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Singer-Songwriter Ry Cooder has written and recorded a song honoring environmental whistleblower Dr. Marsha Coleman-Adebayo.  Called "Kool-Aid," the song is featured in Cooder's new album, "Election Special."

Cooder (pictured in this photo by Dani Canto) felt inspired to write this song after hearing Dr. Coleman-Adebayo's interview on the Smiley & West show.

Dr. Coleman-Adebayo sacrificed her career at the U.S. Environmental Protection Agency (EPA) to speak out against vanadium poisoning in South Africa. Her book is called, NO FEAR: A Whistleblower's Triumph Over Corruption and Retaliation at EPA. NO FEAR tells the story of vanadium miners in South Africa, Dr. Coleman-Adebayo's efforts to protect them, the retaliation she suffered, her historic jury verdict against EPA, and the campaign that led to the NO-FEAR Act.

Her story well fits the tradition of a folk song hero, and Ry Coder has done her story justice.  Thank you. Dr. Coleman-Adebayo is a board member of the National Whistleblowers Center.

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My client, Doug Evans, just won a remand from the Department of Labor's Administrative Review Board (ARB). In a rare en banc decision, all five ARB judges joined in holding that Iqbal and Twombly do not apply to OSHA whistleblower complaints. Thus, the ARB's 2010 decision in Evans' case is finally overruled.  The ARB also made clear that Evans' decision to initiate the OSHA process is itself protected, and his employer cannot retaliate against him for having commenced his original whistleblower complaint.

Douglas Evans (left in photo, with me) was an employee of the U.S. Environmental Protection Agency (EPA) in Las Vegas, Nevada, for 17 years. He was a technician who repaired equipment. EPA managers in Las Vegas were under pressure to get a high rate of their employees to “volunteer” for emergency response work. Evans recalls getting an order to participate. He wrote a letter to the EPA Administrator, and his supervisors never forgave him for it. Evans' letter complained about the lack of training for the emergency response work, and about other aspects of the plan. I recognized that a concern about lack of training for emergency response work is an environmental concern. I filed Evans' complaint with OSHA under the federal environmental laws. Shortly thereafter, Evans' bosses fired him on trumped up charges. I filed a supplemental complaint against the discharge. OSHA dismissed. I requested a hearing before an Administrative Law Judge (ALJ). I asked for discovery from EPA. EPA made a motion to dismiss, and to stay discovery while its motion is pending. I opposed the motion to dismiss, citing the DOL's rule that there is “no particular form of complaint.” I also provided statements from Evans' co-workers supporting his complaint, and explained how the discharge in retaliation for his first OSHA complaint is certainly protected. Still, the ALJ dismissed the case, and in 2010 the ARB has affirmed. Evans petitioned for review to the U.S. Court of Appeals for the Ninth Circuit.  During that review, the ARB issued its landmark decision in Sylvester v. Parexel International, ARB Case No. 07-123 (ARB May 25, 2011), Evans had submitted an amicus brief in the Sylvester case, explaining how the Iqbal standard had been so harmful to his whistleblower case. The Solicitor of Labor agreed that Evans' case should be returned to the ARB for reconsideration, and the Ninth Circuit agreed. Back at the ARB, the Solicitor of Labor filed a brief in support of Evans. Now we finally have the ARB's reconsideration.

Judge Brown's dissent makes some important points for whistleblowers and practitioners who face motions to dismiss before an Administrative Law Judge (ALJ). He notes that the majority's discussion of how ALJ's can handle motions to dismiss is "but dicta." Page 19. He finds that the majority "cites neither statutory nor regulatory authority prescribe new procedures by which ALJs are now to resolve motions seeking dismissal of whistleblower retaliation complaints for failure to state a claim for relief." Page 20.  Thus, whistleblowers and their lawyers can cite to this concurring and dissenting opinion in response to any motion to dismiss, and preserve an issue for which the Department of Labor will be poorly equipped to refute on further review.

Judge Corchado explains what he will be looking for in reviewing complaints.  To allege protected activity, he wants Evans to allege "facts about what activities his co-workers might be expected to do and why Evans believed that such acts would violate one or more of the environmental laws." Page 18. "Not much is required," he adds on page 19. It is a lesson about the importance of making clear exactly what is the whistleblower's protected activity.

The case is Evans v. United States Environmental Protection Agency, ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB July 31, 2012), Decision and Order of Remand.

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On May 22, 2012, the No FEAR Coalition honored three whistleblowers and our own Richard Renner, who serves as the Legal Director and Secretary of the National Whistleblowers Center. The award for Renner recognized his advocacy for whistleblowers and his pro bono work. Appropriately the awards ceremony was held at the Martin Luther King, Jr. National Memorial. Renner, who has a long record of service for civil rights issues, received his award at the entrance to the memorial of the revered civil rights leader.

During the ceremony the No FEAR Coalition also honored three other whistleblowers. Dr. Marsha Coleman-Adebayo, founder of the No FEAR Coalition (and a Board Member of the National Whistleblowers Center), presented awards to Dr. Margaret Flowers, a pediatrician, single payer advocate, organizer of Occupy Washington DC and co-director of ItsOurEconomy.US.  Alease Wright, former National Federal Women’s Program Manager at the U.S. Environmental Protection received an award for advancing the rights of women and involvement in community activities for women and youth throughout her career. Ms. Wright was victimized by EPA, but continued to maintain her integrity and commitment to others. Alicia Dabney, an employee of the U.S. Forest Service received an award for speaking out against sexual assaults by supervisors in that Service.

Before beginning the event Dr. Marsha Coleman-Adebayo led a demonstration in front of the memorial, chanting “No justice, no peace!” This was primarily in protest to the retaliation of federal agencies against whistleblowers, and the agencies’ inefficiency in handling the outrageous number of discrimination and retaliation claims pending in their offices of civil rights. Some speakers, for example, mentioned they had cases pending since 1989. This was an inspiring crowd of whistleblowers and whistleblower supporters that gathered at the MLK Memorial. They were loud and clear that they were not scared to stand up for justice, and were definitely not scared to let their voices be heard. Matthew Fogg spoke about his whistleblowing at the U.S. Marshals Service. Melissa Seaver spoke about continuing federal discrimination against Native Americans, and about losing her home to a Department of Agriculture foreclosure.

Photos by NWC interns Adrian Amaya and Andy Lugo, and Richard Renner. This blog post was written by Adrian Amaya.
 

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Today, Independent Science News published an article by William Sanjour, an EPA whistleblower and NWC Board Member.

In “Designed to Fail: Why Regulatory Agencies Don’t Work,” Mr. Sanjour uses his 30 years of experience at the EPA to not only explain the problem, but also to offer some solutions. One of his suggested solutions is to better protect whistleblowers.

“Congress ought to consider not merely protecting whistle blowers, but rewarding them. When a whistle blower’s charges prove correct, they should be given a cash reward in proportion to the importance of the revelation. Whistle blowers cost much less and are far more effective than salaried government enforcement officials.”

Mr. Sanjour’s article does a great job of explaining why administrative regulations are broken and why they failed to prevent the BP Oil Disaster and the loss of 25 miners’ lives in West Virginia.

“Compare this [EPA enforcement procedures] with what happens when you park under a “No Parking” sign. A policeman writes a ticket, and you can either pay the fine or tell it to the judge. If the EPA wrote the rules for parking violations, the officer would first have to determine if there were sufficient legal parking available at a reasonable cost and at a reasonable distance, and would then have to stand by the car and wait until the owner showed up so that he could negotiate a settlement agreement.”

Mr. Sanjour points out what we know to be true. Employees are the number one way to detect and deter fraud. Therefore, to find fraud you have to protect employees.

Please take a few minutes to read Mr. Sanjour’s article. It will be time well spent.

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Occupy EPA is marching again. On Friday, March 30, 2012, at 12 noon, they will march from Franklin Square Park (13th & I Sts NW in Washington, DC) to the headquarters of the U.S. Environmental Protection Agency (12th & Pennsylvania Ave., NW, Federal Triangle, Washington DC). There, at 1:00 pm, they will lead a rally with EPA whistleblowers, Dr. Marsha Coleman-Adebayo, Dr. Margaret Flowers and Susan Morris.  Dr. Helen Caldicott will also address the rally. Protecting environmental whistleblowers has been a constant theme of Occupy EPA protests, and the speakers are sure to call on the EPA to stop retaliating and start protecting its employee whistleblowers. Follow this link for a flyer for this event.  Perhaps this can be a spark for the American Spring.

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You can catch Dr. Coleman-Adebayo's lecture at the Mid-Manhattan Library on C-Span/Book TV starting tomorrow. Called No FEAR: A Whistleblowers Triumph, the lecture draws on her book, NO FEAR: A Whistleblower's Triumph Over Corruption and Retaliation at EPA.  You can read our coverage of her book signing here.

C-SPAN will air Dr. Coleman-Adebayo's lecture:

Saturday, January 21st at 9:15am (ET)
Saturday, January 21st at 4:30pm (ET)
Sunday, January 22nd at 10pm (ET)

UPDATE: Dr. Coleman-Adebayo's lecture is now available from C-SPAN online.

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On-line activists in West Virginia have launched a whistleblower web site called Honest Appalachia.  It provides a means for whistleblowers to upload documents for public disclosure. The project’s lead developer, Garrett Robinson, told WFPL that the objective is to help local journalists get information about local issues that can help them make more useful reports about Appalachian issues. The project could benefit from the regional focus as local journalists are more likely to have the background necessary to assess the authenticity of submitted documents. Honest Appalachia is using open source software that anyone can download, and is even encouraging others to adapt and contribute to the software.  The On-Line Submission Guide has helpful information for whistleblowers who want to avoid discovery of their identities.  For example, don't access Honest Appalachia from a work computer.  It can be monitored. Other tips explain how to use a public wifi site while reducing your risk of being identified.

A better way for whistleblowers to protect themselves, however, is to consult an experienced whistleblower attorney. A whistleblower website has no legal grounds to resist a subpoena seeking information about sources. An attorney does. Attorneys have a legal duty to maintain a client's confidences, and experienced attorneys will be in the best position to advise a whistleblower about other legal protections.

Given the Appalachian focus, we can expect that published documents will address environmental, economic and racial justice issues. Other issues can arise anywhere, so I will want to keep an open mind about what Honest Appalachia might yet reveal.

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The NWC is proud to announce the release of the second edition of The Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself. This second edition includes a new 20–page checklist on the procedures for obtaining Dodd-Frank Act rewards from the Securities and Exchange Commission (SEC). The checklist covers the SEC's regulations that went into effect on August 11, 2011, and provides insights on how whistleblowers can use the new regulations to maximize their potential rewards. See pages 276-296.

The new edition also explains how whistleblowers can use the Dodd-Frank Act to blow the whistle on violations of the Foreign Corrupt Practices Act (FCPA). The FCPA prohibits companies traded in the United States from bribing officials in other countries. The SEC can require that companies caught violating the FCPA “disgorge” the monies received through the violation. As the SEC penalty can be much greater than the amount of the bribe itself, the whistleblower's reward of 10 to 30 percent of the SEC recovery can also be very large. Whistleblowers anywhere in the world can now submit anonymous reward claims for reporting corruption of local officials. See pages 30-32 and 294-295.

Other new features of the second edition include:

• How to navigate opportunities to report violations to internal channels and the SEC. Pages 280-281.

• Tips for employees of corporate compliance and internal audit departments. Page 282.

• Examples of the types of corporate misconduct that violate SEC rules and can become the basis for Dodd-Frank rewards. Pages 292-293.

• Managing retaliation claims under both the Dodd-Frank Act and the Sarbanes-Oxley Act (SOX). Page 290.

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Activists from Occupy Washington DC on Freedom Plaza marched to the headquarters of the US Environmental Protection Agency (EPA) yesterday. Billed as "Occupy EPA," the event called on the EPA to do its job to protect Americans from toxic pollution.

The march had a decidedly pro-whistleblower theme as we marched from Freedom Plaza to EPA headquarters. Led by Dr. Margaret Flowers, marchers chanted, "Hey hey, NO FEAR, blow the whistle at EPA." With EPA whistleblower Dr. Marsha Coleman-Adebayo, we blew whistles and passed out cards to passersby. The cards asked, "Do you know something that could save a life or help the planet? Do you want to report it?" The cards then provided links to whistleblower web sites, including that of the National Whistleblowers Center. The marchers rallied on Federal Triangle, in front of the office of EPA Administrator Lisa Jackson. There, Dr. Coleman-Adebayo led us in reading the text of the NO FEAR Act.

Supporters plan to march to the EPA and rally on Wednesdays. Meet at 12 noon at Freedom Plaza, 13th Street and Pennsylvania Avenue, NW, Washington, DC. For more photos, follow the link to the continuation of this blog post.

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Dr. Marsha Coleman-Adebayo (pictured with Rev. Walter E. Fauntroy) celebrated the release of her new book at Busboys and Poets last night. Her book is called, NO FEAR: A Whistleblower's Triumph Over Corruption and Retaliation at EPA. 

The event began with a short documentary film produced and directed by Tylon Washington and Shawna Glover. The film began with interviews in South Africa of victims of vanadium mining. They explained how they worked without protective equipment. The vanadium pentoxide entered their lungs, came out of their pores, and damaged their bedsheets and bodies. Some interviews were with their widows. The American company that ran the vanadium mine took x-rays of their workers' lungs, but would not share those x-rays with the injured workers. Dr. Marsha Coleman-Adebayo sacrificed her career at the U.S. Environmental Protection Agency (EPA) to speak out against the poisoning of South Africa. NO FEAR tells the story of these workers, Dr. Coleman-Adebayo's efforts to protect them, the retaliation she suffered, her historic jury verdict against EPA, and the campaign that led to the NO-FEAR Act.

Rev. Walter E. Fauntroy introduced Dr. Coleman-Adebayo. He called her a Rosa Parks for the 21st Century.

Hosts of the event were Teaching for Change, TransAfrica Forum, National Whistleblowers Center (of which Dr. Coleman-Adebayo is a Board member), No FEAR Coalition, Alliance for Justice in the Workplace, and USDA Minority Committee.

You can order her new book from the NWC store.

For more information about her current campaign to remove one EPA retaliator, follow this link. You can also visit Dr. Coleman-Adebayo's own web page. Follow the continuation of this blog post for more photos.

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