CASE NO. 83-WPC-2

In the Matter of

THOMAS R. FISCHER
    Complainant

    v.

TOWN OF STEILACOOM
    Respondent

Henry E. Lippek, Esq.
Suite 500, Pioneer Building
One Pioneer Square
Seattle, WA 98104
    For the Claimant

Edwin J. Wheeler, Esq.
Wheeler & Huss
Suite 426, Tacoma Mall Office Building
P.O. Box 11287
Tacoma, WA 98411
    For the Respondent

Robert Friel, Esq.
U.S. Department of Labor
Office of the Solicitor
8003 Federal Office Building
909 Second Avenue
Seattle, WA 98174
    For the Department of Labor

Before: EDWARD C. BURCH
    Administrative Law Judge

    Complainant, Thomas R. Fischer, contends that he was discriminated

against by the Town of Steilacoom, in violation of the provisions of Section 507 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1367 (the Act) and the rules and regulations implementing said Act. He contends he was fired because of his cooperation with the Washington State Department of Ecology and the U.S. Environmental Protection Agency.

    Respondent contents 1) no proceeding was filed or contemplated at the time complainant was terminated, and hence, statutory support for this proceeding is absent; 2) denies complainant's cooperation with the Environmental Protection Agency had any influence upon his termination; 3) contends complainant was a probationary employee, and could be terminated without cause; and 4) states that the reason complainant was terminated was because he absented himself from work without valid or good reason, and complainant had a communication problem.

    It is concluded a violation did occur and complainant is entitled to relief under the Act and regulations.

    33 U.S.C. § 1367(a), (b) and (c) provide:

    "(a) No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

    "(b) Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination. A copy of the application shall

be sent to such person who shall be the respondent. Upon receipt of such application, the Secretary of Labor shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to such review to enable the parties to present information relating to such alleged violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of Title 5. Upon receiving the report of such investigation, the Secretary of Labor shall make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein and his findings, requiring the party committing such violation to take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee or representative of employees to his former position with compensation. If he finds that there was no such violation, he shall issue an order denying the application. Such order issued by the Secretary of Labor under this subparagraph shall be subject to judicial review in the same manner as orders and decisions of the Administrator are subject to judicial review under this chapter.

    "(c) Whenever an order is issued under this section to abate such violation, at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses (including the attorney's fees), as determined by the Secretary of Labor, to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation."

    29 C.F.R. § 24.2 provides:

    "(a) The several statutory employee protection provisions listed in § 24.1, provide that no employer subject to the provisions of the Federal statute of which these protective provisions are a part may

discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in paragraph (b) of this section.

    "(b) Any person is deemed to have violated the particular federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has:

    "(1) Commenced, or caused to be commenced, or is about to commence or cause to be commenced a proceeding under one of the Federal statutes listed in § 24.1 or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;

    "(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 a proceeding or in any other action to carry out the purposes of such Federal statute."

    29 C.F.R. § 24.3 provides:

    "(a) Who may file. An employee who believes that he or she has been discriminated against by an employer in violation of any of the statutes listed in § 24.1(a) may file, or have another person file on his or her behalf, a complaint alleging such discrimination.

    "(b) Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

    "(c) Form of complaint. No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the

acts and omissions, with pertinent dates, which are believed to constitute the violation.

    "(d) Place of filing. A complaint may be filed in person or by mail with the Office of the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. The address of the Administrator's office is Room S3502, 200 Constitution Avenue NW., Washington, D.C. 20210. A complaint may also be filed at any local office of the Wage and Hour Division. The address of such local offices may be found in local telephone directories."

    29 C.F.R. § 24.4(a), (b) and (c) provide:

    "(a) Upon receipt of a complaint under this part, the Administrator shall notify the person named in the, complaint, and the appropriate office of the Federal agency charged with the administration of the affected program of its filing.

    "(b) The Administrator shall, on a priority basis, investigate and gather data concerning such case, and as part of the investigation may enter and inspect such places and records (and make copies thereof), may question persons being proceeded against and other employees of the charged employer, and may require the production of any documentary or other evidence deemed necessary to determine whether a violation of the law involved has been committed.

    "(c) Investigation under this part shall be conducted in a manner which protects the confidentiality of any person other than the complainant who provides information on a confidential basis, in accordance with Part 70 of this title."

    Complainant was given notice December 20, 1982 that he was terminated from his job as a Wastewater Plant Treatment Operator as of December 31, 1982. January 12, 1983 he wrote to the Department of Labor, contending his termination was in violation of the "Clean

Water Act." Following his timely complaint an investigation was conducted by the Employment Standards Administration of the U.S. Department of Labor.

    February 9, 1983 the Area Director of the Wage and Hour Division of the Employment Standards Administration advised the Town of Steilacoom that as a result of their investigation "discrimination as defined and prohibited by the statute was a factor in the actions which comprise his complaint." The basis of the conclusion was:

"The complainant experienced adverse personnel actions soon after cooperating with the officials of the Washington State Department of Ecology and the U.S. Environmental Protection Agency concerning the reporting of sewage overflows and bypasses."

    The following was ordered:

"1.) Mr. Tom Fischer is to be reinstated to the position of Wastewater Plant Operator II within 10 days of receipt of this letter with appropriate responsibilities, of pay, terms and conditions of employment that would have existed if the termination had not taken place, and had his file reflected performances as required by this order. In addition, the Town of Steilacoom shall not engage in any conduct in violation of Section 507(a) of the Federal Water Pollution Control Act, and a total payment of $6,554. is to be paid to Mr. Fischer for lost earnings and expenses incurred. An alternative is provided whereby the Town of Steilacoom may elect to pay Mr. Tom Fischer the sum of $18,217. in one payment by 3/15/83 in addition to the $6,554. This represents a reasonable estimate of compensation due for a 6 month period which includes certain expenses for the task of securing comparable employment.

"2.) The Town of Steilacoom shall immediately remove from all files any adverse material concerning Mr. Fischer, and replace such material with accurate reports of Mr. Fischer's competence, technical ability, and knowledge of plant operations and laboratory work.

"3.) If any official, employee, or agent of the Town of Steilacoom are contacted by anyone concerning Mr. Fischer's performance and ability, such persons should be provided only good recommendations, and no information that reflects adversely upon Mr. Fischer's work for the Town of Steilacoom."

    The Town of Steilacoom timely appealed the above determination and the matter was referred to the Office of Administrative Law Judges for formal hearing.

    February 18, 1983 a Notice of Hearing issued, scheduling the matter for formal hearing in Tacoma, Washington, commencing March 29, 1983. The formal hearing commenced on the indicated date and concluded March 30, 1983.

    Prior to commencement of the formal hearing both counsel wished to obtain the investigative report of the Compliance Officer. A subpoena duces tecum was served upon the custodian of that report, the Assistant Regional Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. The custodian refused to release the report, and the Regional Solicitor of Labor, representing the custodian, moved to quash the subpoena at the commencement of the formal hearing. The principal basis of the Solicitor's motion was 29 C.F.R. § 24.4(c), quoted above. The attorney for the Department of Labor argued confidentiality is necessary to protect informers. Counsel for both complainant and respondent contended the report is discoverable The motion to quash was upheld on the basis of the cited regulation and the need for confidentiality.

    At the commencement of proceedings, and at the conclusion of complainant's case, respondent moved to dismiss on the basis it had not been established as of the time complainant was terminated that a proceeding had been filed or that complainant had testified or was about to testify as required by 33 U.S.C. § 1367(a). The ruling on the motion was reserved for this decision and order.

    (A) With regard to respondent's motion to dismiss, it must be admitted the statute is not as clear as it might be. There was no evidence of filed or contemplated proceeding at the time complainant was terminated. It is concluded, however, that the statute is sufficiently clear to permit an action by complainant. Even though

an action was not filed at the time complainant was terminated, complainant's reporting of overflows and bypasses (violations of law under the Clean Water Act) and his cooperation with the Environmental Protection Agency could have been expected to result in a proceeding brought by the Environmental Protection Agency in which complainant could have been expected to testify. Further, the legislative history establishes it was the intent to protect those who give information as well as those who are called upon to testify. Finally, the regulations [29 C.F.R. § 24.2(b)(3)] provide protection to any employee who has "assisted or participated, or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of such Federal statute." Hence, respondent's motion to dismiss is denied and the complaint of complainant is one that comes within the provisions of the statute and regulations.

    (B) This is a "dual motive" case, as defined by Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977), as one where the burden is on the employee to establish that his protected conduct was a motivating factor in his being fired. Once established, the burden of persuasion then shifts to the employer to establish that the complainant would have been fired even in the absence of the protected conduct. (The "but for" test) That is, he would not have been fired but for engaging in protected activity. See also Con Edison v. Donovan, No. 81-4219 (2d Cir. March 8, 1982), and Jaenisch v. U.S. Department of Labor, No. 81-4149 (2d Cir. June 28, 1982).

    Complainant is an experienced Wasterwater Plant Operator. He was hired as of August 2, 1982 by respondent as an Operator II. His duties were as follows (Exhibit C-3):

"An Operator II collects samples, makes tests, computes results and reports monthly all laboratory tests as required. These include but are not limited to BOD, Volatile Solids, Settable Solids, PH and Coliform. He/She must also convey experience to an Operator I. Other examples of work are:

"1. Establish guidelines for equipment operation and safety practices.

"2. Repair or arrange for repairs of defective equipment.

"3. Initiate a preventative maintenance program.

"4. Check and maintain sewer lift stations.

"5. Keep grounds and facilities neat and clean.

"6. Other related duties."

    That complainant was a probationary employee is irrelevant. He could be terminated during the six-month probationary period for any reason, except a specifically prohibited reason. Discrimination is specifically prohibited.

    It is not disputed that the Steilacoom Sewage Treatment Plant was outmoded and not equipped to handle the flows that occurred, especially in rainy weather. Effluent limitations were often exceeded, and when this occurred bypasses and overflows occurred, causing sewage to be dumped into Puget Sound, contrary to law.

    The Environmental Protection Agency, the agency primarily responsible for enforcement of the Clean Water Act, has delegated, pursuant to an agreement with the Washington State Department of Ecology, certain regulatory functions, such as the issuance of discharge permits and the enforcement of the terms and conditions of those permits. Hence, cooperation with the State Department of Ecology is equivalent to cooperation with the Environmental Protection Agency.

    The Steilacoom discharge permit established effluent limitations and reporting requirements where overflows and bypasses occurred.

    Ken Mauerman, an inspector for the State Department of Ecology, testified that prior to the hiring of complainant by the Town of Steilacoom the Department of Ecology was unaware of unauthorized bypasses and overflows.

    Shortly after complainant was hired an employee of the Department of Ecology, while fishing, happened to observe an overflow of raw sewage. Mauerman then specifically requested complainant to keep in close touch with the Department of Ecology. He did so.

    Complainant instituted a compliance program, including immediate reporting of all overflows and bypasses to the Department of Ecology. All violations were also logged. Monthly reports were sent to the Department of Ecology. Inspectors began regular visits to the sewage treatment plant.

    In September or October of 1982 a meeting was held between the Town and the Department of Ecology. The purpose of the meeting was to discuss a plan to update the plant. When asked about the plan by the Department of Ecology complainant expressed his opinion concerning certain deficiencies he felt existed. Following the meeting the Town Administrator accused complainant of stabbing the Town in the back.

    None of the above set well with the Town Administrator or the Utility Superintendent, who, in December of 1982 asked the Department of Ecology to deal directly with management rather than with the operators.

    The Utility Superintendent at one time questioned complainant As to why it was necessary to report all overflows to the Department of Ecology.

    At another time complainant was asked by the Utility Manager why the Department of Ecology visited so often. The manager also commented "You got them (the Department of Ecology) sending letters we don't need."

    Debra Gates, an attorney for the Environmental Protection Agency, testified that on December 17, 1982 she received a call from the Town Administrator, who sounded upset, and wanted to know what involvement complainant had with the Environmental Protection Agency.

    Complainant established a prima-facie case of discrimination.

    The evidence of respondent was that on December 7, 1982 complainant absented himself from work and gave a false reason for not being present. The Town Administrator testified that this absence was of critical importance in a probationary employee. Further, it was the Town's position that, although complainant was a technically competent employee, he did not adequately communicate with supervisory personnel.

    A discussion was had with complainant by the Utility Supervisor December 14, 1982, which was followed by a letter of the same date, expressing concern because of the absence from work on December 7, 1982 and the lack of communication. The letter of December 14, 1982 stated a final decision would be made December 20, 1982. On December 20, 1982 complainant was advised he was terminated as of December 31, 1982.

    It is to be noted that in the letter of December 14, 1982 the Utility Supervisor admitted the absence on December 7, 1982 was "short in duration." It is most probable that a decision had already been made December 14, 1982 to terminate complainant, but it was deemed desirable to project an attitude of fairness and deliberation.

    The short absence from work and the alleged communication problems were not of such magnitude that termination would normally result. Thus, it must be concluded that these were but excuses to attempt to justify complainant's termination.

    But for the reporting and cooperation of complainant with the Department of Ecology complainant would not have been terminated. Hence, respondent has failed in its burden and it is concluded the termination of complainant was in violation of the Act and regulations.

    Complainant does not wish to return to employment with respondent. Hence, six months wages and expenses, as ordered by the Area Administrator, are the proper resolution.

    Section 507 of the Clean Water Act provides for the award of attorney fees in a successful representation. Complainant's attorney requests a fee of $9,097.50 for 122.3 hours of work and costs of $249.77, to be assessed against the Town of Steilacoom.

    The time spent by complainant's counsel discussing the matter with the press, is to be excluded. 1.1 hours were so spent February 16, 1983 and .2 hours were so spent on February 17, 1983. Additional time was spent March 16, 1983, but it is not clear exactly how much time was so spent. One additional hour will be subtracted from the bill (a total of 2.3 hours). In addition, 2.1 hours for preparation of the attorney fee bill will be subtracted. Thus, 4.4 hours are disallowed, and 117.9 hours are permitted, for a total fee (at $75.00 per hour) of $8,842.50 and costs of $249.77.

    1. The Town of Steilacoom is to pay complainant $6,554.00 for lost earnings and expenses incurred, and the additional sum of $18,217.00 for compensation for a six-month period while complainant seeks employment.

    2. The Town of Steilacoom shall immediately remove from all files any adverse material concerning Mr. Fischer, and replace such material with accurate reports of Mr. Fischer's competence, technical ability, and knowledge of plant operations and laboratory work.

    3. If any official, employee, or agent of the Town of Steilacoom is contacted by anyone concerning Mr. Fischer's performance and ability, such person should be provided only good recommendations, and no information that reflects adversely upon Mr. Fischer's work is to be given.

    4. The Town of Steilacoom is to pay complainant's attorney attorney fees and costs of $9,092.27.

       EDWARD C. BURCH
       Administrative Law Judge

Dated: MAY 2 1983
San Francisco, California

ECB:csw