ARB CASE NO. 96-131
ALJ CASE NO. 93-SDW-1
DATE: July 30, 1999
In the Matter of:
JOHN W. MARTIN,
COMPLAINANT,
v.
THE DEPARTMENT OF ARMY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
H. Wesley Kirkland, Esq., Kirkland, Dodson, Rush & Riddle,
Columbia, South Carolina
For the Respondent:
L. Patricia Smith, Esq., Department of the Army, Ft. Jackson,
South Carolina
DECISION AND ORDER
This complaint of unlawful discrimination arises under the employee protection
(whistleblower) provision of the Safe Drinking Water Act (SDWA), 42 U.S.C. §300j-9(i) (1994).
In a previous decision the Secretary of Labor ruled that Complainant John W. ("Billy") Martin
had been retaliated against by his employer, Respondent Department of the Army (the Army), for engaging
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in activity protected by the SDWA. The Secretary remanded the case to the ALJ for findings on whether
Martin had been constructively discharged and on remedy. In a recommended decision on remand, a
different ALJ found that Martin had been constructively discharged and awarded back pay, front pay, and
attorneys fees. We conclude that Martin was not constructively discharged. Therefore, we also conclude
that Martin is not entitled to back pay or front pay. We discuss other elements of relief below.
BACKGROUND
Martin was hired by the Army in 1987 to work as a Plumbing Worker, WG-7, at
Fort Jackson, South Carolina. As part of his job, in February 1991 Martin was assigned to test and repair
certain backflow preventers. During the period that he worked on backflow prevention, Martin had a
series of disputes with his superior, Charles Pittman. In September 1991, he filed a complaint with the
Army's Assistant Inspector General (IG) at Fort Jackson. In early 1992 Martin reported his concerns to
a representative of the South Carolina Department of Health and Environmental Control (DHEC).
Martin was removed from the backflow prevention assignment in May 1992, and
was assigned other plumbing duties. The Army asserted that Martin's supervisor had reassigned him
because he had not followed instructions and had gone outside the chain of command. Martin filed a
complaint of unlawful discrimination with the Labor Department against the Army, alleging that he had been
reassigned from testing and repairing backflow preventers, that he had been given a lower than
"exceptional" performance appraisal, and that he had been subjected to other adverse action
because he had made environmental and public health complaints. After unsuccessful conciliation efforts
and an investigation, the Assistant Secretary for Employment Standards found Martin's charges to be
unsubstantiated. Martin requested a hearing before an ALJ, which was convened in March 1993.1 Throughout the complaint investigation and hearing
phases, Martin continued to be employed by the Army as a Plumbing Worker.
None of these alleged instances of harassment by Pittman were confirmed by any
other witnesses. McDonald denied that Martin was singled out by Pittman:
Q. Have you ever witnessed any incident where Mr. Pittman came into a group of the
men that he supervised and singled Mr. Martin out to go back to work and let the other
men be on break or be on lunch or not work?
A. No. Charlie [Pittman], if most of the time, you know, he might just say, you
know, okay, you know, it's five to ten, or ten minutes after a break's over and we're
supposed to be out on the field. Hey, it's time to go guys, or you know, or whatever. But
I've never seen him single anybody in particular out, you know out of a group. If there's
a group there that's slack, he'll tell all of them.
T. II at 127. Co-worker David Anderson was also asked about Pittman's treatment of Martin:
Q. During the time that the hearing went on and to the time that Mr. Martin left, did
you ever witness Mr. Pittman harassing Mr. Martin in any way?
A. No.
Q. Did you notice him treating him differently than any of the other people that worked
under him?
A. No.
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T. II at 153-154. Pittman also flatly denied harassing Martin after the hearing in Martin I.See T. II at 189-191, 207-208, 224. Even without considering Pittman's testimony, however,
the overwhelming weight of the evidence is to the effect that Pittman did not treat Martin in a pervasively
abusive manner.
1 The hearing transcript from the first ALJ
hearing (Martin I) is cited as T. I. The hearing transcript from the second ALJ hearing
(Martin II) is cited as T. II.
2 Pittman had not denied Martin's
requests to be absent from work for extended periods for treatment. However, because Martin had
exhausted his sick and annual leave, Martin was not paid for the periods he was absent. The advance of
sick leave which Martin requested would have allowed Martin to take leave with pay, but would have
resulted in a negative sick leave balance.
Martin had been warned about his sick leave usage. Pittman issued Martin a sick
leave warning for the period January 1992 through October 1992, which cited sick leave usage totaling
12 percent of available work hours. Respondent's Exhibit (RX) 27. Pittman issued Martin a sick leave
warning for the period November 1992 through June 1993, which cited sick leave usage totaling 20
percent of available work hours. RX 41.
(a) It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions or privileges of employment, because of such individual's race, color,
religion, sex, or national origin . . . .
42 U.S.C. 2000e-2(a)(1998)(emphasis supplied). Title VII and the SDWA share a common
legislative ancestry. Title VII is patterned in part on the NLRA, 29 U.S.C. §151 et seq.Armbruster v. Quinn, 711 F.2d 1332,1336 (6th Cir. 1983). The anti-retaliation provision
of the SDWA is modeled on a similar provision in the Water Pollution Control Act (WPCA), 33 U.S.C.
§1367(a). The legislative history of the WPCA, in turn, states that the employee protection provision
is patterned after similar provisions in the NLRA and the Coal Mine Safety Act. S. Rep. No. 414, 92d
Cong., 2d Sess. 80-81 (1972) reprinted in 1972 U.S.C.C.A.N. 3668, 3748-49 (1972).
4See Johnson v. Shalala,
991 F.2d 126, 131 (4th Cir. 1993), cert. denied, 513 U.S. 806 (1994); EEOC v. Clay
Printing Co., 955 F.2d 936, 944-946 (4th Cir. 1992). See also Moore v. KUKA Welding
Systems, No. 97-1734, 1999 WL 162962 (6th Cir. Mar. 26, 1999), at *5 ("the employer must
deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention
of forcing the employee to quit and the employee must actually quit"); Bradford v. Norfolk So.
Corp., 54 F.3d 1412, 1420 (8th Cir. 1995) (constructive discharge occurs "when an employer
intentionally renders working conditions so intolerable that an employee is essentially forced to leave the
employment"). See also Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d at 87
(same).
5 A co-worker of Martin's testified
that employees commonly received exceptional ratings and the lower rating increased the likelihood that
Martin would be laid off. However, although at least one employee in the plumbing shop
"definitely" was scheduled for separation during an upcoming Reduction In Force, Martin was
not, in fact, laid off.
6 Although the ALJ cites Martin's
testimony at transcript page 43 in support of his ostracism finding, we find nothing on that page that is
relevant to this issue.
7 The ALJ cited the testimony of
George Klingbeil, one of Martin's fellow plumbers (T. II at 149), in support of his finding regarding
ostracism. Martin II R. D. and O. at 10. However, that portion of Klingbeil's testimony was in
response to a hypothetical question about how members of military units behave. Klingbeil explicitly denied
that Martin in fact had been treated differently. T. II at 151.
8 The ALJ rejected Anderson's
testimony explicitly denying that he treated Martin differently or saw anyone else do so because Anderson
"had limited opportunities to observe Complainant . . . ." Martin II R. D. and O.
at 10. In fact, the clear import of Anderson's testimony was that he saw Martin on nearly a daily basis.
T. II at 154.
9 Because we find that any co-
worker ostracism does not rise to the level necessary to support a constructive discharge finding, we need
not address the issue whether and under what circumstances co-worker ostracism can be found to
constitute retaliation by an employer.
10 Ms. Martin testified without
elaboration that Martin would tell her about Pittman "giving him dirty looks." T. II at 106.
11 However, McDonald testified that
Martin routinely called in early, before Pittman arrived. Therefore, Martin's telephonic sick leave requests
often were conveyed to his co-workers. T. II at 126.
12 Franklin Cooper, Martin's third-line
supervisor, testified that in 1990, when he took over the Division in which Martin worked, he noticed that
Martin was one of a very few employees with very little sick leave considering their years of service. T.
II at 237.
13 Although the ALJ found that the
gas leak incident had not been proven, he did find that the incident was confirmed by Ms. Martin.
Martin II R. D. & O. at 12. We do not think that Ms. Martin's testimony can be given weight.
Ms. Martin's testimony on this issue was that "[Martin's] truck was something happened about the
truck, with the fire." Tr. 107. There was no testimony that the alleged gas leak caused a fire, and
Ms. Martin offered no other explanation for her comment.
14 In Martin I the Secretary
declined to award compensatory damages for stress because of insufficient evidence. 1995 WL 848062
at *4. The Martin II record has remedied that insufficiency.
15 Because this decision resolves all
issues with the exception of the collateral issue of attorneys fees and other litigation expenses, it is final and
appealable. See Fluor Constructors, Inc., v. Reich, 111 F.3d 979 (11 Cir. 1997) (under the
analogous employee protection provision of the Energy Reorganization Act, a decision that resolves all
issues except attorneys fees is final).