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  • Whistle-blower lawsuit may hinge on federal agency

    EPA employee can't sue alone, U.S. judge rules

    Tuesday, November 7, 2000

    Robert Ruth
    Dispatch Staff Reporter

    A federal judge yesterday threw the case of environmental whistle- blower Paul Jayko into the lap of the U.S. Department of Labor.

    U.S. District Judge Edmund A. Sargus Jr. ordered the Labor Department to decide within 30 days whether to join the case on behalf of Jayko, an employee of the Ohio Environmental Protection Agency. If the department opts to intervene, Jayko's appeal of his suspension and transfer can continue, Sargus ruled.

    But if the department refuses to take up Jayko's cause, Sargus said he will invalidate an administrative judge's Oct. 2 order reinstating Jayko as an EPA site coordinator and awarding him $138,000 in damages and lost wages.

    At issue is the constitutional prohibition against individuals suing states. But if the Labor Department intervenes on Jayko's behalf, then it would be a federal agency vs. the state of Ohio. The federal government is not prohibited from suing states, the judge noted.

    Mark Quinlivan, an attorney representing the Labor Department, told Sargus yesterday that he did not know whether the department would step in on Jayko's side.

    Jayko was removed as a site coordinator, suspended for 10 days and transferred to the EPA's Bowling Green office after he wrote internal memos in 1997 criticizing the agency's investigation of possible contamination at River Valley schools near Marion. Many parents in the area have contended that pollution from a former military toxic-waste dump has caused increased incidents of leukemia and other health problems.

    In a whistle-blower complaint filed with the Labor Department on July 28, 1998, Jayko contended the disciplinary action resulted from his criticism of the EPA.

    EPA officials disagreed, contending that Jayko was disciplined for being sarcastic and failing to be a team player. Officials also said he drank two beers before a public meeting.

    A Labor Department investigator sided with Jayko, and the state appealed the finding to Administrative Judge Thomas F. Phalen Jr. in Cincinnati. On Oct. 2, Phalen issued a scathing ruling ordering Jayko's reinstatement and the $138,000 judgment. He also ordered the state to pay Jayko's legal bills.

    Although outbreaks of leukemia in Marion have not been traced to specific causes, the EPA, Ohio Department of Health and U.S. Army Corps of Engineers continue to investigate. About 765 students continue to attend River Valley High and Middle schools in the area, although state and school officials have proposed relocating the schools.

    School-district voters will decide today on a bond issue to provide money to move the students into new schools.

    None of the parties in yesterday's hearing expressed pleasure at Sargus' ruling.

    Dennis Muchnicki, Jayko's attorney, said his client will probably appeal the decision to the 6th U.S. Circuit Court of Appeals in Cincinnati. Jayko's case, at this point in the process, should not be dependent on action by the Labor Department, Muchnicki said. "We've done pretty well without them so far,'' he said.

    Jayko will appeal, Muchnicki said, even though he expects the Labor Department to intervene on his client's behalf.

    Quinlivan refused to comment on the judge's ruling. However, if Sargus' decision withstands appeal, it is expected to require the Labor Department to change the way it handles such cases. The department usually does not intervene in such cases until after an Administrative Review Board has ruled.

    Like Quinlivan, Ohio Assistant Attorney General Jack Decker said the state will decide later whether to appeal yesterday's decision. But Sargus' ruling fell far short of what the state wanted.

    Yesterday, Decker contended that Phalen's decision last month violated the 11th Amendment's sovereign-immunity clause banning individuals from suing states. Jayko's 1998 whistle-blower complaint should be considered a legal action against a state by an individual, Decker argued.


    Copyright 2000, The Columbus Dispatch