Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Congratulations to carpenter Dennis Brown for his courageous efforts to expose unhealthy conditions at the Broward County School District in Florida. Brown raised concerns about the atrocious environment he was forced to work in. A mildew infested classroom made his asthma worse. He brought in notes from his doctor confirming the health effects, but officials never transferred him to a safer facility. Brown’s attempts to expose this danger fell on deaf ears, “I’ve gone to the superintendent and all the school board members, but they look the other way,” Brown said. EBossWatch reports that a jury has now determined that school officials must pay $210,000 to compensate Brown for the retaliation he suffered. Perhaps those jurors could relate to the parents who might wish that school carpenters, and students, have nothing but safe places in public schools. 

Intern Quinn McCall contributed to this blog entry.

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U.S. District Judge Clay Land, of Athens, Georgia, issued an order yesterday compelling the U.S. Environmental Protection Agency (EPA) to provide their employee Madolyn Dominy for deposition in a whistleblower's scientific fraud case.   Madolyn Dominy was the EPA's Regional Biosolids Coordinator from 1998 to 2004.  In his whistleblower lawsuit, Dr. David L. Lewis (pictured) and dairy farmers Andy McElmurray and William Boyce claim that researchers at the University of Georgia (UGA) conspired with EPA employees to make false statements as part of a grant application to justify land application of sewage sludge. The law firm of Hallman & Wingate of Marietta, Georgia, represents Dr. Lewis, McElmurray and Boyce in this case. The EPA tried to use is "Touhy" regulation to prevent Hallman & Wingate from deposing Dominy.  Yesterday, Judge Land rejected this attempt, and ordered that EPA make Dominy available for deposition by September 11, 2009. A copy of the order is available at this link.

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The Federal Mine Safety and Health Administration (MSHA, pronounced "EM-sha") has asked a federal administrative judge to order the preliminary reinstatement of coal miner Billy Brannon. Thanks to a tip from Paul Taylor of the Truckers Justice Center, I am glad to read Bill Estep's article in yesterday's Lexington Herald-Leader.

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An Ohio court of appeals has issued an extraordinary writ, requiring a state judge to proceed with a whistleblower's wrongful termination case.  The Court of Appeals for Stark County, Ohio (part of the Fifth Appellate District in Ohio) issued the writ of procedendo on November 3, 2008.

In the case of State ex rel. Carpenter v. Brown, 2008-Ohio-5687, James Carpenter asked for the writ to compel Ohio Common Pleas Judge Charles Brown to lift a stay and proceed with his lawsuit. Judge Brown had stayed the case in September 2007 to wait for a decision in Carpenter's Department of Labor (DOL) case.  The DOL's Administrative Review Board (ARB) has had Carpenter's case pending for over a year. Carpenter has asked the ARB to dismiss his DOL case "without prejudice" so that he can seek a jury trial in the Ohio state court.

James Carpenter had worked for 12 years with Bishop Well Services Corp. when a burst hose permanently injured his back, and released toxins into the environment.  Carpenter called OSHA to complain about safety at the company, and he was fired a week after OSHA conducted a surprise inspection.  In defending the DOL case, the company claimed it did not fire Carpenter because of the OSHA inspection, but rather because his workers compensation case became contentious. Ohio law prohibits retaliation either for calling OSHA or for filing a workers compensation claim.

It is ironic that Judge Brown would stay the case when part of the reason for bringing the case was so we would not have to wait for the ARB.  The Court of Appeals opinion says, "the delay which has been imposed in the case before Respondent, coupled with the potential length of time in reaching a resolution in the ARB case, unjustifiably interferes with Petitioner’s right to have his claim litigated."  The Court added, "Although the claims in both the Common Pleas case and the federal court case may be factually interrelated, state claims can exist independent of those in federal court."

This case demonstrates the hardship for whistleblowers, and for state courts, that arise from the ARB's slow pace in issuing decisions.

Click here for the court's opinion and judgment entry issuing the writ of procedendo.

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The African-American Environmentalist blog has reported on discussions suggesting that Dr. Marsha Coleman-Adebayo might be a pick to head the Environmental Protection Agency (EPA).

Dr. Coleman-Adebayo joined the EPA as an African affairs specialist in 1990. She has 18 years experience at the agency and a doctorate from the Massachusetts Institute of Technology (MIT). In 1996, she blew the whistle on an American company harming the South African environment with its vanadium mining. She suffered harassment and discrimination, and she blew the whistle on that, too. In 2000, a federal jury awarded her $600,000 in damages. When the EPA had the Department of Justice pay the award, she founded the No FEAR Coalition and helped enact the "Notification of Federal Employees Anti-discrimination and Retaliation Act," the first Civil Rights Law of the 21st Century. Dr. Coleman- Adebayo is also a Board Member of the National Whistleblower Center.

"Dr. Marsha Coleman-Adebayo would be an excellent administrator for the U.S. Environmental Protection Agency (EPA)," says the African American Environmentalist blog. 

 
http://aaenvironment.blogspot.com/2008/08/dr-marsha-coleman-adebayo-next-epa.html

The blog continues:

Dr. Coleman-Adebayo is bipartisan and worked with Republicans (James Sensenbrenner and John Warner) and Democrats (Sheila Jackson-Lee and Joe Lieberman) to get national legislation passed [NO FEAR Act of 2002], which was signed by President Bush on May 15, 2002. Either Senator Barack Obama or Senator John McCain would be well served to appoint Dr. Adebayo as EPA administrator when one of them becomes president. 

We are only too happy to agree.

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This weekend the AP ran this article detailing the decade-long struggle of EPA whistleblower Dr. David Lewis. Lewis, an internationally renowned microbiologist, first ran into trouble at the agency when he questioned the science behind the policy of allowing farmers to use sewage sludge from wastewater treatment plants as free fertilizer. He was eventually forced from the agency because of his dissenting views on the subject, and since that time he has compiled research supporting his claims that this practice, although a financial boon for farmers, can cause illness or death in consumers.

Lewis sums up his case by saying:  "Science is getting trumped by politics and I want that fixed,"

More information about Dr. Lewis is available on the National Whistleblower Center website.

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What Federal Laws Protect Environmental Whistleblowers?

Seven major federal environmental laws (Clean Air, Toxic Substances, Clean Water, Atomic Energy, Solid Waste, Safe Drinking Water and Superfund) have special provisions protecting employee whistleblowers.

Who Is Protected?

Almost any private sector or federal employee can be protected.

Who Can File a Complaint?

Any employee who believes he or she has been discriminated against in retaliation for "blowing the whistle" on a safety problem or environmental violation, or for engaging in other activity protected under the law.

What is Illegal Discrimination?

Adverse changes to the whistleblower's terms and conditions of employment are prohibited. This includes a wide range of actions from reprimands to terminations and blacklisting.

Where Should I File a Complaint?

These laws are administered by the U.S. Department of Labor (DOL). Complaints must be filed in writing and should be mailed to:

U.S. Department of Labor
Office of the Assistant Secretary
Occupational Safety and Health Administration - Room: S2315
200 Constitution Avenue
Washington, D.C. 20210
(202) 693-2000

What Are the Statutes Of Limitations?

A Complaint under six of the environmental statutes must be filed with the DOL in writing within 30 days of the time an employees learns that he or she will be, or has been, subjected to discrimination, harassment or retaliation.

Do Other Laws Protect Whistleblowers?

Many states have enacted laws to protect whistleblowers. Most of these laws have a longer statue of limitations and other benefits unavailable under federal law.

The National Whistleblower Center, as a matter of public service, has published a compilation of all Federal laws and regulations protecting whistleblowers. This book is available on the National Whistleblower Centers' publication site as a free download for whistleblowers and their political and legal advocates. Donations are recommended, and commercial users are required to purchase the book for $120.

What remedies are available to employees under the environmental whistleblower statutes?

Employees who prevail are entitled to:

• Reinstatement
• Backpay with interest
• A complete “make whole” remedy (including restoration of seniority/sick leave, etc)
• Compensatory damages (for emotional distress and loss of professional reputation)
• Attorneys’ fees and costs
• Affirmative Relief” (such as requiring a letter of apology and formal posting of the decision)
  
  

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