The Eleventh Circuit Court of Appeals has ruled that EPA is not liable in a whistleblower lawsuit brought by an agency research microbiologist who wrote an article claiming a link between the land application of sewage sludge and public health risks.Lewis v. Dep’t of Labor, No. 08-12114 (11th Cir. 02/24/10) (unpublished). The Lancet rejected the article for publication at about the same time that an EPA peer review process involving another EPA scientist concluded that the article was “of poor quality” and “alarmist.” The criticism and additional actions taken by the other EPA scientist involving the microbiologist’s purported lack of expertise in this field led to the filing of a complaint with the Department of Labor’s Administrative Review Board (ARB) alleging harassment and retaliation by EPA. Finding no evidence of harassment by the agency, the Department of Labor rejected the claim, and the microbiologist filed an appeal to the Eleventh Circuit.

The appeals court agreed with the ARB, ruling that EPA was not liable for the peer-reviewing scientist’s alleged harassment because he had no supervisory authority over the microbiologist. The court therefore upheld the ARB’s dismissal of plaintiff’s hostile work environment claim against EPA, holding that any “harassment” that may have occurred was not imputable to EPA.