In a precedent-setting ruling, U.S. Department of Labor (DOL) Secretary Robert B. Reich has ordered the U.S. Environmental Protection Agency (EPA) to reinstate toxicologist Dr. William L. Marcus.
Labor found the EPA guilty of falsifying employment records, discrimination, and retaliation against an employee whistleblower. It also granted Marcus the largest compensatory damage award ever upheld under the federal environmental employee protection statutes.
“This ruling extends, for the first time, the whistleblower protections of the federal environmental statutes to EPA employees,” said Stephen M. Kohn, chairperson of the National Whistleblower Center and Marcus’ attorney. “It’s the most significant case to date for an environmental whistleblower within the EPA. The precedent is equally applicable to all federal employees.”
“I’ve been vindicated,” said Marcus, an 18-year veteran at EPA. The decision upheld an earlier order by a DOL administrative law judge (ALJ) issued Dec. 3, 1992, supporting Marcus’ claim that he was fired for protected activity. Marcus filed his complaint under the six major federal environmental statutes and their applicable regulations: Clean Air, Clean Water, Toxic Substances, Solid Waste, Safe Drinking Water and Superfund.
The EPA dismissed the 52-year-old toxicologist on May 13, 1992, after a four year investigation of Marcus’ outside activities as an expert trial witness. EPA accused Marcus of improper use of agency information for private gain, being improperly absent from work, and engaging in outside employment which appeared to pose a conflict of interest.
The charges were brought as a result of an investigation by the EPA Inspector General (IG). Marcus observed, “The IG initiated its investigation after complaints were voiced by a large chemical company (Velsicol Chemical Corp.) in April of 1988.” Both the ALJ and Reich found many of the charges to be “unsubstantiated,” and based on apparently falsified time records and other testimony.
Reich disputed the EPA’s position, stating, “I agree with the ALJ that this rationale is pretextual and that the true reason for the discharge was retaliation.” Both Reich and the ALJ found that Marcus was actually fired for publicly criticizing and opposing EPA’s policy on fluoride in drinking water.
In addition to “reinstatement to his former or comparable position,” Reich ordered EPA to offer Marcus the same compensation, terms, conditions and privileges of his former employment.
“My family suffered mightily,” Marcus said. “How can the public be protected when people charged with that mission are afraid that telling an unpopular truth results in their firing?”
The National Whistleblower Center, created in 1988, is a non- profit, tax exempt organization. The center supports precedent- setting litigation on behalf of employee whistleblowers, provides legal advice and referrals for counsel to whistleblowers nationwide and educates the public about the rights of employees to make disclosures regarding corporate or government misconduct, environmental protection or health and safety violations.
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