Hoch v. Clark County Health District, 1998-CAA-12 (ALJ Jan. 18, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Date Issued: January 18, 2000
Case No. 1998-CAA- 12

David F. Hoch
    Complainant

    v.

Clark County Health District
    Respondent

Before: Stuart A. Levin,
    Administrative Law Judge

For Complainant:
    Richard Segerblom, Esq.
    Sangeeta Singal, Esq.

For Respondent:
    Mark J. Ricciardi, Esq.

   This is a proceeding convened under the jurisdiction of the Clean Air Act (CAA), 42 U.S.C. § 7622, as amended, and the regulations promulgated and published at 29 CFR Part 24 to implement the Act. By letter dated April 1, 1998, David F. Hoch filed a complaint with the Department of Labor alleging that he was the target of discriminatory action arising out of activities protected by the Act when he was transferred and denied access to certain computer programs by his employer, the Clark County Health District, Clark County, Nevada.

   Following an investigation, the Regional Administrator, Occupational Safety and Health Administration, U.S. Department of Labor, determined in an undated letter that discrimination in violation of the Act was a factor in the decision to deny Hoch access to certain computer programs. By letter dated August 3, 1998, the Employer requested a formal hearing which convened at Las Vegas, Nevada, on October 5 and 6, 1999.

   At the hearing, the parties were afforded an opportunity to present evidence and argument, and, thereafter, filed briefs and responses, the last of which was filed November 19, 1999. The findings and conclusions which follow are based upon my observation of the appearance and demeanor of the witnesses who testified at the hearing and, after careful analysis of the entire record in light of the arguments presented, the regulations, statutory provisions, and applicable case law.

   1. The Clark County Health District (CCHD) was created as the governmental entity authorized to supervise public health programs in Clark County, Nevada, and the cities within the county. One of its divisions includes the Environmental Health Division from which an Air Pollution Control Division (APCD) emerged. During times relevant to this proceeding, Dr. Otto Ravenholt was CCHD's Chief Health Officer and its Air Pollution Control Officer. He served as CCHD's top executive for 35 years, until his retirement on May 8, 1998, Tr. 142-3. He served at the pleasure of the Board of Health which supervised the District. Tr. 221-223.

   2. David F. Hoch is employed by the ACPD as a Permit Specialist II, in the Title 5 Operating Permit Section under the supervision of David Lee. Tr. 81. He has worked for APCD for eight years. TR. 53-54. He has a degree in aeronautical science, Tr. 102.

   3. Sometime in early 1990's, Hoch was assigned informal management responsibility for APCD's Emission Reduction Credit Program (ERC). Tr. 227. The ERC concept involves an emissions inventory, Tr. 72, and is designed to allow communities to facilitate growth in industry while reducing the level of air pollution in the Las Vegas Valley. Tr. 54. The ERC program allowed firms to obtain from municipalities, and in some instances from each other, credits and offsets for paving roads to reduce dust emissions. Two credit tons are required to offset each ton of actual air pollution. Credits can be purchased from the county at $615 each or at a discount on the open market for about $330 from firms which may no longer have a use for their accumulated credits. Hoch's duties included assessing the pollution reduction requirements of individual companies, quantifying road paving projects, and functioning as a bank to keep track of firms which needed reductions and those which created reductions. Tr. 54. The ERC information received by APCD is stored in the ERC computer database.

   4. The ERC Program, at times relevant to this proceeding, was contained in Section 12 of the Clark County Health District Regulations. It was promulgated and enforced locally and was not effective as a measure in the State Implementation Plan until it was approved by the Federal EPA effective June 10, 1999. RX 150. Hoch, from the earliest days of his involvement with the ERC, understood that the ERC was an element of the Clark County Health District Plan to attain the PM-10 Standard promulgated by EPA under the CAA. Tr. 396.

   5. The record shows that EPA, on August 27, 1998, expressed "concerns with the CCHD Section 105 Clean Air Act (CAA) program...," including six enumerated areas specifically among which it listed the ERC road paving offset program. CX 22, pg. 197; See, Tr. 386-387.

   6. In the early '90's, CCHD supported two separate computer operations to service its needs. Tr. 225. It brought in-house and centralized most of its computer capabilities using a Windows-based system; however, APCD operated a separate computer service maintained by Hoch and his supervisor, Micheal Naylor, Director of the Air Pollution Control Division, to administer the ERC Program. Tr. 225-227. As a consequence, Hoch was given a dual-boot computer capable of accessing both the ERC databases and the central Windows-based District network. Tr. 355-356.

   7. Sometime in 1996, Hoch expressed an interest in becoming Computer Manager for the APCD, ERC program. Dr. Ravenholt, however, was unwilling to create a new position which would entail a competitive recruitment. As a result, Hoch became frustrated with the program and decided voluntarily that he would "like to be out of it...," Tr. 227, and resigned from the ERC program in 1996.

   8. In December, 1997, Hoch was interviewed by Keith Rogers, a reporter for the Las Vegas Review-Journal. Tr. 54, 154. Rogers appeared at APCD offices inquiring about the ERC Program. He was introduced to Hoch through Michael Naylor's office, Tr.153. The record does not show, however, whether Rogers initiated the request that he be provided access to Hoch or whether Naylor suggested to Rogers that he might want to interview Hoch. At the time, Hoch was working in the Compliance Section of APCD under the supervision of Mr. Sorden. Tr. 58. Before consenting to the interview, Hoch confirmed that Naylor agreed he should proceed to meet with Rogers, and he did. Tr. 154. The record shows that as early as July, 1996, APCD management, and Naylor in particular, were well aware of Hoch's dissatisfaction and many of his concerns about APCD's implementation of the ERC program. Tr. 121-124.

   9. During his interview with the press, Hoch recalled Rogers asking him if he believed the ERC Program was mismanaged and "off" by large sums of money, and if so, by how much. Tr.55. Hoch recalled telling Rogers that he did not know what the balance was, but acknowledged that it could be off by millions of dollars when both sides of the equation are considered. Id. Following the meeting, Naylor debriefed Hoch; and while Hoch sensed that Naylor was nervous about the interview, Naylor had no specific reaction Hoch could recall. Tr. 154.

   10. At the time Hoch spoke with the Review-Journal in December of 1997, the Clark County ERC Program was included in the Nevada State Implementation Plan (SIP) which was submitted for consideration and approval by the EPA under the CAA. Tr. 104-105, 141-142; Tr. 384-385, 388-390.

   11. Approximately two weeks after the interview with Hoch, on December 26,1997, an article by Keith Rogers appeared in the Review-Journal. The article noted that the offset credit program was out of balance, and quoted Hoch as describing the task of maintaining the account as a "tracking nightmare." CX 14, pgs. 65-67. The article further noted Hoch's concerns about lack of staffing and computer problems at APCD which failed to account for billings and assessments for 1994 and 1995, and again quoted Hoch: "The bottom line is, we don't know what the correct balance is. We could be talking some large numbers here. It could be potentially in the millions...." Id.

   12. Dr. Ravenholt found the article uncomplimentary of the District's management in failing to bring the ERC "up to speed after having been involved for several years with it." Tr. 228. He was generally surprised at Hoch's suggestion quoted in the article that the ERC could be out of balance by millions of dollars, Tr. 258, and he was embarrassed by the reporter's impression of the condition of the Program. Tr. 265. Dr. Ravenholt testified "...it was not complimentary to the District's management...." Tr. 228. He was admittedly surprised by the magnitude of the potential ERC imbalance mentioned in the article, and noted "I served at the pleasure of the Board (of Health). If I couldn't take on remedying something that might be that far out of whack, you know, what am I doing in that role?" Tr. 258. Michael Sword was hired as an Assistant Director in APCD and was, in the summer of 1996, assigned the task, among others, of computerizing the ERC Program. Tr. 227-228. Dr. Ravenholt testified, however, that "the program was still not running as it needed to" in December of 1997. Tr. 228.

   13. The article prompted Dr. Ravenholt to refocus on the ERC problems and the need for central management oversight of the program. He decided that the only solution was to transfer the ERC databases from the separate computer system operated by APCD to the central computer system with a standard database and documentation of all software innovations. Tr. 229-230. Because of his expertise with the ERC database, Hoch's assistance was sought during the period January through March,1998, in transferring the database to the central administration. Tr. 232.

    14. Following publication of the article, Assistant Director Sword, Tr. 336, sent a memorandum to Hoch, dated December 29, 1997, asking Hoch to substantiate the quote in the Roger's article that "millions of dollars have been overlooked by management in the ERC Program." CX6, pg. 18. Hoch responded by memo dated December 31, 1997. He reiterated that he had stated, and was quoted in the article as stating, that the balance is indeterminate and "could be millions." Hoch then described, in detail, the methodologies of calculating emissions and offsets and shortcomings in the accounting system at the time which could account for millions of dollars in errors. CX9, pgs. 45-48.

    15. On January 14, 1998, Naylor and Sword advised Hoch that they were planning to transfer him to the Title V, Federal Permit Section of APCD as Hoch had previously requested, but they first deemed it necessary to transfer him to the NSR (New Source Review) Section under the supervision of Elizabeth Gilmartin so that Hoch could "develop the necessary fundamental NSR permitting skills." RX 102; Tr. 172. The record shows that two new hires in the Title V were not first trained in the NSR Section. Tr. 400. Indeed, the record fails to show that any other Permit Specialist in the Title V Section ever went through NSR Section training. See, Tr. 240. Dr. Ravenholt , however, doubted Hoch would be happy in the Title V Section without preparatory training. Tr. 245.

   16. About a year and a half prior to this assignment, Hoch and several other employees at APCD filed a grievance opposing a decision to hire Elizabeth Gilmartin as an APCD supervisor. Hoch and the others alleged that she was not qualified for the job. Tr. 170- 172. The grievance was filed with Naylor, and Sword was aware of it at the time Hoch's transfer

to Gilmartin was ordered. Tr. 59-60. Of the new employees assigned to Gilmartin's section, only Hoch had been a party to the grievance, Tr. 203-204; the others were new hires. Tr. 208. Hoch had been highly critical of Gilmartin, Tr. 110, and testified not only that he had not spoken to Gilmartin in over a year, Tr. 149-150, but that, as a result of the grievance, animosity existed between them.

   17. With the transfer to Gilmartin, Hoch believed his job was in jeopardy and feared that Gilmartin would attempt to fire him. Tr. 59-60, 135-136. The record shows that two other employees who had participated in the grievance against Gilmartin were already assigned to NSR when she took over. Tr. 136; Tr. 172; Tr. 202. One dropped off the grievance before the assignment and the other had a strained relation with Gilmartin. Tr. 139- 140, 148. When she learned that Hoch was assigned to her section, Gilmartin initially expressed concerns to her superiors about the reassignment. Tr. 196.

   18. Gilmartin testified that during the time Hoch worked under her supervision, she was told by Sword that Dr. Kwalick, Assistant Chief Medical Officer, and Dr. Ravenholt's successor, "wanted him fired" if he did not perform, that Sword did not want Hoch "doing computer work," and that Sword himself was hired to "fire people. [E]specially the people on the grievance." Tr. 173-174, 176, 203, 205. Sword could not recall telling Gilmartin that Dr. Kwalick wanted Hoch fired, Tr. 353, and he denied claiming that he had been hired to fire people. He acknowledged, however, that he may have said that he was hired to "clean house." Tr. 353-54.

   19. Gilmartin had never been advised about the terms under which she should fire any other subordinate. Tr. 205-206. Gilmartin testified that she was also asked to investigate Hoch by surreptitiously monitoring his work on the computer. Rowles and Karl Munninger, the District's Administrative Services Manager, authorized Jon Reed to provide her with Hoch's passwords and advised her that by using them she could sit in her office and view what Hoch was doing without his knowledge. Tr. 176-181, 207, 391-392; See, CX 13, pg. 64. She understood that the password allowed for "2 connections concurrent," CX 13, pg. 64; Tr. 393. She was not, however, told why they wished her to monitor Hoch. Tr. 181.

   20. Munninger admitted that Gilmartin was provided with Hoch's password, Tr. 293, and that typically passwords were not given out, Tr. 318, but he denied that she was given the capability to remotely view Hoch's work. He also denied that Gilmartin was asked to spy on Hoch. Tr. 292, 331. He explained that "2 connections concurrent" meant that the Hoch account could be logged-on to two computers at the same time, and it was therefore possible to verify exactly what he could and could not access. Tr. 410. It would not, he claimed, permit her to monitor what Hoch was working on at the time or follow his keystrokes. Tr. 410. He testified that Gilmartin was given Hoch's passwords solely for the purpose of verifying exactly what Hoch could and could not access. Tr. 293, 331, 410. Gilmartin denied she was given the passwords to verify Hoch's access. She testified she personally went to Hoch's computer to verify his access. Tr. 197.

   21. Gilmartin testified that it was not normal procedure for supervisors

at APCD to monitor the work of subordinates in the manner Munninger and Rowles suggested that she monitor Hoch. Tr. 392. Ordinarily, she did not have remote access to her subordinates last-name computer files from her terminal. Id; Tr. 394. If a staff member was absent and she needed access to something in their files, she would transmit a request through a supervisor who would forward it to the computer section. They, in turn, would retrieve the file and forward it to her. Tr. 394. She had never had the type of direct access to a worker's files that Rowles and Munninger provided to Hoch's files, Tr. 185, and she was aware of no other supervisor at her level who had such capability. Tr. 208. She had never been asked to monitor another employee. Tr. 206.

   22. Munninger initially claimed that supervisors had access to all employee work files in their section, Tr. 412, and he denied that Gilmartin was given any greater access than other supervisors had to their employees' files. Tr. 414. He subsequently acknowledged, however, that supervisors did not routinely have direct access to the employee's last-name files unless requested by the employee. Tr. 413. The passwords he gave Gilmartin provided access to Hoch's last name file. Tr. 413-415.

   23. Gilmartin did not use Hoch's passwords and did not monitor his work surreptitiously. Tr. 185. She rejected the suggestion that she was given Hoch's passwords merely to verify his complaints that he could not log on to the network. She testified specifically and credibly that she was asked to monitor his activities on the computer. Tr. 197.

   24. Despite concerns expressed by both Hoch and Gilmartin, Gilmartin was neither hostile nor vengeful as Hoch's supervisor, and Hoch was able get along with her. She took no adverse action against him, gave him a decent performance evaluation, and initiated no disciplinary action against him. Tr. 109-110, 152. He incurred no demotion and no reduction in pay or benefits. Tr. 111. Hoch completed the NSR training in about six months, and received the transfer to the Title V Section he had requested. Tr. 110-111; 172-173.

   25. During the investigation of Hoch's complaint by OSHA, Gilmartin was interviewed by an OSHA investigator. As a result of her testimony before OSHA in connection with Hoch's complaint, she was the target of harassment and retaliation which resulted in a complaint filed by Gilmartin against the District under that Clean Air Act. OSHA found in Gilmartin's favor, and the District did not request a hearing. Tr. 188-192; CX15, pgs.74- 75, 78, 79.

   26. The record shows that Hoch was having problems with his computer and filed a Data Processing Service Request (DPSR) on February 17, 1998. RX 179. DPSR's are processed through supervisory channels and eventually assigned to a technician to perform the work. Tr. 113-114. Hoch's dual boot machine was unique in APCD, and had the potential for more technical difficulties than other machines. Tr. 322-23

   27. In late 1997 and early 1998, the District experienced a series of glitches, bugs, viruses, malfunctions, and, in some instances, acts of actual sabotage of its computer systems and software. Tr. 232, 252; Tr. 272-277; Tr. 354-355; Tr. 371; Rx 111; Rx 172; Rx 177; Rx 178. In a January 31, 1998, memorandum, Munninger, for example, explained

that security of the APC database was tightened to restrict APC staff access to the extent "defined by Mike Sword." Tr. 277; Rx 178. District management did not, however, accuse or target Hoch as someone who harmed the data, Tr. 234; Tr. 297, but allegedly, because he had a DPSR pending on March 4, 1998, his computer was the first, and in fact the only computer, to have Access 7 deleted. Tr. 250, 255.

   28. On March 3, 1998, a technician, Paul Orillion, was creating and revising a program designed to facilitate the transfer of ERC billing data to the central computer. When he returned from a lunch break, he found that he was locked out of his program. Tr. 232- 233; 278. Orillion reported the problem to Munninger, his supervisor, and they determined that owner of the database "container" had been changed from Orillion to "unknown," thus locking out Orillion. Tr. 278-279, 282, 330. Munninger determined, in consultation with Microsoft Access technical support, that a change of ownership of the "container"could only be accomplished by using a separate security file and transferring Orillion's database container to a new container by a fairly sophisticated computer end user. Tr. 280, 304, 329-330.

   29. Munninger met with Sword on March 4 to discuss the Orillion lock out. Munninger complained that such interference was jeopardizing his progress in transferring the ERC database to the central Computer. He testified, and Sword confirmed, that he and Sword came up with a strategy to limit APCD staff computer access to folders and files they specifically needed to perform their job functions, and they decided to remove Access 7, a software database manager which included the ERC database, Tr. 72, from all APCD staff members whose job did not require access to it. Tr. 282; 358. Munninger testified further that he lacked the resources to reprogram all staff computers at the same time, and accordingly, he and Sword agreed that Sword would list individuals who did not need Access 7 data, and thereafter, Access 7 would be deleted over time beginning with staff members who had pending DPSR's. Tr. 283-284. Sword testified that he never gave Munninger the list they had discussed. Tr. 378.

   30. Although Hoch was not deemed a particular security risk, Tr. 234; Tr. 297, his computer was the first one targeted for removal of Access 7. Munninger and Sword disagree whether this was intentional. Munninger testified:

    Q. Now, did you have a plan as to how were you going to accomplish this removal of Access 7 in terms of timing?

    A. In reviewing the pending data processing requests, we noted that we already had a repair order request in from David Hoch." Tr. 283.

   Later, Munninger again addressed the selection of Hoch's computer:

    Q. And, did he (Sword) mention any particular employees that he wanted you to start with?

    A. No, other than the fact that David Hoch had a pending DPSR in the hopper. We decided to start out with that and then secondarily with other Specialists.

    Q. So, did he at that point tell you to go change Mr. Hoch's computer and start with his?

    A Right, to go ahead and focus on the boot-up problem with David Hoch's computer." Tr. 306.

   Munninger testified that he and Sword specifically discussed and agreed that Hoch's computer should be first to undergo reprogramming. Tr. 308.

   31. In contradiction to Munninger, Sword testified:

    Q. Now, did you ever ask Mr. Munninger to somehow target David Hoch for this?

    A. No.

    Q. Did you suggest or direct Mr. Munninger to start with David Hoch?

    A. No. Not that I recall.

    Q. I mean were you aware of the big stack of DPSR's that were somewhere in data processing?

    A. I'd seen them. There was a couple-

    Q. Right. But, I mean were you aware of who might be in there or on top or on the bottom?

    A. Well, yes and no. I mean , most of the data processing requests require my signature. I mean, that's the routine is for me to sign those things to authorize the work.

    Q. But, I mean-

    A. So I had- I had probably seen- I mean, I knew I had signed a lot of them. There was no two ways about that.

    Q. You mean, as you sit here today, can you say that on March 4th, talking to Mr. Munninger, you knew there was one in there from David and that's the one you wanted targeted first?

    A. No, actually I have looked at that and it does not have my signature on it at all. I was totally unaware that one was in there.

    Q. So, how did you and Mr. Munninger decide you were going to get to all of these computers to do this Access 7?

    A. Well, there weren't very many people to do very many tasks. So, we decided that as- as things came up on routine data processing requests, that we would take care of those things in that order and in that fashion. Tr. 359- 360. See also, Tr. 377-379.

   32. Sword thus contradicted Munninger and denied that he was aware of Hoch's pending DPSR, and he denied any recollection of directing Munninger to target Hoch's computer, Tr. 377-378. Further, contradicting Munninger, he testified that he did not have the work orders when he discussed the matter with Munninger, and, therefore, could not have pulled out Hoch's DPSR. Tr. 379.    33. From day to day, Munninger's shop may have a stack of 50 to 75 pending service requests submitted by staff either by telephone or written DPSR's. Tr. 334-335. Within approximately one hour after Munninger's meeting with Sword, Administrative Services removed Hoch's computer from his office. Tr. 307-309.

   34. On March 4, 1998, a technician, Rocky Gerzel, from the administrative section of the District, accompanied by Sword, entered Hoch's office and removed his computer. Tr. 62. Gerzel acted upon the orders of Munninger, his supervisor. Tr. 268. When Gerzel returned the computer later that day, the software program, Access 7, had been removed. Tr. 60. Access 7 was a database manager which included the ERC database. Tr. 72.

    35. The record shows that the removal of Access 7 started and ended with Hoch. Tr. 286. In addition, Hoch's network access was circumscribed to his own personal directory and to the NSR tracking files. Tr. 287. Munninger testified that it was never his intent or Sword's intent to remove from Hoch's computer access to information he needed to do his job. Tr. 291, See, Rx 183. The part of the ERC database Hoch could not access was the registry roll of credits showing what companies needed and what they accomplished or failed to accomplish and the billing information. Tr. 72.

   36. By memo dated March 4, 1998, Hoch advised his supervisor, Gilmartin, of the new limitations which had been placed upon his computer access and suggested that the software had been removed in retaliation for his statements to the Review- Journal in December of 1997. CX 9, pg. 49.

   37. On March 5, Hoch discovered that he was unable to access the network server to retrieve information from the "general folder," the DAVIDH folder, containing the first names of APCD employees, and available to all of Hoch's co- workers. Compare, CX 4 pg. 13 (Copy of Hoch's PC screen) with CX 4 pg. 14 (Copy of PC screen of Co-worker). Tr. 74, 76. He was virtually completely cut off from the network. Tr. 166-118, 137. Databases available to other Permit Specialist II's, and files, reference materials, and documents Hoch had been working on were no longer accessible to him. Tr. 73. RX 114, pg. 177. Sword testified that to the best of his knowledge Hoch was never cut off from the network, and his "privileges had never been changed." Tr. 381. Sword claimed he "never understood why those problems existed or persisted." Tr. 377. Munninger, however, acknowledged that Hoch's "network access was circumscribed to his own personal directory and to NSR tracking files." Tr. 287. Munninger claimed that this was done based upon "A list of files ... that we obtained from APCD management." Tr. 287. Sword acknowledged that he discussed giving Munninger a list of files that he wanted removed from various computers, but he denied that he gave Munninger such a list at their March 4 meeting, and he could not recall ever giving such a list. Tr. 378.

   38. By memo dated March 5, Hoch advised Gilmartin that he believed, in further retaliation for his disclosures to the Review-Journal, his access to the network server had been restricted. He also informed her that earlier that day he met with Sword, who told him that Access 7 was a faulty piece of software and would be deleted from all personal computers at APCD, and that Hoch was being "paranoid" about what had been done to his computer. Tr. 78; 363-64; CX 9 pg. 50.

   39. The record reflects that Access 7 was not completely deleted from the computers of any of Hoch's co-workers, Tr. 78-79, 250, 255, 313. In a strictly limited fashion, some Access 7 security files were removed from the computers of some staff members, Tr. 300; Tr. 363.

   Dr. Ravenholt intervened because of "volatility... within the group," Tr. 250, to "calm down the situation," and he reversed the decision to delete Access 7. He had never specifically approved Sword's plan, Tr. 252-255, but generally wanted his staff to remedy the computer problems in APCD. Having received information from Gilmartin on March 6 that Hoch was "very disturbed," Tr. 236, about what had been done to his computer, Dr. Ravenholt met with Hoch that day to diffuse the situation and reassure him that his job was secure. Tr. 236. Dr. Ravenholt confirmed that, although he did not know precisely which programs Hoch needed to perform his duties in the NSR Section, Hoch asserted

a need for Access 7, supported perhaps by Gilmartin, and he ordered the program restored. Tr. 250. Subsequently, on a date not disclosed in this record, Dr. Ravenholt directed that Access 7 be restored to Hoch's computer. Tr. 250. As Sword would later testify, "I got overruled by Dr. Ravenholt who decided to give it back to him. He wouldn't remove it from everyone's computer. " Tr. 362-63, Tr. 313. The record further shows that Munninger and Sword acted within approximately one hour of the Orillion incident to remove Hoch's computer. The record fails to show, however, that they acted to remove Access 7 from any other employee at any time prior to Dr. Ravenholt's intervention.

   40. On March 10, 1998, Hoch was called to a meeting attended by Dr. Ravenholt; Dr. Kwalick; David Rowles, Director, Administrative Services; Naylor; Sword; Gilmartin; and Hoch. Tr. 90. Hoch understood the meeting was convened to offer him an apology for the limitations placed on his computer, and his input was sought in troubleshooting the Orillion lock-out problem. Tr. 401-404.

    41. By memo dated March 18, 1998, Hoch recounted what he regarded as the elements of an apology, and basically expressed his dissatisfaction that those who attended the meeting failed to convey the appropriate contrition. He testified, however, that the meeting was generally friendly and not hostile. Tr. 145. Although Hoch complained that he had not received an explanation for the removal of Access 7 from his PC, CX 9, pgs. 55-56, as a result of this meeting, Access 7 was essentially restored to his computer. Tr. 77, 80, 91.

   42. The Clark County Board of Health convened a special meeting on March 12, 1998, to consider, among other issues, the ERC Program. Tr. 97-98. Dr. Ravenholt and other officials of APCD participated at the meeting; and in the context of discussing the ERC Program, David Rowles specifically commended Hoch, and others, who helped develop the ERC database. Rx 120.

   43. Hoch requested, on March 12, 1998, and Dr. Ravenholt approved, a leave of absence from April 1 through April 30, 1998. Tr. 112,118. Hoch testified

that he requested leave because he "felt pretty bad emotionally...," Tr. 130, but the leave was not urgent, and he was able to come to work and perform his job. Tr. 130.

   44. Dr. Ravenholt twice met with Hoch to afford Hoch an opportunity to explain his concerns about his computer access. Tr. 132, 134. Hoch believed Dr. Ravenholt was attempting to find out the facts. Tr. 138.

   45. Dr. Ravenholt's memo approving the leave noted that while Hoch may have felt that his work environment was hostile, Dr. Ravenholt sought to reassure Hoch that he should not misconstrue good faith efforts to improve APDC programs as directed against him personally. RX 123. In approving the leave, Dr. Ravenholt advised Hoch that he would be required to use his annual leave first, then he would be placed on leave without pay. Hoch's benefits were also adjusted to reflect a month of leave without pay, consistent with standard

procedures. Tr. 131-132. The same day, Hoch received a memorandum from Sword, who sought to assure him that his service to the District was valued and appreciated. Tr. 376; Rx 116, pg. 179.

   46. Before commencing his leave, Hoch, on March 20, 1998, filed a DPSR requesting certain network privileges, and Sword approved his request. RX 179, Tr. 117.

   47. On May 1, 1998, Hoch, upon returning from the leave of absence, discovered that his network privileges had not been restored. In a memo to Gilmartin, Hoch advised her that he still did not have access to computer files he needed to perform his job, and Gilmartin confirmed by observation of Hoch's computer screen that files available under her log- in name were not available under his log-in name. CX 9, pg. 57, Tr. 92-93; Tr. 197, 201.

   48. Sword testified that he wanted Hoch to have access to the directories he needed to do his job, and could not understand why he was experiencing difficulties: "I just wanted to get him up and running and get it behind us." Tr. 362. He had twice checked with the Administrative Section to confirm that Hoch's problems were addressed, Tr. 364, and spoke with Munninger about fixing Hoch's problems. Tr. 380.

   49. Following Hoch's complaints to his supervisor and Sword, Tr. 81, his network privileges were eventually restored on or about May 8, 1998. Tr. 80; Tr. 366; Rx 204. Sword testified that he was unaware that Hoch had any restrictions on his access to the network, Tr. 381-382, and no one ever determined why Hoch was cut off from the network to the extent that he could not perform his job. Tr. 382. Yet, Munninger acknowledged that he circumscribed Hoch's computer network access privileges based on an alleged list he received from "APCD management." Tr. 287. The record shows Sword was supposed to prepare the list, but he could not recall ever actually drafting it or giving a list to Munninger. Compare, Tr. 287, 308, with Tr. 378. Munninger testified that he and Sword "agreed" to start with Hoch "until Sword could get a listing of files the other specialists needed access to in order to perform their job function...." Tr. 308. Sword could not recall giving Munninger any list during their meeting, Tr. 378, and specifically denied suggesting to Munninger that he start by deleting files from Hoch's computer. Tr. 377-379.

   50. Hoch believes that he no longer has a career future with APCD. His confidence in APCD management has eroded, and he senses his colleagues are skeptical of him. He feels frustrated and believes other employers would be reluctant to hire him because he is a whistleblower, and he senses his co-workers are skeptical of him. He and his wife "agonize over these things quite often." Tr. 99-100. He seeks redress from the CCHD in the form of damages and computer training for approximately two years, leading to a BS degree in computer science. Tr. 101-102.

   The activity for which Hoch claims Clean Air Act (CAA) protection arose out of a December, 1997, interview he granted to reporter Keith Rogers of the Las Vegas Review-Journal, a local morning newspaper with daily circulation of about 160,000 serving

southern Nevada. Apparently, Rogers was investigating the operation of the ERC Program at the offices of the Air Pollution Control Division (APCD) of the Clark County Health District (CCHD). The ERC Program was devised, in theory, to reduce the level of airborne inhalants in the Las Vegas Valley by requiring businesses to earn credits or pay fees for producing pollutants, thereby generating funds for paving to reduce dust emissions from dirt roads. According to Dr. Otto Ravenholt, Clark County's former Chief Health Officer, APCD cooperated fully with Rogers' inquiry, providing him with documents to review and staff personnel to interview.

    Hoch, it seems, became entangled in the web of Rogers' research. Rogers apparently sought an interview with Hoch as someone knowledgeable in the workings of the ERC program who could assist him in preparing his article. Before agreeing to speak with Rogers, Hoch sought and received the approval of APCD management. Obligingly, Michael Naylor, Director of APCD, specifically authorized Hoch to meet with Rogers.

   Hoch spoke with Rogers "on the record," candidly describing, in detail, the shortcomings in the ERC Program and volunteering critical opinions about Program management to no real surprise among his supervisors. While APCD management questioned Hoch's estimate that the ERC Program could be millions of dollars out of balance, his criticism of the ERC Program was no secret around APCD. Earlier in his career, he shouldered responsibility for maintaining the ERC database, and at one time unsuccessfully urged APCD to create a new position titled ERC Data Manager, for which he considered himself uniquely well-suited. Some suggest that Hoch's antipathy toward the ERC program emanates from his disappointment over the rejection by his superiors of his idea to create the Data Manager job; however, no one disputes Hoch's in-depth appreciation of the flaws which existed in the ERC Program. He had, prior to the Rogers interview, voiced his concerns, in house, to his APCD supervisors, and apparently felt constrained by few inhibitions in providing a rich bounty of ERC Program defects to Rogers.

   On December 26, 1997, a by-line article, authored by Keith Rogers, appeared in the Review-Journal. It was highly critical of APCD's ERC Program administration and drew, with attribution, upon the Hoch interview material. Although Rogers relied upon a number of different sources, the article, citing Hoch, described ERC methods of maintaining pollution charges and offsets as a "tracking nightmare," disclosed APCD delinquencies in its billings, revealed the program could be out of balance by "millions" of dollars, and that it was beset by computer problems and under-staffing. Rogers went on to report Hoch's observation that "some consensus" existed in respect to fixing the Program, but "nothing ever happens." Upon reading the article, Dr. Ravenholt found it uncomplimentary to APCD's Management, and Hoch alleges, as a result of his forthcoming disclosure to the media, he was subjected to discriminatory, retaliatory adverse job actions.

   The CAA, as amended, provides, in part, as follows:

    No employer may discharge or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee...

    (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan,

    (2) testified or is about to testify in any such proceeding, or

    (3) assisted or participated or is about to assist or participate in any manner in such proceeding or in any manner in such a proceeding or in any other action to carry out the purposes of this chapter. 42 U.S.C. § 7622 (a)(1)-(3).

   The burden of proof under this statutory scheme rests with the Employee to establish that (1) the party charged with discrimination is an employer subject to the Act, (2) the employee engaged in protected activity, (3) the employer took adverse action against the employee, and (4) the protected conduct was the likely reason for the adverse action. See, Deford v. Sec. of Labor, 700 F.2d 281, 286(6th Cir. 1983); Mackowiak v. University Nuclear Systems, Inc. 735 F.2d 1159, 1162 (9th Cir. 1984); Sherrod v. AAA Tire and Wheel Co., 85 CAA 3 (Nov. 23, 1987). CCHD does not dispute its status as a covered employer under the Act; however, it denies Hoch engaged in any protected activity or was the target of any discriminatory action by ACPD management. Hoch's conversations with the Review-Journal's reporter, it contends, played no role in any decision it made affecting his work environment, and it rejects his contention that he was a victim of any retaliation.

    Now, the threshold question presented in this adjudication is whether Hoch's interview and disclosures to the Review-Journal's reporter constituted protected activity under the Clean Air Act. CCHD advances a multi-pronged attack on the notion that Hoch engaged in any covered activity. In its opinion, neither the interview nor Hoch's disclosures warrant protection since the ERC Program, at the time the interview was conducted, was not part of the Clean Air Act or its implementing regulations. Although it was eventually approved by the EPA effective June 10, 1999, the ERC Program was promulgated by the Clark County Health District as Local Rule 12 and, as such, at times relevant to this proceeding, was unenforceable by the Federal EPA. Consequently, in CCHD's considered judgment, none of Hoch's disclosures involved an actual violation of the Act, and Hoch never demonstrated a reasonable belief any violation occurred.

   In a related discussion in its post-hearing brief which addresses an issue raised at trial, the District considers the implications which necessarily flow as a consequence of the ERC Program's inclusion as part of a State Implementation Plan (SIP). Incorporated into Nevada's SIP, CCHD's ERA Program was submitted to the Federal EPA for its consideration and approval under the Clean Air Act. In this context, CCHD urges rejection of Hoch's criticisms as protected activity because he disclosed them as a source to a reporter rather than as a participant in the Notice and Comment period provided by EPA in connection with its consideration of the SIP. CCHD finds no congressional intent to extend whistleblower protection under such circumstances. Finally, CCHD rejects the essence of Hoch's disclosure as protected subject matter because it involved allegations of what CCHD describes as complaints about general mismanagement in the ERC Program, not specific complaints about health and safety. For the reasons set forth below, I find each of the District's contentions devoid of persuasive merit.

   CCHD emphasizes the status of its ERC program as a local rule at the time the alleged protected activity occurred, and contends that complaints about mismanagement of a local rule would not rise to the level of a violation of the CAA or its implementing regulations. Consequently, jurisdiction to adjudicate Hoch's complaint under the CAA is, in its view, lacking. CCHD misperceives the issue.

    Whether a local rule conceived as a measure to facilitate environmental improvement may be administered in a way which does not simply fail to achieve its objective, but actually violates or fosters violations of the CAA, is not really the issue presented by the facts developed in the record of this proceeding. The record shows that the District's ERC Program was not simply a matter of local interest. Indeed, the ERC Program was proffered to EPA as a plan to address the Las Vegas Valley region designation as a PM-10 (particulate matter) nonattainment area under the CAA. 42 U.S.C. §7407. Both the nonattainment designation and Nevada's State Implementation Plan (SIP) to address it are broadly governed by provisions of the CAA as administered by EPA. 42 U.S.C. §§ 7407, 7501, and 7504.

   Prior to its approval by EPA, the ERC Program may have been, as CCHD contends, enforceable only by local authority, but obviously the program's strengths and weaknesses were not merely a matter of local concern. The District's ERC program was submitted by state officials, who considered it a viable plan, to federal authorities, who evaluated it under jurisdiction conferred upon them by the CAA. The ERC was pending before the EPA when Rogers interviewed Hoch.

   Nevertheless, construing the CAA in the narrowest possible sense, CCHD argues that Hoch is entitled to no protection because he disclosed no violation of the CAA, nor

did he reasonably perceive a violation of the statute. In its view, Abu-Hjeli , 89 WPC 1, and Minard v. Nerco Delamar Co., 92 SWD 1 (Sec., 1994), and Crosby v. Hughes Aircraft Co., 85 TSC 2(Sec. 1993), support the view that CAA protection covers disclosures involving CAA violations, not disclosures about purely local environmental codes.

    The protections afforded by the CAA, however, are not limited to disclosures of violations or suspected violations, as CCHD maintains. Participation in CAA enforcement proceedings is only one aspect of CAA whistleblower coverage. The CAA also provides a shield against discriminatory retaliation for those who assist or are about to assist in a proceeding " for the administration... of any requirement imposed under this Act or under any applicable implementation plan," or in "any other action to carry out the purposes of this Act." See, Section 7622(a)(1), (3). As the foregoing discussion of the statutory scheme Congress devised under the CAA amply demonstrates, the entire process of designating nonattainment areas, drafting and submitting SIPs, and consideration and action by EPA broadly encompasses congressionally delegated responsibilities generally considered elements associated with an agency's "administration" of its congressional mandate. In this context, EPA's inability to enforce the ERC Program prior to its approval of the SIP is irrelevant, because the ERC Program was part of the SIP for which Nevada was seeking EPA approval. CCHD's suggestion that its ERC Program was a purely local initiative which afforded Hoch no protection simply ignores EPA's responsibility to administer the Act by evaluating the Program's merits in connection with its consideration of Nevada's SIP. It is thus unnecessary to decide whether disclosures relating to a purely local environmental initiative could ever trigger CAA protections; whatever status a purely local program might enjoy, CCHD's ERC Program migrated into the ambit of CAA coverage when the State incorporated it into its SIP and submitted it to EPA for approval.

   CCHD next argues that a careful evaluation of Hoch's disclosures reveals, in essence, a concern not about violations of the CAA, but circumstances which amount merely to instances of mismanagement. Hoch told Rogers about billing delinquencies, shortcomings in financial record keeping, computer, and staffing problems. CCHD believes applicable case law rejects such complaints about mismanagement as a basis for affording a worker the benefits of whistleblower protection. Aside from the fact that Hoch's comments were not limited to instances of program mismanagement, but further questioned the effectiveness of the ERC concept which EPA was then evaluating, the case law relied upon by CCHD is otherwise distinguishable.

   The deficiency in CCHD's analysis of the case law stems from its failure to differentiate the various contexts in which disclosure of mismanagement may occur. A worker who, for example, disclosed that a defense contractor was "mischarging" its proprietary projects to its defense contract was not entitled to environmental whistleblower protection, and in fact, he conceded the point at his hearing. Such conduct had no bearing on any environmental issue. Crosby, supra at pg. 2. Similarly, CCHD relies upon Deveraux v. Wyoming Assoc. of Rural Water, 93 ERA 18 (Sec. 1993), as authority for the proposition that complaints about inaccurate records, mismanagement, and waste are not protected under the federal acts. Although the Secretary in Deveraux determined that a timely complaint had not been filed, thus rendering further discussion of the case largely moot, for the sake of analysis, I consider it.

   A review of the trial judge's findings in Deveraux reveals that the worker's complaints related to improper expense vouchers submitted by program managers and were not concerned with "safety or pollution." Deveraux , supra, ALJ D&O at 2-3. Unlike the EPA's consideration of the District's ERC Program here, the District propounds no theory explaining what possible interest under the Energy Reorganization Act the Nuclear Regulatory Commission ( NRC) had in the expense vouchers at issue in Deveraux. In contrast, mismanagement in the operation of a nuclear power plant or the handling of nuclear material would no doubt present another matter. Such mismanagement might indeed involve issues which the NRC could conclude were pertinent to its administration of its congressional mandate. As might be expected, complaints about mismanagement of this type constitute a fairly basic and rather important form of protected activity.

   Providing context to the line of cases discussed above, Passaic Valley Sewage Commissioners v. Department of Labor, 992 F.2d 474 (3rd Cir. 1993), affords a different perspective. In this case, the Court extended protection to an employee who complained about the ad valorem user charge system adopted by Passaic Valley under the Clean Water Act. The employee complained that the system was inordinately expensive, inefficient, unreliable, and although approved by EPA, was not operating fairly to allocate user fees. In many respects, the complaints of mismanagement and ineffectiveness he voiced to his superiors were quite similar to the type of complaints expressed by Hoch to reporter Rogers. Passaic Valley involved criticism of the administration of the Clean Water Act directly through the implementation of the ad valorem user charge, while this matter involves criticism of a program pending EPA's approval pursuant to its authority to administer the CAA. The Secretary determined that the Passaic Valley employee engaged in protected activity and the Court agreed, and there is no reason to anticipate that Hoch's complaints of mismanagement and ineffectiveness in a program pending EPA approval should be treated any differently.

   Nor do cases such as Aurich v. Consolidated Edison of New York, Inc., 86 CAA 2 Sec. 1987), or Kesterson v. Y-12 Nuclear Weapons Plant, 95 CAA 12 (ARB 1997), provide any useful guidance here. Aurich simply involved a determination by the Secretary that occupational hazards related to indoor air quality

are governed by OSHA regulations, not the CAA, while Kesterson, in pertinent part cited by CCHD, observed that objections to tampering with evidence in a criminal proceeding or fabricating reasons to fire an employee may be afforded protection under other statutes, but not the environmental whistleblower laws. Unlike Aurich and Kesterson which invoked non-environmental policy considerations, CCHD essentially and convincingly conceded the applicability of the CAA when it submitted its ERC Program for inclusion in the SIP for the purpose of addressing its air quality problem under the CAA.

   For all of the foregoing reasons, I conclude that disclosure of mismanagement which may adversely affect the administration of an environmental act, such as those conveyed by Hoch to Rogers, properly constitutes protected activity warranting protection under the CAA.

   The Secretary has determined that reports to the media may be protected activity under the environmental acts, and CCHD does not argue to the contrary. It does contend, however, that Hoch's comments to the media are not protected in this particular instance, because they involved claims of mismanagement and negligence, not outright fraud, and, in any event, EPA's procedures contemplate a Notice and Comment period for proposed SIPs. Since Hoch could have availed himself of the opportunity to submit his views directly to the agency and did not do so, CCHD would deprive him of CAA protection.

   Initially, the notion that an employee must pursue the formal channels of communication provided by an agency for the receipt of information about violations of law or comments about pending rules is not well-founded. In Passaic Valley, supra, the Court explicitly interpreted the statutory term "proceeding" as reasonably encompassing "a range of complaint activity of varying degrees of formal legal status." Passaic Valley, at 478. Indeed, purely internal complaints which may never come to the attention of a federal regulator are generally regarded as protected activity. See, Passaic Valley, supra; Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Pogue v. U.S. Departemnt of Labor, 940 F.2d 1287 (9th Cir. 1991); Kansas Gas & Electric Co. v. Brock, 780 F.2d 11505 (10th Cir. 1985), cert. denied , 493 U.S. 1011 (1986). Surely, disclosures which prompt remediation are consistent with the fundamental policy considerations underlying employee protection provisions of the environmental acts, and extending the term "proceeding" to cover them comports with the purpose and legislative history of the act. Passaic Valley, supra, at 478-479.

   Thus adopting the broad interpretation of "proceeding" applied by the Courts, the Secretary of Labor has construed the language of the environmental acts as protecting an employee who reveals or is about to reveal environmental concerns not only to his employer or to the appropriate agency, but also to the press. Dias-Robainas v. Florida Power & Light, 92 ERA 10 (Sec. 1996); Floyd v. Arizona Public Service Co., 90 ERA 39 (Sec. 1994); Pooler v. Snohomish County Airport, 87 TSC 1 (1994); See,eg., Donovan v. R.D. Anderson Construction Co., 552 F. Supp. 249, 251-52 (D. Kansas, 1982).¹ As this record vividly demonstrates, the goal of achieving voluntary remediation may, indeed, be facilitated more readily through a press disclosure than an employee's internal complaint.

   Obviously, the facts here are similar to Hasan, but nevertheless distinguishable. A key distinction in this record is the absence of affirmative evidence demonstrating that Naylor, like Hasan's supervisor, actually selected Hoch to meet with Rogers, thereby volunteering his controversial opinions for likely publication in an environment which could prove troublesome for the employer.² If Rogers asked to interview Hoch, the initiative rested with the reporter rather than the supervisor and the implications depart from the Hasan rational. For Naylor then to disapprove an interview requested by the reporter would have required him essentially to countermand Dr. Ravenholt's assurance to Rogers of the agency's full cooperation. Naylor's approval under such circumstances would not be indicative of the same measure of openness exhibited by the supervisor in Hasan, but rather a decision essentially compelled by events. Nor would the cooperation of Dr. Ravenholt or Naylor, assuming he volunteered Hoch, cast a shield of immunity over any retaliatory retribution directed at Hoch by other members of CCHD's management team.

   CCHD further contends that no one was surprised by the views expressed by Hoch, nor did they downplay, conceal, or reject his opinions. To the contrary, his views and comments were solicited for inclusion in a corrective plan of action. Cases such as Hasan, supra, Abu-Hjeli, 89 WPC 1, Smith v. Esicorp, 93 ERA 16 (Sec. 1996), and Miller v. Tennessee Valley Authority, 97 ERA 2 (ARB, 1998), suggest that these factors belie a finding of retaliatory intent. Indeed, such considerations may militate against finding of intent in some cases, but not here.

   Hoch's supervisors were aware of his views for well over a year before the Review-Journal article was published, but as Hoch reportedly stated in the article, "nothing ever happens." His internal complaints to management were largely

ignored, if not downplayed or rejected outright. Corrective action commenced and Hoch's views were solicited, not based on his input to CCHD, but in response to the embarrassment CCHD management experienced under the glare of the Review-Journal piece. Obviously, when an employer is essentially forced to initiate corrective measures by external forces, such as the NRC, the EPA, or unfavorable, critical press coverage attributable to the

   The record shows a climate at CCHD immediately following the Review-Journal interview conducive, at least up to the level of the Assistant Chief, to fire Hoch, and who better among the supervisors to accomplish such a mission than Gilmartin, who after all, only a year and a half before, suffered considerable unpleasantness as the object of Hoch's grievance.³

   Gilmartin further testified she was asked to use the passwords to monitor Hoch, an allegation Munninger specifically denied, but it strains credulity to believe the passwords were given to Gilmartin solely to verify Hoch's computer access. In the context of Sword's remark that Dr. Kwalick wanted Hoch fired, the ability to examine all of Hoch's computer files remotely and surreptitiously could prove rather helpful, if not to an Administrative Services Manager with no authority over Hoch's substantive work, then certainly to a properly motivated front-line supervisor; and significantly, at the time the passwords were shared with her, no one at CCHD had reason to doubt Gilmartin's likely displeasure with her new subordinate or her willingness to document "sufficient cause" to terminate his employment.⁴

    Yet, eschewing obvious incongruities, CCHD now extolls Gilmartin's neutrality as evidence that the transfer to her Section was simply a benign attempt to train Hoch, even as her ultimate unwillingness to participate in Hoch's unbraiding allegedly induced CCHD to retaliate against her.⁵ While Gilmartin's prudence and restraint serves to mitigate CCHD's damages, it was not the result anticipated by those who executed the transfer when the decision to assign Hoch to her Section was rendered, and it does not relieve CCHD of liability. For all of the foregoing reasons, I find that Hoch's assignment to Gilmartin by Sword and Naylor was an act of retaliation, even though Gilmartin herself did not act in a vindictive manner.

   Nor do I find this transfer indicative of a "dual motive" situation. The record shows not only that two new employees, Dan Fisher and Scott Jelenik, were hired directly into the Title V Section without first training in the NSR Section, but, urgent staffing needs notwithstanding, it significantly fails to show that any other Permit Specialist in the Title V Section ever went through NSR Section training. Hoch was singled out for

Even though Dr. Ravenholt was unaware of the actions of his subordinates which necessitate this relief, back pay with interest along with restoration of leave and benefits for this period is appropriate. Hoch is also entitled to reasonable attorney's fees and costs, and a ceases and desist order barring future retaliation.⁶ Blackburn v. Metric Constructors, Inc., (86 ERA 4 (Sec. 10/30/91); Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983).

¹ In Donovan, the court approached the question a bit differently, finding coverage in the context of a complaint to the media about an employee's OSHA concern, not because it viewed the communication itself as a "proceeding" but rather because the communication could result in the institution of an OSHA proceeding.

² This observation is not offered to shift the burden of proof to the Employer, but rather to note that the Employer, having cited a case it considers analogous to this matter, lacks an essential record fact necessary to complete its analogy.

³ While Dr. Ravenholt testified that he thought Hoch's transfer was innocuous, believing he would be unhappy in the Title V Section without prior permit training, there is no evidence that Dr. Ravenholt knew Gilmartin had been told that his Assistant Chief, and soon to be successor, wanted Hoch fired.

⁴ This surveillance is not included in Hoch's complaint as a separate claim of discrimination. It is, however, an element of the overall discriminatory treatment he experienced.

⁵ The acts of retaliation alleged by Gilmartin were set forth in a CAA complaint which she filed with OSHA. CCHD and Gilmartin have since reached a settlement of her charges.

⁶ Hoch also seeks an order authorizing punitive damages for violations which post-date the actions which are the subject of this complaint and for any future violations. Yet, if further violations are established in future proceedings, or if CCHD should violate any provisions of the order herein entered, appropriate relief may them timely be considered. Authorization for punitive damages is, at this time, unnecessary.