ELR Citation: 44 ELR 20057
No(s). 12-1036 (D.C. Cir. Mar 14, 2014)

The D.C. Circuit held that an EPA employee's lawsuit against the Agency for allegedly retaliating against him in violation of several environmental whistleblowing provisions was untimely. In 2000, the employee was working in EPA's ombudsman office. Following a pattern of controversial behavior at a number of hearings, the employee's supervisor told him that he would no longer be performing ombudsman duties and that the reference to such duties would be removed from his job description. This message was embodied in a December 14, 2000, memo, which also characterized the employee's behavior at the hearings as "inappropriate, unprofessional, and lacking in impartiality." Because EPA expressly removed his ombudsman-related duties in the memo, it represented the final, definitive, and unequivocal notice of EPA's adverse action toward him and marked the start of the 30-day limitations period. But the employee did not file his complaint until April 2001. He claimed that he suffered adverse action after the memo was issued, but EPA's direct and indirect failure to subsequently assign him ombudsman-related work does not constitute adverse action because he was already barred from performing such work. Likewise, EPA's decision to move the ombudsman function to the Office of the Inspector General was in no way adverse to the employee. The court, therefore, denied his petition for review, thereby affirming the decision of the Administrative Review Board.