and both Mr. Lunsey, who had been Mr. Jayko’s immediate supervisor prior to the arrival of Mr. Czeczele, and Mr. Dunlavy, who was one level above the one person advocating the transfer, and Mr. Czeczele all felt that he should not be transferred for the sake of the Marion investigation. (T 2326)
1. Having discredited the basis for the June 4th Steers memo, and having found that Mr. Hammett has been unable to provide any specific facts that would have warranted the transfer of Mr. Jayko after that date, I find that, in fact, Mr. Hammett had no reasonable basis for his transfer of Mr. Jayko from his position as a site coordinator in the Marion investigation.
1. Mr. Schregardus testified, contrary to Mr. Hammett, that he was involved in the decision regarding Mr. Jayko’s reassignment. (T 692-95)
1. Mr. Schregardus was directly responsible for suspending Jayko for drinking/"falsifying receipts" incident, based upon Mr. Kirk’s report, maintaining that the suspension had nothing to do with Mr. Jayko’s comments about the Marion investigation.
1. The letter of Mr. Schregardus to Governor Voinovich regarding the two matters is very confusing, but does indicate that there may have been a relationship between the two when he states, after describing the 10 day suspension for the beer drinking/ receipt falsification issue:
In June, Mr. Jayko was removed from the Marion investigation team while the Agency investigated allegation involving falsifying meal receipts and drinking on duty. (JX. EX. 25)
1. I find that the reasons for Mr. Jayko’s removal as site coordinator and his disciplinary action for the beer drinking incident and reimbursement were connected in the mind of Mr. Schregardus, that this was verified in his testimony (T 692-695), and that it justifies an inference that the decision to discipline Mr. Jayko was influenced by the transfer and its reasons, which I have found to have been for Mr. Jayko’s protected activity.
1. Mr. Schregardus did admit that Mr. Jayko’s October 15, 1997 memo embarrassed him before the ODH Director because he was not aware there was a testing problem while the Director of ODH was aware of it. (T 814-15)
2. Mr. Schregardus testified that he understood that Mr. Jayko’s removal was not due to a disciplinary reason, but was related to a reorganization of the Marion project, and that it was due to a "confidential personnel reason," which was that he believed Mr. Jayko was not communicating well with the Marion team. (T 670, 676)
1. When the holes in Mr. Hammett’s testimony regarding his reliance on the June 4th Steers memo with no specific facts thereafter, are weighed against his claim that he made the final decision to transfer Mr. Jayko, followed by Mr. Schregardus testifying that he was not involved in the decision to transfer Mr. Jayko, yet offered reasons for that transfer favorable to Mr. Hammett, i.e., that it was not due to a disciplinary reason, when he was involved in a disciplinary reason which I have rejected; and then followed that statement that the reason for the transfer was a "confidential" personnel reason, I find the testimony about his non-involvement to be implausible, and an unwarranted attempt to shield himself from any involvement in what was one of, if not the, major decision involved with the new reorganization, basically saying without substituted basis, that he was not involved in approving the reorganization itself!
1. Mr. Dunlavy did not want Jayko transferred, (T 943) and spoke with Mr. Czeczele about working things out with Jayko, while praising Jayko’s work performance. (T 935, 939; 2491-92)
1. Mr. Dunlavy claims that Jayko was transferred under the pretense of a "regorganization;" which was to ensure that an argument could be made, or justification could be made for removing Mr. Jayko from the Marion case; (T 2501; 2516-17; 2523) that Mr. Czeczele, Mr. Lunsey, Mr. Steers and possibly Mr. Hammett were involved in the decision to have a reorganization as a justification for Jayko’s removal; (T952) that the justification was necessary because Mr. Steers believed that it would be unseemly or inappropriate or improper to say that the problem was that Mr. Jayco was perceived to be a potential or actual pipeline for information to the media that might be embarrassing to the agency; (T 2525) that discussions of the reorganization of the DERR occurred before the end of June which related to rationalizing the chain of command; (T 2518) that Mr. Jayko was removed before the final discussions of reorganization; that Mr. Czeczele expressed that he felt his supervision was hampered in that a person who was a site coordinator for Marion was not his supervisee on the table of organization; (T 2527)and that Dunlavy surmised that the removal of Jayko would prevent him from talking to the media because he would know less about the Marion project, would have fewer meetings with the public and would have less opportunities to meet with the media. (T 2531; see, also, 941, 948 & 951)
1. Mr. Dunlavy also discussed general dissension among many workers because Mr. Hammett and Mr. Steers often left out middle and front managers and site coordinators in making decisions, and that the morale was low and there was general conflict. (T 2496-97)
1. In discussing the specific issues management had with Mr. Jayko, Mr. Dunlavy stated that Mr. Jayko wanted more extensive sampling to be done there in Marion; (T 940) that when management had determined to handle it another way, Mr. Jayko had begun to withdraw somewhat from involvement, to be less vocal in his participation in meetings, and to manifest his frustration or dissatisfaction by participating less in the oversight process; (T 941) that management was frustrated with Jayko’s memo writing because they were accessible to the public and would expose his ideas which conflicted with those of the agency’s; (T 941) that Mr. Steers’ reasons for wanting Mr. Jayko gone were his declined participation in the Marion project and that he would be a conduit to the media for information about what the internal processes of the agency considering the site were. (T 940-42)
1. Mr. Dunlavy said that Mr. Steers provided Mr. Lunsey and him with some thoughts about what might be an explanation for making this change in personnel assignments and transferring Mr. Jayko, and that it would be to clarify the chain of command; but that the clarification of the chain of command was certainly not the primary reason and perhaps not a reason at all for Mr. Jayko’s transfer. (T 950-53)
1. I credit the testimony of Mr. Dunlavy in full; first, because he had a great deal to loose as a supervisor within the OEPA by testifying so strongly in Mr. Jayko’s defense when the key questions were asked of him by the undersigned rather than by counsel for the complainant; (T 2523-25) and second, because the most damaging part of Mr. Dunlavy’s testimony to OEPA was delivered spontaneously, without hesitation, and with credible demeanor, on questioning by the undersigned, as well as by counsel for both parties, near the close of the hearing, after having being called both as if, on direct examination, on cross examination, on redirect examination, and on recross examination, for several rounds of such examination.
1. Even though he had employed Mr. Muchnicki to be his counsel on another matter, as was unhesitatingly revealed when questioned by the respondent’s counsel, (T 956-61) no evidence was introduced to discredit his testimony, and I affirm my determination to credit this testimony in full.
Phase V - Post - June 30, 1998:
1. After Mr. Jayko had been taken off the case, probably around August, September, or October of 1998, he was asked by Mr. Steers about a particular aerial photograph dated 1961 that was taken of the Marion campus, River Valley Schools; that, according to Mr. Steers, the press had gotten hold of the photograph, and it was causing quite a flap; that it showed a disturbed area that existed in 1961, possibly 3-5 acres in size, as one of the disposal areas for waste materials that the Army had placed there; that the RVS Junior High School building was built right on top of the disturbed area; that Mr. Steers wanted to know if he had ever seen it; that Mr. Jayko told him he had not, but that he had seen many historical photographs and this particular one was not familiar; and that Mr. Steers continued to quiz him on who he had talked to outside the agency concerning this photograph, to which he responded that he hadn’t talked to anybody because he hadn’t seen the photograph before. (T 1791-93)
1. When asked what he knew about the existence and circulation of the photograph prior to his removal, he responded that he knew there were historical photographs gathered during the investigation that came from many different sources; that some of them were available at the Ohio Department of Transportation, some at the National Archives, and some solicited from records that the Corps of Engineers maintained. (T1793-94)
1. Concurrently with the above inquiry, Mr. Jayko received a call from Kevin Jasper, Wes Watson’s boss at the Corps, who also asked if he had ever seen the photo before, and he reiterated that this was one that he hadn’t seen, and was hoping it was one that he had missed, after which Mr. Jasper asked if the Lawhon contractor had seen them, to which Mr. Jayko said they may have, giving him the name of Rick Darr, one of the contractors, and his phone number. (T 1794-95)
1. After his removal, Mr. Jayko did not have any other role regarding the Marion sites, other than, after a MED archive search report was received by the USCOE, he was asked by Bruce Dunlavy to review it and to answer certain questions by September 21, 1998, which among other things, encompassed the 1961 photograph and reminded him that this was the only Marion River Valley activity assigned to him, and if he received phone calls, etc. to transfer them to Mike or Steve. (JX. EX. 30; T 1800)
1. I find that the several instances of questioning of Mr. Jayko about possible leaks to the Columbus Dispatch and NBC Dateline, as well as possible leaks of aerial photographs, concerning which they had no substantial timely evidence that Mr. Jayko was responsible, demonstrate substantial evidence of an unwarranted and unjustified paranoia about him arising solely from the fact of his differences over how to proceed with the investigation, and an irrational fear that his differences would prompt him to reveal confidential information that was related to the investigation when there was no substantial evidence that he was doing so, further chilling the exercise of his protected rights under the whistleblower statutes, even after his removal from the Marion investigation.Continued in Part 2 (205 KB)