On August 1, 2000, the Claimant filed a Motion for Summary Judgment (ALJ 9). On August 11, 2000, the Respondent filed its response, as well as a cross-motion for summary judgment (ALJ 10). I denied both motions, finding that they were untimely, and that there were many genuine issues of fact raised by the parties' pleadings, and thus summary judgment was not appropriate (TR 7-8).

   A formal hearing was conducted before me on August 17, 18, and 23, 2000, in Baltimore, Maryland. At the hearing, the Claimant appeared pro se; the Respondent was represented by counsel. Both parties presented evidence and examined witnesses. After the close of the hearing, both parties were provided the opportunity to submit post-hearing briefs. The Respondent's brief was received on October 11, 2000; the Claimant's brief was received on October 17, 2000.

   The record consists of the hearing transcript (TR); Claimant's Exhibits 1-6, 8-14, 30, 32-34, 82, 84-97, 109-112, 131-141, 150-169, 200-207, 209-238, 240-291, 293, 299, and 301 (CX); Respondent's Exhibits 19, 21, 22, and 31 (RX); and ALJ Exhibits 1 to 10 (ALJX). At the hearing, I reserved a ruling on the admissibility of the entirety of CX 7A and 7B, which are videotapes of, inter alia, various news reports, as well as footage taken of the inside of several school buildings. These exhibits are hereby admitted into the record.

   I also note that on August 26, 1999, the parties participated in a hearing on the issue of the Claimant's dismissal, before a hearing examiner hired by the Baltimore City Board of School Commissioners, who made a recommendation to the Board. At this hearing, the Claimant and the Respondent presented evidence and examined witnesses. The transcript of this hearing was submitted by the Claimant as CX 281, and testimony from this hearing, referred to as the "dismissal hearing," is cited frequently in this opinion. In addition, the exhibits submitted at this hearing by the Claimant and the Respondent were submitted by the Claimant as CX 278 and CX 279.

Background

   As the Claimant's complaint involves allegations of lead in the drinking water at schools in the Baltimore City Public School System (System), the following history is useful in placing the facts in context. In 1992 and 1993, as required by law, all of the schools in the Baltimore City Public School System were tested for potential lead hazards, by an independent contractor commissioned by the school system. Drinking fountains that showed unacceptable levels of lead were tested a second time, after they were flushed. If they passed on the second test, they were required to be flushed each morning to clear any buildup of lead in the pipes. If they failed, they were to be turned off. As part of this project, Southeast Middle School (Southeast), along with about 35 other schools, including Farimount-Harford (Farimount) were identified as schools with more than 20 parts per billion of lead before the water was flushed.

All of the public schools in Baltimore that were so identified complied with the EPA's requirements either to flush the fountains in the morning, or turn them off completely. Until the schools could be renovated, the long-term temporary solution was to provide bottled water at stations in the school. The contractor's report was posted in the schools, identifying what had been done, which fountains had been turned off, and which needed to be flushed (TR 666-674; CX 279).

   In the summer of 1996, an extended, phased-in renovation project began at Farimount. The building remained in use during the 1996-1997 school year, with the renovation taking place in phases.

The Claimant's Activities

   The Claimant is a former teacher in the System. She has a degree in mathematics, and a certification in secondary education in mathematics from the College of Notre Dame. Additionally, she has a Masters of Administrative Science Degree from Johns Hopkins University, and has taken additional courses there since receiving that degree (TR 526).

   Meanwhile, in response to the Claimant's complaint, an OSHA inspector conducted an inspection at Fairmount, beginning on September 26, 1996. Nothing was found to substantiate the Claimant's allegation of raw sewage contaminating the drinking fountains. However, the inspectors noticed chipped and peeling paint in the hallways where dropped ceilings had been removed, as well as in some of the classrooms. As the school was scheduled to be repainted, the inspectors conducted a survey for lead based paints. All of the paint contained lead in different concentrations; as this indicated a potential for lead exposure, the System agreed that the repainting would be done in accordance with lead standards. The inspectors noted that a pocket of asbestos in the basement had been identified and removed by the environmental contractor, and that air monitoring results were negative. The inspectors noted that the City Safety Department had done wipe sampling to check the dust at the work site, and that since all of the paint at the school was considered to contain lead by OSHA standards, the City had contacted a lead removal contractor, and had asked for surveillance by the MDE for the paint renovation process. The inspectors noted no violations during the inspection, and thus no citations were recommended (CX 278).

   The news broadcast footage videotaped by the Claimant includes coverage of the decision to offer blood testing, and a statement by school personnel that an environmental contractor had been hired to clean up behind the general contractor, and that areas under construction were contained. There was also a follow-up report, reflecting that the blood testing showed no widespread exposure to lead at the school (CX 7A).

   The Claimant also engaged in a series of correspondence with Mayor Schmoke. The Claimant sent two memoranda to the Mayor dated December 3, 1996 (CX 82). The first questioned the reliability of the results of the blood testing conducted by Johns Hopkins, and the second set out additional health and safety concerns relating to the bathrooms, the availability of facilities for washing hands or drinking water on the third floor, the fact that six exits were blocked off due to renovation, the fact that teachers were sharing a classroom and physical education classes were being held in the cafeteria, and the existence of fire code violations due to the encapsulation. She asked that the students and staff be evacuated and relocated. On January 3, 1997, the Mayor responded, indicating that he had referred her memoranda to the Personnel Director, and that the issues she raised were being investigated by the safety and facilities personnel (CX 83).

   On February 11, 1997, the Mayor again wrote to the Claimant, stating that the Superintendent had directed that Mr. Giles conduct an investigation and assessment of the environmental conditions at Fairmount (CX 84). He cited to the results of the investigation by MOSH in November 1996, noting that the facility was found to be in satisfactory condition for occupancy. He also referred to the report of the Fire Department, which inspected the facility in December 1996 and found it to be satisfactory. He noted that blood level assessments had been conducted, and that the results were privileged information for the persons who had been tested. With respect to shared classrooms, he noted that the principal had provided for a common science classroom, with shared team teaching, and that faculty members would experience minor inconveniences during the renovation. Finally, he noted that the Department of Facilities coordinated weekly progress meetings, and continued to monitor the conditions of the facility. He stated that the current action plan provided a safe and healthful work and learning environment.

   The Claimant was not satisfied with this response, and wrote to the Mayor again on February 18, 1997, stating that she had information proving that the Mayor was not completely or accurately informed, and she wished to be allowed to present the facts to him. She repeated that lives were being endangered daily at Fairmount (CX 85). Again, the Mayor responded on March 17, 1997, stating that he had been advised that the Claimant had filed a workers' compensation claim regarding the matters in question, and recommended that she contact the Associate City Solicitor directly (CX 86).

   According to the Claimant, on her first day back, a senior who was a former student of hers came into her classroom, and told her that she had lead in her system from her food service class. This student is Tiffany Burgess, who did not appear as a witness at the hearing. According to the Claimant, Ms. Burgess told her that she had so much lead in her system, her physician advised her to have an abortion (TR 206). The Claimant videotaped an interview of Ms. Burgess, in which she, with much coaching from the Claimant, described how she fainted during her food service class just before the Christmas break. Ms. Burgess stated that she was taken to Johns Hopkins, where, by her account, she stayed for two nights. According to Ms. Burgess, the principal, Ms. White, knew there was lead in the school, but tried to keep it hushed up. She acknowledged that many of the teachers were tested, but their results were negative. According to Ms. Burgess, she was also tested, and had lead in her blood, which had to be from the school, since her house, as well as the houses of her relatives where she spent time, were tested, and did not have lead. She claimed that after her mother spoke with Ms. White, she received a check from Ms. White in the mail over the Christmas break. Ms. Burgess did not ask what the money was for, but assumed that it was "hush" money. She claimed that she never received any kind of award.

   The Claimant wrote again to the Mayor on March 22, 1997, stating that she would drop her workers' compensation claim if she could just meet with the Mayor, and get the children out of their unsafe and unhealthy facility at Fairmount (CX 87). She claimed that the school system's own data showed very high levels of lead in the paint, as well as high results on the wipe samples, and that it was urgent to remove the children during the renovation project. She indicated that she had videotapes that she did not want to take to the media, but that she would if she had to (TR 202).

   Apparently the Claimant decided that she needed to take her tape public, and she just happened to have it with her when she attended a city council meeting on April 9, 1997, on the subject of lead paint poisoning. The Claimant handed out copies of the reports given to the teachers at the November 6, 1996 meeting, claiming that the lead dust samples that were tested were extremely high in certain areas, particularly in the basement. The Claimant did not mention that the basement was used only by the contractors, and was off limits to staff and students. She claimed that there was enough lead at the school to poison someone in a matter of seconds. She also claimed that MOSH had written to her, telling her that there were concentrations of lead in areas of the building. She referred to the construction barrier seen on the videotape enclosing the closed stairwell, claiming that it was not properly enclosed; she stated that the contractors were doing something behind the barrier, but she did not know what. In referring to the spots on the ceiling, which appeared to be leaks or peeling paint, she claimed to know for a fact that they were hazardous. In response to a direct question from Councilman Kane, she stated that she did not know if the school had been cleaned since the testing.

   In fact, this was not true: the Claimant had been informed by MOSH that the school had been cleaned, and that lead and asbestos protocols were in place. This information was also provided to the teachers and staff. Indeed, the videotapes of the newscasts submitted by the Claimant report that these steps were taken by the System.

   The Claimant's allegations again hit the media, which showed clips of her videotape, and an interview in which the Claimant claimed that the stairwell barrier was not properly enclosed, and stated that she would not go back until everyone was tested. The media reports also show that Councilman Kane toured the building, and determined that the construction area was well-contained, and the occupied areas appeared clean. The Claimant was incredulous at this conclusion (TR 211-213).

   A memorandum sent by Ms. White to Ms. Wighton, the Southeast Area Assistant Superintendent, dated April 10, 1997, indicates that on that day the Claimant came to her office, highly agitated, crying, flushed, and speaking loudly and rapidly (CX 2). The Claimant told Ms. White that she could not breathe because of the fumes and dust in the building. As she left, the Claimant stated "It is a disgrace what is happening to the students in this building. The building is unsafe. What is being done in the dark will come to light. I'm going to see to it." Ms. White investigated the Claimant's complaint, and found that there indeed was a peculiar odor on the third floor, caused by a commercial art teacher spraying a wicker basket with Krylon paint. According to Ms. White, the room was properly ventilated, but the odor was noticeable. She saw no visible evidence of dust, but noted that before she went up to that floor the contractor had been mounting a floor drain in the bathroom, which caused some noise and vibration. She also checked with other teachers in the immediate area, but no one had experienced any problems.

   Ms. White also reported that later that afternoon, a representative of the Baltimore City Health Department came to inspect the building, but found no evidence of environmental violations. She also received a call from Councilman Kane about the condition of the building. Ms. White noted that she had received several calls from parents over the previous two weeks, asking about the condition of the building, and reporting that a teacher was telling their children the building was unsafe. One of the parents also told a staff member that the Claimant had called and invited her to a parents' meeting. She also was told that the Claimant had appeared on public service television stating that the building was unsafe.

   In that same memo, Ms. White also advised Ms. Wighton that she felt that the Claimant's presence in the building was detrimental to the successful operation of the program. She noted that there were many problems as a result of the renovation, but that the staff and student body had borne up well under the circumstances. She asked that the Claimant be immediately relieved of her teaching duties at Farimount, and reassigned. Ms. White indicated that this would also be in the Claimant's best interest, as she had good teaching skills that could be used in an environment where she felt safe.

   On April 17, 1997, Ms. White wrote to the Claimant, advising her that upon her clearance to return to duty, she was to report to the Southeast Area office, because of her concerns over health and safety due to the renovation of the building. She was also advised that she needed to complete an Employee Incident report for her illness, which started on November 7, 1997, in order to be seen at the Occupational Medicine and Safety office. Additionally, Ms. White reminded the Claimant that an absence of five consecutive days required medical verification of her illness, and that her documentation was due on April 18, 1997 (CX 3).

   The Mayor again responded to the Claimant on April 24, 1997, although this particular letter is not in the record. However, on May 2, 1997, the Claimant wrote back, expressing her disappointment that the Mayor was not doing what she perceived to be his job with respect to the issue of potential lead and asbestos exposure at Fairmount (CX 88). The Claimant also expressed displeasure at being referred to other parties for her complaints. She set out in detail the actions she would take if she were Mayor, and asked the Mayor to review the videotape of the City Council Hearing on Lead Poisoning that took place on April 9, 1997.

   On April 30, 1997, the Claimant appeared at a hearing regarding a cemetery, and brought up her allegations about Fairmount, claiming that it had been proven that there were lead and asbestos violations at the school. She claimed that a teacher had been taken away sick that very day, and she hoped it was not from lead. She also claimed that a third of the school population had upper respiratory infections, possibly from lead exposure. This prompted a flurry of news reports on the subject of sick schools (CX 7A).

   The Claimant also heard from the City Solicitor, who wrote to her on May 9, 1997, and told her that the Mayor had asked him to look into the issues she raised in her May 2 letter. He indicated that they would review the Health Department and Department of Public Works records of any possible contamination at the building, and contact her with their findings (CX 89).

   The Claimant again wrote to the Mayor on June 6, 1997, informing him that it was Lead Awareness Week, and asking him to discontinue the demolition of private homes in Baltimore City (CX 90). The Mayor responded on June 13, 1997, indicating that he had forwarded her letter to the Housing Commissioner and asked him to look into the issues she raised, and respond directly to her (CX 91).

based on the Claimant's repeatedly expressed concerns about the environment, and the fact that she had not reported to work. Ms. Wighton felt that there was a better chance that the Claimant would report to work and do her job if she were transferred to another school. According to Ms. Wighton, the transfer was not a disciplinary action. Thus, in late August 1997, the Claimant received a letter from Ms. Fields, the principal at Southeast Middle School (Southeast), telling her that she would be teaching eighth grade at Southeast the following school year (TR 233).

been trained as a lead expert, no one was listening to her or doing anything to close the school (TR 241, 244-245, 340).

   Ms. Wighton received a memorandum from Ms. Fields on September 2, 1997, advising her that a school police officer had reported that the Claimant's flier had been found on windshields in the Southeast school parking lot. This memorandum indicates that a school police officer went to Ms. Fields' office at about 11:17 a.m, with a copy of the Claimant's letter, which was on each windshield in the school parking lot. The police officer told Ms. Fields that she had made her most recent round of the parking lot at about 10:30, and that the fliers were not on the cars at that time. Ms. Fields indicated that the content of the document did not upset her, but she was upset that someone would distribute any material on school property without the principal's permission or knowledge. She believed that this was illegal (EX 31). According to Ms. Wighton, Fairmount had been certified as safe at that time. The Southeast Area Office also received calls from parents about the flier (TR 112-115).

   Ms. Fields wrote to the Claimant on September 4, 1997, indicating that she had received a copy of the Claimant's doctor's certificate, but that it was unclear from the statement when she would return to work, nor did it contain a diagnosis of her illness as required by payroll. She requested that the Claimant contact her so that the appropriate form could be submitted to payroll (CX 165). Attached was the Claimant's "doctor's certificate," which consists of a brief note indicating only that Dr. Peck saw the Claimant on September 3, 1997, and that she was still under his care.

   On September 7, 1997, the Claimant responded, asserting that under the teacher's contract, Dr. Peck's note was sufficient, and that she would bring the appropriate documentation, reflecting that she was capable of returning to work, when she did return to work (CX 166). The Claimant expressed her feeling that Ms. Fields was not following the contract, and was harassing her and treating her in an arbitrary and capricious manner.

   Ms. Wighton testified that the Claimant did not report immediately to Southeast, but indicated that she wanted to be assured that the school was safe before she reported there for work. Ms. Wighton found that to be unusual, as they do not provide such assurances to teachers. As far as Ms. Wighton was aware, the Claimant never provided any justification for her absence at the beginning of the school term, either to her or to the principal, Ms. Fields. The Claimant was transferred to the "996" payroll, which is an inactive payroll for teachers who are absent more than five days without documentation, as of October 10, 1997. This allowed Ms. Fields to show a vacancy in the mathematics department, so that she could hire another teacher (TR 91, 106; CX 12).

Claimant felt that Ms. Fields spoke to her in a degrading manner; she could not understand why she was not immediately accommodated, as the noise levels bothered her and caused her headaches and stress, and there were classrooms available. According to the Claimant, after she pushed the issue, she was assigned to a regular classroom (TR 362). Although the Claimant acknowledged that most of the teachers at Southeast worked in open classrooms, she testified that Ms. Field's failure to act immediately on her request constituted retaliation. The Claimant submitted a voluntary transfer request (TR 71, 567).

   The Claimant identified herself as a "lead expert" at the bottom of the flier, and provided her telephone and telefax number, and e-mail address.

   The record reflects that on April 20, 1998, Ms. Wighton forwarded this flier, as well as a hand-written cover letter instructing parents to have their children tested to save them from being potentially lead or asbestos poisoned, which had also been distributed at Highlandtown Middle School on April 8, 1998 to Mr. Giles, the Manager of Facilities (CX 10). Ms. Cascelia Spears, the principal at James Mosher, testified at the Claimant's dismissal hearing that in April 1998, her office heard from numerous parents about a flier that had been distributed about lead and asbestos contamination, with the Claimant's name on it, as well as a letter by the Claimant asking that parents attend an open hearing (CX 281, 121-126). Mr. Giles responded to Ms. Spears in a memorandum dated May 11, 1998, stating that his department was not aware of any citations that had been issued for lead paint or asbestos hazards in any of these three facilities. He noted that every school in the System had been inspected in compliance with the Asbestos Hazard Emergency Response Act, and that copies of the Plan were available for review in the office.

   According to Mr. Elam, James Mosher is an older facility, but there was no construction going on in the building. In addition to the testing done by MOSH in response to the Claimant's complaint, the System collected samples, which showed that there was lead paint on some wall surfaces, as well as the exterior window frames. The System scheduled scraping and painting of the exterior windows. Additionally, as wipe samples from the window wells showed lead levels above HUD guidelines, the System brought in an independent contractor to clean all of the window wells and sills, by wiping them down with a phosphorus solution (TR 684-687).

recommendations, including informing the summer clean-up crew of the sampling results so that they could protect themselves while working, performing more extensive sampling to determine the extent of the lead bearing dust, and abating the exterior and interior lead bearing paint throughout the building.

   MOSH also wrote to the Claimant on July 9, 1998, to report that they had conducted an inspection at Highlandtown. The inspector had observed several badly damaged walls with peeling paint, but no process that would generate airborne lead levels. An air sample was taken in the third floor teachers' lounge, but no airborne lead was detected. Samples were also taken of the chipping paint. The inspector observed no friable asbestos, nor was there any work being done that would be likely to damage or disturb any asbestos containing material. He noted that the school had an asbestos management plan. The results of the samples were provided to the Claimant (CX 235). However, the Claimant found it very suspicious that MOSH did not find lead paint at Highlandtown, as it was built in 1933, and therefore is presumed to have lead paint. Her videotape shows this paint chipping and peeling, and therefore she felt that it should have been closed (TR 587-588).

   The Claimant did not receive a formal assessment of her performance for the 1996-1997 school year, due to her sporadic attendance (CX 5). In her Annual Evaluation Report of the Claimant for the 1997-1998 school year, Ms. Fields indicated that the Claimant met expectations in all criteria. She commented that the Claimant made an excellent adjustment in a difficult situation, by being flexible even when she was given a classroom change. In her comments on her evaluation, however, the Claimant took issue, stating that she had not been "given a classroom change," but that she had requested to be moved to a classroom, and as a result, was able to work away from the chaos of an open space environment. She referred to the fact that she could not tolerate the mental, emotional, or physical disruption of an open-spaced environment. She also asked for a response to her April 3, 1998 letter asking about her upcoming classroom arrangement, and that her request for a voluntary transfer be honored (CX 278).

   Nor did the Claimant approach the School Improvement Team, a group of parents, teachers, and community organizations that meets regularly to discuss issues dealing with school improvement (CX 281, pp. 254-262). The Claimant testified at her dismissal hearing that she verbally expressed her concerns about the water at Southeast to the head of this team, who was a fellow teacher, and discussed the possibility that she could be on the agenda to speak at an upcoming meeting. Although the Claimant mentioned it again, she did not press the issue after that, as she did not want to be a nuisance. The Claimant testified that she saw this teacher almost daily, and figured that if she was ready for the Claimant to come forth, she would tell her so (CX 281, pp. 275-276).

Friday, requiring that observations be canceled. The teachers also complained that the letter had gone out without their knowledge, and asked if Ms. Fields had sent a rebuttal. She recalled that there was a question about whether the kitchen in the faculty room had ever been tested. Ms. Fields told the teachers that she would check; the teachers assured her that they did not drink from this facility, but just wanted to know (CX 281, pp. 378-380).

to faucet deterioration. She decided to turn off all faucets, and add more water stations. She stated that there was no danger to students or staff of exposure to lead in the water, and regretted any inconvenience or unnecessary alarm that resulted from the irresponsible actions of the person who wrote the letter.

   Additionally, the Statement noted the preparation and distribution of a letter by the Claimant, claiming that an expert had cited three System schools as lead based paint and asbestos hazards, and identifying the Claimant as a lead expert. The letter was given to staff, students, and parents, and caused a panic among the parents of students at one of the schools, James Mosher Elementary. The principal contacted the Department of Facilities to confirm the accuracy of the letter, and was advised that the Department was not aware of any citations issued against the school for lead paint and asbestos, and confirmed that all System schools had been inspected for such hazards in accordance with the law.

   A hearing was held on August 26, 1999, before a hearing examiner for the Baltimore City Board of School Commissioners (CX 281). The hearing officer subsequently determined that there was merit to the Claimant's allegations, and recommended that the CEO's recommendation of dismissal be denied by the Board (CX 139). However, the Board did not accept the hearing officer's conclusions.

   Mr. Booker took exception to the conclusions of the hearing examiner, noting that the testimony of the witnesses established that the recommendation to dismiss the Claimant was based on, inter alia, the Claimant's inappropriate conduct with respect to her unauthorized dissemination of information directly to the public and media (CX 276). Mr. Booker argued that while the hearing examiner was correct in concluding that the Claimant had the right to file a complaint with MOSH about safety and health issues that affect the public, he erred in failing to find that her unauthorized access to confidential student records for personal and perhaps professional gain rose to the level of misconduct in office. He noted that the Claimant acknowledged that she did not obtain permission to access the addresses, or to mail the notice. He stated:

These addresses constitute confidential student information that the Respondent would not otherwise have had access to as private citizen. Indeed, by attaching a business card to the notice identifying herself as a lead abatement expert, it can reasonably be argued that Respondent was actually soliciting the parents for business. . . . Further, Respondent's admission that she did not bring her concerns to the attention of her superior shows a total disregard for the chain of command. Her actions created a conflict or appearance of conflict between the interest of the BCPSS and that of her own.

   Mr. Booker argued that the Claimant's actions bore on her fitness to teach, and that the record supported a finding that her repeated pattern of inappropriate behavior incited panic and disruption in the System, citing to the three separate occasions when the Claimant disseminated information to parents, students, and staff concerning health and safety issues at the schools. He claimed that the Claimant's failure to follow the chain of command when addressing safety issues had caused the community to lose confidence in the Board's ability to protect the health and safety of the children in its charge, and that the integrity of the system had been seriously compromised by her actions.

   By letter dated December 8, 1999, Ms. Donaldson advised the Claimant that the Board of School Commissioners, by majority vote, rejected the hearing officer's recommendation, and upheld the dismissal decision of the Chief Executive Officer. Ms. Donaldson noted that her case would be on the Board's December 14, 1999 public business meeting for final action, and that after that, she would receive the Board's final order (CX 280).

By this Order, the Board found that the Claimant committed misconduct in office by failing to follow the chain of command when she disseminated information about alleged potential health hazards at three System schools. Additionally, the Board also found that she did not have permission to obtain the home addresses of the approximately 500 students at Southeast, and that this confidential student information was wrongfully acquired to further the Claimant's personal goals and objectives. The Board concluded that the Claimant violated the Ethics Laws and Codes of Conduct of Baltimore City in attaching her personal business card to this communication. The Board disagreed with the hearing examiner's conclusions, and found that the Claimant's repeated failure to follow proper procedure when addressing alleged health and safety concerns had a direct bearing on her fitness to teach, such that it would undermine her future classroom performance and overall impact on students (RX 21).

   The Claimant testified that after she was fired from the School System, she taught at her son's school for about two months in the spring of 1999 (TR 534). She has worked as a volunteer teacher there a few times since then (TR 535). According to the Claimant, she has not had time to look for another teaching job, as she spends much of her time in the library in connection with her various litigations. She receives unemployment compensation benefits (TR 536-537). According to the Claimant, she is aware that she is required to actively seek employment, but she has explained to the people at the unemployment compensation office that she is trying to clear her reputation before looking for another job (TR 538).

   The Claimant acknowledged that her doctor has diagnosed her with depression and stress, and suggested medication. She is angry at the "system," and suspicious that MOSH has been concealing the facts; she will not take medication, but prefers to rely on her faith (TR 541-550).

   Dr. Stephen W. Siebert performed a psychiatric evaluation of the Claimant on October 16, 1997, in connection with her workers compensation claim. He reviewed the results of the lead testing performed on the students and staff in November 1996; Dr. Peck's psychiatric evaluation of December 23, 1996; and the Claimant's workers' compensation claim. Dr. Siebert noted that Dr. Peck diagnosed the Claimant with major depression, but that the Claimant disagreed, as she felt she suffered from major stress. He also referred to the results of her November 8, 1996 blood test by Dr. Jacobs, which was essentially negative, although she reported to the media that the test showed lead in her system. According to Dr. Siebert, the Claimant understood that this result was negative, but nevertheless she was concerned about her past exposure to lead. Dr. Siebert reported that the Claimant had been scheduled for evaluation in April, July, and August of 1997, but that she did not appear. She told him that she was protesting a psychiatric evaluation until she had a "six part examination according to OSHA guidelines." Among other conclusions, Dr. Siebert noted that the Claimant was preoccupied to an extreme degree with environmental hazards, but that it was unclear to what extent her concerns were valid, versus obsessions, phobic anxiety, or delusions. He noted that some of her allegations seemed highly implausible, and that her concerns or ideas might not be reality based. He noted her somewhat paranoid stance, and her belief that there was a coverup

involving many people. He felt that the Claimant was not persuaded by evidence to the contrary, but rationalized facts to her own beliefs. For example, even though she had a negative serum lead test, she nevertheless continued to believe that she was exposed nine years earlier, and dismissed any reports or studies done by the school, claiming they were biased or fraudulent. Dr. Siebert felt that the Claimant had a delusional disorder with persecutory ideas and querulous paranoia. He found no evidence that she suffered an accidental injury on September 19, 1996, noting that she continued to work until early November, when her main complaint was the low temperature in the building. In his opinion, none of these anxieties or fears were sufficient to result in an acute stress or posttraumatic stress disorder. Further, he found no evidence that the Claimant had any symptoms of major depression. He felt that she had either a delusional or personality disorder representing a preexisting condition, not causally related to any accidental injury (CX 137).

Alleged Protected Activity

   The Claimant alleges that she was unlawfully terminated on December 8, 1999, due to her involvement in a lengthy course of protected activities relating to her complaints and attempts to expose lead and asbestos hazards at several System schools.

Claimant's Prayer for Relief

   The Claimant seeks a variety of remedies in this claim. First, she seeks an order compelling the System to take a number of steps that, in her view, would ensure that the risk of exposure to lead or asbestos in the schools would be eliminated. The Acts under which this claim is brought do not provide the authority for the issuance of such an order.

   The Claimant also seeks compensatory damages in the amount of approximately $70,000, comprising back pay and interest, insurance benefits, medical expenses, and other expenses, as well as punitive damages in the amount of $78,000,000.

The Applicable Law

   The Claimant in a whistleblower case initially has the burden of proving a prima facie case by a preponderance of the evidence. To prove a prima facie case, an employee must establish each of the following elements:

1) That the employee engaged in protected activity;

2) That the employer knew that the employee engaged in protected activity;

3) That the employer took some adverse action against the employee; and

4) The employee must present evidence sufficient to at least raise an inference that the protected activity was the likely reason for the adverse action.

   Scerbo v. Consolidated Edison Co. of New York, Inc., 89 CAA-2 (Sec'y Nov. 13, 1992). Once the Claimant has established her prima facie case, the Respondent has the burden of presenting evidence that the alleged adverse action was motivated by legitimate, nondiscriminatory reasons. If the Respondent articulates a legitimate, nondiscriminatory reason for its action, the Claimant must establish that the Respondent's proffered reason was not its true reason, but was a pretext. The ultimate burden of persuasion of the existence of intentional discrimination rests with the employee. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).

   The Respondent need not persuade the Court that it was actually motivated by the proffered reasons, but it is sufficient if the Respondent's evidence raises a genuine issue of fact as to whether it discriminated against the Claimant. To accomplish this, the Respondent must clearly set forth, through the introduction of evidence, the reasons for the Claimant's dismissal.

Protected Activity

   To establish the first element of the Claimant's prima facie case, she must prove that she engaged in protected activity. The Secretary has broadly defined protected activity as the report of an act which the complainant reasonably believes is a violation of the environmental acts. The Secretary has also stated that a complainant under an employee protection provision need not prove an actual violation of the underlying statute. See Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992). Rather, an employee's complaint must be "grounded in conditions constituting reasonably perceived violations" of the environmental acts. Johnson v. Old Dominion Security, 86- CAA-3 to 5 (Sec'y May 29, 1991), slip op. at 15; Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994).

   The issue of the reasonableness of a claimant's perception of environmental violations has been discussed in the context of a refusal to report to work until the perceived hazard has been addressed. Thus, in Sutherland v. Spray Systems Environmental, 95- CAA-1 (Sec'y Feb. 26, 1996), the Secretary, citing, inter alia, Pensyl v. Catalytic, Inc., 83-ERA- 2 (Sec'y Jan. 13, 1984), noted that a work refusal loses protection under the CAA and the TSCA after the perceived hazard has been investigated by responsible management officials, and if found safe, adequately explained to the employee. "Management has the prerogative to determine which means it deems to be most effective provided such means comport with requisite safety and health standards. There is no requirement for management to engage in a dialog with the refusing workers as to which procedure would be most efficacious." Slip op. At 5-6.

   In Stockdill v. Catalytic Industrial Maintenance Company, Inc., 90-ERA-43 (Sec'y Jan. 24, 1996), the Secretary agreed with the ALJ's conclusion that the Complainant's initial concerns about wearing a dust mask lost their protection after the Respondent adequately responded to the Complainant's concerns. The ALJ found that the Respondent in fact went to significant lengths to investigate and explain the safety of the work area, and gave the Complainant opportunities to change his mind about the work refusal.

   In the context of this particular case, it is analytically useful to address the character of the Claimant's diverse activities and to determine if she has in fact established a prima facie case. While I find that many of the Claimant's activities fall squarely within the definition of protected activity under the various statutes applicable to this case, I also find that not all of those activities so qualify. Thus, the Claimant's complaints to various regulatory groups, as well as her public airing of her concerns about the potential safety hazards presented by the renovation project occurring at Farimount, were clearly protected activity within the meaning of the applicable statutes. In response to these concerns, which appear to have been shared, at least initially, by other teachers and staff at the school, the System undertook significant activity to ensure that the environment was safe, that any potential problems were corrected, and that a plan was in place to monitor the safety of the occupants during the renovation. Thus, the System engaged an environmental contractor to clean the building after activity by the general contractor apparently impacted some lead and asbestos surfaces, with clearance and monitoring by the appropriate regulatory agencies. The System also engaged an environmental contractor to perform ongoing asbestos abatement under applicable protocols, to identify areas affected by the renovation, remove the occupants, perform the abatement under containment, and take clearance samples before reoccupancy. To allay concerns of the teachers and parents, the System offered blood testing, which did not show any link between exposure at the school and elevated blood levels. The school was inspected numerous times, by MOSH, and by the City Health Department; no one found any violations.

   In her subsequent complaints and allegations, as well as at the hearing, the Claimant ignored the fact that this cleaning had taken place, and that clearance testing had been done before each cleaned area was released for occupancy. Instead, she focused on the fact that only 45 lead dust samples were taken, which in her "expert" opinion was an insufficient number of samples. Of course, as Mr. Elam pointed out, as the System had elected to clean the entire building, it did not make sense to spend time or money taking additional samples. The Claimant has presented no credible evidence that the cleaning was done improperly, or that hazards remained afterward. Indeed, in response to her complaint, an inspector from MOSH conducted an inspection, finding nothing to substantiate the Claimant's many complaints, including raw sewage in the drinking fountains. MOSH did note chipping and peeling paint in hallways where dropped ceilings had been removed, and in some of the classrooms. However, as part of the renovation project, the school was to be repainted, and in fact the System contacted a lead removal contractor, and asked the Maryland Department of Environment for surveillance during this process. The MOSH inspectors noted no violations, and recommended no citations.

   In addition, while the renovation project was ongoing, there was an asbestos abatement project at Farimount, to identify areas that would be affected by the renovation, remove the occupants, perform the abatement under containment, and take clearance samples before reoccupancy.

   Finally, at least in part due to the concerns raised by the Claimant, the System conducted sampling of blood for elevated lead levels, under the auspices of Johns Hopkins. This was made available to all students and staff, and the results did not show any link between exposure at the school and elevated blood lead levels. Teachers and staff were informed of the results of the lead dust wipe analysis, as well as the blood sampling analysis. Indeed, these reports received extensive coverage on local news broadcasts.

   Indeed, it is safe to say that, in large part due to the Claimant's activity, important steps were taken by the System to ensure the safety of students and staff in these school buildings. But at some point her activities lost their character as protected activity. See, e.g., Mosbaugh v. Georgia Power Co., 91 ERA 1 & 11 (ALJ Oct. 30, 1992), where the ALJ found that even if the Claimant's hundreds of hours of covert tape recording was protected at the outset, its continuation and scope because so egregious and potentially disruptive to the workplace that it lost any protected status that it once may have possessed.

   Once the concerns raised by the Claimant were addressed, it was no longer reasonable for her to continue claiming that these schools were unsafe. It appears that the Claimant was unwilling to accept the conclusions of the numerous agencies who investigated her complaints, and determined that they were unfounded. Indeed, the Claimant suggested throughout her testimony, and in the fliers she circulated to parents, that there was a coverup by public officials, who did not want to reveal the "truth." She was suspicious of MOSH; she felt that the Mayor was not doing his job. She discounted the reports by the experts whose job and profession was to assess environmental and safety risks, and instead relied on her status as an "expert," by virtue of her attendance and certification for assessing environmental risks. But although she assailed the results of various tests as misleading and unreliable, she offered no support or documentation for her bald allegations, other than her surreptitious videotapes.

   Clearly, by December 1996, it was no longer reasonable for the Claimant to continue to allege that the conditions at Farimount were unsafe. By that time, the testing and cleanup had occurred, a lead abatement contractor and asbestos contractor were engaged on an ongoing basis, and the staff and students had been screened for elevated lead levels. MOSH had investigated the Claimant's complaints, and found that the building was safe for occupancy.

   The Claimant based her allegations of lead problems at Highlandtown, by her own account, on a rumor from a parent, as well as her own surreptitious videotaping of the inside of the school, and her knowledge that the school was old, and therefore had lead based paint. However, once MOSH investigated her complaints and determined that there was no lead based paint hazard, there was no reasonable basis for her continued allegations. Again, she has never put forth any basis for her claim that this investigation was unreliable.

   With respect to James Mosher, again, the MOSH inspectors performed an inspection in response to her complaint, issuing no citations for lead based paint or asbestos hazards, but making safety recommendations for workers. Once this determination was made, there was no reasonable basis for the Claimant's continued allegations about James Mosher, nor has the Claimant, despite her "expertise," ever put forth any facts to support these allegations.

   Very telling is the videotape that the Claimant made at Farimount in the spring of 1997. Although the videotape indeed shows rundown conditions, it is not clear whether the areas that appear on the tape were occupied, or in the process of renovation. Nor is it possible to tell from the videotape whether these conditions presented environmental hazards, in the form of lead or asbestos dust. The Claimant's "interviews" of the students are self-serving and clearly coached by the Claimant. There is no documentation whatsoever in the record that Ms.Tiffany Burgess had elevated lead levels, or if she did, that they were due to conditions in the school. The allegation that she received a $500 bribe as "hush money" is patently ridiculous, especially in light of the fact that the existence of lead paint and asbestos at the school was never kept secret, and the System candidly shared that information, as well as the steps that were taken to address any potential dangers, with staff and students. The Claimant's manipulation of these students was disgraceful and borders on scandalous.

Adverse Action

   In this case, the Claimant alleges that it was her ongoing course of conduct, involving the filing of numerous complaints with the Maryland Occupational Safety and Health Administration, and the City Health Department, and her attempts to publicize what she perceived as health and safety problems as well as a coverup by the school system, that spurred the System to terminate her in December 1999. The facts, however, overwhelmingly establish otherwise.

   Thus, the record reflects that between late August 1996 and her dismissal in December 1999, the Claimant engaged in an extensive series of activities that she felt were necessary to address her perceived health and safety concerns at several Baltimore City Public Schools. She filed numerous complaints with MOSH alleging lead dust and asbestos hazards at Farimount, Southeast, Highlandtown, and James Mosher. On numerous occasions, she contacted the media, both print and broadcast, to air her environmental concerns and allegations. She complained persistently to public officials, including the Mayor and the Health Department Inspector. She notified parents of her allegations, distributed fliers, called meetings, and picketed. She testified at a public hearing on lead paint poisoning. It is clear from the record that her supervisors were aware of her activities.

   The record also overwhelmingly demonstrates that the Claimant did not suffer any adverse action as a result of these activities. In fact, it appears that the System took the allegations seriously, and undertook to investigate, and if necessary, take corrective action. Thus, when the Claimant, along with other staff at Farimount, expressed concerns about possible lead dust exposure at Farimount, the System hired a contractor to collect lead dust samples at the school for analysis. An earlier System wide study performed in 1992 and 1993 had shown that there was lead paint in the walls, but no lead dust. When the results of this testing showed elevated lead levels in six of the forty five samples collected, possibly as the result of the renovation activity impacting the lead paint surfaces, the System engaged an environmental contractor to clean the entire building.

   Despite the failure of the Claimant to report for work for most of the school year, and her diverse and well-publicized activities alleging environmental hazards at the school, the record does not reflect that any adverse action was taken by the System against the Claimant during this school year. In fact, the only action that was even close to a reprimand was the notice from Ms. White, instructing her not to videotape inside the school building. Nor does the record reflect any adverse action against the Claimant up to February 1999, despite her continued and well-publicized activities with respect to James Mosher, Highlandtown, and Fairmount.

   With respect to the March 1, 1999 suspension, I find that the Respondent has clearly established that this action was motivated by legitimate and nondiscriminatory reasons. By that time, the Claimant had been agitating in connection with alleged health and safety hazards for over two years. Yet there is no evidence that she ever suffered any recrimination from the System as a result of her activity, despite the fact that it caused some disruption for the schools involved, and resulted in much media publicity that was clearly not favorable to the Respondent. In fact, the System did respond, by addressing those problems uncovered as a result of the Claimant's complaints. Indeed, despite the fact that by February 1999, her attendance and tardiness problems had become severe, there is no evidence that she was subjected to disciplinary action on any grounds.

   Ms. Fields testified that her recommendation of suspension without pay was based on the fact that the Claimant had obtained the names and addresses of parents without authorization, and had sent out information that was untrue and unnecessarily alarming to those parents. In fact, at that time Ms. Fields had in her hands the report from the City Health Department, finding that there were no problems with lead in the water. According to Ms. Fields, the responses generated by the Claimant's false and sensational letter caused a serious disruption in the functioning of the office, and required the scheduling of emergency meetings to address the situation, and the attention generated by the media. Ms. Fields testified that, even if the Claimant's allegations had some merit, she still would have recommended her suspension for obtaining unauthorized access to the list of names and addresses. Ms. Wighton also confirmed that, even if there were merit to the Claimant's claims, she still would have recommended some form of discipline, although the form of that discipline may have been different. However, as the System had just completed an inspection by the City Health Department, based on the Claimant's complaint, it was clear that her claims were baseless.

   With respect to the Claimant's dismissal, the Statement of Charges identifies three activities as the basis for the charge of misconduct: the circulation of the February 24, 1999 letter, the circulation of the December 3, 1996 letter to the Mayor about lead exposure at Fairmount, and the circulation of the letter (in the spring of 1997) about Fairmount, James Mosher, and Highlandtown. The identified misconduct does not include the Claimant's complaints to MOSH or the City Health Department, or her publicized allegations on television or at the City Council meeting. Rather, it is limited to that conduct on the part of the Claimant that caused disruption in the school system, by unnecessarily alarming parents and diverting school resources to respond to inquiries, when in fact the System had adequately responded to the concerns raised by the Claimant.

   The Secretary has set the standard for indefensible behavior fairly high, noting that the right of the employer to maintain shop discipline must be balanced against the heavily protected rights of employees under the whistleblower statutes, and that to fall outside the statutory protection, an employee's conduct must be indefensible under the circumstances. Carter v. Electrical District No. 2 of Pinal, 92 TSC 11 (Sec'y July 26, 1995). However, the Secretary has also noted:

That employees are protected while presenting safety complaints does not give them carte blanche in choosing the time, place and/or method of making those complaints. . . . Nor is an otherwise protected employee automatically absolved from abusing his status and overstepping the defensible bounds of conduct even when provoked. . . . Furthermore, certain forms of "opposition" conduct, including illegal acts or unreasonably hostile or aggressive conduct, may provide a legitimate, independent, and nondiscriminatory basis for adverse action. . . .

Garn v. Toledo Edison Co., 88 ERA 21 (Sec'y May 18, 1995). In making his decision,

the Secretary relied on the decision of the Seventh Circuit Court of Appeals in NLRB v. Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, 630 F.2d 505 (1980), in which the Court found that the employees' dismissal did not violate their right to engage in protected activity. The employees were discharged after complaining about their salaries during a union steward meeting, using the union's CB radios to discuss their complaints, and distributing letters concerning their wage demands to union executives who were attending a political luncheon. The Court found that the employees' failure to follow procedure, coupled with their poor work performance, and prior warnings concerning their performance, justified their dismissal. The Court noted:

[a]n employer should not be penalized for good-heartedness with employees who choose to flout its rules and ignore its warnings. . . . There must be room in the law for a right of an employer somewhere, some time, at some stage, to free itself of continuing, unproductive, internal, and improper harassment.

Id. at 508.

   Here, the Claimant clearly was entitled to make health and safety complaints, which she did, repeatedly, with no evidence that the System ever retaliated against her. However, her persistent unfounded and sensationalized claims, which she circulated directly to parents, clearly overstepped the bounds of defensible conduct. It is abundantly clear that the Claimant was suspended, and later discharged, because of her disruptive conduct in circulating false and inflammatory fliers to parents, not once, but three separate times.

   It is unclear why the System did not address the earlier incidents at the time they occurred, with some form of discipline. Apparently, the System "went along" after the Claimant's unfounded agitation on the first occasion she distributed fliers to the parents. The System "went along" after the second incident, even though once again there was no basis for the Claimant's sensational claims, and the Claimant by that time was a serious attendance problem. It appears that the incident in February 1999 was the final straw. But as the Seventh Circuit Court of Appeals noted, an employer should not be penalized for good- heartedness with employees who choose to flout its rules and ignore its warnings. Truck Drivers, supra, at 509. The System has a legitimate interest in maintaining an orderly environment for the education of the children in its charge, and in maintaining a level of trust with the parents of those children. That the Claimant has a right to raise health and safety concerns does not automatically entitle her to override these interests. The System is entitled to have its employees, and especially its teachers, act in a professional manner that fosters such an orderly environment and level of trust. There is ample room for employees of the System to raise

health and safety concerns, as the Claimant did, within these bounds. However, the Claimant's repeated, unfounded, and sensationalized missives to parents overstepped these bounds, and especially in light of the fact that her concerns had been addressed and responded to by every health and safety organization responsible for overseeing those concerns, her actions were manifestly indefensible. I find that the reasons articulated in the Statement of Charges are legitimate and nondiscriminatory.

   Even if they were not, the Claimant has not established that the reasons proffered for both her suspension and her dismissal, that is, her unauthorized use of the list of names and addresses, and her disruption of the System by circulation of unfounded allegations, were not its true reason, but were a pretext. The continuing theme of the Claimant's testimony and evidence is that the System (as well as MOSH, the Mayor, the City Council, and the City Health Department) wants to keep her from exposing the "truth," and that the System fired her because she has tried to expose this "truth." Of course, if the System really wanted to silence or retaliate against the Claimant, it would have done so in the fall of 1996, when, largely due to her agitation, the System received a great deal of unfavorable publicity. They did not do so, but kept her on as a teacher for over two more years, despite the fact that she was on "sick leave" for much of that time, and was a serious attendance problem otherwise. It was not unreasonable, unfair, or discriminatory for the System to fire the Claimant, not for making complaints about environmental hazards, but for circulating unfounded, misleading, and alarming missives directly to parents, when her allegations had been addressed and discounted by the public agencies responsible for monitoring them. Frankly, it is somewhat disturbing that the System did not address the two earlier incidents; perhaps the circulation of the February 1999 letter was simply the straw that broke the camel's back. In any event, I find that the Respondent has set forth legitimate and nondiscriminatory reasons for the Claimant's suspension and dismissal, and that the Claimant has not established that these reasons were a pretext.

   I have carefully reviewed all of the evidence of record in this case, and I find that the Complainant has not proven that the Respondent was motivated in whole or in part by any protected activity on the Claimant's part when it suspended, and then dismissed the Complainant from her job as a teacher in the Baltimore City Public School System.

   It is recommended that the complaint of Diana R. Williams against the Baltimore City Public School System under the Comprehensive Environmental Response, Compensation, and Liability Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Solid Waste Disposal Act, and the Toxic Substances Control Act be dismissed.

       Linda S. Chapman
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §§24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S- 4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. 29 C.F.R. §§§§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).