Office of Administrative Law Judges 525 Vine Street, Suite
900 Cincinnati, OH 45202
(513) 684-3252 (513) 684-6108
DATE: October 2, 2000
CASE No. 1999-CAA-5
E. Dennis Muchnicki, Esq.
Michael D. Kohn, Esq.
For the Complainant
Jack W. Decker, Esq.
Richard N. Coglianese, Esq.
For the Respondent
Before: THOMAS F. PHALEN, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
AND PRELIMINARY ORDER
These proceedings arise under the employee protection provisions of the
Energy Reorganization Act ["ERA"], 42 U.S.C. Section 5851; the Clean Air Act
["CAA"], 42 U.S.C. Section 7622 (a); the Solid Waste Disposal Act
["SWDA"], 42 U.S.C. Section 6971; the Toxic Substances Control Act [
"TSCA"], 15 U.S.C. Section 2622; the Federal Water Pollution Prevention and
Control Act ["FWPCA"], 33 U.S.C. Section 1367; the Safe Drinking Water Act,
["SDWA"], or Public Health Service Act ["PHSA"], 42 U.S.C. Section
300j-9; and the Comprehensive Environmental Response, Compensation and Liability Act
["CERCLA"], 42 U.S.C. Section 9610; implementing regulations appear at 29 C.F.R.
Part 24.1. Such provisions protect employees from discrimination for attempting to carry out the
purposes of the environmental statutes of which they are a part, and specifically for preventing
employees from being retaliated against with regard to the terms and conditions of their
employment for filing "whistleblower" complaints or for taking other action relating
to the fulfillment of environmental health and safety or other requirements of these statutes.
A hearing in these consolidated cases was held from June 21-25, 1999 and
July 26-30, 1999. The parties were represented by counsel and were given an opportunity to
present evidence and arguments.
STATEMENT OF THE CASE:
On July 28, 1998, Mr. Jayko filed a complaint of discrimination under
Section 322 of the Clean Air Act; Section 1450 of the Safe Drinking Water Act; and 507 of the
Federal Water Pollution Control Act; Section 7001 of the Solid Waste Disposal Act; Section 110
of the Comprehensive Environmental Response, Compensation, and Liability Act; Section 23 of
the Toxic Substances Control Act; and Section 211 of the Energy Reorganization Act. The
complaint was investigated and found to have merit. On January 4, 1999, the Ohio
Environmental Protection Agency ["OEPA"] requested a formal hearing in this case.
A hearing in these consolidated cases was held from June 21-25, 1999 in Bowling Green, Ohio
and July 26-30, 1999 in Perrysburg, Ohio.
1. Whether the respondent is an "employer" under the Acts;
2. Whether respondent is immune from liability;
3. Whether complainant engaged in protected activity under the Acts;
4. Whether the respondent knew or had knowledge that the complainant
engaged in protected activity;
5. Whether respondent committed adverse action against complainant;
6. Whether the actions taken against the Complainant were motivated, at
least in part, by Complainant's engagement in protected activity; and
7. What damages, if any, the complainant is entitled to as a result of the
retaliatory actions taken by respondent.
SUMMARY OF THE FACTS:
Complainant Paul Jayko was hired by the Respondent, OEPA, an agency of
the State of Ohio, as an Environmental Specialist 2 ["ES2"], effective December 30,
1990. Mr. Jayko has remained in the ES2 classification at all material times thereafter. Mr.
Jayko was assigned to OEPA's Northwest District Office ["NWDO"], located in
Bowling Green, Ohio. Since his hire, Mr. Jayko has been assigned to the Division of Emergency
and Remedial Response ["DERR"] at NWDO as a site coordinator.
By the Summer of 1997, Jayko had been assigned as "site
coordinator" for three "sites" in the Marion, Ohio area - the River Valley
Schools ["RVS"], the Marion Engineering Depot ["MED"], and the
Scioto Ordnance Plant ["SOP"].
On May 21, 1997, Mr. Jayko, along with his immediate supervisor, Jeff
Steers, and Mr. McLane, also a supervisor at OEPA, attended a dinner at Pizza Hut in Marion,
Ohio, between an afternoon pre-meeting, and a scheduled walking tour of the affected site, to be
followed by a meeting with the public, there. At that Pizza Hut dinner, Mr. Jayko consumed two
beers, and was later brought-up on disciplinary charges by Mr. Steers. They alleged that he was
either drinking on duty, or before a public meeting in violation of OEPA work standards. He
was later charged with having engaged in either theft, fraud or deceit in submitting a travel
voucher for reimbursement of either an excessive amount, or for reimbursement for the alcoholic
drinks arising out of the same incident, also in violation of OEPA work standards.
On June 29, 1998, Mr. Jayko was informed that he would no longer be
functioning as "site coordinator" for the RVS, MED and SOP sites. Instead, Mr.
Jayko was assigned other sites to supervise. On July 30, 1998, Mr. Jayko was informed by letter
from OEPA Director, Don R. Schregardus that he was being suspended without pay for a period
of ten working days, beginning August 3, 1998, and ending prior to August 17, 1998. The
suspension was for charges arising out of his having consumed the two beers, and having
submitted a request for the travel reimbursement which included the two beers. This suspension,
according to OEPA Officials, was separate from Mr. Jayko's removal as site coordinator.
At the time of the hearing, Mr. Jayko remained employed by OEPA,
NWDO DERR, as an ES2 in the Remedial Response Section, in another site coordinator
113. On January 29, 1998, Mr. Steers sent two memos to Nancy Whetsto of Central
Office Support, with copies to Mr. Czeczele, Ms. Gianforcaro and Mr. Hammett, one
remarking on his being back in charge of "the whole thing," with their game
plan, with roles for the whole staff, and repeating that he had instructed the NWDO staff
not to talk to any media, since he wanted, "to stop, all disconnected info so that
anything we say is said with the bigger picture spin on it;" (emphasis added)
and the other clarifying that he had talked to Ed Hammett about discussing the Lawhon
report's "preliminary data," since it was "all raw data,"
emphasizing that no conclusions could be drawn from it, and that Director Schregardus
should be given a "heads up" on it. (CX 18)
114. Mr. Jayko was not copied with this memorandum, and first saw it after the
discovery process for the present litigation. (T 1767)
115. Mr. Steers maintained at the hearing, that aside from Ms. Gianforcaro and
himself, the media could contact Mr. Jayko, (T 550) if available, although none of the
documents support that position.
116. Claimant's counsel asked him if he saw anything inconsistent between the
memoranda, and Mr. Jayko stated that since they had discussed the trihalomethanes as
preliminary data, there was a message going out that they weren't to talk about it. (T
With regard to his understanding of what the "bigger picture
spin" was supposed to be, I find that Mr. Jayko believed that it was that there was
no evidence of risk on the data that OEPA was finding. (T 1770)
117. It is my conclusion that Mr. Jayko's understanding was an accurate one about
what was happening with the "spin" being given to the release of data by the
OEPA as stated by Mr. Steers, which was that there was no evidence of risk on the data
that it was finding.
118. With regard to Mr. Steer's testimony that from January to April 1998, Mr.
Jayko was getting frustrated and seemed discouraged, I find that Mr. Jayko justifiably was
frustrated and concerned, and that he was also justifiably never hesitant to communicate
to management his dissatisfaction with the situation.
119. Some time during this January 1998, time period, Mr. Steers appointed Diane
McClure to summarize the Lawhon data, since it was his belief that the USACOE was
going to take the project over, and would need a summary. (T 573)
120. On April 2, 1998, Mr. Jayko received word from the Central Office that the
contract with another contractor, PSARA Technologies which was in negotiations to be
the successor to Lawhon, had been demobilized, and their contract had been terminated
as of March 20th, and the OEPA Environmental Investigation of Marion was at a
"standstill." (T 1677-78)
121. As of April 2, 1998, Mr. Jayko was convinced that there was no progress being
made on the work plan; that the program was unfinished, and that, it appeared that the
EPA had "dropped the ball," contrary to the directive of Govenor George
Voinovich, that the mission was to "leave no stone unturned." (T 1678)
122. In terms of who was left to be running the investigation, it appeared to Mr.
Jayko that no one for EPA was; they appeared to be waiting for the Corps of Engineers to
get a contractor in place, and then put a work plan together and implement it, and that it
would have to duplicate a lot of their work already done to do so. (T 1680)
123. On April 8, 1998, Jeff Steers sent a memorandum to Director Schregardus (CX
20) regarding a trenching (sampling) operation by USACOE that was performed at RVS
in March 1998, and reported on March 30, 1998, noting that soil excavated from the
trench revealed various concentrations of solvents and other organic chemicals, and
While not in excessive concentrations, such as would be characteristic of a
hazardous waste, there is concern that they were found at a depth of only
three feet in an area that is regularly saturated with water. (CX 20)
124. The memo also noted that the Columbus Dispatch had published an
article the previous Sunday, in which the Corps described its findings, but did not include
a description of the petroleum/solvent contaminated soils; that, while the article appears
alarming, they have attempted to stress that the findings are yet another piece of the
investigation which can be used to build on past studies, so they thought it important that
caution continue to be exercised around the exclusion zone previously established in the
athletic fields, and that they would be conducting a soil gas survey of the surface to
determine if any chemical vapors were being released from the surface contamination, to
be done as soon as practical - in three to four weeks. (Ibid.)
125. The memorandum concluded that, "there is no evidence to suggest that
there is a health threat to persons on other portions of the school grounds."
126. Mr. Jayko was involved in the oversight of that trenching operation, and was
aware of the results which were correctly stated in the memo, and that the material that
was sampled and sent out for analysis came back as a reactive sulfide, and that it had to
be, and in fact was, manifested as a hazardous waste for handling and disposition. (T
127. On April 9, 1998, there was an exchange of e-mails including one from Kevin
Jasper to Jeff Steers that was setting up a conference call which stated that the next thing
they had to discuss was: "Is [there] risk at RVS? What risk does the contamination
in the anomolies (as we know it now) pose? Do we separate the Risk of the Arsenic in
the ditches from the anomolies?", (CX. EX. 21) and also asked: "Do you
want to include Paul Jayko in on these calls? Please pass the number [to call] along if
128. In the second part of the April 9, 1998 e-mail exchange, in a reply from Kenneth
Crawford of the Corps to Jeff, Kevin and "All," to the first, he referred to
"lessons learned the hard way" that "reporters are always looking for
conflict, sometimes finding it where it doesn't exist," reminded them that they had
stood together and were working hand-in-hand to resolve the matter with them
(OEPA)," and stated that in his years working with environmental problems, he
had, "never seen such outstanding interagency cooperation." (Ibid)
129. Mr. Jayko did not get a copy of the above e-mail exchange until after he was
removed from the project, and would definitely [have] expected to have been included in
the conference call. (T 1777-78)
130. It is my conclusion that a deliberate determination was made in April not to
include Mr. Jayko as the site coordinator, on either the compliments that had been
rendered by the Corps to OEPA for things that he had been a direct part of, or the
telephone conference, or the future plans, and that he ended up totally unaware of the
exclusion, until the hearing discovery process.
131. In late April 1998, a Director from Central Office told Mr. Jayko to gather all of
the paperwork, all the documents and all the data and everything that he had pertaining to
the investigation for a repository in Marion, which was a section of the library where the
documents would be kept. (T 1681)
132. Mr. Jayko was going to be leaving for two days so he put all of the documents to
be delivered in the repository under the table that was behind him, showing them to an
administrative assistant, Emelia, stating that everything on the table needed to be
photocopied. (T 1682)
133. Included in the documents to be deposited in the repository was his
chronology,(JT. Ex. 18) concerning which he made a point in telling the administrative
assistant to give Jeff Steers another chance to look this chronology over, and on his return
on Monday there was a yellow post-it on it that said something to the effect that "its
okay." (T 1682)
134. All the material was collected, and the last he saw of it, it was staged in the front
lobby, apparently to be sent down to Marion. (T 1682)
135. In July of 1998, Jeff Steers came down to his cubicle with supervisor Archie
Lunsey and told Mr. Jayko that if he had a copy of the chronology it should be in the
public file. (T 1682)
136. Mr. Jayko looked through one or two public file drawers, pulled it out and
handed it to him, after which Mr. Steers took it away, apparently without comment. (T
137. Mr. Jayko had also put together status reports or updates and monthly reports to
Mr. Dunlavy, all based on the chronology, as he had done traditionally, including the past
Dura report, where he used such a log for the same purposes involving status reports,
updates, and monthly reports.25
203. After Mr. Czeczele's conversation with Mr. Jayko on June 1, 1998, he recounted
it in a memo to Mr. Steers, stating that he asked Mr. Jayko to fill in a form requesting
aerial photography of the Scioto Ordnance site; that Mr Jayko suggested that he should do
it to learn about those things; that he, in turn should do it; that Mr. Jayko questioned him
about what his role was, with an exchange about it; that Mr. Jayko suggested that Mr.
Czeczele needed to gain Mr. Jayko's respect; that if he had to ask how to do that, it was
not a good sign; but that, "whatever I asked him to do, he would do;" that Mr.
Czeczele told him to think for himself, manage the site, and keep him informed; that Mr.
Steers was concerned about Mr. Jayko putting everything in writing; that they should talk
before doing so; and, on questioning whether he wanted to be working on the project, Mr.
Jayko responded that he gets paid every two weeks whether he was working on the
Marion project or something else. (JX 16)
204. As a result of Mr. Jayko's memo, was called into Bruce Dunlavy's office, along
with Archie Lunsey, and was told that the memo was not well received by management;
that it was an embarrassing memo, and that the overall perception or tone was that it was
not well received. (T 1703)
205. Subsequently, Mr. Czeczele let Mr. Jayko know that it was Mr. Steers and Mr.
Hammett who were upset with it, feeling that this was another memo that they felt made
them look foolish, and if they didn't do some of the things stated, they were going to look
as if they were neglecting their responsibility or remiss in their duties; facts which were
verified by Mr. Steers, albeit, for claimed differing reasons, but admitting that he did not
know whose job securing the aerial photography would be between Mr. Czeczele and Mr.
Jayko. (T 449-53; 595-96, 1703-04)
206. Insofar as the ecological risk assessment was confirmed, it was agreed by the
Corps, the Ohio Department of Health, and Ohio EPA Risk Assessment staff, that the top
priority for the investigation would be to address the public health issues, and that, while
it was ongoing, evaluate the feasibility to perform an ecological risk assessment, the
language of which was included in the final work plan for the Scioto Ordnance Plant.
(CX. EX. 66, T 1701)
207. With regard to the contact with the Attorney General, he stated that he discussed
it with Mr. Steers, and that the project had an attorney assigned to it, who investigates the
need for AG involvement. (CX. EX. 66, T 1700-01)
208. Since no particulars or instructions had been given to Mr. Jayko on to how to
interact with Mr. Czeczele, Mr. Jayko used as a basis for the new relationship with Mr.
Czeczele, the one that he had maintained with Archie Lunsey, which was a very close
with his staff, assisting where possible, and would be there to work with you rather than
simply provide oversight.
209. This mind-set may have contributed to some misunderstandings at the
beginning, which were reflected in the reaction to Mr. Jayko's June 1 memo asking him to
check on the three items; first, either as a manager who would have the authority to make
some decisions, or have him be the first link in the chain of command to the people that
would make them; and second, assuming that he would probably want to make some of
the actual work provisions and get physically involved in some of the work that
was going on.
210. Mr. Czeczele later told Mr. Jayko that he did not do that, kind of work, as he
was there simply to oversee and to supervise. (T 1706)
211. Mr. Czeczele felt that Mr. Jayko was directing him to do work, and Mr. Jayko
felt that was not his intention, since making such a request with Archie Lunsey should not
cause that kind of disturbance. (T 1706-07)
212. Mr. Czeczele had stopped by his cubicle, and told Mr. Jayko that he thought that
this was a directive from him to fill out the template to get the aerial contract, and that he
was not getting the respect he felt he deserved, apparently, Mr. Jayko thought, from the
group, and remembered telling him that just because he was previously the acting chief of
the division and was now a group leader, people were not just going to give him their
respect, since it was an older crowd he was dealing with, and they want to see a little
proof before they bestowed their blessings on him. (T 1707-10)
213. Mr. Jayko said that he thought that Mr. Czeczele immediately felt that he was
rendering his opinion on him and that he did not respect him, and that was not what he
had intended. (T 1710)
214. Mr. Jayko confirmed that he said something about earning respect; that Mr.
Czeczele asked him what he should do in order to earn his respect; that he told him
basically that if he had to ask, that was not a good sign and that people would see through
him; and that he was not aware, at the time, how offended Mr. Czeczele was from the
conversation. (T 1710)
215. Mr. Jayko and Mr, Czeczele had a follow-up conversation when he came back;
that Mr. Jayko had talked to Jeff Steers about the conversation; that Jeff Steers had taken
some things out of context, and that he remembered replying to Mike, saying that he had
actually made a big step forward, at least in his eyes, by having the personal courage to
come back and actually tell him something like that; to which Mr. Czeczele replied that
he was relieved that they had, and had worked out what he perceived to be a problem, and
that they then had an "amicable relationship," finally telling Mr. Czeczele that
he would do whatever Mr. Czeczele asked him to do. (JX EX. 16, T 1711)
216. At that point, Mr. Jayko thought that he and Mr. Czeczele had resolved their
differences; that he was looking forward to working with him on the project, and that they
did not have any further disagreements. (T 1711)
217. After his removal as site coordinator, Mr. Jayko approached Mr. Czeczele and
asked questions about why he had been removed, to which Mr. Czeczele replied that he
did not know the particulars, but that the directive "came from upstairs,"
indicating that Steers and Hammett had made the decision.40 (T 1711-12)
1The parties hereto stipulate that the
following facts are true, for purposes of this hearing only.
2Calls were received from Mary
Baratt who discussed concerns of other parents and citizens, school children and health effects; Lena Cummings,
who had a daughter Jamie who contracted leukemia in her early twenties and underwent a bone marrow
transplant, and had attended River Valley Schools (RVS); Robin Malard, whose daughter Stephanie had
contracted breast cancer at an early age; and Kruma Akers whose daughter Kim had graduated from RVS and
had undergone a bone marrow transplant for leukemia. (T 1611) In addition, Ms. Bernie Pettijohn called
frequently. She had attended school there, and generally expressed concerns. (T 1612)
3I credit the accounts of Paul
Jayko concerning his investigation of the Marion matter in full. His consistency in his accounts, both orally and in
writing, and his demeanor on the witness stand, convinced me that he was presenting a truthful and accurate
account about what had transpired therein over the course of the year of his involvement in the investigation.
Further, while many of his accounts as an investigator involve hearsay accounts, such accounts are generally
admissible in these proceedings as exceptions to the hearsay rule under 29 CFR § 18.803(a)(8)(iii),
"Factual findings resulting from an investigation..." etc., and are subject to a blanket ruling on the
admissibility of those oral and written reports, which I have continued in effect, and will not address again in this
decision and order.
4It is my determination that, in
stating that school was to begin on August 26, 1997 and the 1,000 students of RVS were being placed into a
"situation of unknown risk," Mr. Jayko invoked specific health and safety concerns under the
environmental Acts in his memo to Mr. Hammett.
5 See, CO Ordnance Plant in
Marion Engineer of Marion, Ohio, a profile after 40 years,the report by Chiles D. Mosher and Delpha
Group Mosher, (CX Ex. 71) as well as other supporting documents, including a June 20, 1990 letter from James
J. Fiore, Acting Deputy Director of the Division of Eastern Area Programs, Office of Environmental Restoration,
Department of Energy. (CX. Ex. 72) In The History of the Production Complex: The Methods of Site
Selection, prepared for the U.S. Department of Energy by History Associates Incorporated, Rockville,
Maryland in September, 1987. (CX. Ex. 73) Also included is the Project Review Fact Sheet, Scioto
Ordnance Plant, dated May 2, 1995. (CX. Ex. 75)
6For a summary of the reports, and
a list of contaminants, possible leukemia causing contaminants, see Appendix A to this decision and
7For reasons that will be discussed
herein, this determination does not alter Mr. Jayko's protected status under the ERA and the other environmental
8Mr. Steers testified that the
investigation began when OEPA received this directive from ODH, which was the initial lead agency for Ohio,
and that the responsibility had gradually shifted to the OEPA. (T 494-95) No mention is made of Mr. Jayko's
investigation and involvement from June - August, 1997. Basically OEPA had abandoned Governor Voinovich's
command to "leave no stone unturned" and neither the public nor Mr. Jayko were so informed. This
does not change my view that Mr. Jayko was justified in following the admonition of Governor Voinovich.
9A "full scan analysis"
involved looking at the volatiles, the semi-volatiles, pesticides, PCDs, metals, etc.
10I credit Mr. Jayko's notes as
an account of what happened over the time period of August 22, 1997 - September 2, 1997.
11 Polyaromatic hydrocarbon =
aromatic hydrocarbons containing more than one fused benzene ring. (The Environmental Dictionary.)
12Regardless of the truth or
falsity of Ms. Vandergrift's account from a hearsay standpoint, I credit Mr. Jayko's account of what she said, and
have no reason to discredit it. As an investigator, he had an obligation to take the account seriously, to direct
sampling accordingly, and to have the protections of at least two of the Acts(ERA and SDWA), if not all of them,
in so doing.
13Note that there are two
Concern Nos. 5, an obvious typographical error.
14See summary of Mr. Jayko's
testimony, (T 1634-44) about the October 15, 1997, Six Concerns memorandum in Appendix B.
15 I note for background
purposes only, rather than as a specific finding of a violation of the applicable acts, that this reaction was so
inappropriate and chilling to the rights of Mr. Jayko as a protected employee under the applicable whistleblower
acts to pursue an investigation that could have led to violations of the Acts, that it may well have served as a
separate complaint. In such an investigation, management may not interfere with a seasoned, senior employee's
documentation of his concerns and conclusions generated by his own investigation. It is not as if he was in the
initial phases of his employment, and directions on what and when to document matters, were being given. The
present interference struck at the core of the investigation, extending far beyond the scope of it's legitimate
exercise of managerial discretion. [InMachinists Local Lodge 1424 (Bryan Mfg. Co.) V.
NLRB, 362 US 411 (1960), the United States Supreme Court affirmed the National Labor Relations Board's
holding that it may consider earlier misconduct in order to shed light on events occurring within the period of the
statute of limitations governing present unfair labor practice charges of the employee. See also, Mechanic
Laundry & Supply, 240 NLRB 302, 100 LRRM 1243 (1943), in which the NLRB affirmed the use of such
evidence to establish motive for discrimination.] This position has been confirmed by the ARB in Melendez
v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No. 1993 ERA-6, ARB July 14, 2000, while not now
independent causes of action, they are relevant to the later discipline and transfer of Mr. Jayko.
16Concern No. 4 dealt with
possible contaminants within 1/4 mile of the water intake for Marion's water supply. Mr.Steers was satisfied with
samples at the intake, (T 540) and annoyed at Mr. Jayko's concern about the contaminants 1/4 mile below it. I
find that Mr. Jayko's continuing concern was warranted as an investigator charged with finding the causes of
leukemia there, and that this outweighed the annoyance of Mr. Steers, both as his supervisor, and as supervisor
for the Water Supply program, which involved a potential conflict of interest with an investigator charged with
going further in the investigation.
17For the reasons noted,
Respondent's Exhibit 89 is admitted into evidence as 89a, and it's objections thereto are overruled. At
respondent's request, I am admitting the subsequent reports of August 20, 1998, Leukemia Incidence Among
Residents of Marion, Ohio,1992-96, and that of December 9, 1998, Review of Cancer Rate Studies by the
Ohio Department of Health for Marion, Ohio, both of which soften the October 17, 1997 report, are
admitted into evidence as Respondent's Exhibits 89b and 89c. In my post-hearing review of the evidence, I noted
that the original Respondent's Exhibit 89 was marked for identification and not offered into evidence at the
hearing. I then issued an order to show cause why it should not be admitted, to which both parties responded,
with objections of the respondent duly noted. The document was referenced in the October 31, 1997 listing of
the members of the Marion Environmental Team (CX 13 p. 1a), the "Purpose" provision of
Provide multimedia support on environmental conditions in the City of Marion and
Marion County and to take the lead role in implementing the recommendations, as
applicable, in the Ohio Department of Health's report entitled: "Leukemia
Mortality Among Residents of Marion, Ohio, 1966 - 1995" October 17, 1997
I find the document admissible in its entirety on the basis of this reference alone, as well as constituting a
public document derived from a scientific, medical or technical process, within the provisions of 29 CFR 18.
201(a)(3), and therefore admissible on the basis of judicial notice. Additionally one court ruled:
"documents that are referred to at a hearing do become part of the record." Zenith Radio Corp. v.
Matsushita Electrical Industrial Co., 529 F. Supp. 866, 900 (E.D.Pa. 1981). "[A] rule that arbitrarily
excluded from the judicial record documents that were not presented to the court individually and in their entirety
would not serve the important purposes of the common law right to inspect and copy." Id. at 901.
In another, it was decided that the trial judge's decision to admit an entire report, even though there were
questions concerning trustworthiness of certain portions of the report, was not an error, as long as the report was
used to help fill in a causation gap, and the plaintiffs did not rely on the report to establish a desired point. In
Re Korean Air Lines Disaster of September1, 1983, 932 F.2d 1475, 1483 (D.C. Cir. 1991).
18The differences were that
Mr. Jayko stated that there was nothing about mycotoxins that allows you to do a phased approach. "Either
you do it or you don't." Mr. Czeczele's "phase(d) approach" would include sampling for PCBs,
and on finding them with incomplete combustion of PCBs, then dioxins would be a likely result. Since they had
already determined that there were PCBs on the school grounds as confirmed by SIFU, (3 of 10 preliminary tests
showed PCBs which were indicators of dioxins and mycotoxins. - T 354) neither one of their arguments
"bore out." (T 1652-53) Also, the Lawhon Plan called for long term monitoring stations set up to
filter air drawn through them for long periods of time such as 24, 36, 48, or 72 hours, and then having the filters
used for the tests sent to labs for testing, which was also rejected by OEPA.
19 An argument developed
between the Claimant and the respondent concerning admissibility of these 1999 documents. Mr. Decker stated:
"I think it cuts both ways if we are willing to do these now, why would we retaliate against Mr. Jayko for
suggesting they be done earlier." I have determined that they are both material and relevant and are admitted into
20In CX 67, Diane McClure
notes re: dioxins, indicates concern on screening for dioxins, and possibly looking at some other types of
screening protocol; CX 68, Jeff Steers letter to Kevin Jasper at the Corps of Engineers, re: EPA requests that
dioxin screening be conducted concurrently at the River Valley property based on available information
regarding past-army activities (T 1661), and CX 70, Gerald Meyers, Vice President of Met-Calf and Eddy of
Ohio, Inc. letter to Mr. Jasper, the project manager of the Corps of Engineers, re: sampling and analysis for
"high chlorinated dibenzopedioxins [ph], which are dioxins, what we normally think of as dioxins and also
for dibenzofurians [ph]," (Ibid) and the most appropriate method for collecting and analyzing
samples, which, according to Mr. Jayko, is the same argument that he made concerning the SIFU data rather than
using composite samples, which can be very misleading, that they should be discreet samples." (T 1662)
In CX 69 the other letter to Mr. Jasper from Captain Eddy dated April 16, 1999, it reviews and comments on the
work plan that the Corps has supplied so far. Mr. Jayko comments that in nearly every paragraph Met-Calf and
Eddy puts forth an argument that was identical to the arguments he was making back in 1997 and early 1998,
about "[h]ow to investigate the quality control, the data gaps, what type of compounds that were likely to be
there, and how they needed to be screened."
21"FF" stands for
"Findings of Fact" used with the number of the "Findings of Fact" set forth in this
decision and order.
22Another quote was obviously
from the 1992 report, which was clearly mentioned in the November 15, 1997 article. (Ibid.)
23 The OEPA Division of Air
Pollution plan did "ambient air monitoring" rather than ground level testing. (T 1670) Mr. Jayko
objected: "[Y]ou cannot make any type of a logical conclusion as to what exists at the school by measuring
. . . air quality on top of the fire station on the west side of Marion if your school is located on the east side of
Marion. And that's what was done. We set up air monitoring stations that measured ambient or surrounding air
quality, rather than air quality at the site." (T 1671-72) To him, it did not matter if they did that type of air
sampling, but they had to do sampling at the site, in the breathing zone where people could be actually be
subjected to any volatiles or particulate that would emanate from that site. There was no such plan, and he
objected to that, yet the ambient sampling was the only thing that occurred. (T 1672)
elements that are regulated under the MCL, which is the drinking water standards. Although they do occur
naturally, they also occur when you combine chlorine and chlorination process of water supply with any type of
organic matter that's in there, and produce these trihalomethanes. The reason that maximum contaminant limits
are set is that if the levels get too high they present a danger and are carcinogenic. (CX. EX. 17; T 1765-66)
25The Dura Report was even
reviewed by the house legal counsel in Columbus, Fran Kovac in particular, who reviewed his chronology and
would go through and cross out certain things and place them in the confidential files as opposed to the public
files. (T 1684)
26Again, I have never seen a
satisfactory explanation to the apparent objection by Ohio EPA management to Mr. Jayko's having maintained
such a chronology, or of his use of it in it's submission to the repository, both of which constituted protected
activity, and the response to which I find was discriminatory adverse action against Mr. Jayko.
27 At this point, counsel for the
respondent stated he did not believe that "any witness has testified of the quality or lack thereof of Mr. Jayko's log
or chronology was either a reason for any decision that was made . . ." (T 1692) He went on to state that the
"point of that testimony was based on what was read about it in the Dispatch, it was disappointing to
people like Tiell and Schregardus as a whistler blowing documents, because it did not contain a lot of information they
would have expected it to." (Ibid) The Claimant's counsel objected stating that "witnesses never
said that they evaluated this as a whistle blower document. They simply commented on what they thought were the
deficiencies. And this is his explanation of what he was doing. That's it." (T 1693) I note that Mr. Hammett's
testimony was that he was also "writing too much" to which respondent's counsel responded that "it
was Mr. Steers who said that Mr. Jayko ought to come back to him before he wrote some things to avoid
miscommunication. He stated that there is a dispute as to how much the log revealed about problems on the sites as a
document by itself and who actually read it prior to it becoming an issue on the Dispatch, a month after Mr.
Jayko was removed as site coordinator. (T 1694) The fact is that it gets cited negatively in the Dispatch
articles, a month after Mr. Jayko had been transferred, and a day or two before he was suspended. (T 1694) It is my
opinion that, if you come in reading it cold, it appears to be a reason being offered as to why things happened to Mr.
Jayko on which the public, and everyone else, is drawing conclusions, and they are looking for explanations as to the
"real deal behind the chronology." I stated to Mr. Decker, "now I guess your statement here is there
isn't one," (T 1695) to which he responded, "I guess my statement here is that . . . nobody on our side of the
case is alleging that Mr. Jayko's log should have been something other than it was, and that it was a reason for anything
bad that happened to Mr. Jayko. Our position is . . . here it is. And it didn't have anything to do with what happened to
Mr. Jayko. So why we're debating whether Mr. Jayco should have kept a more detailed or less detailed audit, seems to
me, is beside the point." I responded, "I think this is why it's being presented and why I have an interest in
it, whether you do or not, Mr. Decker." (T 1695-96) He answered: "I wasn't meaning to object to what you
were doing, but to clarify our position so that you would understand it." (T 1696)
28The color coded portion
appears on Complainant's Exhibit 62, and is reviewed in Respondent's Exhibit 6, at Bates Stamp No. 0049. (The
double 00 will be dropped in the discussion). This latter exhibit consists of Mr. Jayko's calendar from May 21,
1998. (T 1721)
29 The notes that Mr. Jayko
typed up after the meeting consisted of notes of the "pre-meeting" on May 21, 1998, and notes on the public
meeting in RVLS (CX. EX. 23). Notes on the pre-meeting consisted of notes on radiation and the soil gas survey by
headings. They discussed the radiation survey that at the height of 3 feet was read, with badges being worn on the chest
at 1.5 meters (the way people walk rather than sitting down is a meter or less,) they also discussed the radium disk that
was found was only an alpha emitter. They discussed drums in a water filed quarry. This gave rise to the question of
whether it was combustible with air contact, such as white phosphorus or was it radiation protection. With regard to the
soil gas survey, Mr. Jayko stated that one thing that concerned him was that they are constant in taking the first step,
conducting the first phase of a phased approach - but are not reaching a conclusive resolution to an issue. (CX. EX. 23
at p. 1) The notes on the public meeting discussed the tour of the back area of the school campus, outside the roped off
area, by Mr. Watson. Tour maps were distributed and Steers described what the EPA is doing at both Marion and
RVLS. Wagner spoke of the firm numbers from ODH studies, citing 58 cases (cancer) between 1992 and 1996. 91% of
which were greater than 45 years of age. Wes Watson described the radiation survey, soil gas survey, and soil testing
survey. At RVLS/MED, there is surface water, ground water, sediments testing and consideration for PCBs
dioxins/furans. At SOP, the focus would be on explosives, lines, and quarries. The last part of the report consisted of
notations of questions from the audience.
30This is a sheet filled out by
Emelia Martinez, their Administrative Assistant, to track their travel expense report, which is not a time card, but
the agency's own form for keeping track of travel time. (RX 35) (T 1735) Respondent's Exhibit 37 and 38 are
computer generated time cards to track working hours. (T 1736)
31(T 1739) This relates to prior
testimony that somehow he was trying cover some of the time and I believe, that it relates to his having had the
two beers on work time. I want to note for the record here that I completely credit Mr. Jayko's testimony on this
point. His demeanor was consistent; he was not hesitant; he was a credible witness on this point, and it is my
opinion that he gave an accurate account of the entries that were made in his time sheets. I also conclude
that he was, in fact, on his own time, at the time of eating the pizza and drinking the two beers at the Pizza Hut
and that there was no rule in existence against such conduct. The fact that he was attending a meeting afterwards
was irrelevant if he was not acting as if he was under the influence of alcohol, which he was not. I also note
that Mr. Steers, who was with him all of the time and drove back and forth with him mentioned nothing about it
at the time, and in my opinion, the action that was taken against him concerning the pizza and beers on "ex
po facto" basis was a contrived way of "reigning Mr. Jayko in"" for purposes of the River
Valley Schools, Marion investigation. I believe it was retaliatory and violated the Act or Acts that were involved
32 This is contradicted by
testimony of Mr. Steers that he did not say anything to him. Steers Transcript (T 372-373). There is no other evidence
that he made such a statement. It is not credited.
33It appears that no one really
contested this practice on behalf of management. It is credited. [See Steers/etc. testimony]
34Claimant's Exhibit 22 is a
photocopy of the check that was issued to him. (T 1749) He testified that he had not cashed it after discussing
the matter with counsel (Mr. Muchnicki), so it was not "the appropriate thing to do at that time, given the
35Respondent's Exhibit 53
shows his travel reimbursement requests for 1997 and 1998, which do not include the May 21 incident. (T 1760)
In that time period, he submitted documents for reimbursement on three occasions other than the May 21st one.
(Ibid) Other than those cases, where he had travel requests for 1997 and 1998 dealing with Marion, he
had taken some courses in 1992 or 1993 at Kent State for geophysics study, but the rest all deal with Marion. He
did not have occasion to travel since that original study to the Marion travel. (T 1761)
36While I agree that Mr. Jayko
had an obligation to have knowledge of the applicable regulations, the presence of Mr. Czeczele, who was the
former Acting Director of the Agency, as well as Mr. Steers, his immediate supervisor, placed them both in the
position that they too were charged with the same knowledge, and in the circumstance, had an obligation to say
something to him if they believed that Mr. Jayko was engaged in any sort of a chargeable offense in violation of
Ohio EPA's policies. Neither objected to Mr. Jayko's drinking of two beers with the pizza in front of them, nor
did they object to his contribution of $15.00 to the dinner check, which was above the norm as per the testimony
of Wes Watson, and obviously intended to cover any costs that he might have incurred over then shares of the
others. It was also evidence, in and of itself, of an absence of intent to engage in theft, fraud or deceit, even
though the travel voucher was submitted after that date.
37Most contributions averaged
$6.00, according to Mr. Watson. Mr. Jayko paid $15.00, and claimed $14.52, knowing that he would only be
reimbursed for $13.00, the maximum reimbursed for such a dinner. No one has specifically stated the actual cost
of the beers, and there is no evidence that they were in fact included, or what the cost was. If they were .50 -
$2.00 for an eleven ounce draft, then that was $3.00 - $4.00 for the beers, with the rest a large tip, as Mr. Watson
acknowledged Mr. Jayko having said, leaving a possible maximum of $2.00 that would have been applicable to
one of the two beers, after the $15.00 was reduced to $13.00, or one of the two beers for which reimbursement
was not warranted. Of course, while he did submit the travel reimbursement, and received a check for $13.00, he
never did cash the check, so he never received any reimbursement at all, so he is short nearly $10.00 over the
matter. Again, I find no substantial evidence to warrant the ten day suspension.
38Mr. Jayko could not recall
how much participation Mr. Czeczele had in the meetings as he was still in the transition between moving from
Columbus, Ohio to Bowling Green, Ohio changing districts, and did not sit in all of the meetings. (T 1700).
39Mr. Jayko explained that
with regard to the ability of the EPA to arrange for aerial photography of the Ordnance Plant, they had recently
conducted an "on the ground recognizance" at the plant. (T 1698) The physical boundaries of the
plant are massive in the order of 12,000 acres and within are various munition lines for recognizance. Some
areas the former buildings had been raised and the grass was tall causing them to possibly miss remnants of
facilities they were looking for. He suggested to both Mr. Watson and Mike Czeczele, who was there with them,
that perhaps the EPA could use a level of effort contract for aerial photography to support work that the Corps of
Engineers was going to do. As he was asking the agency to pay for work to support the Corps, rather than the
agency pay for work to support the agency, he felt that it needed approval from a manager and that how they
approached it was going to determine how much money we spent. (T 1699)
40Mr. Jayko recorded the
conversation, and attempted to offer it into evidence. Respondent objected to the use of the tape recording or the
transcript. Complainant claims that it is primary evidence of an admission against interest; that it was a non-
hearsay use of primary evidence, and that, therefore, hearsay objections did not apply. (T 1712-14)
Complainant's counsel later cross-examined Mr. Czeczele on each element of the recorded conversation without
Mr. Czeczele's direct reference to the transcript of the recording, and he confirmed all of the essential elements
of the conversation. (T 1360-62) With the exception of one point, which was clarified by use at the bottom of
page 1 of Exhibit 33, Mr. Czeczele confirmed what he had said he had done, consistent with his deposition. (T
1362) I reserved ruling on the matter. It is now my ruling that the current status is that the information contained
in the transcription of tape recording is duplicative, and unnecessarily burdens the record. The offer of
Claimant's Exhibit 33 into evidence is denied.
41See prior discussion of the
June 4, 1998 memo regarding the May 21, 1998 Pizza Hut, beer drinking incident at paragraphs 156 - 157,
42Mr. Jayko was called in to
discuss the quotes in the article with Ed Hammett on November 15, 1997. (T 1789) He could tell that he was
"agitated." His tone was "accusatory", and he wanted to know if he had talked to the
press about it. Mr. Jayko responded that he hadn't talked to them about it since probably 1992 or 1993 about that
area and that the information was readily available in the public file for anyone to do a file review. (T 1789-90)
He went on to state that Mr. Hammett specifically wanted to know about a Division of surface water, and water
quality study that had been done, which pointed out all the contaminants in the river, and he wanted to know who
else had seen the document. (T 1790) Mr. Jayko told him that perhaps countless, even thousands of people had
seen it since it has been out for years and had been one of the vehicles for a discussion of a number of surface
water conferences. (Ibid)
43Counsel for both parties
raised possible attorney/client privelege issues that never reached the point of a specific objection to a specific
question in Mr. Dunlavy's testimony. Absent such specific objections, and recognizing that Mr. Dunlavy
otherwise continued to testify without further objection on such issues, the attorney/ client issues are deemed to
have been waived by both parties.
44- What does the report
contain and communicate? Present a summary of the report briefly analyzing its content and the nature in
importance of significant features.
- Is the report complete? That is based on past records, and the information and knowledge
already held by the Agency, is there anything of significance missing from the report? If so,
prepare a briefing outlining the missing information.
- How can we (or other regulatory agencies) view the report to more effectively focus on
- What impact does this information have on the determination of whether remediation is
necessary, if so, what remediation might be effective?
45 It should be noted that this
newspaper article was accepted into evidence for the sole purpose of Mr. Jayko's demonstration about why he would like
to return to the position of site coordinator for the Marion site.
46 This information was
received over counsel for respondent's objection, since I decided to take information on any costs or damages that
respondent felt were not included in either category, damages or costs, which will be decided upon post hearing
petitions for costs and attorneys fees that are not permitted as damages. (T 1806-07)
47 Mr. Jayko testified that a
contemporary in the agency had indicated that Mr. Jayko was viewed as "one of the greatest villains in the
agency." To this I sustained an objection and the record will be stricken.
48See, ALJ's comment in
Niedxielski v. Baltimore Electric, Co., 2000-ERA-4 (July 13, 2000), to the effect that, "working
through the prima facie case is useful since the ultimate burden of proof still involves many of the elements
covered in the prima facie analysis...."
49Established under the Energy
and Water Appropriations Act, 1998, Pub. L. No. 105-62, 111 Stat. 1326 (1997).
50The Director also noted that
all aspects of the interrelationship of responsibilities between the Department of Energy (DOE) and the
USACOE under the FUSRAP program involving the overlap of the various Acts have not been addressed, and
are the subject of discussions between the agencies for a memorandum of understanding to clarify their
respective roles. DD-99-07 at p. 4.
51If only in the start-up phase,
and even though the sites did not hold any known NRC/AEC licenses. (FF 34)
52It is my determination that,
in stating thatschool was to begin on August 26, 1997 and the 1,000 students of RVS were being
placed into a "situation of unknown risk," Mr. Jayko invoked specific health and safety concerns
under the environmental Acts in his memo to Mr. Hammett.
53Mr. Steers also testified that
Mr. Jayko was not participating in conference calls and meetings, concerning which I find that he was
participating, but gradually limiting his comments and observations. However, I also find that any such limitation
in these calls and meetings by Mr. Jayko, especially after January 7, 1998, was caused by the effects of his
treatment by OEPA management and to the above chain of events, and not due to any misconduct on the part of
54Mr. Hammett claimed other
incidents of discord between Jayko and other supervisors on recall at the end of the hearing, but was unable
to name them specifically. (T 2418). For the first time in his testimony, also at the end of the hearing, Mr.
Hammett stated that Jayko's former supervisor, Ms. Gerber, had problems with him in 1996 because he did
not adequately record his activities and when he did "the projects were not progressing
satisfactorily." (T 2458-59). Mr. Dunlavy testified that he talked to Jayko about this
"problem," and Jayko responded that he backed down in participation because his ideas were
not being listened to or addressed. (T 2485). Moreover, respondent has failed to submit any documentary
evidence on the Dura project (the source of this allegation that Jayko has had previous problems). (T 2417-
20). I have specifically given no weight to pre-June, 1997 conduct on the part of Mr. Jayko, on the basis that
it was not documented in any evaluations of him, and he was assigned the key Marion site coordinator
position anyway -in other words, on the basis of a "clean" record. (FF 20)
55The fact that other
employees took the "fifth amendment" on this matter is not relevant. Mr. Jayko and Mr. Dalton
confirmed this practice without contradiction, and I credit their testimony on it.
56The $2.00-$3.00 beer
inclusion as set forth in footnote 37, is a separate matter, and is discussed below. By actual calculation,
subtracting the .52 in the $14.52 request above the $13.00 allowance, which was partially disallowed, it results
in only a 48 cents to .48 difference, as the alleged wrongful alcohol reimbursement. While this assumes that
the beers were included in the restaurant check, in the absence of the original, it is not known for certain what the
actual amount of the alcohol reimbursement was.
57It appears that no one really
contested this practice on behalf of management. In light of the fact that there was no other policy covering
circumstances where no individual receipt was received, it is credited. [See Steers/etc. testimony]
58Claimant's Exhibit 22 is a
photocopy of the check that was issued to him. (T 1749) He testified that he had not cashed it after discussing
the matter with counsel (Mr. Muchnicki), so it was not "the appropriate thing to do at that time, given the
59 I overruled an objection to
the hearsay nature of this in stating that it was admissible for purposes of what Mr. Jayko relied upon in his
investigation, and for no other purpose - i.e., the truth or not that nuclear weapons were actually there. (T 1640)
60CX 75 contained other June
3, 1998 e-mails, asking for the sources of the information, and one to Mr. Crawford from Tim Sandler of
Dateline requesting a long list of documents is also discussed with him. (CX. EX. 25)
61The memo ranks possible
scenarios that could occur, starting with: 1) a significant amount of radiation found on school property and
possible responses and talking points; 2) in the event that highly toxic hazardous waste is found on the school
property; 3) for any reason, the school is closed; and 4) a major, nationwide media outlet plans a potentially
negative story. (Ibid) The fourth begins with a possible Dateline or other national media story
that it states: "is potentially negative" and directs that "the PAO should react in a positive
manner." It directs making people available, and up front as possible, though contamination may have
been caused by the Army during WWII, the story is positive: we have quickly responded to the state and to the
public, have kept the public informed with honest, straightforward information and are working as quickly as
possible to find and remove contamination. It emphasizes "all of this is in the interest of the
people." (CX. EX. 26, p. 8) For a summary of the rest of the memorandum, see, Appendix