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Recommended decision and order and preliminary order
Paul Jayko v. Ohio EPA
Part Two

REMEDIES:

Reinstatement:

1. Mr. Jayko does desire reinstatement to the same position of site coordinator that he had at the Marion, Ohio site, since he believes that he has the capability of taking over that job and doing it, and has maintained contact with the public file, so he knows the things that are occurring. (T 1829)

1. A number of the citizens have maintained phone contact with him, letting him know the types of things that are going on from their perspective, including various citizens, such as the Krumanaker’s, who have provided him with information that they were hesitant to provide to the Ohio EPA; the Griffith’s who have kept him up-to-date on activities with the Restoration Advisory Board, and Larry Starcher, a resident of Marion, who indicated that his wife had already died of cancer; that he had cancer, and that they had called the EPA a number of times shortly after Mr. Jayko was taken off the case, but after he called the EPA a number of times, he could never get anybody to listen to him. (T 1831)

1. Mr. Jayko testified that he also takes time on his own time to pull files on Marion and to look at them. (T 1830)

1. Mr. Jayko presented a Columbus Dispatch article dated July 24, 1999, which had as its headline Search for Cancer Widens - Investigators seek River Valley alumni, that was accepted into evidence to support Mr. Jayko’s testimony as to why he wanted to return as site coordinator, and which followed a statement by the ODH that it needed to find out how many graduates of RVS since 1965 had other forms of cancer, as requested by other cancer victims in the area, and part of the investigation that began in 1997.

1. Mr. Jayko, also felt that he and Mr. Indian at ODH had enjoyed a good working relationship and he would look forward to going back to work with him on the case. (T 1835)

1. In a series of questions by the undersigned regarding Mr. Jayko’s testimony about returning to work as site coordinator at the Marion site, I noted that he had testified that the situation at work had impacted him to the point where it was difficult for him to go back to work, and go to work each day, to which he responded that he had maintained his excitement about the job, and that while there was less incentive and less motivation on the projects that he had at the time of the hearing, there was motivation involved in the Marion case. (T 1836)

1. I asked him to assume that I ruled in his favor (without so ruling at this point) and to assume that I did order his reinstatement to that position, and asked whether it was his belief that he could "operate in that position and overcome the problems that you’re having even working on your present positions, working again as the Marion site coordinator?" to which he responded: I think I would do a very good job .... I don’t have the same level of motivation for . . . backwater projects. I think that I have still maintained the excellent job that I have always done. You know, my supervisors are so very happy with the work I do on those projects. (T 1837)

1. Mr. Jayko feels that with regard to Mr. Czeczele, who would be his immediate supervisor on that particular project, he felt that they had reached an understanding before he was pulled off the project; that he thinks he could work well with Mike, and that while it was speculative, he would "give it the best I could." (T 1837-38)

1. With reference to contacts with the media, he recognized that he might have "disagreement" but felt that he was sure "that there is some manner that working through our public affairs office, I could make sure that . . . the information that was necessary, was put out, and that he already was able to take factual information, without any opinion added to it or any spin or speculation, and provide it to the media. (T 1839-40)

1. I asked him to assume that it would be a legitimate managerial position to make all media contacts through one specific person, and asked whether he could live with that, to which he stated that "if it is a legitimate order, I . . . followed orders for the last 17 or so years in the military, I think I can probably continue to follow orders if they are legitimate orders." (T 1840)

1. I then told him to assume that it was a legitimate order, but asked what if he decided that it was not, to which he responded that he had never been in a situation where he needed to make a decision as to whether or not something is legitimate or not, and not had the ability to seek out some type of resource to provide that answer, such as one of their in-house staff attorneys, and he stated that, he was interpreting legitimate to mean "lawful," to which he would get a reading on it. (T 1841-42)

1. I noted the big gray area between the two where managerial discretion comes into play, (and he stated that he did not have a problem in dealing in the gray area following the order) as long as it is not unlawful. (T 1842)

1. I found Mr. Jayko’s responses to these questions to be direct, honest and credible, and have concluded that he would be able to handle reinstatement to his former position as site coordinator, on the Marion, Ohio project for the OEPA.

1. Mr. Jayko testified, and I credit his testimony that, he considered the work to be a privilege, a challenge to him, and a use of the "abilities and the talents;" that he believed he had to be a "very constructive benefit to Marion and the people that live there;" (Ibid) he does not get that kind of feedback from the jobs he is presently performing; that the present problems "present perhaps more of an eye sore than an immanent health threat;" (T 1828) and do not involve "the same type of challenge or the same commitment." (T 1829)

1. The only areas that Mr. Steers found problems to his reinstatement as Marion site coordinator were having to be "brought back up to speed," (T 632) siting information collected by the Army since his transfer; access to issues under military rules; the replacement of Mr. Snyder, and working with Mr. Czeczele, (T 632-634) none of which I find to be a bar to his reinstatement. Mr. Dunlavy had a similar opinion. (T954)

1. I specifically discredit respondent’s protests to the contrary in this regard, for the reasons stated by Mr. Jayko.

1. It is my opinion that Mr. Jayko is entitled to be reinstated and to resume his commitment.

Damages:

1. In terms of direct damages to Mr. Jayko by his having been reassigned as site coordinator and suspended for the pizza incident, he received a two-week suspension (a 10 business day suspension for which he would have grossed approximately $2,000.00. (T 1802 & see stipulations.)

1. In addition, Mr. Jayko had to take leave without pay in order to attend the depositions or hearings in the present matter, and at the time of his testimony on July 28, 1999, he had accumulated approximately a month of work without pay, for which he used either vacation time or had been in actual non-pay status, or that he used a month of leave status. (T 1803)

1. The first week of the hearing, he used a combination of comp time he had earned, a personal day, and some vacation. (T 1803

)

1. There was also some unpaid leave that he had to charge to his timecard, all of which accumulates to approximately 30 days as an estimate. (T 1804)

1. In addition, he had to pay support costs for both of his attorneys, Mr. Muchnicki and for Mr. Kohn, and for the deposition transcript, travel, airplane, hotel, lodging, meals and other expenses, and for Mr. Watson’s video tape deposition and the transcripts from the present proceedings as additional costs. (T 1804)

1. Mr. Jayko testified that he also lost approximately 10 hours per week average in overtime, which would have been accumulated on that case, and which also resulted in the loss of a supplemental vacation balance or comp time balance that he could have used, (T 1808) calculated at time and one half the normal rate. (Respondent stipulated to this calculation. T 1808)

1. In terms of potential for future employment, etc., Mr. Jayko feels that he has been "impacted by the message that Ohio EPA has put out and that the press has picked up," since several articles actually accused him of being a drunk and then of being a thief, which would impact his potential for securing employment in a similar field, and contractors are well aware of the case. (T 1810)

1. As examples, he discussed the matter with Alan McDonald of Mid-West Environmental Consultants, Al Ruffle with the City of Toledo (which Toledo is involved with Lucas County), in an environmental service. (T 1810)

1. In addition to the above, Mr. Jayko felt that "it would be safe to say that there is not a chance in the world that I will ever see anything other than the position that I currently hold." (T 1811)

1. Another example involved Diane McClure who walked by and said she thought that he had been fired; and (T 1816) another was a union steward, Patricia Tebby, who also felt the same.

1. In terms of what Mr. Jayko observed, he stated that "Almost immediately after filing my Complaint, there began a very noticeable separation of many people . . .. For instance, Dale McLane, who I used to socialize with during work on a very regular basis, would become immediately stand-offish from me, would stop going to lunch with me;" (T 1817) and another supposedly stated "if you talk to Jayko, you’re going to get dragged into court." (Ibid)

1. Representatives would come from the Attorney General’s office into our District Office to interview people, and there was a heightened anxiety among people, people realized ... if they talked to him that they were going to be interviewed or they felt that they would be dragged into court. (T 1818-19)

1. He stated that the nervousness that some people experienced over this entire affair, just truly exacerbated the situation and the climate, the atmosphere in our district; that people became even more and more removed from him, and the longer the interviews went on, the more isolation that he felt. (T 1819)

1. Patricia Tebby came back and stated that Mr. Decker had interviewed her, and that she came back to him, and she said, that the comment was made that if Jayko had just not made an issue of the 10-day suspension, you know, they wouldn’t have had this big problem. (T 1820)

Emotional Damage:

1. In terms of the emotional damage, the first was when he was notified that the State Highway Patrol was going to conduct a criminal investigation which "had a very adverse impact" on him; since, until that time, he considered himself to be a law abiding individual and certainly was worried about any police organization interviewing him. (T 1821)

1. The emotional stress of the year was extremely significant, involving lost sleep, putting his life on hold for a year, not knowing how things would be resolved, and the monetary issue that has caused a tremendous amount of stress between his wife and him. (T 1821)

1. Mr. Jayko stated, and I credit his statement, that he has liquidated every mutual fund, which was the basis for his savings and investments, and that his wife is now being forced to liquidate her assets. (T 1821)

1. He stated that the emotional stress has played as heavily on his wife, as it has on himself, citing the time when he showed her the Columbus Dispatch article captioned EPA investigator accused of boozing on job, (CX. EX. 37), and he returned from cleaning stalls in a barn that he had for horses, when she was crying and was extremely upset. (T 1822)

1. Mr. Jayko’s wife also works for the state, and she just could not believe that the agency would do something like that; wondering what the state government would do "when they don’t approve of you’re [what you’re doing and when]." (T 1822)

1. With regard to allegations about his military career where he is with the Branch of Artillery of the Special Forces, (Green Berets), he has to maintain a top security clearance in order to do his job because he works with nuclear weapons, and background inspections are done on all officers that can be very encompassing. (T 1823)

1. He is now in consideration for promotion to Lieutenant Colonel, the implication from the ten day suspension for the Piazza Hut, beer drinking incident, that he was an individual with a substance abuse/alcohol problem, and he was charged by theft while in government office, which could actually terminate his security clearance - just the implication of it. (T 1823)

1. With regard to the appearance of losing his status of a Green Beret, he had worked very hard for it, believed there was nothing that he had ever done that equaled that in the military, and from his standpoint, it would be "unfathomable, that anybody would actually pull that from him," (T 1826) which could happen from the allegations being made against him by the OEPA.

1. I credit Mr. Jayko’s deep concern about his military career and his reputation in it, and find that the nature of the allegations made against him in this regard, especially those related to the Pizza Hut, beer drinking incident where the matter was referred to the Highway Patrol for an investigation of theft in office, to be so contrived, unwarranted and without merit, as to warrant, not only a determination that they are without merit, and an overt act in abuse of discretion but a determinate that it was a deliberate act, intended to harm Mr. Jayko.

1. In terms of adverse effects from being pulled from the River Valley School site, he likewise lost the position that he felt was probably the pinnacle of anything he had done in the EPA; believing that it was "the highest calling that anybody in the EPA could become involved with, to be able to have the opportunity to help people who had such a great loss," when it was jerked out from under him. (T 1827)

CONCLUSIONS OF LAW:

Applicable Law:

As discussed above, the present case has been brought under the employee protection provisions of seven environmental Acts. These "whistleblower" provisions are designed to protect employees from retaliation for protected activities such as complaining, testifying, or commencing proceedings against an employer for a violation of one of these federal statutes. Devereux v. Wyoming Association of Rural Water, 93-ERA-18 (Sec’y, October 1, 1993). A complainant can assert jurisdiction under all of these statues in the same proceeding, if the complainant has participated in activities in furtherance of the objectives of all the statues. See, Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (Sec’y, May 18, 1994); Minnard v. Nerco Delamar Co., Case No. 92-SWD-1, (Sec’y, Jan. 25, 1994). Respondent opposes federal jurisdiction, contending that the Marion project is, basically, a State of Ohio project; that the investigation was a State investigation, and that Paul Jayko was a State employee of a State agency involved in the project, before actual involvement of U.S. Government agencies. The employee protection provisions have been construed broadly to afford protection for participation in activities in furtherance of the statutory objectives. See, Devereux, supra, and Tyndall v. U.S. Environmental Protection Agency, 93-CAA-6, 95-CAA-5 (ARB, June 14, 1998). For reasons more particularly set forth herein, I find Mr. Jayko had either begun proceedings, or was about to begin, proceedings under the provisions of all seven Acts and will proceed accordingly.

The purposes and employee protections of the seven environmental Acts are as follows:

The Clean Air Act ["CAA"] aims to "protect and enhance the quality of the nation’s air resources." 42 U.S.C. 7401(b). The Act states that "[n]o employer" may discriminate with respect to compensation, terms, conditions or privileges of employment, of any employee who has "commenced caused to be commenced, or is about to commence a proceeding" under the Act, or testified, or is about to testify in any proceeding, or who has "assisted or participated or is about to participate in any manner in such a proceeding or in any other action in "carrying out the purposes of the act." 42 U.S.C. 7622(3).

The objective of the, Safe Drinking Water Act ["SDWA"], 42 U.S.C. 300j-9, a subdivision of the Public Health Service Act, ["PHSA"], is to promote safe drinking water. It also states that "[n]o employer" may discharge or otherwise discriminate against employees who have engaged in any of the same actions as those forth in the CAA, or have assisted in a "proceeding to carry out the purposes of this subchapter."

The primary purpose of the The Toxic Substances Control Act [ "TSCA"], 15 U.S.C. 2622, is to "assure that chemical substances and mixtures do not present unreasonable risks of injury to health or the environment." It also states that "[n]o employer" may discriminate against a person because that person has taken any of the same actions as those listed in the CAA, to carry out the purposes of the TSCA, except that there is no specific reference to "a proceeding for the administration" of the Act. 15 U.S.C. 2601(b)(3). Subsection 2602(2)(B)(iv) exempts "special source material," "special nuclear material" and "byproduct material" as defined by the Atomic Energy Act (42 U.S.C. 2014) from the ambit of the statute.

The purpose of the Solid Waste Disposal Act ["SWDA"], 42 U.S.C. 6971, is to "assure that hazardous waste management practices are conducted in a manner that protects human health and the environment [and to] minimize the generation of hazardous waste." 42 U.S.C. 6902(a). The Act prohibits any "person" from firing or otherwise discriminating against any employee who has "filed, instituted or caused to be filed or instituted any proceeding," under the Act, or testified, or is about to testify in any proceeding in any proceeding resulting from the administration of the act." 42 U.S.C. 6971(a).

The objective of the Comprehensive Environmental Response, Compensation and Liability Act ["CERCLA"], 42 U.S.C. 9601, et seq. is to prevent the release of hazardous substances into the air or water. Similar to the SWDA, it prohibits any "person" from firing or otherwise discriminating against any employee who has provided information to a State or Federal Government, filed instituted or caused to be filed or instituted any proceeding under the Act, or has testified in "any proceeding resulting from the administration or enforcement" of the act. 42 U.S.C. 9610(a).

The The Federal Water Pollution Prevention and Control Act ["WPCA"]commonly referred to as the Clean Water Act ["CWA"], 33 U.S.C. 1251, is designed to "restore and maintain chemical, physical, and biological integrity of the Nation’s waters." The Act also prohibits any "person" from firing or otherwise discriminating against any employee that has filed, instituted, or caused to file or institute , or has either testified or is about to testify concerning proceedings under the Act. 33 U.S.C. 1367.

The Energy Reorganization Act ["ERA"], 42 U.S.C. Section 5851, addresses "whistleblower" protection against harassment and retaliation by an "employer" for employees involved in the nuclear industry, who, inaddition to the other protections set forth in the six other Acts: (1) notify their employer of an alleged violation, (2) oppose a practice that would be a violation of the Atomic Energy Act of 1954, or (3) testify before Congress or any Federal or State agency regarding a violation of the Atomic Energy Act of 1954.

Similar to the wording of the CAA, SDWA and the TSCA, it states that "[n]o employer" may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions or privileges of employment because the employee engaged in the above activities, or has assisted or participated or is about to assist or participate in any manner in such proceedings as those listed, "or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954." The other three Acts state that, "[n]o person" may engage in such discriminatory conduct against an employee for protected conduct.

The ERA differs from the other six Acts in that, once the complainant establishes a prima facie case, the employer must establish by clear and convincing evidence that it would have taken the same unfavorable action, i.e. taken its unfavorable action for a legitimate, nondiscriminatory business reason, as it would have taken, in the absence of the employee’s protected activity, rather than merely "articulating" or stating the legitimate business reasons for the action, as is the case with the other six Acts. Another difference is that the employer may be directed to "abate" certain effects of the employer’s unfavorable personnel action (which means that the discriminatee may be ordered reinstated with back pay) except compensatory damages, pending court review of the final decision of the Secretary of Labor.

The implementing regulations governing employee complaints under all seven of these statues 29 C.F.R. Part 24, provide at 29 C.F.R. §24.1 that "No Employer" may discharge or otherwise discriminate against any employee who has:

(1) Commenced, or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the Federal statues listed in Section 24.1 or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;

(2) Testified or is about to testify in any such proceeding; or

(3) Assisted or participated, or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of such Federal statute, ... (Emphasis added)

- or, under the ERA, and by interpretation of the Secretary under the other six Acts, has notified the employer of, or, on notice to the employer has refused to engage in, any action prohibited by the Atomic Energy Act of 1954, or has testified concerning any of the provisions of the Acts in any federal or state proceeding, as stated in the above 1992 amendments. 29 C.F.R. Section 24.2(a)-(c).

In addition, as also stated above, 29 C.F.R. §24.7(b) states that a determination of a violation of the ERA may only be made under the statutory provisions that the "protected behavior or conduct was a contributing factor in the unfavorable personnel action..," and that the respondent has not demonstrated, "by clear and convincing evidence that it would have taken the same personnel action ..." as it would have taken without such protected behavior. The rule provides that, upon finding a violation of the ERA, if applicable, the determination "shall" contain a recommended order "that the respondent take appropriate affirmative action to abate the violation, including reinstatement to his or her former position, if desired, together with the compensation (back pay) ...[etc.] ... and, when appropriate, compensatory damages," with the compensatory damages not effective until final decision by the Administrative Review Board. 29 C.F.R. §24.7(c)(1)&(2).

Under the SWDA or the TSCA, "exemplary damages may also be awarded, where appropriate." 42 C.F.R. §24.7(C)(1).

Standards for establishing violations of the Acts:

Related to the establishment of jurisdiction under one or more of the seven environmental Acts, a complainant in a "whistleblower" case must first establish that the respondent is an "employer" under the provisions alleged to have been violated under the Acts, understanding that an "employer" is a "person" under the SWDA, the CWA and CERCLA, and that he or she may satisfy the initial burden of establishing a prima facie case of discrimination by showing the following:

(1) The "employer" is subject to the Act; 29 C.F.R. §24.2(a); ERA: 29 C.F.R. §24.5(b)(2)(ii)

(2) The complainant engaged in protected activity; 29 C.F.R. §24.2(b)(1)-(3): ERA: 29 C.F.R. §24.2(c)(1)-(3) and 29 C.F.R. §24.5(b)(2)(iii)

(3) The complainant was subjected to an adverse employment action; 29 C.F.R. §24.2 (a)&(b)

(4) The employer was aware (ERA: "knew") of the protected activity when it took the adverse action, ERA: 29 C.F.R. §24.5(b)(2)(ii), and

(5) An inference is raised that the protected activity was the likely reason for the adverse employment action. (i.e. ERA: the protected activity was a contributing factor in the unfavorable personnel action. 29 C.F.R. §24.5(b)(2)(iv) See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159 (9th Cir. 1984); Carroll v. Bechtel Power Corp., Case No. 91-ERA-46 , slip op. at 11 n.9 (Sec'y Feb. 15, 1995), aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).

In general, under established case law, once having established the employer/employee status, the employee must establish his prima facie case, and under the ERA, that it was a contributing factor to the unfavorable personnel action. The respondent may rebut the complainant’s prima facie showing by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Under the ERA, the respondent must produce clear and convincing evidence to establish a legitimate, nondiscriminatory reason for its action, while it may merely articulate the legitimate, nondiscriminatory reason under the other six statutes. Complainant, then must counter respondent’s evidence by proving that the legitimate reason proffered by the respondent is false or a pretext for the prohibited discriminatory reason. See, Yule v. Burns International Security Service, Case No. 93-ERA-12 (Sec’y May 24, 1994)(Slip op. at 7-8). This burden now applies to the seven environmental Acts under the jurisdiction of the Secretary of Labor, including the entire analysis of the burdens of production, proof and shifting obligations in a Title VII, Civil Rights action under 42 U.S.C. Section 2000e cases to the relevant environmental "whistleblower" cases, as established under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Burdine, supra, through St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993).

From the outset, under Yule,, the complainant maintains the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. See, St. Mary’s Honor Center v. Hicks, supra; Darty v. Zack Company of Chicago, Case No. 82-ERA-2 (Sec’y Apr. 25, 1983) (Slip op. at 5-9) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981)). Additionally, with specific relationship to the ERA, the Secretary stated in Thompson v. TVA, 89 ERA 14, (Sec’y July 19, 1993) that, under Hicks, after the employer establishes its legitimate non-discriminatory rebuttal, the first determination that must be made is whether the evidence shows that the discriminatory reason is more likely the motivation for the adverse reason. Simply stated, the complainant continues to bear the burden of proving allegations of discrimination by a preponderance of the evidence.

This view is no different than what has recently been clearly restated by the United States Supreme Court in its review of Hicks in, Reeves v. Sanderson Plumbing Products, Inc. ___ U.S. ___, (Case No. 99-536, June 12, 2000), wherein the Court assumes (without deciding) application of the McDonnell-Douglas/ Hicks standards to court analysis of alleged violations under the Age Discrimination in Employment Act (ADEA). Indeed, the Court in Hicks, adopted its prior 1981 standard as set forth in Burdine, supra, that "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," 450 U.S. 253, as now reinforced in Reeves, supra.

In any case, here, weighing the impact of settled case law and the rules set forth at 29 C.F.R. Part 24, which codifies the above case law rules, the Ohio EPA has articulated what is facially a "legitimate non-discriminatory" business reason for the unfavorable personnel, or adverse, action, in that it would have taken the same personnel action against Mr. Jayko as it would have taken without such protected behavior. This business reason consisted of its removal of Mr. Jayko as site coordinator from the Marion project as part of a reorganization combined with difficulties in the relationship between Mr. Czeczele and Mr. Jayko as a reason for the site coordinator transfer. It also maintains that the ten day suspension for the Pizza Hut, beer drinking offenses, either on the job or before a public meeting, and for the falsification of his travel voucher in relation thereto, was appropriate, non-discriminatory discipline for this conduct.

While the "legitimacy" and "non-discriminatory" basis for the two actions is called into question by Mr. Jayko’s challenge to it as either lacking credence or constituting a pretext for the action, under either the ERA or the other six burden shifting/ production standards, the result is the same: the prima facie case, burden shifting analysis drops away, and Mr. Jayko continues to have the burden of establishing whether the evidence shows that the discriminatory reason is more likely the motivation for the adverse reason. In other words, he still must establish that his protected conduct remained a contributing factor in his unfavorable personnel or adverse action, and he was discriminated against in violation of the applicable statutes by a preponderance of the evidence.

For the reasons set forth herein, I find that Mr. Jayko has met his burden of establishing a substantial, reasonable basis for his belief that his conduct of the investigation was subject to the "whistleblower" protections of all seven environmental statutes, and that he has established violations of those seven statutes by a preponderance of the evidence. I present the following step-by-step analysis solely for the purpose of order in understanding the various principles involved in evaluating the mountains of evidence here, which consists of some 2,560 pages of testimony and three feet of documentary evidence presented over a two week time period, and not for the purpose of trying to parse statements of law on the burden shifting obligations. The Complainant’s ultimate burden of proof to establish his allegations of violations of the Acts by a preponderance of the evidence, is the paramount standard.

1. OEPA as an "Employer," subject to the Acts:

a. The Eleventh Amendment:

Respondent argues that it is not subject to the "whistleblower" provisions claiming "immunity" pursuant to the Eleventh Amendment to the Constitution of the Unites States. Respondent’s argument lacks merit. First, an administrative court is not the proper forum to raise such constitutional concerns. See, Thakur v. State of New Mexico Environmental Department Construction Programs Bureau, 1998-WPC-5 (ALJ Oct. 21, 1999). Furthermore, courts have ruled that the Eleventh Amendment does not preclude administrative action against states pursuant to complaints of private individuals. See, Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981). Tennessee Dept. of Human Services v. United States Department of Education, 979 F.2d 1162 (6th Cir. 1992). In addition, respondent fits into the Acts’ definition of a "person" who is subject to liability. See, Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (sec’y May 18, 1994); McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec’y July 16, 1993).

Accordingly, respondent is subject to liability under the Acts and is not shielded by immunity.

b. Definition of an "employer" under the Acts:

(1) "Employer":

Under 29 C.F.R. § 24.2 (a) the complaining employee must establish that the alleged discriminating employer is an "employer" subject to the Acts. For the ERA, 42 U.S.C. § 5851, to be applicable, it must be determined if: (1) OEPA is an employer, and (2) there is a sufficient nexus of the complainant’s protected activity and respondent’s adverse action to constitute a violation of the ERA. McNeal v. Foley Co., 98-ERA-5 (ALJ Jul. 7, 1998).

Respondent, OEPA, maintains that the provisions of the Acts have not been invoked by Mr. Jayko as a state employee, working for the State of Ohio, and that, in order to be an "employer" subject to the provisions of the ERA, it must be a licensee of the NRC or a contractor or a subcontractor of a licensee of the NRC, under the provisions of the ERA. To the contrary, complainant proposes that any employee of any employer that deals with any element of the protections of the respective Acts, including the ERA, is subject to their respective provisions. When dealing with the ERA, complainant also contends that even if this is not the case, the Defense State Memorandum of Agreement (DSMOA)between the Department of Defense and the OEPA constitutes such an ERA agreement, thereby rendering it a contractor, subcontractor or contractor of a licensee under the provisions of the Act.

For reasons that follow, it is my opinion that all seven of the above environmental Acts have been clearly invoked by Complainant Jayko, against his employer, Respondent, OEPA, due to the scope of his investigation into the causes of leukemia in Marion, Ohio. His investigation commenced on June 26, 1997, with his retrieval of the federal and state military and corporate history of the Marion, Ohio sites, prior federal and state clean-up activities, tests that resulted in a significant clean-up in 1989, and the results of tests that had been performed in the area related to its water supply since the early 1990's. It included federal and state reports and actual evidence of the ability to store and to use materials that had at least some potential of having produced harmful effects on the public health and safety of Marion residents. These materials included contaminants such as radiation, toxic chemical and hazardous wastes and materials, and other pollutants that had either been or might have been introduced into the air, water and/or the environment in the area, thereby having provided a "reasonable basis"for continuing with the investigation. See, Appendix A, hereto, for summaries of these reports, and discussions at Fns. 5 & 6, and related text at FF 22 - 27 p. 9, supra.

With specific regard to the ERA, first, I find that the provisions of the ERA are not restricted to licensees or contractors or subcontractors of the NRC, for the following reasons. As of 1992, new Subsection 210 of the ERA, 42 U.S.C. § 5851(a)(2) carries over some of the language of old paragraph 42 U.S.C. § 5851(a) and states:

The term "employer’ includes - -

(A) a licensee of the Commission or an agreement State under section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021);

(B) an applicant for a license from the Commission or such an agreement State;

(C) a contractor or subcontractor of such a licensee or applicant . . . . (Emphasis added.

(D) a contractor or subcontractor of the Department of Energy that is indemnified by the Department under section 710 d. of the Atomic Energy Act of 1954 (42 U.S.C. § 2210(d)) .." but not contractors under E.O. 12344.

It is my opinion that the above plain language of § 210, which appears in the 1992 amendments to the original Act, is clearly not restricted to licensees or contractors or subcontractors of licensees of the NRC, nor on the question of whether Ohio is an "agreement State." Also, there is no stated limit on the term "includes," despite certain pre-1992 court disagreements with Secretary rulings on this point.

Initially, the Secretary found an employer-employee relationship under the ERA, where former employees worked for one company which had a contract with the TVA, a licensee of the NRC. Hill v. TVA, 87-ERA-23 (Sec’y May 24, 1989) at 3. The "NRC Regulations specifically contemplate that licensees, while retaining ultimate responsibility for safety and quality assurance, ‘may delegate to others, such as contractors, agents, or consultants, the work of establishing and executing the quality assurance program.’" Hill v. TVA, 87-ERA-23 (Sec’y May 24, 1989) at 3 (quoting 10 C.F.R. Part 50, App. B Criterion I. (1988)). In St. Laurent v. Britz, Inc., 89-ERA-15 (Sec’y Oct. 25, 1992), an employee-employer relationship was found where the employee was supervised directly by the respondent but was overseen by the contractor.

However, in a pre-1992 amendment case, the Fourth Circuit rejected the view of the Secretary, and concluded that the term "including," in the language, "No employer, including a Commission licensee, . . ., may discharge any employee . . . ," was not inclusive, but exclusive. Adams v. Dole, 927 F.2d 771, 777 (4th Cir. 1991). It stated that by using the term in the manner it did, Congress was not merely giving an example of types of employers, but was instead identifying "a consistent class of persons related only to the NRC and NRC licensees, thus tending to restrict the general term "employer". Id. at 776. That court was very specific in holding that the ERA did not cover employees of DOE contractors because in 1978, when "§ 210 was enacted . . . , the DOE already had in effect its own internal provisions protecting whistle-blowing activities." Adams v. Dole, 927 F.2d 771, 776 (4th Cir. 1991).

In 1992, Congress enacted the above amendments, Pub. L. 102-486, §2902(a), designated the existing opening paragraph as paragraph (1) striking out the clause, "including a Commission licensee, an applicant for a Commission license, or a Contractor or applicant for a Commission license or applicant," after the term "No employer," and added subparagraphs (A)-(C), redesignated former subparagraphs as (D)-(F), and added subparagraph (2), thereby separating the employer prohibitions from the licensee/ contractor/ subcontractor language in subparagraphs and which are now specifically "included" in 42 U.S.C. §5851(a)(2). It also included in subparagraph (2)(D), contractors or subcontractors of the DOE who were indemnified by the DOE and were not covered by Executive Order No. 12344.

By the 1992 amendments to the ERA, Congress clarified the coverage of existing "whistleblower" protection provisions to include as "employers," those employers of employees involved in any activity under the ERA or AEC, and established a separate paragraph to include the Nuclear Regulatory Commission, and (NRC)licensees, contractors, subcontractors of licensees, or applicants therefore. (H,R. No. 101-474(VIII), reprinted in 1992 U.S. Code Cong. & Admin. News 1953, 2296-2297).

Reflecting the legislative history is Appendix A to Part 24 (FR #98-2922, filed Feb. 6, 1998). It reinforces that history by stating:

The ERA makes it illegal for an employer covered by the act – including a licensee of the NRC . . . , an applicant for a licensee, a contractor or subcontractor of a licensee or applicant . . . – to discharge or otherwise discriminate against an employee in terms of compensation, conditions or privileges of employment because the employee or any person acting at an employee’s request performs a protected activity. (emphasis added)

Using all three documents, 42 U.S.C. § 5851, the legislative history to HR #102-474 and Appendix A of Part 24, it may be concluded that Congress meant to cover the actions of all employers and employees who would be involved in any phase of any "proceeding" involving the investigation and/or potential cleanup activity of any potential nuclear waste covered by the ERA and Atomic Energy Act of 1954. I find that this includes reasonably based investigations such as that of Mr. Jayko, regardless of whether it ultimately revealed nuclear sources covered by the Atomic Energy Act of 1954 or not, since the continuing objective in this investigation would have to be to rule such substances in or out as a cause of leukemia arising from the military activity at the Scioto Ordnance Plant and the Marion Engineer District FUDS sites in Marion, Ohio; that the first prong is, therefore, met; that the OEPA does meet the definition of an "employer," and that, being a licensee, contractor or subcontractor is not necessary for the ERA to be applied to its activities in the investigation in Marion, Ohio.

As an additional consideration is that, if the ERA "whistleblower" provision provides protection only to those employees of commission licensees, applicants, contractors or subcontractors who pursue quality and safety investigations and complaints, but denies Mr. Jayko, an investigator, that same protection, it would be contrary to the intent of Congress in bringing safety and quality problems to light and resolving them before accidents or injuries occur. Hill v. TVA, at 6.

The second prong permits ERA jurisdiction if there is some "nexus between the activity for which protection is claimed and a goal, objective or purpose of the Atomic Energy Act of the chapter of which Section 5851 is a part." McNeal v. The Foley Co., 98-ERA-5 (ALJ Jul.7, 1998) at 10. See, Van Beck v. Daniel Construction Co., 86-ERA-26 (Sec’y Aug. 3, 1993) at 3 ("in order for jurisdiction to attach under §5851, a nexus must be established between the alleged protected activity and the objective or purpose of the ERA"). As stated above, an investigation to rule covered materials under the Atomic Energy Act of 1954 "in" or "out," is covered.

Respondent maintains that the ERA applies to employers that deal with the construction or operation of nuclear facilities (Respondent’s Motion to Exclude Evidence, pg 2, May 21, 1999, previously denied), which it claims it is not, and that there is not a sufficient nexus between Mr. Jayko’s activity and the purpose of the ERA. This strict interpretation of using the Act only for nuclear facilities would defeat the purpose of the Act and courts have interpreted "the statute broadly to implement its ‘broad, remedial purpose.’" American Nuclear Resources v. US Dept. Of Labor, 137 F.3d 1292, 1295 (6th Cir. 1998) (quoting Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984). The ERA statute is designed to "protect workers who report safety concerns and to encourage nuclear safety generally." American Nuclear Resources v. U.S. Dept of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998). "[C]ourts have held that the ERA protects many types of acts that implicate safety. For example, the ERA protects an employee who files internal reports concerning regulatory violations." Jones v. TVA, 948 F.2d 258, 264 (6th Cir. 1991).

Generally, there is a nexus if "the complainant’s concern implicates a nuclear safety hazard or the complainant . . . reasonably believe[s] there is a nuclear-related safety hazard." McNeal v. The Foley Co, 98-ERA-5 (ALJ Jul. 7, 1998) at 11. I find that Mr. Jayko’s investigation invokes the broad remedial purposes of the ERA; that his actions implicated the public health and safety meant to be included within the scope of the ERA; that OEPA is an "employer" (or a "person") under the seven Acts, including the ERA, and that there is a sufficient nexus to the purposes of the ERA to extend coverage to Mr. Jayko’s activities thereunder. Therefore, 42 U.S.C. §5851, and the other six protective provisions of the respective Acts, are all applicable in the instant case.

(2) The DSMOA - NRC "licensee," "contractor"or "subcontractor" of a licensee, or an "applicant" therefore:

I find that under the 1992 Defense State Memorandum of Agreement (DSMOA), while the OEPA is not a direct NRC "licensee," "contractor" or "subcontractor" of the NRC, or a "contractor" or "subcontractor" of a licensee of the NRC, or an "applicant" therefore, OEPA’s functions in relation to the U.S. Government’s role at FUDS sites under CERCLA (and therefore the other environmental Acts) directly involve the State and its affected employees in CERCLA covered proceedings, as governed by the following terms of the DSMOA, and testimony related thereto:

a. Pursuant to a July 18, 1989, invitation addressed to interested States by the United States Department of Defense (DOD), the Ohio Environmental Protection Agency (OEPA) entered into a Department of Defense and State Memorandum of Agreement (DSMOA) on September 10, 1992, which provided that the DOD and the OEPA approved the agreement:

In order to expedite the cleanup of hazardous waste sites on ... DOD installations within the State of Ohio and ensure compliance with the applicable State Law and Regulations of the State .... (RX 93, p. 3)

b. Attachment A to the DSMOA, included FUDS and sites on the National Priorities List under CERCLA at that time, plus those that might be submitted for emergency treatment upon notice to the DOD by the State. (Id. @ p. 5)

c. 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, 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)

d. By the testimony 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 (ATSTR), a branch of the Center for Disease Control (CDR), for the U.S. Government. (FF 11; RX 93)

In addition, the DSMOA provides for reimbursement from the United States Department of Defense to OEPA for "cleanup of hazardous waste sites on ... DOD installations within the State of Ohio...." This provision is not limited in the types of contact or preliminary activities that might involve the "cleanup of hazardous waste sites" on such installations, even though the ultimate responsibility for the cleanup would lie with USACOE.

In any case, based upon any findings by the OEPA (or ODH) that might have determined that there were existing conditions involving radiation, Ohio Agencies would have been reimbursed for their involvement in clean-up activities.

In addition to the language of the DSMOA, the following must be considered when analyzing the DOD or the USACOE’s NRC license obligations, if ANY, under the ERA/ AEC. 42 U.S.C. § 2140 states that:

Nothing in this subchapter shall be deemed-

(b) to require a license for the manufacture, production or acquisition by the Department of Defense of any utilization facility authorized pursuant to section 2121 of this title, or for the use of such facility by the Department of Defense or a contractor thereof.

Also, on March 26, 1999, the Director of the NRC ruled, In the Matter of, United States Army Corps of Engineers, Case No. DD-99-07, that the USACOE was not required to obtain a license from the NRC to engage in cleanup activities. The Director cited §121(e)(1) of CERCLA, pursuant to which USACOE engages in such actions at FUDS sites under the Formerly Utilized Sites Remedial Action Program (FUSRAP) , which states that, "[n]o Federal, State, or local permits shall be required for the portion of any removal or remedial action conducted entirely on site, where such remedial action is selected and carried out in compliance with this section." 10 C.F.R. §300.400(e). He concludes that the provision waives any NRC license requirements that would apply to USACOE activities at FUSRAP sites pursuant to CERCLA. The Director notes that the USACOE, as a branch of the U.S. Department of Defense, was specifically designated by Congress to be the "lead agency" in passing the CERCLA, 1999 appropriations Act.

The Director also noted, however, that in United States v. Denver, 100 F. 3d 1509 (10th Cir. 1996), the court held that CERCLA preempted a Denver zoning ordinance which was in conflict with EPA’s remedial order, stating: "[T]o hold that Congress intended that non-uniform and potentially conflicting zoning laws could override CERCLA remedies would fly in the face of Congress’s(sic) goal of effecting prompt cleanups of literally thousands of hazardous waste sites across the country." Id. at 1513, citing, Ohio v. USEPA, 997 F.2d 1520 (D.C. Cir. 1993), upholding a number of provisions in EPA’s revision of the National Contingency Plan (NCP), including Section 121(e)(1). (The exemption provision is not discussed in that case.)

However, the above license exemption provision and the NRC Director’s determination, do not address what happens when the DOD does enter into some kind of an agreement, such as the DSMOA for FUDS sites, where actual cleanup of hazardous waste sites is clearly anticipated in accordance with the CERCLA provisions, when Mr. Watson and Mr. Steers both testified that, 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 (ATSTR), a branch of the Center for Disease Control (CDR), for the U.S. Government. (FF 11)

When gamma rays were first detected on the RVS campus, based at least in part upon Mr. Jayko’s reports, an ODH order was issued directing the removal of the contaminants. There were also discussions on October 14, 1997, in which ODH Supervisor of Radiation Protection, Ruth Vandergrift informed Mr/ Jayko that, "there were too many radiologic unknowns and suggested that such radioactive contaminants may have been in the area [by virtue of the Manhattan Project] and that improper disposal may have occurred historically, leaving the potential that they could have gotten into the water shed." (FF 49) As a result, Mr. Jayko’s six "concerns" memo of October 15, 1997, repeated such concerns, and orders were issued from the ODH regarding the cleanup, following these OEPA reports.

It is my conclusion that while the DSMOA subjected the DOD to having to reimburse OEPA for its expenses related to any of the radioactivity cleanup activities that might result from its involvement in the Marion investigation, and to that extent may have rendered the OEPA a contractor of the DOD, it did not make it a licensee of the NRC, or a contractor or subcontractor of a licensee under the Act, or an applicant therefore.

What the DSMOA does, however, as an evidentiary consideration in this case, is to focus attention on the relationship between such a State investigator/ employee as Mr. Jayko, whose work brings him into daily contact with basic determinations about the potential hazards connected with such FUDS waste sites under the FUSRAP program, and to the extent to which CERCLA controls the cleanup of those sites, whether the DOD or the USACOE was considered a licensee of the NRC or not. Section 121(f) provides for direct "substantial and meaningful involvement by each State in the initiation, development and selection of remedial actions to be undertaken in that State," 42 U.S.C. §9621(f), while §121(d)(2) details the interrelationship of the provisions of CERCLA with the other five Acts. Here, the very specific employee protection provision set forth in §110(a) of the Act, 42 U.S.C. §9610(a), states:

No person shall ... discriminate against ... any employee ... [who] ... has provided information to a State or to the Federal Government, filed, instituted or caused to be instituted any proceeding under this chapter ...

In particular, I find that, when known causes of leukemia include both radiation and other chemicals and hazardous wastes, and the factual history of the Marion site includes known federal military FUDS sites that have involved Atomic Energy Commission property ownership and possible Manhattan Project, nuclear weapon activities, with the discovery of other existing, more current radiation sources, this has provided a substantial, reasonable basis for Mr. Jayko to continue an aggressive investigation of the sites with the protections of all the Acts, including the ERA, regardless of the outcome of sampling and testing that followed. History or traces of other known hazardous materials and/ or carcinogens such as PAHs, PCBs, tetrachloride, trichloroethylene and others found at the sites, even though supposedly removed by 1989, (FF 24 & 27) also provided a substantial, reasonable basis for the continuance of his investigation under all of the other Acts. Traces of various contaminants, including some gamma rays that turned out to be from benign sources, continued to be demonstrated in current sampling through the time periods of alleged protected activity at the hearing.

In Mr. Jayko’s further investigation, he has either directly investigated, recommended or caused to be investigated and reported upon, potential violations of the seven environmental Acts at various Marion, Ohio sites. Therefore, it is also my opinion that, Mr. Jayko had a reasonable, substantial basis to take, and did take, these and other actions to protect the air, water and the health and safety of the citizens affected by the environment in the area, consistent with his findings and conclusions regarding his investigation, and thereby tended to either expose or prevent present or future violations of the seven environmental Acts, regardless of the results of particular tests in either finding or negating existence of particular contaminants. As a consequence of his actions under these Acts, and the properly alleged discriminatory adverse actions taken by OEPA management against him in relation thereto, there is jurisdiction under all seven Acts, including the ERA, which will be specifically discussed, herein.

In either case, whether dealing with the raw wording of the individual Federal Act protection provisions, or with the evidentiary effect of the DSMOA, it is my opinion that the nexus of the alleged adverse action to protected activity under the ERA has been established by Mr. Jayko, and that an appropriate violation of the ERA has been alleged.

2. Protected activity:

a. General Rules:

The environmental statutes at issue protect an individual’s participation in activity which furthers the respective statutory objectives. See, Jenkins, supra. In other words, the Acts protect the reporting of environmental or safety violations. See, Johnson v. Old Dominion Security, 86-CAA-3,4-5 (Sec’y May 29, 1991). Protected activity is broadly construed under the environmental whistleblower protection acts. See also, Guttman v. Passaic Valley Sewerage Commission, 85-WPC-2 (Sec’y March 13, 1992). Concerns that "touch on" the environment can be considered as "protected activity." See, Dodd v. Polysar Latex, 88-SWD-4 (Sec’y 22, 1994).

Internal complaints are also considered, pursuant to the seven environmental acts, as "protected activity." In Herman v. Morrison Knudsen Corp., 94-CER-2 (ARB June 28, 1996) the Board held that "[i]nternal safety complaints are covered under the environmental whistleblower statues in the Eighth Circuit, the Fifth Circuit and every other circuit. See, Amendments to the ERA in the Comprehensive National Energy Policy Act of 1992 (CNEPA), Pub. L. NO. 102-486, 106 Stat. 2776." The Board further noted that the "[t]he only current exception to this rule is for cases filed in the Fifth Circuit under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. Section 5851 (1988), prior to October 24, 1992." See, Dodd, Supra (CERCLA & SWDA); Reynolds v. Northeast Nuclear Energy Co., 94-ERA-47 (ARB Mar. 31, 1996) (ERA); Passaic Valley Sewerage Commissioner’s v. United States Department of Labor, 992 F.2d 474 (3d Cir. 1993) (CWA); Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec’y Nov. 20, 1990) (TSCA); Guttman v. Passaic Valley Sewerage Commissioners, 85-WPC-2 (Sec’y Mar. 13, 1992).

As an investigator for OEPA, Mr. Jayko’s position was not unlike that of the Nuclear Regulatory Commission quality control inspector in Mackowiak v. University Systems, Inc., supra, who was terminated for a "bad attitude," when he issued reports regarding possible falsification by an NRC contractor. See, discussion at p. 67, supra.

In addition, an informal complaint, such as verbal communication, constitutes "protected activity." See, Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec’y Oct. 26, 1992) (employee’s verbal questioning of foreman about safety procedures constituted protected activity), appeal dismissed, No. 92-5176 (11th Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp., 86-ErA-39 (Sec’y Oct. 30, 1991) (employee’s complaints to team leader protected); Crosier v. Portland General Electric Co., 91-ERA-2 (Sec’y Jan. 5, 1994) (complainant’s questioning his supervisor about an issue related to safety constituted protected activity). In this vein, respondent’s argument that there must be a formal "proceeding" in order to initiate protected activity is incorrect. Indeed, the environmental "regulations make it clear that a formal proceeding is not required in order to invoke protection of the Act." Kansas Gas & Electric Company, v. Brock , 780 F.2d 1505 (10th Cir. 1985), 92 L.Ed.2d 724, 106 S.Ct. 3311 (1986).

To constitute protected activity, the substance of the complaint must be "grounded in conditions reasonably perceived to be violations of the environmental acts," it is insufficient to show that the environment may be negatively impacted by the employer’s conduct. See Minard v. Nerco Delamar Co., 92-SWD-1 (Sec’y Jan. 25, 1994); Decresci v. Lukens Steel Co., 87-ERA-13 (Sec’y Dec. 16, 1993) (the environmental whistleblower provisions are intended to apply to environmental and not other types of concerns.).

b. Inspectors:

While the raising of concerns regarding reasonably perceived violations of the respective statutes constitutes protected activity, see, Johnson v. Oak Ridge Operations Ofc., U.S. Dep’t of Energy, ARB Case No. 97-057, Sept 30, 199, slip op. at 10-12; Sutherland v. Spray Systems Environmental, Case No. 95-CAA-1, Sec’y Dec., Feb. 26, 1996 and Melendez v. Exxon Chemicals Americas, ARB No. 96-051, July 14, 2000, slip op. at 10-11, it is clear that actual violations need not be proven to have occurred. Diaz-Robinas v. Florida Power and Light Co.,, Case No. 92-ERA-10, Sec’t Dec., Jan. 19, 1996, slip op. At 11. N. 7, and Melendez, supra.

This is important when considering "whistleblower" allegations by inspectors. The environmental Acts prohibit discrimination against inspectors based upon competent and aggressive inspection work, and even "doing their jobs too well." Inspectors must be free in a general sense from identifying safety and quality problems. Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159, 1163 (9th Cir. 1984). As a site coordinator investigator for OEPA, Mr. Jayko’s position was not unlike that of the Nuclear Regulatory Commission quality control inspector in that case. Indeed, Mackowiak involved an investigation by the NRC of a third party, UNSI. Mr. Mackowiak was terminated for a "bad attitude," purportedly expressed in a request for information that questioned a contractor’s possible falsification of rod control documentation. NRC first transferred and then discharged him for his positions.

Affirming the Secretary’s finding that the ERA protected quality control inspectors from retaliation based upon their internal safety and quality control complaints, the Mackowiak court noted that the rationale for protecting such inspectors is stronger than with other "workers" since they "play a crucial role in the NRC’s regulatory scheme," which requires such contractors and licensees to give the inspectors the "authority and organizational freedom" required to fulfill their roles as independent observers..." of the processes they were inspecting. (Siting, 10 C.F.R Part 50, App. B at 413) The opinion emphasized that there might be possible conflicts with their employers in identifying problems that might cause "added expense and delay," but did not justify their exclusion from coverage. Such conflicts apparently did play such a role in the present case, in OEPA management’s frequent references to its budgetary constraints in opposing Mr. Jayko’s air, water and radiation sampling proposals.

When Mr. Jayko was asked whether he thought that the OEPA had engaged in violations of the Acts, he said, "No." However, he also stated that he believed that the spirit of the Acts had been violated. This position was cautious. It was also ambiguous, and certainly not binding on the undersigned, since he believed that the respondent had violated the employee protective provisions of the Acts, or he would not have filed the present action. Therefore, I have resolved one ambiguity in the question and answer to have not included the employee protection provisions as violations, and as something that they both understood.

Direct environmental violations remain for consideration. However, there are at least two kinds that could have been committed by the OEPA, in which it could have engaged in prohibited activity: Its own environmental actions, which would involve its own sampling, testing and reporting, and possibly the operation and care of its own facilities; and the actions of other third parties, such as the U.S. Government, corporations and other persons. In terms of its own possible direct environmental protections - i.e., falsifying results of samples that would show elevated levels of contaminants, I have found insufficient evidence on the record that OEPA engaged in that kind of conduct, despite the fact that there were major differences over the effect of results of certain water samples and the placement of air monitoring equipment that could have been the subject of argument that such results were hidden from the public. I interpret Mr. Jayko’s answers to mean that he knew of no such direct environmental violations by OEPA.

However, it is also my opinion that the continuing purpose of Mr. Jayko’s investigation was to "rule in" or "rule out" excessive levels of contaminants prohibited under those statutes by other third parties, as the cause of the high rate of leukemia in the area. These could have included the U.S. Government, or the owners of private sites such as the Baker Wood creosote plant. Consistent with Mackowiak, OEPA’s interference or adverse action would result in the finding of a violation of the employee protective provisions by the OEPA, without a direct environmental violation by it. I conclude that this is what actually happened in this case, and, due to the ambiguity in both the questions and the answers regarding Mr. Jayko’s opinion on whether OEPA violated the Acts, I give the direct violation questions and answers no weight. I do find, however, that both the actual wording of the employee protective provisions were violated by the OEPA, and the spirit of the environmental provisions were violated when it interfered with Mr. Jayko’s investigation, also consistent with Mackowiak.

In this case, Mr. Jayko engaged in protected activity, as listed specifically below. Indeed, his actions concerned the objectives of the statutes under which he is pursuing his "whistleblower" claim. Specifically, he was promoting extensive investigative approaches for the Marion site to ensure that the public had not been exposed to hazardous pollutants governed by the seven relevant statutes. It is well settled that reporting potential statutory violations internally to management is protected activity under the employee protection provisions. See, e.g., Guttman v. Passaic Valley Sewerage Commissioners, Case No. 85-WPC-2 (Complaints to management that sampling method of monitoring industrial waste treatment system users was "meaningless and unreliable" constituted protected activity), aff’d No. 92-3261 (3rd Cir. Apr. 16, 1993); Wagner v. Technical Products, Inc., case no. 87-TSC-4 (Bringing safety issues to immediate supervisor was protected activity under the TSCA.) c. Specific "protected activities":

Mr. Jayko’s protected investigative activity consisted of at least, but was not limited to, the following:

(1) I find, consistent with Mackowiak, supra, that Mr. Jayko’s investigation itself, commencing with his appointment as site coordinator for the Marion project in June, 1997, and all of the related activity to that investigation, constituted protected activity; that every item that he reduced to writing, and every statement, report and request that he made to management with regard to the investigation, whether formal or informal, was protected, and that each act of management that interfered with that investigation, and was in response to that protected activity, constituted a continuing violation of the environmental Acts.

(2) In the reports resulting from Mr. Jayko’s initial investigation from June 26, 1997 through August 7, 1997, I have found specific protected activity. (FF 21-31) The first report was 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, since RVS buildings were built on the ground of a former military installation. The report stated 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. It warned that the River Valley Schools 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" would be to conduct environmental sampling of soils, air, surface and ground waters, there. (CX 60; FF 22)

This was followed by another report of August 8, 1997, to Robert Indian of ODH, which repeated much of the history set forth in that of August 1st, regarding the Scioto Ordnance Plant and the Marion Engineer Depot. (RX 113 and summaries of the histories set forth in Appendix A) Both histories recounted as possible contaminants, radioactive materials, carbon tetrachloride and trichloroethylene, and an unidentified, on site, disposable area. (FF 23-24) The August 8th report concluded with the fact that he had confirmation of following:

[N]ot 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. (FF 27)

(3) I have found that, 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. (FF 46) I also found that on October 14, 1997, Mr. Jayko had discussions with his Supervisor, Jeff Steers, Supervisor of the Drinking Water program, Doug Scharp, and Supervisor of the ODH Bureau of Radiation Protection, Ruth Vandegrift, about a plan of Ohio American Water to send Drinking Water Program representative Majewski, to Marion to collect samples that day, and the requirements that EPA had from a chemical and radiologic standpoint, including alpha, beta and gamma rays, that he wanted covered. (FF 48) All of these activities constituted protected activity.

(4) As stated above, I have also found Mr. Jayko’s six "concerns" memo of October 15, 1997, to be specifically protected activity, (FF 58) and that management’s reaction to it constituted an independent, potential violation of the environmental Acts. (FF 53 and fn. 16) This reaction to Mr. Jayko’s memos to that point in time constituted evidence of the commencement of the retaliation against Mr. Jayko for those protected activities, culminating in his removal as site coordinator, and the ten day suspension which followed that removal two days after filing his complaint in the present matter, both of which have been found to have violated the seven environmental Acts as set forth herein.

(5) The maintenance of Mr. Jayko’s chronology of the investigation was, also, clearly protected activity, as was the generation of his status reports, updates and monthly reports to Mr. Dunlavy, for which he testified without contradiction that he utilized the chronology. I find that OEPA Management’s treatment of Mr. Jayko for maintaining his chronology of the Marion investigation, and his proper releasing of it with the public papers to the Marion investigation repository upon the direction of the Central Office to do so, constituted a series of openly hostile acts in retaliation for what was otherwise a proper, protected activity and procedure for a conscientious investigator with the stature of Mr. Jayko during a critical investigation such as the Marion investigation. (FF 139 - 143 & fns. 25 - 26 related thereto.)

(6) On January 23, 1998, Mr. Jayko addressed a memo to all of the team members, containing sixteen of his areas of concern that might require further investigation, including its expansion to include other forms of cancer and illnesses other than leukemia. (JX 9; FF 109) I concluded that Mr. Steers subsequent memo of January 29, 1998, to stop all disconnected info so that anything we say is said with the "bigger picture spin on it" and to stop all contacts with the media (of which none were demonstrated by Mr. Jayko) was a direct result of that memorandum. (CX 18; FF 113) This, and the failure to provide a copy to him demonstrated OEPA’s attempt to exclude him from the processes of the Marion investigation, an adverse action in response to his protected activities.

(7) Between January and June 1998, Mr. Jayko continued to engage in protected activities and conduct, including the following: (a) a second January 23rd memo in which Mr. Jayko disagreed with a letter regarding one from Mr. Krumanaker concerning a statement that no evidence had been found of problems in the Marion drinking water, in which Mr. Jayko challenged its accuracy because trihalomethanes (carcinogens at certain levels) had been detected in the August 1997, sampling at RVS; (FF 112) (b) his April 2, 1998 oversight of the USACOE trenching (sampling) operation at the RVS which revealed concentrations of solvents and other organic chemicals that found that, while not in excessive concentrations, were at a depth of only three feet in an area regularly saturated with water, and he was then left out of a conference call around April 9, 1998, that was to address whether there was a risk at RVS and associated topics concerning these matters (FF 127-130), and (c) his response to the Columbus directive in late April, 1998, to gather all documents in his possession regarding the Marion investigation to be turned over to the repository in the Marion library, which he did, including his chronology, and was later questioned heavily on it, (FF 132-143 although there was nothing wrong with it). (FF 143, fn. 26)

(8) Likewise, Mr. Jayko’s June 1, 1998, three point memo to Mr. Czeczele regarding the aerial photos was protected activity, (JX 15; FF 203) and I have found that management’s openly hostile reaction to it, (FF 204-206) as later documented in the June 4, 1998 memorandum from Mr. Steers to Mr. Hammett, to have been similarly violative of the environmental Acts.

3. Adverse Action:

An "adverse action is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225. "Adverse action" encompasses any discrimination with respect to an employee’s compensation, terms, conditions or privileges of employment. DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983). In addition, a transfer to a less desirable employment position, even with no loss of salary is prohibited. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec’y July 26, 1995); Martin v. The Department of the Army, 93-SDW-1 (Sec’y July 13, 1995). For example, in Delaney v. Massachusetts Correctional Industries, 90-TSC-2 (Sec’y Mar. 17, 1995), the Secretary determined that the complainant’s job transfer was less desirable, even though the new job had the same pay and benefits, because his new responsibilities did not match his qualifications and therefore posed a threat to his job security. Id. However, an employee’s subjective opinion that the new job is less desirable is not enough to sustain a finding of "adverse action." See Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec’y July 19, 1993) (complainant’s reassignment was not adverse despite his complaints because it was not the worst assignment for workers, other workers volunteered for this position and employer offered a legitimate reason for the transfer - the complainant was good at this task and it needed to be completed).

I find that, in addition to the individual adverse actions discussed above in response to individual acts of protected conduct and activity, the present transfer constituted a specific adverse action, much more than something unpleasant in Mr. Jayko’s case warranting specific remedies, which warrants a specific remedy or remedies. It resulted in a substantial change in his terms and conditions of employment, in which he was not only transferred, but stripped of the most important project in his OEPA career; one that involved not only his Marion project involvement but of duties, responsibilities and prestige that mark advancement in such a position, and the relieving of which constituted an effective demotion within his site coordinator position. In addition, it cost him the perks attendant to such a position, including lost benefits such as overtime and other lost time.

The Sixth Circuit, in DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), supra, considered the following factors in determining that the job transfer constituted a demotion for the complainant: (1) the new job was far less attractive and prestigious; (2) his new tasks were below proven capabilities; (3) he no longer had supervisory responsibilities; (4) the new job included certain clerical functions; (5) he was moved to a less desirable office and (6) he would remain "invisible" and was not permitted to sign his name to documents. Id. Applying the DeFord findings to Mr. Jayko, his new job was far less attractive and prestigious; its tasks were below proven capabilities, and he was rendered, and would remain, "invisible."

Complainant alleges the following discriminatory acts, or "adverse actions": (1) removing Mr. Jayko as the Marion site coordinator and assigning him to a less meaningful site; (2) loss of overtime pay as a result of being removed from the Marion Site; (3) suspending Jayko for ten work days for the Pizza Hut, drinking/ "falsifying receipt" incident; and (4) sending a letter disparaging Jayko to the River Valley families and governor. I find that Mr. Jayko has established each of those alleged adverse actions, as well as the adverse actions in response to his protected activity, as set forth in the prior section, but that the primary adverse actions were the site coordinator transfer and the ten day suspension.

In addition to the above specific findings of adverse actions set forth in the discussion of protected activity, I would add the following as a type of conduct that is recounted throughout the findings of fact which constituted discriminatory adverse conduct and/or evidence of discriminatory conduct, as the background for the specific violations as alleged:

a. On Nov. 15, 1997, the Columbus Dispatch wrote an article embarrassing to the OEPA, mentioning Mr. Jayko’s 1992 LOE contract request, and he was called into Mr. Hammett’s office and questioned in an openly hostile manner by Mr. Hammett for it, while there is no evidence that others were treated in such a manner for the article. (FF 94-98)

b. Respondent believed that Jayko was leaking information to the media, which he was not. Two days after NBC Dateline, expressed interest in Marion in November 1997, Mr. Jayko was sent a memo telling "everyone involved in anything Marion," not to engage in any discussions to public/media unless coordinated with PIC. (CX. EX. 14; FF 99) Mr. Jayko’s activity in merely responding to Dateline representative Sanders on whom to contact for information at OEPA was clearly protected activity. Mr. Hammett’s hostile, accusatory reaction to the article, was not a protected exercise of management discretion.

c. On January 29, 1998, Mr. Jayko was again not copied with key memos from Mr. Steers regarding matters significant to him as the site coordinator, about being back "in charge of the whole thing," and wanting no contacts with the media from the staff. In the second, Mr. Steers stated that he wanted "to stop all disconnected info so that anything that we say is said with the bigger picture spin on it," while down playing the Lawhon studies as just raw data. (FF 113-114)

d. Mr. Jayko was also deliberately shut out of the conference calls discussed in April 9, 1998 e-mails between Kevin Jasper of USACOE and Mr. Steers regarding risks at RVS, about which Mr. Jayko would have peculiar, detailed knowledge. Mr. Jasper asked Mr. Steers whether he wanted Mr. Jayko included in the calls. Mr. Jayko was excluded, for he never received either the first, or a second one in which the OEPA was complimented for its close work with USACOE, and even though Mr. Jayko was an integral part of that cooperation. He never heard of the resulting meeting. (FF 128-130) I find that the direct question about Mr. Jayko’s inclusion, and the fact that he was excluded, demonstrates that the exclusion was, indeed, deliberate. From this, absent a legitimate explanation that has never been given for this adverse action, I find that the only reason for the exclusion was Mr. Jayko’s protected activity.

4. Knowledge of Protected Activity:

Respondent’s knowledge of a protected activity at the time of its adverse action, is an essential element of the complainant’s prima facie case. See, Morris v. The American Inspection Co., 92-ERA-5 (Sec’y Dec. 15, 1992), slip op. At 6-7. Complainant has easily sustained this burden. Respondent assigned Mr. Jayko the duty of site coordinator for the Marion project. Its officers called him to task for the October 15, 1997 and June 1, 1998 memos. Jayko’s LOE request regarding the Baker Wood site was published in the Columbus Dispatch (quoting Jayko) on November 15, 1997, and he was immediately confronted by Mr. Hammett in a very hostile manner, with no evidence that he ever acknowledged Mr. Jayko’s legitimate explanation that the quotes came from the 1992 investigation. Mr. Jayko sent the interoffice memos to the same OEPA management that made the decision to transfer Mr. Jayko. Furthermore, there is substantial testimony demonstrating that respondent was fearful of what Mr. Jayko would say to the media about the investigation. (Tr. 2525-26). The three (six, sixteen and three "point") memos, were communicated directly to members of management. Its response was immediate and continuous, right from its response to the first six point memo in October of 1997, through the time of his transfer at the end of June 1998, and then punctuated by the ten day suspension in July. In addition, Mr. Jayko’s treatment, not only before the above actions, but continuing after them, for release of his chronology to the public repository for the Marion investigation, is manifest because the chronology became known to the public at large. Mr. Jayko had not only the right, but the obligation to release that chronology.

5. Motivation:

A complainant must produce sufficient evidence to raise an inference that the motivation for the adverse action was his protected activity. Temporal proximity between the whistleblowing activities and the adverse actions is sufficient to establish a prima facie case. Tyndall v. U.S. Environmental Protection Agency, 1993-CAA-6, 1995-CAA-5 (Administrative Review Board, June 14, 1996), citing County v. Dole, 886 F.2d 147 (8th Cir. 1989); Bartlik v. United States Department of Labor, 1996 U.S. App. LEXIS 394, 1996 Fed. App. 0021P (6th Cir. 1996). However, in Hadley v. Quality Equipment Co., 91-TSC-5 (Sec’y Oct. 6, 1992), the Secretary indicated that although a sequence of events occurring in a short period of time may invoke an inference of causation, it is still necessary to examine the events as a whole in determining whether the ultimate question of whether a complainant has proved by a preponderance of the evidence that the retaliation was a motivating factor in the adverse action. In other words, an administrative law judge may decline to find retaliation, notwithstanding the short proximity of events, if other facts show that complainant would have been fired had he not engaged in the protected activity. Hadley, Supra (employee engaged in a stream of obscene behavior immediately prior to adverse actions by employer) ; Jackson v. Ketchikan Pulp Co., 93-WPC-7 (Sec’y Mar. 4, 1996) (complainant was fired for being out of his work area rather than his protected activity even though there was temporal proximity between the protected activity and discharge).

While Mr. Jayko’s June 28, 1998 transfer as site coordinator was slower in its effect, it came closely on the heels of the rather immediate response of management to his June 1, 1998 memo to Mr. Czelczele, and the resulting June 4, 1998 memo from Mr. Steers to Mr. Hammett concerning that memo, and other descriptions of alleged misconduct which have been previously discredited herein. In fact, Mr. Hammett relied upon the discredited June 4th memo to justify Mr. Jayko’s transfer as site coordinator.

These actions followed a chain of OEPA management conduct that began on October 15, 1997, with the hostile confrontation immediately after receipt of that memo, the explanations for which, I have discredited. (FF 53 & fn. 16) It continued with other such conduct, the tempo of which was consistent with actions of Mr. Jayko during the course of his investigation, such as arbitrary decisions not to include Mr. Jayko in certain Marion project conversations and the distribution of certain memoranda in which he had a direct interest, some of these were not seen until the present litigation. (FF 53, 55, 59, 64-66)

6. The "legitimate and non-discriminatory" business reasons:

The respondent has the burden of producing evidence to rebut the presumption of disparate treatment established by complainant’s prima facie case, by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory reasons for the adverse action. See, Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. 248 (1981) (Title VII case). This must be established by clear and convincing evidence under the ERA, and by merely articulating or stating that evidence under the other six environmental Acts. In either case, the complainant retains the ultimate burden of proof. He must establish by a preponderance of the evidence that respondent’s adverse actions constituted discrimination for complainant’s protected activity. Here, it is that Mr. Jayko’s protected activity was the motivating factor in respondent’s decision to transfer complainant and imposing the ten day suspension for the Pizza Hut drinking allegations and the accompanying alleged falsification of travel receipts. Dysert v. Westinghouse Electric Corp., 86-ErA-39 (Sec’y Oct. 30, 1991); See Texas Dept. of Community Affairs, Supra.

In a nutshell, respondent presents the following as its justification for the "adverse action," of the June 29, 1998 decision to reassign Mr. Jayko to sites other than the Marion, Ohio RVS, MED and SOP sites: that the reassignment was the result of a "reorganization" of the NWDO DERR and prompted by the difficult relationship between Mr. Czeczele and Mr. Jayko, namely his difficulty in supervising Mr. Jayko, and that Mr. Czeczele was unable to establish a clear chain of command under the existing structure; and that the Pizza Hut drinking/ falsification ten-day suspension was solely motivated by respondent’s election to so discipline Mr. Jayko for OEPA rules violations.

In this regard, I have made the following ultimate findings of fact:

1. Mr. Hammett had no reasonable basis for Mr. Jayko’s transfer based on the discredited June 4th memo from Mr. Czeczele to Mr. Steers. This was the only factual basis actually presented by Mr. Hammett. By his own testimony, he admittedly had no specific facts that would have warranted such a transfer after that date. (FF 272)

2. Mr. Hammett’s testimony with regard to his lack of recall on communicating with Mr. Schregardus about Mr. Jayko’s transfer was found to be deliberately evasive and lacking in the presentation of any reasonable basis for the transfer. (FF 270) At any rate, he did admit to supplying the entire June 4, 1998 Steers/ Hammett memo to Mr. Kirk as part of the Pizza Hut incident. Therefore, Mr. Kirk and, as a result Mr. Schregardus, knew all of the reasons that were used for Mr. Jayko’s transfer when he made his report to Mr. Schregardus recommending the disciplinary suspension. In addition, Mr. Schregardus admitted knowing 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 that Jayko was not communicating well with the Marion team. (FF 279) This information was all included in the June 4th memo.

3. The testimony of Mr. Schregardus of not being involved in the decision to transfer Mr. Jayko has been found by me to be to be implausible, and an unwarranted attempt by Mr. Hammett to shield him from any involvement in what was to be the major decision of the new reorganization. (FF 279)

4. Mr. Dunlavy’s testimony regarding the transfer of Mr. Jayko on the pretense of reorganization has been credited in full, due to his consistent testimony and demeanor, the fact that he had a lot to lose as a member of management by testifying in Mr. Jayko’s defense on this point, and because his testimony was delivered spontaneously, on questioning by the undersigned, rather than by prior questioning by the complainant who called the witness, and after his cross-examination by the respondent. (FF 286)

5. I also find that there is no other reasonable explanation for the adverse action of Mr. Jayko’s transfer other than discrimination for his protected activity, and that he would not have been so transferred but for that protected activity. This is based upon the fact that the reasons for the transfer are premised upon the testimony of Mr. Hammett which I have discredited, along with his reliance on the June 4, 1998 Jeff Steers memo, to which I have given no weight, in their attempt to establish a legitimate, nondiscriminatory reason for Mr. Jayko’s transfer, (whether Mr. Schregardus played any direct role in the transfer or not). It is supported by the testimony of Mr. Dunlavy, regarding the transfer of Mr. Jayko on the pretense of the reorganization, which I have credited in full for the reasons set forth herein. I therefore find the proffered explanation for the transfer to be a pretext for the real reason - his protected activity as set forth above, and summarized below, in detail.

I find that respondent did not establish by clear and convincing evidence that it had a legitimate, nondiscriminatory reason for Mr. Jayko’s transfer from his position as site coordinator for the Marion project, or for his ten day suspension for violation of legitimate OEPA rules against drinking alcoholic beverages either on OEPA time or before public meetings, or for the submission of inappropriate vouchers for reimbursement of travel expenses in conjunction therewith, within the meaning of the ERA. Within the provisions of the other six acts, I find that while business reasons were articulated which it contended were legitimate and nondiscriminatory, respondent did not establish that they were either legitimate or nondiscriminatory, and to the extent that they might have been so considered I find that those assertions constituted a pretext for the real discriminatory reasons, as set forth below.

7. The transfer reasons as pretext:

Once the respondent articulates a legitimate, nondiscriminatory basis for its action, or establishes it under the ERA, the focus shifts to the issue of whether such basis is merely pretextual and that the respondent’s action was based on a discriminatory motive. The complainant, may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. . . In order to determine that [the complainant] has established discriminatory intent in regard to this adverse action by the [respondent], however, "[i]t is not enough. . . to disbelieve the employer; the fact finder must believe the plaintiff’s explanation of intentional discrimination." St. Mary’s Honor Center, supra, 113 S.Ct. at 2749, 125 L.Ed. 2d at 424.

The main OEPA management figures behind the alleged "adverse action" tell different and conflicting stories. The primary people who supervised Mr. Jayko and were involved with the decision to reassign and/or discipline Mr. Jayko for his actions, were: Don Schregardus, the Director of the OEPA, who was responsible for disciplining Mr. Jayko for the "drinking/falsifying receipts" incident; Ed Hammett, the Chief of the Northwest District ("NWDO") of the OEPA, who ran the Division of Emergency Remedial Response ("DERR"), and was the one who made the ultimate decision to reassign Mr. Jayko; Jeff Steers, who was the Assistant Environmental Administrator of the DERR - NWDO, and Mr. Jayko’s immediate supervisor, until the introduction of Mr. Czeczele on June 1, 1998, and who worked under Mr. Hammett; Bruce Dunlavy, who was Environmental Manager of the DERR-NWDO and worked under both Mr. Hammett and Mr. Steers; Archie Lunsey, who worked as the Environmental Supervisor of the DERR-NWDO and, prior to Mike Czeczele, supervised Mr. Jayko; and Mike Czeczele who replaced Mr. Lunsey as supervisor over Mr. Jayko, and began to officially work in this capacity on June 1, 1998, reporting to Jeff Steers. To illustrate the general hierarchy, the following names are in order of management authority:

Mr. Shregardus
Mr. Hammett
Mr. Steers
Mr. Dunlavy
Mr. Lunsey/Czeczele
Mr. Jayko

In sum, Mr. Schregardus testified that Mr. Jayko was removed due to "personnel confidential problems," namely, Mr. Jayko’s communication problems with the Marion team. (T 670, 676). He testified that he was unaware of any "reorganization." Mr. Hammett testified that removed Mr. Jayko due to the conflict between Mr. Czeczele and Mr. Jayko. (T 2394) Yet, he was unable to "recall" what the realignment/ reorganization of the Marion project entailed or who was involved. (T 2391-92; 2403) Mr. Steers testified that Mr. Jayko was removed because Mr. Czeczele threatened that it was "either him or me." (T 618) Yet, Mr. Czeczele testified that he could work with Mr. Jayko; and that Mr. Jayko told him that he would do whatever he wanted to do, and that, Mr. Jayko did not thereafter refuse to follow any orders. Mr. Dunlavy specifically testified that the reorganization/ realignment of the Marion project was a pretense for removing Mr. Jayko and that the real reason was Mr. Steers’ frustration with the memo writing and the fear of Mr. Jayko was acting as a conduit to the media. (T 2516, 2564, 2525-26) Mr. Lunsey claimed that he was not told the exact reasons for Mr. Jayko’s removal. (T 198) He did testify that Mr. Steers was concerned with Mr. Jayko’s interoffice memos. (T 180) Mr. Dunlavy was against removing Mr. Jayko from the project. (T 187). Mr. Czeczele then contended that Mr. Jayko was removed to "clarify the chain of command" and to help Mr. Lunsey with his under staffed group, the Remedial Response Group. (Tr. 2337). As indicated above, he did not request Mr. Jayko’s removal and would have worked through the problems with Mr. Jayko. (Tr. 2337).

The various reasons produced by the managers discussed above are not consistent and do not reveal a convincing justification for Mr. Jayko’s removal. Respondent’s "legitimate, non-discriminatory" reasons for removing Mr. Jayko from the Marion project, the reorganization and conflict with Mr. Czeczele, crumble under scrutiny and fail to establish either by clear and convincing evidence or any other standard, that the real reason for the transfer was either legitimate or non-discriminatory. Therefore, I am unable to conclude that Mr. Jayko’s protected activities were not involved in respondent’s decision to remove Mr. Jayko. They were. Consider the following evidence:

First, it is not clear what this alleged "reorganization/ realignment" of the NWDO DERR was, and how this affected Mr. Jayko’s transfer. Since Mr. Czeczele’s assignment was already in place, the only real "reorganization" that I am able to detect was Mr. Jayko’s removal and replacement by Mr. Snyder. While Mr. Czeczele discussed it in terms of clarifying the chain of command and helping Mr. Lunsey with an understaffed group, he did not discuss the reorganization in terms of resolving a conflict with Mr. Jayko. Mr. Steers discussed the reorganization in terms of the volatile relationship between Mr. Czeczele and Mr. Jayko, although Mr. Czeczele’s testimony undermines any continuing volatility in the relationship.

Mr. Schregardus testified that he was not aware of any reorganization at all!

As stated above, Mr. Dunlavy said the reorganization was just a pretense, or an excuse for the real reason why Mr. Jayko was being removed - to prevent a "pipeline" to the media. Mr. Lunsey discussed the action as a "realignment," first testifying that some discussions had occurred before Mr. Czeczele acted as supervisor over Mr. Jayko. He then stated that the discussion of Mr. Jayko’s role in the realignment/reorganization did not occur until after he was removed.(T 248, 249).

Second, Mr. Steers’ and Mr. Hammetts’ primary reason for moving Mr. Jayko, the serious conflict with Mr. Czeczele, is not supported by the record. Indeed, in the first few days after Mr. Czeczele’s new assignment, there was conflict between the two, but the evidence does not indicate a serious conflict. Moreover, Mr. Czeczele’s testimony shows that he only supervised Mr. Jayko on the Marion project a short time for these alleged supervisory conflicts, from June 1, 1998 until June 29, 1998, and that they were working out their problems. Beyond that, Mr. Hammett could testify to no specific points, outside of the discredited, June 4th memorandum from Mr. Steers to Mr. Hammett. Mr. Czeczele did testify that he worked with Mr. Jayko prior to the supervisory role, but the only problem he testified to was lack of participation in conference calls.

Ironically, when Mr. Jayko was "active" with his June 1, 1998 memo regarding the aerial photos, Mr. Czeczele was bothered by this overactive participation! Furthermore, Mr. Czeczele testified that he and Mr. Jayko had worked out the dispute over the aerial photos. More importantly, Mr. Czeczele verified under oath that Mr. Jayko told him that Mr. Jayko would do whatever he wanted him to do, and then testified that Mr. Jayko was not acting insubordinate. This is hardly the mark of insubordination in such a stressful situation.

Of key importance to this discussion, however, Mr. Czeczele never requested that Mr. Jayko be removed from the Marion project and stated that he was willing to work through any problems with Mr. Jayko. Mr. Czeczele’s main concern was having direct supervision over someone, a concern he expressed prior to working with Mr. Jayko, and admitted that it would be fine if that direct supervision was over Mr. Jayko. (T 2377). That is what he wanted out of any realignment or reorganization.

From Mr. Hammett’s perspective as the decision maker in removing Mr. Jayko, he was unable to name many incidents of discord between Jayko and supervisors, much less, a "long pattern of behavior" after the June 4th memo. He was unable to recall any "specific facts" about problems with Mr. Jayko’s performance in June. He just recalled "that the level of . . . relationship had not improved. And therefore, we made the decision to make the reassignment at that point. But I don’t have specific facts." (T 2399). I conclude from his testimony, that Mr. Hammett’s main source of information about Mr. Jayko’s problems was the June 4, 1998 memo (3 days after Mr. Czeczele became supervisor), which was directed by him to Mr. Steers in order to document the "problems" with Mr. Jayko. The memo alleged the drinking incident, Mr. Jayko’s lack of participation in the Marion project, the aerial photography conflict with Mr. Czeczele, and Mr. Jayko’s two occasions of watching television on "state time." (JX-17). Mr. Hammett admits that this memo was written only three days after Mr. Czeczele worked as a direct supervisor over Mr. Jayko. (T 2415). Mr. Hammett claims that he was unaware that Mr. Lunsey and Mr. Dunlavy did not want Mr. Jayko to be transferred. (T 2444). However, as stated above, I have discredited the entire June 4th memorandum for reasons discussed above, and give it no weight.

Mr. Schregardus, who stated that he did not know about the reorganization, also testified that Mr. Jayko was transferred due to a "confidential personnel reason", namely, Mr. Jayko’s communication problems with the Marion team. (T 670, 676). Directly contrary to the reasons stated by Mr. Hammett for the transfer, Mr. Schregardus did not understand Jayko’s removal to be related to a reorganization of the Marion project. (T 670). Yet, in a July 31, 1998 letter from Mr. Schregardus to Governor Voinovich, he stated that with regard to the recent "personnel issue" prompting media coverage:

In June, Mr. Jayko was removed from the Marion investigation team while the agency investigated the allegation involving falsifying meal receipts and drinking on duty. The investigation recently concluded and I have suspended Mr. Jayko for 10 days for those activities. Mr. Jayko has had difficulties working effectively 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)

This memorandum belies the fact that Mr. Jayko was transferred on June 29, 1998, due to the "realignment" or "reorganization," wholly apart from the investigation of the Pizza Hut incident, and, basically links the two.

Mr. Hammett, who made the ultimate decision to transfer Mr. Jayko, claimed that he was transferred to resolve the conflict between Mr. Czeczele and Mr. Steers. Mr. Hammett was unable to recall what the realignment discussions entailed. In other words, Mr. Hammett did not associate the realignment of DERR with Mr. Jayko’s conflict with Mr. Czeczele! Essentially, he could not remember what the realignment/reorganization was. Mr. Steers contended that Jayko’s transfer was due to the conflict between Mr. Czeczele and Mr. Jayko- the threat "either him or me." Mr. Steers testified that Mr. Jayko was not a "team player," and discussed a realignment/ reorganization of the Marion project, but only in terms of the supervisory "conflict."

On the other hand, Mr. Dunlavy and Mr. Lunsey did not want Mr. Jayko transferred and Mr. Dunlavy testified that he was removed under a pretense of "reorganization." Mr. Dunlavy claimed that Mr. Jayko was removed due to his controversial internal memos and, in this vein, to prevent him from talking to the media. He also claimed that a "clarification of the chain of command," between Mr. Czeczele and Mr. Jayko, was not the primary reason or reason at all for Mr. Jayko’s removal. Mr. Lunsey testified that he did not know why Mr. Jayko was removed from the Marion project. He did not want him removed due to his knowledge about Marion and his well-received performance. Mr. Lunsey also testified that Mr. Steers expressed concern about Mr. Jayko’s interoffice memos which may have lead the public to believe that the OEPA was not doing something. He further said that the "common assumption" of the NWDO was that Mr. Jayko was removed due to the beer drinking incident. (T 199).

Mr. Czeczele testified that Mr. Jayko was removed due to the "realignment" which was not described in terms of removing Mr. Jayko because of an internal conflict between himself and Mr. Jayko. In fact, Mr. Czeczele stated that he did not request to remove Mr. Jayko and that he "may have had differences or communications problems that, you know, were difficult. But I would have worked through them. I mean, the real reason, to me, was realignment." (T 2337). Mr. Czeczele’s view of realignment was to have Mr. Jayko work with the Remedial Response Group under Mr. Lunsey because this group was understaffed, and which, apparently, would not have precluded necessary Marion project responses. (T 2337) He also said that he did want a clarification of the chain of command (i.e. to directly supervise someone) even before starting his job as supervisor on June 1, 1998, which he did not get. He said that the clarification of the chain of command could have involved Jayko remaining on the Marion project, as long as he had direct supervision. (Id.)

Again, it is my conclusion that the reasons given by OEPA management for the transfer of Mr. Jayko (reorganization/ realignment) were conflicting and ultimately, not credible. On close analysis, the fracture in respondent’s proffered reasons for the transfer indicate that those reasons were not only a pretext for the real discriminatory reasons for the transfer, Mr. Jayko’s protected investigative activity, but that the action was deliberate, and intended to chill those actions in violation of all seven environmental Acts.

8 . The suspension for alcohol use and reimbursement as pretext:

On May 21, 1998, Mr. Jayko consumed two eleven ounce draft beers at a Pizza Hut before a public meeting. One restaurant check for an undetermined amount, which is not in evidence, was presented to the table and split among the group that ate there. There is no evidence in the record that any other checks or receipts were issued by Pizza Hut.

USACOE representative Watson stated in a letter of June 25, 1998, (CX 30) that he divided up the check, at $6.00 each, and that Mr. Jayko contributed $15.00 to cover the two beers and a tip. On return to the OEPA office, Mr. Jayko filled out an expense receipt for $14.52, though he could only be reimbursed for $13.00. He did not submit the original receipt, since he did not have one. He did submit what is called a "duplicate receipt" for $14.52, pursuant to a practice and local rule described herein. No one submitted the original check, and the exact total or inclusions in it are not known. Mr. Jayko was initially charged with OEPA rule violations in drinking the two beers on OEPA time.

A pre-disciplinary hearing was held on June 22, 1998. The meeting was attended by OEPA Human Resources Director, Mr. Kirk, and by Mr. Jayko who was accompanied by a union steward, Ms. Linda Tilse. Mr. Kirk charged Mr. Jayko with consumption of beer on state time and operating a state vehicle after drinking. Mr. Jayko presented documents to show that he was not drinking on state time.

After the meeting, Mr. Kirk reviewed the travel expense report and noticed that the attached receipt was not a Pizza Hut receipt. (Er. Ex. 35) Mr. Kirk sent a memo to Mr. Schregardus and Mr. Jayko on June 23-24, 1998, informing them that he had encountered additional violations, (Er. Exs. 40, 41) and summarily referred the matter to the Ohio State Highway Patrol (OSHP) for suspected "illegal activity." He did not provide Mr. Jayko an opportunity to explain suspected violations, or even the option of withdrawing the travel reimbursement request or contesting it, before the OSHP referral. The OSHP returned it to OEPA as an alleged offense under $10.00, and recommended that the matter be resolved administratively.

A second pre-disciplinary conference was held on July 22, 1998, with the new allegations that Mr. Jayko had claimed more reimbursement than that to which he was entitled, and had submitted a false receipt, the one that had been referred to the OSHP and returned by it.

On July 24, 1998, Mr. Kirk submitted a pre-disciplinary report to Mr. Schregardus recommending that Mr. Jayko be suspended for 10 days for 3 infractions: (1) consuming alcoholic beverages on government time; (2) violating the policy requiring that travel expense reports be supported by receipts; and (3) seeking travel expense reimbursement in excess of the amount to which Jayko was entitled. The report confirmed that in Mr. Jayko’s 6.5 years of employment, he had not been disciplined. Based upon the seriousness of all three infractions, he recommended a ten day suspension. (RX 48)

On July 30, 1998, Mr. Schregardus suspended Mr. Jayko for ten days "based upon the events described" in his two predisciplinary meetings with Mr. Kirk, to be effective August 3 -17, 1998. (JX 24) The suspension was imposed 2 days after the July 28, 1998 complaint was filed in the present action.

I find that the suspension was in retaliation for Mr. Jayko’s protected activity, since respondent has failed to establish by either clear and convincing evidence, or to overcome Mr. Jayko’s evidence that the business reasons of the suspension were pretext and neither "legitimate" nor "non-discriminatory." Accordingly, I find that Mr. Jayko did not:

- consume alcoholic beverages on state time.

- violate the policy requiring that travel expense reports be supported by original receipts.

- violate the policy regarding travel expense reimbursement in excess of the amount to which he was entitled, and the inclusion of the two beers in the reimbursement application was both de minimis and unintentional

a. Consuming alcoholic beverages on state time:

It is my finding that there is no rule prohibiting consumption of alcohol on personal time, or before a public meeting. The only limitations are, that the OEPA employee, "not be intoxicated by alcohol or drugs while on the job or state property," (RX 32-1); not be "operating a state owned vehicle under the influence of alcohol or drugs," (RX 32-2), and not be "reporting to work under the influence of alcohol, or consuming alcohol while on duty," (RX 32-3), with a similar rule for drugs. No evidence was either taken or introduced on Mr. Jayko’s blood alcohol level, which would have demonstrated the degree to which he might have been under the influence of alcohol or intoxicated, and, crediting the testimony of Mr. Watson, he showed no signs that he was acting intoxicated or under the influence of alcohol. I find that he was not acting under the influence of alcohol.

While Mr. Steers did not charge Mr. Jayko with drinking on duty, just that he was drinking before a public meeting for which there is no evidence of any OEPA rule violation, Mr. Kirk and Mr. Schregardus did charge him with drinking on duty - on "state time," the allegation which I have found is not supported by the evidence.

There is a dispute as to whether Jayko was really on duty when drinking. Mr. Steers did not ask Mr. Jayko if he considered himself on "duty." (T 391-392) Mr. Kirk, who ran the disciplinary proceedings, admitted that Mr. Jayko would not be on work time if he started his work day at 8:00 am with a ½ hour lunch break and worked until 12:30 am. (T 2257) Respondent is arguing that Mr. Jayko worked from 8:00 a.m. until 11:30 p.m. with an hour lunch break, so that the Pizza Hut dinner was on state time, a discrepancy of 1.5 hours. I have credited Mr. Jayko’s testimony on this point, finding that he worked from 8:00 a.m. on May 21st , to 12:30 a.m. on May 22nd, and found that he was not on state time when he drank the two beers, basically, some time between 5:00 p.m and 6:30 p.m. (FF 148-167, and footnote 30)

Mr. Steers, as Mr. Jayko’s supervisor and the most immediate member of management on the scene, was with Mr. Jayko when he was drinking the beers and he did not say anything to him about it. He also let him drive when knowing he drank the two beers, without saying anything about that. Mr. Steers admitted that he could have told Jayko to stop drinking but did not. Since he could have immediately acted upon the drinking and driving matters, and since Mr. Jayko was neither intoxicated nor exhibiting any other signs of bad behavior, I find that Mr. Jayko was treated differently than he would have been, but for his protected activities.

I also find, based upon the testimony of Mr. Jayko and the letter of Mr. Watson, that Mr. Jayko’s conduct in drinking two beers on personal time, before the 6:30 public meeting, was insufficient evidence to conclude that it constituted a "failure of good behavior," under its "Guidelines," (RX 32) as additionally alleged in respondent’s brief. (R. Brief, at 84-85)

b. The OEPA policy requiring that travel expense reports be supported by original receipts:

Mr. Jayko did not violate the policy regarding receipts for travel reimbursement. There is substantial evidence that Mr. Jayko’s supervisor, Mr. Dunlavy, had adopted a policy of permitting the use of "blank" or "duplicate" receipts to fill a gap or ambiguity in the rules where there have been no individual checks or receipts issued by the restaurant, or only one which is subsequently split by the group, thus permitting employees to utilize such documents. This is supported by testimony of Mr. Jayko and Mr. Dalton, as well as the statement signed by four other employees, Ed Onyia, Ali Moazed, Ghassan Tafla, and Patrick Heider. (CX. EX. 27). I find that the use of non-original receipts is accepted practice within Mr. Dunlavy’s area of supervision at the OEPA. (FF 181-184) Also confirming both the ambiguity and the practice, if OEPA’s policy had been strictly enforced, none of the OEPA Pizza Hut participants, other than one who might have submitted the original check for the table, would have been reimbursed for their $6.00 submissions. There being no evidence to the contrary in the record that those submissions were denied, or denied based on the policy (including those of Mr. Steers and Mr. McLane), it must be inferred that they were reimbursed pursuant to the supervisor’s policy, and that Mr. Jayko’s submission did not violate the OEPA policy.

c. Seeking travel expense reimbursement in excess of the amount to which he was entitled in violation of an OEPA rule:

Mr. Jayko’s action in seeking travel expense reimbursement in excess of the amount to which he was entitled to be reimbursed, was not a violation of the OEPA rule for which suspension was warranted. Mr. Jayko spent $15.00 at the Pizza Hut dinner. He submitted a travel reimbursement form for $14.52. OEPA issued a check for $13.00, the maximum allowed under the day travel reimbursement policy. Under the circumstances of this case, and recognizing that the inclusion of alcoholic beverages is a separate matter, I find that the deduction from $14.52 to $13.00 was the sanction. A ten day suspension on top of it, with a 6 ½ year record of no prior offenses, was not warranted.

OEPA has not established that Mr. Jayko violated any rule that a travel reimbursement submission or request for more than the permitted maximum, but either at or below the actual amount spent, could be submitted or "sought" for reimbursement. i.e., No one from management contested the practice of submitting a travel reimbursement form for an amount higher than what a person could be reimbursed. (FN 32, FF 185) Having actually spent more than the $14.52 claimed, Mr. Jayko did not "falsify" any receipt under Mr. Dunlavy’s rule discussed above, and the OEPA rule only prohibits "reimbursement" beyond the $13.00 maximum for the circumstance. This "reimbursement" limit was honored in the issuance of the $13.00 check.

I credit Mr. Jayko’s testimony that, at the time he submitted his request for the $14.52 reimbursement, he was not aware or thinking about the fact that the full amount actually spent included the two beers as a prohibited item. He felt that he had merely consumed them as his 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. (FF 185) He would have been entitled to reimbursement for some kind of a drink anyway, and the difference makes the actual amount between such a drink and the $2.00-$3.00 or 48 cents to $1.48 difference after the $1.52 deduction from the $14.52 claimed, infinitesimal.

Conceding that any infinitesimal amount might constitute a technical violation of the no alcohol reimbursement policy, I find any that any infraction involved with the inclusion of the two beers by Mr. Jayko to be de minimis, and totally unintentional. Considering , again, his 6 ½ year record of no prior offenses, there is insufficient evidence on the record that these two factors were either mentioned or considered in the suspension recommended by Mr. Kirk and issued by Mr. Schregardus. In this, I also consider all of the items discussed in the two pre-disciplinary hearings, and the accelerated search for other violations that followed Mr. Jayko’s submission of contrary evidence.

As another point, which might not excuse a violation but would definitely impact a penalty under these circumstances, since he had an excellent work record with no prior disciplinary actions, and did not do much traveling, I credit Mr. Jayko’s testimony that he was unaware of any written policy prohibiting the reimbursement of the cost of alcoholic beverages at meals; that he never saw the Policy of Reimbursable Expenses until the litigation, and that he relied on his administrative assistant to handle such matters. I also credit Mr. Kirk’s statement to Mr. Jayko after the incident that it was his responsibility to have a better handle on it. (FF 189) However, there was no evidence which indicated that Mr. Jayko had ever previously submitted inaccurate requests for travel expense reimbursement or that he was ever warned about submitting incorrect requests. (FF 192)

Mr. Jayko should have been given the opportunity to either contest the matter or reimburse any amount owed, before being referred to the OSHP as an alleged "theft." At the most, a demand for refund of the difference could have been made, or an inquiry and demand that he not cash the check until the matter was resolved. After that, at the most, he might have been given a verbal warning in the progressive discipline process. (FF 193) I reject respondent’s position that the circumstance warranted a ten day suspension, when its real position is that a ten day suspension was warranted for all of the alleged misconduct. Since all but the de minimis, unintentional inclusion of the two beers has been discredited, the latter standing alone, could not warrant the ten day suspension.

Respondent compared Mr. Jayko’s "falsification" of receipts with other employees who actually committed fraud and were intentionally defrauding OEPA. I find that these "comparisons" were not comparable. (EX 7-25) Mr. Kirk and other employees of respondent have engaged in much more egregious activities and their punishments were less severe (i.e. disparate treatment). (Tr. 2125, 2127-28, 2133-38). There is no evidence that any of these were referred to the OSHP.

With management adding new allegations to the old ones after Mr. Jayko presented exculpatory evidence, management violated a basic principle of due process and misused the contractual grievance process. (FF 194) I find not only a failure of due process in this procedure, but that Mr. Jayko simply would not have been treated that way under any other circumstances, primarily consisting of his protected activity. This is based upon the above findings, including the timing of the initial charges and the final suspension, both within a few days of demonstrations of protected activities, the lack of substance in the accompanying allegations, and his overall treatment throughout the time period, with a blatant failure to consider his 6 ½ year, good, discipline free work record.

4. Timing:

The timing of the "incident" in relation to the initiation of the disciplinary action has been considered in reaching my conclusions. The incident occurred on May 21, 1998. However, with no credible explanation for the delay, Mr. Steers did not do anything about it until three weeks later, after Dateline had contacted him about the Marion site investigation, and Mr. Hammett had confronted Mr. Jayko about it. (FF 225-227) Only then did Mr. Hammett have Mr. Steers draft the discredited June 4th memo, mixing the alleged drinking offense with several others discussed above. I therefore find that there is sufficient evidence to infer that the drinking incident had been deemed insignificant by Mr. Steers, and I conclude that but for the Dateline incident, it would not have been raised. Significantly, the additional delays in processing the matter, compounded by the additional allegations as Mr. Jayko met individual allegations, resulted in the imposition of the ten day suspension by Mr. Schregardus, two days after filing his complaint regarding his transfer as site coordinator.

By the timing of the actions, from initiation of disciplinary procedures shortly after the Dateline incident through the imposition of the suspension two days after the complaint filing, both of which directly followed these protected activities, when combined with the discrediting of the entire disciplinary procedure and suspension, leaves no other choice but to conclude that the suspension was imposed for those protected activities, in violation of all seven Acts.

Summary and Conclusions Regarding the Alleged Violations:

It is clear from the above, by a preponderance of the evidence presented by Mr. Jayko, that OEPA held him in particular disfavor for reasons that may only be attributed to his vigorous prosecution of the Marion investigation: his challenges to management to do a full investigation to find out the causes of the leukemia, leaving, "no stone unturned," while OEPA management wanted to do something graduated and far less effective. This resulted in his transfer from the Marion site, and then OEPA punctuated its control over him by imposing the ten day suspension, two days after filing his complaint for the transfer discrimination.

With regard to the transfer/ pretext conclusions, I find that the reasons given by OEPA management for the site coordinator transfer of Mr. Jayko (reorganization/ realignment) were conflicting, without substance and ultimately, not credible. OEPA management maintains that it had the right to unilaterally reject Governor Voinovich’s admonition to "leave no stone unturned" in finding the causes of the high incidence of leukemia in the Marion area, on budgetary grounds. This had the result of limiting the investigation to simply finding whether there were immediate causes of possible new cases of leukemia, disregarding the old. Mr. Jayko knew that this was both disingenuous, and in opposition to what the public was being told about the investigation. He knew that past sources might be both inseparable and continuing, as a result of which he felt an obligation to pursue all avenues that were indicated by his investigation. For this he was branded as not being a "team player," frozen out of important conferences and documentary distribution, and finally transferred. On close analysis, the fracture in respondent’s proffered reasons for the transfer indicate that they were not only a pretext for penalizing his protected investigative activity, but that the action was deliberate, and intended to chill those actions in violation of all seven environmental Acts.

So, too, was the imposition of the ten day disciplinary suspension, two days after filing the complaint involving his transfer. This was demonstrated initially by disregarding the May 21, 1998 incident for three weeks, and raising it as an issue about consuming alcohol on state time, a few days after the Dateline incident. When he produced evidence that indicated that he might not have been guilty of that offense, (FF 181) and then produced a letter from Mr. Watson, a neutral in this matter from USACOE, which verified that he was neither intoxicated nor acting under the influence of alcohol, he was charged with "theft" for submitting a reimbursement request for unauthorized Pizza Hut expenditures by summarily notifying the OSHP of the allegation before presenting the matter to him for resolution. While the rejection of the theft charges for administrative determination involving a matter under $10.00, was an indication of the alleged theft’s de minimis character, the fact that it was referred to the OSPH at all on those grounds constituted substantial evidence that OEPA supervisors intended to hurt Mr. Jayko, both in the performance of his job, and in his reputation, for his protected activities. OEPA’s explanations for this was not credible, and I so find.

Considering Mr. Jayko’s 6 ½ year good, discipline-free record, the consumption of one and one half of the two, eleven ounce beers purchased with his pizza right there in front of his supervisor, who not only said nothing about it, but rode in the car with him without saying anything about it, and the unintentional nature of his inclusion of the beers together with his obvious overpayment, reinforces the innocence of it. Nothing was hidden, and nothing was "falsified," but an extraordinary penalty was utilized to correct the one technical defect that OEPA could find, the inclusion for the two beers in the request for reimbursement as a theft charge. That unintentional, de minimis inclusion could have been corrected by either denying it or demanding repayment of the cost of the beers (some 48 cents to $3.00, depending on who was doing the arithmetic), which was never done.

Under the circumstances, since that reimbursement check was never cashed by Mr. Jayko, he technically cured the technical, unintentional, de minimis defect, I, therefore, find, by a preponderance of the evidence that Mr. Jayko did not violate OEPA rules by a monetary receipt of an improper reimbursement. Be that as it may, OEPA management’s pursuit of this particular disciplinary action the way that it did, does not make sense - except when viewed in the light of Mr. Jayko’s protected activity. I find that a preponderance of evidence supports Mr. Jayko’s allegations that the real reason for the actual treatment he received for the two beer consumption and charges therefore, was his protected activity.

Mr. Jayko’s protected activity involved actions as an investigator under all seven of the Acts. It included the resurrection of the military and private industry history of the use of the sites from before World War II; the toxic chemical laden ordnance assembly lines at the Scioto Ordnance Plant and the heavy equipment repair facility at the Marion Engineer Depot; the preparations by the Atomic Energy Commission as part of the Manhattan project at both sites - even though full scale operations may never have taken place there, and some tests proved negative; the 100 year history of the private, Baker Woods creosote plant, railroad tie and telephone poll treatment facility, and all of the attendant chemical disposal activities throughout the area, some of which have been suspected to be toxic waste dumps under the River Valley High Schools’ athletic fields, and other locations.

The link between the known causes of leukemia and the discovery of possible sources of such causes in Marion, Ohio, including the possible existence of radiation producing elements - even though later proven to be negative - constitutes a reasonable basis for Mr. Jayko’s proceeding with the investigation under the ERA to "rule" such effects "in" or "out," and highlights the continuing burden on an investigator such as him in such a circumstance. If the "whistleblower" statutes are, indeed, to be given the liberal interpretation intended in the statutes and the supporting case law cited herein, once engaged as the site coordinator for the Marion project, an investigator such as Mr. Jayko, must be able to establish or reject any reasonable indicators of such causes of a known disease in an area, free from the potential interference that the ERA envisions in its employee protective provisions, which, in fact took place here.

This applies with equal force to Mr. Jayko’s efforts under the other Acts to expand air and water sampling, as well as the toxic sampling at the athletic field dump site and resulting USACOE trenching operations there, all of which would be, and have been found to be under the applicable Acts: to "protect and enhance the quality of the nation’s air resources," under the CAA; to "promote safe drinking water" under the SDWA; to "restore and maintain chemical, physical, and biological integrity of the Nation’s waters," under the CWA (WPCA); to "assure that chemical substances and mixtures do not present unreasonable risks of injury to health or the environment," under the TSCA; to "assure that hazardous waste management practices are conducted in a manner that protects human health and the environment [and to] minimize the generation of hazardous waste," under the SWDA, and to prevent the release of hazardous substances into the air or water, under CERCLA, the last of which governs both of the the federal site clean-up operations, and preserves the jurisdiction of the relevant agencies under each of the other five Acts at the applicable sites.

Therefore, I find that Mr. Jayko’s above described activities under the relevant statutes were protected, and the adverse actions by his employer, OEPA, consisting of his transfer as site coordinator due to reorganization/ realignment and his ten day disciplinary suspension for drinking alcoholic beverages while on state time, and the submission of a request for reimbursement of his travel expenses, were not for those stated reasons, but were imposed as pretext for its retaliation for his protected activities. Not only were the reasons given for the adverse actions not credible and a pretext therefore, but when stripped of the proffered reasons, the only reasons left are willful actions designed to unlawfully retaliate by discriminating against Mr. Jayko for those activities, in violation of the seven "whistleblower" Acts, and I so find.

To make the determination clear, I find that these final discriminatory actions constituted a continuing violation. They capped a course of interference, restraint and coercion, as well as discriminatory conduct toward Complainant Paul Jayko for his protected activity under the above environmental Acts which began following the distribution of Mr. Jayko’s six "Concerns" memo of October 15, 1997 with management’s hostile response thereto, and was compounded by his exclusion from certain conferences and document distribution, important if not crucial to his performance as Marion site coordinator. As above stated, any sense that he was either withdrawing or not fully participating in internal group or team meetings, was "effect" rather than "cause," of impact on the investigation, the sum total of which must be considered a continuing violation of the Acts.

REMEDIES

Having found that OEPA has violated the employee protective provisions of the seven Acts, I must consider the remedies that must be ordered to rectify the violations, and make Mr. Jayko whole for them. I also must consider what, if any compensatory and exemplary damages must be imposed for OEPA management’s conduct.

Mr. Jayko is entitled to be made "whole" for respondent’s violations under all seven environmental Acts, including appropriate orders to restore his reputation, reinstatement and back pay, benefits and compensatory damages under them and exemplary damages under the SDWA and the TSCA. 29 C.F.R. §24.7(c)(1). The back pay and benefit considerations may include lost overtime, lost vacation and other chargeable pay remedies such as comp time, sick time, etc., and may include lost pension and health benefit losses and contributions to those plans for hours that would otherwise have been worked.

The purpose of reinstatement and a back pay award is to make the employee whole, that is, to restore the employee to the same position he would have been in if not discriminated against. Back pay awards should, therefore, be based on all of the earnings the employee would have received but for the discrimination. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). The Sixth Circuit has held that §5851 (b)(2)(B) of the ERA allows compensatory damages in addition to abatement of discrimination, reinstatement with back pay, and restoration of all job related entitlements such as retirement benefits. Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), on remand at Deford v. Tennessee Valley Authority, 81-ERA1 (Sec’y Aug. 16, 1984). Medical expenses and damages for injury to reputation may also be awarded. Ibid.

Mr. Jayko is entitled to prejudgement interest on the back overtime pay, ten day suspension pay and lost litigation time pay in accordance with prevailing case law. The fact that the ERA, or the other the environmental Acts, do not expressly provide for interest on back pay awards does not preclude it. Back pay awards are designed to make whole the employee who has suffered economic loss as a result of an employer’s illegal discrimination. The assessment of prejudgment interest is necessary to achieve this end. According to the Administrative Review Board in Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), "[t]he usual interest rate employed on back pay awards under ... whistleblower provisions is the interest rate for underpayment of federal taxes, set forth at 26 U.S.C. § 6621(a)(2) (short-term Federal rate plus three percentage points)." The ARB held that in whistleblower cases, it awards the same rate of interest on back pay awards, both pre- and post-judgment that is, compounded and posted quarterly. The Board in Doyle stated: "In light of the remedial nature of the ERA’s employee protection provision and the ‘make whole’ goal of back pay, we hold that the prejudgment interest on back pay ordinarily shall be compound interest. Our reasoning applies equally to back pay awards under analogous employee protection provisions of the other federal statutes under which we issue administratively final decisions [the CAA, CERCLA, FWPCA, SDWA, SWDA, STAA and TSCA]. Absent any unusual circumstance, we will award compound interest on back pay in cases arising under all of these ... provisions."

Likewise, prejudgment interest on back wages recovered in litigation before the DOL is calculated, in accordance with 29 C.F.R. § 20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C. § 6621. The employer is not to be relieved of interest on a back pay award because of time elapsed during adjudication of the complaint. Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec’y Oct. 30, 1991); citing Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec’y Jan. 26, 1990).

As part of the "make whole" remedy, respondent may also be ordered to post notices containing the following order, and to submit such notices as are ordered by the undersigned to affected third parties. In McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y July 16, 1993), the respondent was ordered to expunge from its records all memoranda or reference to a reprimand which had been found to be in violation of the FWPCA's whistleblower provision, to post written notice for 30 days advising its employees that the reprimand had been expunged and that he has been reinstated to his former position, and to pay complainant's costs and expenses. See also Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000)(ARB affirmed the ALJ’s order requiring respondent to post the decision at its own facilities).

In Smith v. Esicorp, Inc., 1993-ERA-16 (ARB Aug. 27, 1998) (respondent was ordered to post, for a period of 90 days, the ARB's decision, and an earlier Secretary of Labor remand decision, in a lunchroom and another prominent place, accessible to employees at the nuclear facility where complainant was subjected to harassment. The ARB stated that "[t]he purpose of posting is to provide notice that whistleblowers will be protected if they are discriminated against. If [respondent] is unable to secure posting . . . at the . . . nuclear plant, notification may be accomplished by publishing the two documents in a local general circulation newspaper."

Mr. Jayko is entitled to compensatory and exemplary damages, under the various environmental statutes, as follows:

Compensatory damages are mandatory for a successful complaint under the TSCA, 15 U.S.C. § 2622(b)(2)(B)(iii), and may be awarded under the CAA, 42 U.S.C. § 7622 (b)(2)(B), and the RCRA, 42 U.S.C. § 6971(b). Jones v. EG&G Defense Materials, Inc., 1995-CAA-3 (ARB Sept. 29, 1998). Compensatory damages may also be awarded under the SDWA. White v. The Osage Tribal Council, 95-SDW-1 (ARB Aug. 8, 1997). The SWDA, CERCLA, and WPCA (CWA)also provide for compensatory damages. Marcus v. U.S. Environmental Protection Agency, 1996-CAA-3 (ALJ Dec. 15, 1998).

According to the Administrative Review Board, where a violation of the ERA is found, compensatory damages may also be awarded in addition to back pay. 42 U.S.C. § 5851(b)(2)(B); 29 C.F.R. § 24.6(b)(2). They may be awarded for emotional pain and suffering, mental anguish, embarrassment, and humiliation. The testimony of medical experts is not necessary; the award may be supported by the circumstances and testimony about physical or mental consequences of retaliatory action. Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec’y Sept. 17, 1993). Medical expenses and damages for injury to reputation may also be awarded. Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983), on remand at Deford v. Tennessee Valley Authority, 81-ERA1 (Sec’y Aug. 16, 1984). Furthermore, reimbursable costs include a successful complainant’s transportation to, and lodging and meals while attending, the DOL hearing. Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec’y Feb. 14, 1996). However, interest does not accrue on a compensatory damages award. Id.

In McCuistion v. TVA, 89-ERA-6 (Sec’y Nov. 13, 1991), the Secretary Of Labor cited favorably a series of decisions which upheld compensatory damages for the following types of harm: symptoms such as insomnia, nightmares, fatigue and appetite loss, an employee’s wife suffering from tremendous emotional strain, other marital problems, deterioration in health, an exacerbation of pre-existing hypertension, and feelings of remorse that the education of the employee’s daughter was disrupted. In Mitchell v. APS/ANPP, the Administrative Law Judge awarded $50,000, in part, because respondent’s hostile work environment caused the complainant to become upset and nervous, and suffer from post-traumatic stress disorder. 91-ERA-9 (ALJ July 2, 1992).

The TSCA and the SDWA explicitly permit "where appropriate, exemplary damages." Jones v. EG&G Defense Materials, supra.; see also Nuclear and Environmental Whistleblower Digest, Division XVI, Subdivision F, Punitive Damages. They are not authorized under CERCLA, WPCA (CWA) or the SWDA (Solid Waste Disposal). Berkman v. U.S. Coast Gaurd Academy, ARB No. 98-056, ALJ No.1997-CAA-2 (ARB Feb. 29, 2000), or under the CAA or the ERA. While such damages are not allowable absent express statutory authorization, Smith v. Esicorp, Inc., 93-ERA-16 (Sec’y Mar. 13, 1996), the Administrative Review Board has stated that where the applicable Act does provide such relief, and where the requisite state of mind (intent and resolve actually to take action to effect harm) exists, the decision to award punitive damages involves a discretionary moral judgment, and if the purposes of the statute can be served without resort to punitive measures, the Board does not award exemplary damages. Jones v. EG&G Defense Materials, Inc., 1995-CAA-3 (ARB Sept. 29, 1998). Mere indifference to the purposes of the environmental acts is not sufficient to constitute the requisite state of mind for an award of exemplary damages. Id.; citing Johnson v. Old Dominion Security, 1986-CAA-3, 4 and 5 (Sec’t May 29, 1991) (dealing with violations of the CAA and the TSCA).

Here, I find two important factors present: (1) The totality of Mr. Jayko’s investigative activity was such that all of the seven environmental Acts were invoked from the beginning of his assignment to the end of it, due to his mandate to determine the causes of leukemia in the Marion Ohio area. I also find that his actions thereunder were so related and intertwined that they were inseparable, thereby invoking the TSCA and the SWDA, as well as the other five Acts with each violation; and, (2) OEPA management had an intent to promote harm to Mr. Jayko, in the referral of the theft charges to the Ohio State Highway Patrol, and to thereby either severely limit, if not to shut down Mr. Jayko’s entire investigative activity, under the TSCA and the SDWA as well as the other Acts, and I have specifically rejected OEPA management’s explanations therefore. (They failed to provide any meaningful investigation for the charges before the referral. They failed to confront Mr. Jayko and consider an explanation for the inclusion. They failed to determine the amount of the charges. They failed to allow him to resubmit his request for reimbursement, or to make up the difference, when they had permitted at least one managerial employee to reimburse the agency for an amount much larger than the one on question with Mr. Jayko.) The action was unconscionable and designed to hurt Mr. Jayko. It must be considered one that warrants an award of exemplary damages under these Acts.

Mr. Jayko and his wife have testified to the various effects that the employer’s unlawful conduct has wrought, which I credit in its entirety, as follows:

1. Mr. Jayko has lost the honor and the prestige of the site coordinator position that he had earned and held before the transfer, to which he believes that he is now entitled to reinstatement, and is able to perform. (FF 293-309) I agree that he is entitled to reinstatement, back pay and a make whole remedy.

2. Mr. Jayko has lost various effects of the Marion site coordinator position, which amounts to a total of ten hours per week since the date of his transfer, through the date of this decision and order, (FF 315) plus increases in pay per hour, if any, and less overtime actually paid, at the rate of time and one half per hour ($23.65 hr. X 1.5 X 10 hrs./wk) or approximately $354.80 week, minimum, plus increases, if any, and interest. At the minimum this includes 117 wks. X $354.80 per wk., or $41,511.60 plus increases, less other paid overtime pay, plus interest on the balance.

3. Mr. Jayko was suspended for ten days without pay for the Pizza Hut alcohol drinking and travel reimbursement issues, (FF 310) for which he is entitled to back pay in the amount of $23.65 per hour, base pay, plus 20 hours overtime at the rate of time and one half for the two weeks in question, for a total of $2,601.60, plus interest and lost benefits related thereto, if any.

4. Mr. Jayko has lost at least 30 days of either vacation pay benefits, leave without pay, comp time or other pay for lost time, in the pursuit of this litigation before the hearing, and a combination of earned comp time, personal days for participating in the litigation, including preparation for and participation in the hearing and some other unpaid leave that he had to charge to his time card, (FF 311) for which he is entitled to reinstatement of that lost time.

5. Mr. Jayko testified that his pending promotion to Lt. Colonel in the U.S. Army Reserve has been cast into jeopardy by the false allegations made against him, in particular those of theft in office involving the alcoholic beverage and excessive expense reimbursement allegations, (FF 316-318, and 329-332), concerning which he is entitled to a make whole remedy by directing OEPA to submit a letter to the U.S. Army Reserve informing that agency of this recommended decision and order, and the accompanying preliminary order, and the fact that OEPA has been ordered to remove all negative personnel documents and entries from Mr. Jayko’s files, and to include a copy of the order set forth herein.

6. I also direct the OEPA to notify all other agencies of the Ohio government and the United States Government with whom the OEPA has been involved in the Marion project of the same information that has been ordered to be submitted to to the U.S. Army Reserve, to include but not be limited to: the Office of the Ohio Governor, the Ohio Department of Health, The U.S. Army Corps of Engineers; the U.S. Environmental Protection Agency, the U.S. Department of Energy, the U.S. Nuclear Regulatory Commission, and each sub agency responsible for administration of the CAA, the SDWA, the SWDA, the WPCA (CWA), the TSCA and CERCLA, and subject to Mrs. Jayko’s approval, her Ohio State employer.

7. Mr. Jayko believes, testimony supports, and I so find, that OEPA’s unlawful conduct has affected Mr. Jayko’s reputation, both on and off the job, for which I am directing the OEPA to post a notice of this determination by posting the attached order on all employee bulletin boards in respondent’s Columbus office, its Northwest District Office, and all other offices of the OEPA. (FF 318-322)

8. Mr. Jayko claims emotional damages in the allegations of theft, and other allegations regarding drinking on the job, and having the theft allegations forwarded as such to the OSHP. He has supported those claims by his own testimony, and that of his wife. I have observed his forthrightness, his consistency, and demeanor throughout the trial, and I credit his testimony on these points, as well as that of his wife, Mrs. Jayko. I conclude that this ordeal has resulted in personal stress to which he testified, stress in his marriage, and the marital effects on both of them in having to liquidate virtually all of their savings and financial assets and forgo vacations to support the litigation. (FF 324-328) This condition has had an effect far beyond the actual costs, and has added to the stress over and above the attorneys’ fees and the costs of litigation. Mr. Jayko is, therefore, entitled to compensatory damages under all seven environmental Acts, for his physical or mental consequences of OEPA’s retaliatory action, including emotional pain and suffering, mental anguish, embarrassment, and humiliation, as well as the effects on his wife, which I credit, in the amount of $45,000.00. In determining this amount, I have considered the fact that Mr. Jayko was transferred and suspended, but was not terminated from his employment.

9. I also find that Mr. Jayko is entitled to exemplary damages under the CAA, the TSCA and the SDWA, due to the willful misconduct and intent to harm him that was apparent in the theft referral to the OSHP as set forth above, in the amount of $45,000.00. In determining this amount, I have considered the fact that Mr. Jayko was transferred and suspended, but was not terminated from his employment.

10. Mr. Jayko states that he is entitled to his attorneys’ fees and costs of litigation, including his own travel expenses (Mileage, lodging and meals), and those of his attorneys. I direct the complainant’s attorneys to file an application therefore, postmarked within thirty days of the date of this decision and order and preliminary order. It may include as a separate item, costs of Mr. Jayko’s own transportation and lodging while engaged in the hearing on this matter. Requests for attorney travel and expenses must be specifically documented and briefed, to which respondent will be permitted a memorandum in response to be postmarked on or before 20 days from receipt of complainant’s brief. A reply brief from complainant may be postmarked within 10 days of receipt of that response.

11. In addition to the above, upon finding a violation of the ERA, 29 C.F.R. §24.7(c)(2) requires that, in the event that I find that the complaint has merit and contains the relief prescribed in 29 C.F.R. §24.7(c)(1), then I must issue a preliminary order providing all of the relief set forth in that paragraph, with the exception of compensatory damages. This preliminary order shall constitute the preliminary order of the Secretary of Labor, and shall be effective immediately whether or not a petition for review is filed with the Administrative Review Board. The compensatory damage award shall not be effective until the final decision is issued by the Administrative Review Board. The ERA does not permit exemplary damages. Under this preliminary order, the implementation of the "make whole" remedies are mandated. These include the reinstatement of Mr. Jayko to his former position as site coordinator for the Marion project together with payment of his lost back pay, overtime pay, vacation pay, personal days pay, comp. time and benefits, is mandated, effective immediately upon issuance of this preliminary order. It also includes posting of the order, and the communication of it together with the cover letter set forth above to all U.S. Government and State of Ohio agencies with which Mr. Jayko was involved on the Marion project.

Therefore, the following recommended order, to be effective immediately if no petition for review is filed, or upon an applicable ruling by the Administrative Review Board if review is sought under the provisions of 29 C.F.R. §24.1(c)(1), and the following preliminary order, to be effective immediately whether or not a petition for review is filed with the Board under the provisions of 29 C.F.R. §24.1(c)(2), are hereby issued:

RECOMMENDED ORDER

Having found that Mr. Jayko’s complaint has merit in that OEPA has violated the employee protective provisions of the seven United States environmental Acts in his transfer as site coordinator from the Marion project and in his ten day suspension, under the Energy Reorganization Act, 42 U.S.C. Section 5851; the Clean Air Act, 42 U.S.C. Section 7622 (a); the Solid Waste Disposal Act, 42 U.S.C. Section 6971; the Toxic Substances Control Act, 15 U.S.C. Section 2622; the Federal Water Pollution Prevention and Control Act, 33 U.S.C. Section 1367; the Safe Drinking Water Act,, or Public Health Service Act, 42 U.S.C. Section 300j-9; and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9610; and the implementing regulations appearing at 29 C.F.R. Part 24.1, and having considered the remedies and damages that must be ordered to rectify those violations to make Mr. Jayko whole and to compensate Mr. Jayko for them within the provisions of the seven Acts, therefore,

IT IS ORDERED that,

1. Respondent OEPA cease and desist all conduct involving the above determined interference, restraint and coercion, and all discriminatory conduct toward Complainant Paul Jayko for his protected activity under the above United States environmental Acts;

2. Mr. Jayko be immediately reinstated to his former position as site coordinator on the Marion, Ohio project;

3. Mr. Jayko receive full back pay for all time lost due to his change in position such as overtime pay, vacation pay, personal days pay, comp time and benefits, to include, but not be limited to $41,511.60 ($23.65 per hr. base rate, x time and one half or $35.48 overtime, X 10 hrs./wk x 117 weeks through September 29, 2000other earned overtime pay, minus other earned overtime, if any, plus lost benefits, if any;

3. Mr. Jayko receive full back pay for all time lost due to his ten day suspension in the amount of $2,601.60, plus lost benefits, if any;

4. Mr. Jayko’s 30 days lost vacation time, compensatory time, personal days, etc. while involved with the various phases of the litigation be reinstated in full, plus related lost benefits, if any;

5. Mr. Jayko’s personnel file be expunged of all adverse personnel actions and comments regarding allegations against him made as a result of his investigation of the Marion project as set forth herein, including but not limited to, both his transfer as site coordinator, and those leading to the ten day suspension for the drinking of alcohol and reimbursement application;

6. Respondent post a notice consisting of copies of the attached order and preliminary order on all employee bulletin boards in its Columbus, Ohio Central Office, its Northwest District Office, and all other district offices, for a minimum of 90 days;

7. A letter be addressed to the appropriate office of the United States Army notifying that agency that Mr. Jayko has been cleared of all allegations against him made as a result of his investigation of the Marion project as set forth herein, including both the transfer as site coordinator, and those regarding alleged drinking while on state time or before a public meeting, and those involved for improper submission of travel expenses leading to the ten day suspension, and that his files have been expunged as set forth above, and that the letter include a copy of this order and preliminary order;

8. A letter as that set forth to the U.S. Army Reserve containing this order and preliminary order, be addressed to all agencies with whom Mr. Jayko had any dealings in his capacity as site coordinator for the Marion project, or to whom notice of his transfer and suspension personnel actions, to include but not be limited to: the Office of the Governor of the State of Ohio, the Ohio Department of Health, the U.S. Army Corps of Engineers; the U.S. Environmental Protection Agency, the U.S. Department of Energy, the U.S. Nuclear Regulatory Commission, and each sub agency responsible for administration of the CAA, the SDWA, the SWDA, the WPCA (CWA), the TSCA and CERCLA, and subject to Mrs. Jayko’s approval, her Ohio State employer.

9. Mr, Jayko be awarded compensatory damages in the amount of $45,000.00 to cover his stress, humiliation, marital effects and loss of reputation, which now must be reestablished, even though he has continued working for the OEPA;

10. Mr. Jayko be awarded exemplary damages in the amount of $45,000.00 for the willful actions of management to harm Mr. Jayko, in summarily referring the theft allegations to the Ohio State Highway patrol for investigation, and thereafter proceeding to give him an unwarranted, ten day suspension for the discredited charges as set forth herein;

11. Where applicable, that Mr. Jayko receive interest on all amounts set forth herein from the dates of his suspension and his transfer through the dates that the suspension and transfer are determined to have ended;

12. Mr. Jayko be awarded his attorneys fees and costs of litigation, concerning which I direct the complainant’s attorneys to file an application therefore, postmarked within thirty days of the date of this decision and order and preliminary order, which may include as a separate item, costs of his transportation and lodging while engaged in the hearing on this matter. Requests for attorney travel and expenses must be specifically documented and briefed, to which respondent will be permitted a memorandum in response to be postmarked on or before 20 days from receipt of complainant’s brief. A reply brief from complainant may be postmarked within 10 days of receipt of that response.

13. All other outstanding motions which have not been directly addresses in this recommended decision and order, are denied.

IT IS SO ORDERED this __ day of October, 2000.

_________________________
THOMAS F. PHALEN, JR.
Administrative Law Judge

NOTICE

The Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief, Administrative Law Judge. See 29 C.F.R. § 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

PRELIMINARY ORDER

Since I have found that Mr. Jayko’s complaint has merit in that OEPA has violated the employee protective provisions of the seven United States environmental Acts in his transfer as site coordinator from the Marion project and in his ten day suspension, under the Energy Reorganization Act, 42 U.S.C. Section 5851; the Clean Air Act, 42 U.S.C. Section 7622 (a); the Solid Waste Disposal Act, 42 U.S.C. Section 6971; the Toxic Substances Control Act, 15 U.S.C. Section 2622; the Federal Water Pollution Prevention and Control Act, 33 U.S.C. Section 1367; the Safe Drinking Water Act,, or Public Health Service Act, 42 U.S.C. Section 300j-9; and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9610; and the implementing regulations appearing at 29 C.F.R. Part 24.1, and that the above order contains the relief prescribed in 29 C.F.R. §24.7(c)(1), I hereby issue this order as a preliminary order providing for immediate implementation of the following actions to abate the effects of the violations consisting of all of the "make whole" relief set forth above, as follows:

IT IS ORDERED that,

1. Respondent OEPA cease and desist all conduct involving the above determined interference, restraint and coercion, and all discriminatory conduct toward Complainant Paul Jayko for his protected activity under the above United States environmental Acts;

2. Mr. Jayko be immediately reinstated to his former position as site coordinator on the Marion, Ohio project;

3. Mr. Jayko receive full back pay for all time lost due to his change in position such as overtime pay, vacation pay, personal days pay, comp time and benefits, to include, but not be limited to $41,511.60 ($23.65 per hr. base rate, x time and one half or $35.48 overtime, X 10 hrs./wk x 117 weeks through September 29, 2000, other earned overtime pay, minus other earned overtime, if any, plus lost benefits, if any;

4. Mr. Jayko receive full back pay for all time lost due to his ten day suspension in the amount of $2,601.60, plus lost benefits, if any;

5. Mr. Jayko’s 30 days lost vacation time, compensatory time, personal days, etc. while involved with the various phases of the litigation be reinstated in full, plus related lost benefits, if any;

6. Mr. Jayko’s personnel file be expunged of all adverse personnel actions and comments regarding allegations against him made as a result of his investigation of the Marion project as set forth herein, including but not limited to, both his transfer as site coordinator, and those leading to the ten day suspension for the drinking of alcohol and reimbursement application;

7. Respondent post a notice consisting of copies of the attached order and preliminary order on all employee bulletin boards in its Columbus, Ohio Central Office, its Northwest District Office, and all other district offices, for a minimum of 90 days;

8. A letter be addressed to the appropriate office of the United States Army notifying that agency that Mr. Jayko has been cleared of all allegations against him made as a result of his investigation of the Marion project as set forth herein, including both the transfer as site coordinator, and those regarding alleged drinking while on state time or before a public meeting, and those involved for improper submission of travel expenses leading to the ten day suspension, and that his files have been expunged as set forth above, and that the letter include a copy of this order and preliminary order;

9. A letter as that set forth to the U.S. Army Reserve containing this order and preliminary order, be addressed to all agencies with whom Mr. Jayko had any dealings in his capacity as site coordinator for the Marion project, or to whom notice of his transfer and suspension personnel actions, to include but not be limited to: the Office of the Governor of the State of Ohio, the Ohio Department of Health, the U.S. Army Corps of Engineers; the U.S. Environmental Protection Agency, the U.S. Department of Energy, the U.S. Nuclear Regulatory Commission, and each sub agency responsible for administration of the CAA, the SDWA, the SWDA, the WPCA (CWA), the TSCA and CERCLA, and subject to Mrs. Jayko’s approval, her Ohio State employer.

10. Where applicable, that Mr. Jayko receive interest on all amounts set forth herein from the dates of his suspension and his transfer through the dates that the suspension and transfer are determined to have ended;

11. Mr. Jayko be awarded his attorneys fees and costs of litigation, concerning which I direct the complainant’s attorneys to file an application therefore, postmarked within thirty days of the date of this decision and order and preliminary order, which may include as a separate item, costs of his transportation and lodging while engaged in the hearing on this matter. Requests for attorney travel and expenses must be specifically documented and briefed, to which respondent will be permitted a memorandum in response to be postmarked on or before 20 days from receipt of complainant’s brief. A reply brief from complainant may be postmarked within 10 days of receipt of that response.

This preliminary order shall constitute the preliminary order of the Secretary of Labor, and shall be effective immediately whether or not a petition for review is filed with the Administrative Review Board. The compensatory damage award, as well as the exemplary damage award under the other applicable statutes, shall not be effective until the final decision is issued by the Administrative Review Board.

IT IS SO ORDERED this __ day of October, 2000.

_____________________
THOMAS F. PHALEN, JR.
Administrative Law Judge

RECOMMENDED NOTICE TO EMPLOYEES

IN THE MATTER OF:
PAUL JAYKO VS. THE OHIO ENVIRONMENTAL PROTECTION AGENCY
CASE NO. 1999-CA-5

POSTED BY ORDER OF THE ADMINISTRATIVE REVIEW BOARD UNITED STATES DEPARTMENT OF LABOR AN AGENCY OF THE UNITED STATES GOVERNMENT

After a hearing in which the parties HAD THE OPPORTUNITY TO PRESENT EVIDENCE , THE Administrative Review Board, U.S. Department of Labor, has found that the Ohio Environmental Protection Agency (Respondent) has violated the law in its treatment of Paul Jayko (Complainant) and has ordered the posting of this notice.

Having found that Mr. Jayko’s complaint has merit in that OEPA has violated the employee protective provisions of the seven United States environmental Acts in his transfer as site coordinator from the Marion project and in his ten day suspension, under the Energy Reorganization Act, 42 U.S.C. Section 5851; the Clean Air Act, 42 U.S.C. Section 7622 (a); the Solid Waste Disposal Act, 42 U.S.C. Section 6971; the Toxic Substances Control Act, 15 U.S.C. Section 2622; the Federal Water Pollution Prevention and Control Act, 33 U.S.C. Section 1367; the Safe Drinking Water Act,, or Public Health Service Act, 42 U.S.C. Section 300j-9; and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9610; and the implementing regulations appearing at 29 C.F.R. Part 24.1, and having considered the remedies and damages that must be ordered to rectify those violations to make Mr. Jayko whole and to compensate Mr. Jayko for them within the provisions of the seven Acts, therefore, it has been ordered that certain actions be taken to abate the effects of those violations, concerning which it is directed that the following action be taken:

1. WE WILL cease and desist all conduct involving the above determined interference, restraint and coercion, and all discriminatory conduct toward Complainant Paul Jayko for his protected activity under the above United States environmental Acts;

2. WE WILL immediately reinstate Mr. Jayko to his former position as site coordinator on the Marion, Ohio project;

3. WE WILL immediately pay Mr. Jayko his full back pay for all time lost due to his change in position such as overtime pay, vacation pay, personal days pay, comp time and benefits, to include, but not be limited to $41,511.60 ($23.65 per hr. base rate, x time and one half or $35.48 overtime, X 10 hrs./wk x 117 weeks through September 29, 2000 minus other earned overtime pay, minus other earned overtime, if any, plus lost benefits, if any;

3. WE WILL immediately pay Mr. Jayko his full back pay for all time lost due to his ten day suspension in the amount of $2,601.60, plus lost benefits, if any;

4. WE WILL immediately reinstate Mr. Jayko’s 30 days lost vacation time, compensatory time, personal days, etc. and/or other such time while involved with the various phases of the litigation, plus related lost benefits, if any;

5. WE WILL immediately expunge Mr. Jayko’s personnel file of all adverse personnel actions and comments regarding allegations against him made as a result of his investigation of the Marion project as set forth herein, including but not limited to, both his transfer as site coordinator, and those leading to the ten day suspension for the drinking of alcohol and reimbursement application;

6. WE WILL immediately post a notice consisting of copies of the attached notice and preliminary order on all employee bulletin boards at its Columbus, Ohio Central Office, its Northwest District Office, and all other district offices, for a minimum period of 90 days;

7. WE WILL immediately address a letter to the appropriate office of the United States Army notifying that agency that Mr. Jayko has been cleared of all allegations against him made as a result of his investigation of the Marion project as set forth herein, including both the transfer as site coordinator, and those regarding alleged drinking while on state time or before a public meeting, and those involved for improper submission of travel expenses leading to the ten day suspension, and that his files have been expunged as set forth above, and that the letter include a copy of this notice and order;

8. WE WILL immediately send a letter as that set forth to the U.S. Army Reserve containing this notice and order, to be addressed to all agencies with whom Mr. Jayko had any dealings in his capacity as site coordinator for the Marion project, or to whom notice of his transfer and suspension personnel actions, to include but not be limited to: the Office of the Governor of the State of Ohio, the Ohio Department of Health, the U.S. Army Corps of Engineers; the U.S. Environmental Protection Agency, the U.S. Department of Energy, the U.S. Nuclear Regulatory Commission, and each sub agency responsible for administration of the CAA, the SDWA, the SWDA, the WPCA (CWA), the TSCA and CERCLA, and subject to Mrs. Jayko’s approval, her Ohio State employer.

9. WE WILL immediately pay Mr, Jayko compensatory damages in the amount of $45,000.00 to cover his stress, humiliation, marital effects and loss of reputation, which now must be reestablished, even though he has continued working for the OEPA;

10. WE WILL immediately pay Mr. Jayko exemplary damages in the amount of $45,000.00 for the willful OEPA management actions which have harmed Mr. Jayko, in summarily referring the theft allegations to the Ohio State Highway patrol for investigation, and thereafter proceeding to give him an unwarranted, ten day suspension for the discredited charges as set forth in the decision and order;

11. WE WILL immediately pay Mr. Jayko, where applicable, prejudgment interest on all amounts set forth herein from the dates of his suspension and his transfer through the dates that the suspension and transfer are determined to have ended;

12. WE WILL pay Mr. Jayko his attorneys’ fees and costs of litigation.

APPROVED, this __ day of ________, 200_.

_________________________________
DIRECTOR, OHIO ENVIRONMENTAL PROTECTION AGENCY

NOTICE TO EMPLOYEES

IN THE MATTER OF:
PAUL JAYKO VS. THE OHIO ENVIRONMENTAL PROTECTION AGENCY
CASE NO. 1999-CA-5

POSTED BY PRELIMINARY ORDER OF AN ADMINISTRATIVE LAW JUDGE UNITED STATES DEPARTMENT OF LABOR AN AGENCY OF THE UNITED STATES GOVERNMENT

After a hearing in which the parties had the opportunity to present evidence , an Administrative Law Judge of the U.S. Department of Labor, has found that the Ohio Environmental Protection Agency (Respondent) has violated the law and that Mr. Jayko’s complaint has merit. In particular it has been found that OEPA has violated the employee protective provisions of the seven United States environmental Acts, in particular under the Energy Reorganization Act, 42 U.S.C. Section 5851 in Mr. Jayko’s transfer as site coordinator from the Marion project and in his ten day suspension, as well as under the Clean Air Act, 42 U.S.C. Section 7622 (a); the Solid Waste Disposal Act, 42 U.S.C. Section 6971; the Toxic Substances Control Act, 15 U.S.C. Section 2622; the Federal Water Pollution Prevention and Control Act, 33 U.S.C. Section 1367; the Safe Drinking Water Act,, or Public Health Service Act, 42 U.S.C. Section 300j-9; and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9610; and the implementing regulations appearing at 29 C.F.R. Part 24.1, and that the above order contains the relief prescribed in 29 C.F.R. Section 24.7(c)(1). Therefore the Administrative Law Judge has issued an order as a preliminary order providing for immediate implementation of the following actions by the OEPA to abate the effects of the violations consisting of all of the "make whole" relief set forth above, as follows:

1. WE WILL cease and desist all conduct involving the above determined interference, restraint and coercion, and all discriminatory conduct toward Complainant Paul Jayko for his protected activity under the above United States environmental Acts;

2. WE WILL immediately reinstate Mr. Jayko to his former position as site coordinator on the Marion, Ohio project;

3. WE WILL immediately pay Mr. Jayko his full back pay for all time lost due to his change in position such as overtime pay, vacation pay, personal days pay, comp time and benefits, to include, but not be limited to $41,511.60 ($23.65 per hr. base rate, x time and one half or $35.48 overtime, X 10 hrs./wk x 117 weeks through September 29, 2000other earned overtime pay, minus other earned overtime, if any, plus lost benefits, if any;

3. WE WILL immediately pay Mr. Jayko his full back pay for all time lost due to his ten day suspension in the amount of $2,601.60, plus lost benefits, if any;

4. WE WILL immediately reinstate Mr. Jayko’s 30 days lost vacation time, compensatory time, personal days, etc. and/or other such time while involved with the various phases of the litigation, plus related lost benefits, if any;

5. WE WILL immediately expunge Mr. Jayko’s personnel file of all adverse personnel actions and comments regarding allegations against him made as a result of his investigation of the Marion project as set forth herein, including but not limited to, both his transfer as site coordinator, and those leading to the ten day suspension for the drinking of alcohol and reimbursement application;

6. WE WILL immediately post a notice consisting of copies of the attached notice and preliminary order on all employee bulletin boards at its Columbus, Ohio Central Office, its Northwest District Office, and all other district offices, for a minimum period of 90 days;

7. WE WILL immediately address a letter to the appropriate office of the United States Army notifying that agency that Mr. Jayko has been cleared of all allegations against him made as a result of his investigation of the Marion project as set forth herein, including both the transfer as site coordinator, and those regarding alleged drinking while on state time or before a public meeting, and those involved for improper submission of travel expenses leading to the ten day suspension, and that his files have been expunged as set forth above, and that the letter include a copy of this notice and order;

8. WE WILL immediately send a letter as that set forth to the U.S. Army Reserve containing this notice and order, to be addressed to all agencies with whom Mr. Jayko had any dealings in his capacity as site coordinator for the Marion project, or to whom notice of his transfer and suspension personnel actions, to include but not be limited to: the Office of the Governor of the State of Ohio, the Ohio Department of Health, the U.S. Army Corps of Engineers; the U.S. Environmental Protection Agency, the U.S. Department of Energy, the U.S. Nuclear Regulatory Commission, and each sub agency responsible for administration of the CAA, the SDWA, the SWDA, the WPCA (CWA), the TSCA and CERCLA, and subject to Mrs. Jayko’s approval, her Ohio State employer.

9. WE WILL immediately pay Mr. Jayko, where applicable, prejudgment interest on all amounts set forth herein from the dates of his suspension and his transfer through the dates that the suspension and transfer are determined to have ended; APPROVED, this __ day of ________, 200_.

_________________________________
DIRECTOR, OHIO ENVIRONMENTAL PROTECTION AGENCY

APPENDIX A

August 8, 1997 Jayko/Indian Summation Letter Re: Marion Engineering Depot (RX EX. 113)

Mr. Jayko’s August 8, 1997 letter to Mr. Indian at ODH, regarding the Marion Engineer Depot (RX EX. 113) also stated that:

Historical accounts indicate that in addition to standard depot operations, radiological activities to support the Manhattan project may have also occurred . . . there. (RX. EX. 113)

He quoted post-war Safety Director, Robert Ferguson, at MED as statingt that radioactive sniper scopes (metascopes) were stored there, and a special building constructed of brick and lead-lined interior walls and a copper roof to house dangerous radioactive materials. In 1956-57, the building was decontaminated and the materials removed. Chemical, biological and radiological (CBR) training also occurred there in the 1950's with radioactive gamma sources scattered throughout the area now occupied by the River Valley Schools. Two sticks of radium 226 were discovered on the site in 1986 and removed; gasoline tanks were also removed, and 4,000 tons of asbestos was scheduled for removal that year.

Eventually, the Army turned over a dump relating to their formerly utilized defense sites (FUDS)at Marion Engineer Depot to the Corps of Engineers. It included paint, paint thinners and removers, carbon tetracholoride, trichloroethylene, and fingerprint removal solutions, and may have been located east of Sixth Street and back to Route 198 which includes the current location of River Valley Schools. Mr. Jayko suggested further investigation to substantiate the content of the dump site, suggesting that the school is located on top of or near the dump site.

This report is verified by that of Ruth Vandergrift in the October 30-31, 1997 report on MED Building 517. (RX. EX. 118; FF 67)

With regard to the Scioto Ordnance Plant (SOP), it was constructed in 1942 to manufacture fuses, boosters, canons, and artillery shells, incendiary bombs, and napalm bombs. This was followed by a history of occupation by other contractors of military ordnance including a gearing up for the manufacture of incendiary and cluster bombs for the Chemical Warfare Service of the War Department. Production shut down immediately upon cessation of the war. Most of the buildings were razed to make room for the Marion Correctional Institute. The Atomic Energy Commission (AEC) and the Department of Energy (DOE) played a part in the history of SOP. The Monsanto Building was built in 1947 and 1948 on the grounds and Monsanto was awarded a contract to research one of several methods of developing atomic energy. Eventually that process was developed at Oak Ridge, Tennessee and the Monsanto operation was abandoned. (RX. Ex. 113, p. 4)

In April, 1949, the AEC acquired SOP, and Monsanto Corporation was again contracted to construct, equip, and operate a facility as a backup for the Mound Laboratory in Miamisburg, Ohio to produce polonium and triggers for nuclear weapons, referred to as "Unit VI." It received little or no radioactive material and never produced initiators because the Mound remained in operation, but was vacated and sold in 1953-54, and is now occupied by Warner Warehousing since 1973. (Ibid)

The possible contaminants believed to have existed at one time on the grounds include Mercorse, Fulminate, Uranium, Magnesium, Benzine, Sodium, Charcoal, Sulfur, Naptha, Nitrate and Polystyrene Gasoline.

Five buildings (IGLOOS) were constructed there to store mercuric fulminate, two of which remain at the current Marion Municipal Airport. Incendiary bombs and napalm were produced using mixtures of the other contaminants.

Summaries of recent investigations to the date of Mr. Jayko’s report, show that Marion has been identified through the Defense and Environmental Restoration Program as Formerly Utilized Defense Sites (DERP - FUDS) as such a site by the U.S. Army Corps of Engineers (USA COE) and assigned a site number of G050H015000. However, it has now been eliminated from consideration as a Department of Energy (AEC) Formerly Utilized Sites Remedial Action Program (FUSRAP). The USA COE files appear to relate only to underground storage tanks. With additional investigation warranted, other options may be pursued, but no additional investigations have been planned by the Corps. (RX. EX. 113 at p. 5)

___________

Reports and files reviewed by Mr. Jayko on July 18, 1997, according to his August 7, 1997 report:

Report on Environmental Assessment of former Marion Engineer Depot, Marion, Ohio. (RX. EX. 113, p. 6-7)

The reports and files reviewed by Mr. Jayko on July 18, 1997, according to his August 8, 1997 report, involved the Report on Environmental Assessment of former Marion Engineer Depot, Marion, Ohio, by ERM-Midwest, Inc., in June, 1990. It was submitted to Graham Investment/GP Properties as a "Phase I" environmental assessment from the facility and grounds, covering areas of history, hazardous materials, hazardous waste handling, waste water discharge, environmental regulation compliance, air emissions, solid waste management, tanks, CERCLA, asbestos, PCBs, radioactive material, and spills. He stated that the report concludes that:

[N]o significant environmental conditions are apparent which would adversely impact the pending transaction on the property. However, there are environmental issues of concern which should be addressed by the parties involved, including underground storage tanks, waste and PCB transformer storage, and the presence of radioactive materials. This conclusion is based on ERMs understanding of what the U.S. Government has taken responsibility for the USTs, the GP Properties will manage the storage waste and PCB transformers in a appropriate and timely manner, and that the GP Properties will continue to pursue removal of the radioactive materials. (Ibid)

The report discusses that the former use of 14 buildings on the 140 acre parcel included radioactive materials and strategic stockpiles maintained at the MED from mid-1960's through 1980, consisting of tin, chromium, tannin, and asbestos. It discusses the water supply, the adjacent brass/bronze foundry west of the property, surface water samples having been taken with findings of arsenic, cadmium, lead, and toluene elements found above detection limits. They discussed underground storage tanks (UST) in building 517, and the former radioactive storage building off Second Street, believed to have been decontaminated in 1956-57. (Ibid) (As the ODH report by Ms. Vandergrift verifies this part was wrong, since Building 517 was the subject of a Final Survey Report of October 30-31, 1997, forwarded to Mr. Jayko on January 26, 1998. (RX. EX. 118; FF 67))

In addition, building 106, was found to have two small tubes of radium 226 containing seven micro curies with a gamma radiation source with a half-life of 1,620 years (In 1989? 1986?). They were believed to be collaboration sources for personal dosimeters and were removed by USACOE after discovery. The report notes that "aerial photographs, back to 1951, show a property disposal yard near the reservoir to be actively in use." (Id at p. 7) Other reports included asbestos removal, disposal of drums of waste of 25 55-gallon drums, and 23 smaller containers with composite samples of 1-1-1 trichloroethane moved on November 12, 1990. Others included reposition of PCB transformers left on the site. On December 11, 1990, including 37 pounds of transformers containing less than 450 parts per million (ppm) of PCB; 1,200 pounds of transformers containing greater than 450 ppm of PCB, and 2,000 pounds of capacitors. As stated above, the radium 226 were removed after discovery and six underground storage tanks were removed. (Ibid)

The last closure of a building, 306, January 3, 1991, involved underground storage tanks.

With regard to the Scioto Ordnance Plant (SOP), "numerous conventional explosive ordnance fill lines were in existence at this site, as well as fill lines for incendiary devices." He could not confirm evidence "available for determining the extent of the environmental contamination that may have occurred" from them. It is confirmed, though, that: "at least two structures were set up for handling of radioactive materials but is unknown to what extent those two structures were used." He admitted "no evidence of gross radiologic contamination" pursuant to the USACOE radiologic survey of 1995." No surveys of explosive, hazardous or toxic materials have been conducted "by them" at the SOP. He stated that "residential sites now occupy the areas of the former Scioto Ordnance Plant and they suspected that several of these residences utilize ground water for their potable source." (Ibid) Based upon the information available, he concluded that the most likely pathways for the school were:

  1. Dermal, contact with contaminated shallow soils
  2. Inhalation, volatilization resulting in airborne vapors
  3. Ingestion, ingestion of contaminated shallow soils
  4. Radiological, contact or proximity with a radioactive source or contaminated media.

Those considered unlikely were:

  1. Dermal, contact with contaminated intermediate or deep soils
  2. Dermal, contact with contaminated ground water
  3. Ingestion of contaminated ground water; as the school utilizes a municipal supply
  4. Ingestion, ingestion of contaminated intermediate or deep soils
  5. Inhalation, volatiles contained in drinking or bathing waters.

(Rx. Ex. 113 at p. 9)

Other conclusions of Mr. Jayko included in the report were:

In addition, the Director’s Office had committed the investigation to include drinking water; the Ohio Department of Health agreed to conduct the radiation survey, and he discussed the actual plans to conduct investigation of soil gases, air monitoring, and shallow soils, as the responsibility of the OEPA.

Mr. Jayko requested that the plans be reviewed by OEPA, USACOE, and a private company, Harsco Corporation, whose property would require access and also a review of the plans.

In October of 1995, a Final Limited Site Investigation Report for the Radiological Contamination at the Former Scioto Ordnance Plant, Marion, Ohio, was conducted under contract for the U.S. Army Corps of Engineers. (RX 112) It’s conclusions and recommendations stated:

The results of the SI survey and sampling indicate there were no observable gross areas of radiological contamination noted at the Monsanto Building and the Likins Chapel. [Both parts of the Scioto Ordnance Plants] The radiological contamination survey results provided no observable reading above 100 counts per minute for alpha and beta/gamma. The water sample analytical results were below the associated action levels. The results of the study indicate that gross radiological contamination of the Monsanto Building and Likins Chapel is not present and, therefore, no further action is recommended. (Id. at 85)

APPENDIX B

Testimony Regarding Paul Jayko’s October 15, 1997 Six Concerns Memorandum

Of primary interest, Concern No. 5 refers to parameters remaining for analysis in order to insure that the water entering the distribution lines is actually free of contaminants. For this, Mr. Jayko needed a full metals analysis, as well as analyses for pesticides, and semi-volatiles to include total PAHs. He stated:

[I]t had been historically known actually before I even joined the EPA that this section of the Little Scioto River was one of the most contaminated sections . . .. But the section of the river near the water intake was highly contaminated with these PAHs." (T 1634-35)

While confirming that the highest contaminated levels were actually slightly downstream of the water intake, the concern remained that there is still high levels that are upstream of the intake. (T 1635)

Mr. Jayko stated that various studies, which were eventually published by the Division of Service Water known as Water Quality Studies, would use river mile markers and check sediment levels. While they had found that slightly downstream of the intake was the highest level, they still found elevated levels of these contaminants upstream before they had the potential of moving downstream and being captured by the intake. (T 1636) Besides the study showing 105 ppm of PAHs, he believed they also had found elevated levels of other constituents upstream. (Ibid)

Concern No. 1 cites a water quality study that was done in 1994, as one of several water quality studies done historically in the area. The particular 1994 study found that there were 17 different PAHs that were in this very contaminated section of the river, and that 5 were either known or suspected to be cancer causing and that there were 23 different metals plus cyanide, which is often considered a metal, that were measured in the river. There were also break-down products of DDT, which is a pesticide, in which there were fairly high levels in the river, higher than should be there. (T 1636-37)

Besides talking to Ms. Vandegrift about the radiation hazard, his research showed that there could be improper disposal of radioactive material, and that various radioactive enterprises had taken place in both the Scioto Ordnance Plant and Marion Engineer Depot. (T 1637) On the Scioto Ordnance Plant facility, there were two buildings that had been used there by the NRC. One was known as the Monsanto Building, the other is Likins Chapel. Here, Mr. Jayko discussed the account of these two buildings included in a draft from the Mosher, Scioto Ordnance Plant and Marion Engineer Study After 40 years, (CX. Ex. 71, included in RX. Ex. 113) and the building of the Monsanto Building as part of the Manhattan Project and a backup for the Mound facility in Dayton to manufacture weapons-grade materials, and nuclear triggers. He stated: "[t]here has always been a lot of controversy as to whether or not the radioactive materials were ever used at this building or not." (T 1639) It has never been established one way or the other as to whether they were there. (Ibid)

Three of the five persons interviewed described some of the stories of crates coming through the Engineer Depot marked for the Manhattan Project, and the secrecy that revolved around them. Suddenly, the crates disappeared, and no one really knows what happened to them, as the story is told in that document. (Id at p.5) There is a reference to Bob Ferguson, Safety Director at the Marion Engineer Depo during that time, who was a person interviewed by Mr. Jayko. (T 1640) He told Mr. Jayko that they may or may not have had any type of radioactive hazard. He then described the secrecy surrounding the Monsanto facility, and the various accounts that he was aware of, and the very tight security. The purpose of the buildings was to either receive radioactive material, or they could produce weapons-grade radioactive material. (T 1641) Ferguson referred Mr. Jayko to a Mr. Howard Tewalt, former employee of the Marion Engineer Depot. He had participated in the CBR (chemical, biological and radiologic training) and told him that on the grounds, now the campus of River Valley Schools, they had scattered gamma capsules on the ground, in order to practice finding them with various Geiger counters or radiation detection scenes, that they used at the time.

All of this came together to tell Mr. Jayko that there was a strong likelihood that radioactive materials that had been used on the two facilities, that gamma radiation was one of those materials and that the knowledge of the materials and how these materials were eventually disposed of was not known, and remained in question. (T 1642-43)

With regard to the testimony of Mr. McLane, who testified about sampling that he took from faucets back in August 22, 1997, that sampling effort was not the focus of the October 15 memo. (T 1643)

The reason that Mr. Jayko felt that the matters discussed in the October 15 memo needed be to put in writing, was that, as a matter of course, he did not understand how his Agency or any business could operate, if things were not committed to writing. He stated that: "putting something to writing helps clarify it for all the parties involved." Mr. Jayko stated that the writing serves as a reminder for him and for others. It clarifies commitment and allows the type of discrepancies to be worked out. (T 1643) He had no intent to embarrass anyone with the note. (T 1644)

Copies of the memorandum (JT. Ex. 6) were sent to Mr. Steers and to Doug Scharp. He believed that Mr. Steers would review it, and take any of the concerns up the chain of command for action or could possibly direct him or Doug Scharp to take some specific action with things that they needed to look at. (Ibid) Mr. Steers worked as his immediate supervisor on the Marion project, but Ruth Vandegrift sent a blind copy as one of the team members she had been working with on it. He was not sending the report to an outside entity, but sending it to a member of the ODH/EPA team, that was working on the project. (T 1645)

With regard to Mr. Don Schregardus’s explanation for why he asked for a limitation on the data, Mr. Jayko did not agree with that from his testimony. He stated that Mr. Schregardus talked in terms of "MCLs" which are the parameter that we talked about in just municipal drinking water systems. A list that has been developed for municipal water supply, that if they checked they got good assurance that they got a clean water supply. However, by checking MCLs only, that does not consider unique situations such as heavy contamination in the Little Scioto River and the PAHs. PAHs are not a part of the MCL. (T 1646)

Even though PAHs might occur naturally in the environment, it does not affect his judgment as to whether they should be checked, since 20% would be naturally occurring, and the rest are from man made endeavors. Of particular concern here, the industrial facilities or industrial sites that were close to the PAHs that were found in the river, it only stands to reason that there is a good chance that those PAHs came from other sites. (T 1646-47)

APPENDIX C

June 3, 1998 - Hertzer/Gianforcaro Memo Re: Dateline, NBC (CX. EX. 24; FF 230)

1. On June 3, 1998, a memo was sent by e-mail to Beth Gianforcaro from Randy Hertzer regarding a call from Dateline to Robert Indian of ODH, asking for mortality data, with a blanket Freedom of Information Act (FOI) request, resulting in directions to handle the story; warning that skeptical members of the Marion community who "still believe the government has something to hide" or "those who feel things aren’t progressing fast enough" were prompting the Dateline matter, and stating that the story would not be positive, that it would make the government look inept in "dumping" at the former depot site in Marion and not cleaning it up, and that associations would be made between the depot and the leukemia cases that would lead the public to believe that something was going on, "even if science cannot show any connection between the two." They expected the story to show interviews with cancer victims or families, to "pull at the heart strings and re-enforce the idea that something should be done." They cautioned the readers not to "believe this will be a balanced story." They will continue to "get viewers, they will insinuate, implicate and exploit whatever facts they have to make a strong program. They basically felt that none of these formats "can possibly benefit the effort now going on by the agencies" in trying to discover the links, if any. (CX. EX. 24)

2. A June 3, 1998 note from Kenneth Crawford, of the Corps, to the Central Office, stated that he had a 40 minute interview with the Dateline producer on RVS and that his perceptions regarding what the story would be, were the following: that the Army used the Marion Engineer Depot during WWII; that it dumped hazardous waste under environmental laws that were different then; that early investigations found no reason to be alarmed; that "heroic parents of kids with leukemia brought this issue to the attention of the Army and state agencies;" that it will review what is happening; that the focus will obviously be on the "victims and their parents, with a critical look at government actions past and present;" that it will also talk about "the faceless government;" that it will be followed by the question: "How did the Federal government allow a school to be built on a waste dump?"; that the story is hot; that they may not see anything soon because they are working on next season’s stories; that they will know in advance when it will be aired, and that they will be asked for on site interviews, noting that his perceptions were based on questions concerning their "CERCLA responsibilities and actions, and ... concern for the leukemia victims;" suggesting that "it would be best to keep this in PA channels," and directing appropriate questions to ODH, OEPA and the headquarters of the Corps.(CX. EX. 25)

3. An e-mail memorandum of June 10, 1998, from the Coyps’Kevin Jasper to the Central Office, regarding PAO Strategy for NBC and a District FUDS Site, CX 75 contained other June 3 e-mails, asking for the sources of the information, and one to Mr. Crawford from Tim Sandler of Dateline requesting a long list of documents is also discussed with him, (CX. EX. 26) which affirmed Ken Crawford as the suggested spokesperson for the Marion site, and is followed by a memo from him outlining the Dateline strategy from the above June 3 memorandum (CX. EX. 25), attaching a document for all to utilize captioned, Public Affairs Strategy: Former Marion Engineer Depot - A Discussion of Various Scenarios and Responses to Officials, Public and Media. (CX. EX. 26)

APPENDIX D

June 10, 1998 - USACOE Memorandum - (RX. EX. 26)

With regard to the Corp’s June 10, 1998 memorandum, it states that the Louisville Corps is to remain as the lead office, printed material will be requested, and repeats the anticipated line of thought stated in his perceptions. He states "there is no way to fix this story, but we can make an impact if we do it correctly." He does believe that they should not hide information and must be positive. They point out that what the Army did 50 years ago was accepted practice, but does not excuse them. Since that time, the nation’s environmental laws have come into being and the Army is at the forefront of protecting its environment and cleaning contamination. (RX. EX. 26, p. 8)

He pointed out that there are several agencies involved, and the effects of particular contamination would be referred to the Ohio Department of Health, while questions about environmental laws of the state or state environmental actions he would refer them to the OEPA. He can only discuss Army activities at this site. (Id at page 9)

The Corps, under the Defense Environmental Restoration Program, is responsible for environmental remediation of about 9,000 formerly used defense sites nationwide, all of which do not require remediation. For those that do, they would love to clean them right now, but the agency does not have enough money so they have to prioritize them. He then goes on to describe the procedure that’s followed for this. (Ibid)

When Mr. Crawford became aware of River Valley School’s problem, they moved immediately for permission to move this up on the priority list and for money to study the program. He stated that "we all hope our activity will quickly find the cause of the leukemia or find that nothing on the school ground contributes to such a disease." [This is a slightly different cast than that given to the OEPA directives.] However, he does say "[T]o be frank, our job is not to find the cause of the problem - by law our job is to look for any contamination at this Formerly Used Defense Site and to remediate it. Whether it causes the cancer or not, we will clean it." He describes how the environmental remediation is handled as a long process and requires "a thorough study and . . . structured decisions." (Ibid)

He noted that the Army once used TCE (trichloroethanes) at "almost every industrial-operation it carried out in World War II, as did the rest of the country," as a common solvent. (Ibid) It was used to clean metal parts and dumped into trenches or holes. Petroleum, oil and lubricants were removed from vehicles prior to shipment and were placed in a trench and burned. (Ibid) He noted that they relied not only on documentation but memories that are sometimes "somewhat less-than-accurate" and receive stories telling us information. With regard to radiological contamination, he pointed out that "we know that radium was stored and used onsite. We have every reason to believe the documentation that says it was removed to Aberdeen Proving Ground in Maryland." (Ibid) He then states "we know that some radium-painted markers may have been lost around the site, since they were not a controlled item. We know that radioactive pellets were used to calibrate equipment and to train radiological teams. Some of these may have been lost." With regard to the Manhattan Project, he notes that some boxes passed throught the Depot, but they have no documentation of it remaining there, or that it contained radioactive material. (Ibid) He emphasized that DOE (Department of Energy) has been forthcoming about its Manhattan Project sites in its use of the FUSRAP program as discussed above. (Id at p. 9-10) The team in Ohio now consists of the Corps, ODH, OEPA, both Senators DeWine and Glenn’s Offices, congressional offices, local officials and area citizens. He stated that the group "works as a team, sharing information, coordinating and working together for a common cause." (Ibid)