Evans v. EPA, ARB Case

In 2010, the Department of Labor’s Administrative Review Board (“ARB”) decided that Aschroft v. Iqbal should be applied to whistleblower complaints filed with the Occupational Safety and Health Administration (“OSHA”). Iqbal is a 2009 Supreme Court case that ruled that top government officials are not liable for the actions of their subordinates without explicit evidence detailing that they ordered the discriminatory activity.

Yet the Department of Labor has requirements for an OSHA complaint to be accepted. The rule clearly states that “no particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations.” The NWC agreed with an ARB judge’s dissenting opinion that the rule stated above makes Iqbal inapplicable to OSHA whistleblower complaints.

The DOL’s decision to apply Iqbal to OSHA related whistleblower complaints directly affected Douglas Evan’s case, supported by the National Whistleblower Legal Defense and Education Fund. An employee of the U.S. Environmental Protection Agency (“EPA”), Douglas observed and then reported inadequate training for emergency response work. Consequently, Douglas was fired and lost his home. The NWC supported Evan’s complaint with OSHA under the federal environmental laws, and after Evan’s prompt discharge, the NWC supported a complaint against his discharge. Yet Evans’ pleas were rejected, as OSHA accepted the EPA’s motion to dismiss the complaint. Further efforts on Evan’s behalf were rejected when the Administrative Law Judge (“ALJ”) dismissed the case and the ARB affirmed the decision in 2010.

Douglas Evan’s honorable and honest attempts to improve the U.S. Environmental Protection Agency were met with relentless retaliation. While the National Whistleblower Legal Defense and Education Fund has worked to ensure that this case remains alive in the court system, the consequences inflicted on Douglas Evans put his career to a permanent end.

Photo by Dmitrij Paskevic

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