December 8, 1992

EPA Ordered to Reinstate Whistleblower

by H. Josef Herbert
Associated Press Writer

The Environmental Protection Agency has been ordered to reinstate a senior scientist and pay him $ 50,000 for emotional distress after he was fired allegedly for whistleblowing activities, his lawyer said Tuesday.

The decision, involving William Marcus, a senior toxicologist in the EPA's Office of Drinking Water, was made by a Labor Department administrative law judge under a federal whistleblower protection statute.

Steve Kohn, who was Marcus' lawyer during the appeal of his dismissal, called it "the most significant case to date for an environmental whistleblower involving the EPA."

"I'm elated. I feel like a building has been lifted off my chest. It's removed a cloud from my reputation that was unjustly put there through lies and manufactured evidence," said Marcus, 52, who said he planned to return to his $ 87,000-a-year EPA post soon.

Marcus, who had worked at the EPA for 18 years, was fired last May 13 after a lengthy investigation of the scientist's outside activities as an expert trial witness and how they related to his position at the EPA.

During the appeal, Marcus maintained that his superiors at the EPA knew about his outside work. He argued that his dismissal stemmed from a controversial internal memorandum he wrote in 1990 challenging the agency's position on the adverse health effects of fluoride.

When the memorandum was leaked to the press, it embarrassed senior EPA officials, Marcus maintained.

In ordering Marcus' reinstatement, Administrative Law Judge David Clarke Jr., said that three of the four charges against Marcus were not supported by fact.

Instead, Clarke concluded the reasons given for the firing were "a pretext" and that he really was dismissed "because he publicly questioned and opposed EPA's fluoride policy."

The EPA had no immediate comment on the Dec. 3 ruling made public Tuesday. "Until we see the decision it would be premature for us to comment," said agency spokesman John Kasper.

Clarke directed that Marcus be reinstated to his old job of toxicologist and senior science adviser, be provided back pay with interest and be paid $50,000 in compensatory damages because of emotional stress.

Marcus had testified that the dismissal had disrupted his home life and made his wife a "physical wreck" and that he suffered from moments of "great depression" as a result.

In firing Marcus, the EPA accused him of improperly using agency information for private gain, using working hours for his private activities as an expert trial witness and engaging without approval in outside employment that appeared to pose a conflict of interest.

The agency produced employee time cards allegedly showing Marcus on a number of occasions had been involved in his private activities when he should have been at work. He argued that he used annual leave time for the activities, although time cars at times showed him absent because of illness. The EPA also maintained that during court testimony and depositions he often implied his views were agency views.

Clarke noted that in a number of other cases where EPA employees faced similar charges they were given only short suspensions.

The judge wrote that after Marcus' fluoride memo became public he had to submit weekly activity reports, lost his right to routinely engage in outside work and was restricted to "studying the least controversial chemicals."