A federal administrative law judge (ALJ) recently ordered the District of Columbia Water and Sewer Authority (WASA) to reinstate and compensate Seema Bhat, a whistleblower who first exposed the dangerously-high lead levels in Washington, DC’s drinking water to the Environmental Protection Agency in 2001 and 2002. Stuart A. Levin, an ALJ at the Department of Labor, found that Ms. Bhat’s termination “constituted discriminatory treatment of a protected employee” in violation of the Safe Drinking Water Act, which shelters employees from reprisal when they work to protect the public from unsafe water. Levin explained, “By reaching out to EPA, she forced the lead issue to the forefront of her supervisor’s agenda, and shortly thereafter, he recommended that she be fired.”
“Seema Bhat would settle for no less than justice, and today she was vindicated,” said Ms. Bhat’s lead attorney, Bryan Schwartz, of Passman & Kaplan, PC. In addition to returning Bhat to her job, the judgment orders WASA to pay Bhat’s lost salary since her March 2003 removal, with interest and benefits, along with $50,000 in compensatory damages, $10,000 in exemplary damages, and all of Bhat’s attorney fees. Schwartz estimated the value of the award at over $500,000. A Washington Post editorial of November 6, 2005, called Bhat’s “a smashing victory for the lone individual who stood up to her bosses on behalf of District [of Columbia] residents and the law.”
Bhat’s revelations to the EPA, which led to her removal, established that WASA was exceeding the EPA’s “Lead Action Level” (LAL). The LAL establishes how much lead can be in drinking water without rendering the water unsafe to drink, especially for infants, pregnant women, the elderly, and other vulnerable members of the population. Levin’s decision also describes how WASA largely ignored Bhat’s pleas to change the water treatment process to reduce the amount of lead from DC’s older water pipes that was seeping into the drinking water supply.
Bhat was not a federal employee – WASA is an independent agency. However, the whistleblower protection provisions of the Safe Drinking Water Act and other environmental statutes should also apply to government workers under the Whistleblower Protection Act of 1989 (WPA), 5 USC §1201, et seq., as long as the whistleblowers do not have a specific “duty” inherent in their normal job responsibilities to report violations (like an investigator reporting his routine investigative findings to his supervisor). ALJ Levin observed in the decision that, even if Ms. Bhat were a federal employee, Ms. Bhat did not have the actual duty to report the high lead levels to the EPA – her second-line supervisor had this duty.
When you report wrongdoing outside of normal channels, feeling that the normal chain of command is unresponsive (like Bhat felt), the Merit Systems Protection Board has held that you are clearly making a disclosure protected by the Act. See, for example, Huffman v. Office of Personnel Management, 263 F.3d 1341, 1354 (Fed. Cir. 2001). The Bhat decision should give you hope that, if you go beyond the call of your everyday responsibilities, and do the right thing for our environment, the law may step in and shelter you from retaliation.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to
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