Case No. 85-WPC-2

In the Matter of:

JOSEPH GUTTMAN
    Claimant

    v.

PASSAIC VALLEY SEWERAGE COMMISSIONERS
    Employer

David E. Schwartz, Esq.
    For the Claimant

Gabriel M. Ambrosio, Esq.
    For the Employer

Before: JOHN C. HOLMES
    Administrative Law Judge

   This matter arises under the provisions of the Water Pollution Control Act, 33 U.S.C. 1367. Claimant, Joseph Guttman, alleges that he was terminated from his position as Chief of Laboratory and Pollution Control by Employer, Passaic Valley Sewerage Commissioners, in a discriminatory fashion in violation of the Act. The hearing was requested after the Regional Director of the Wage and Hour Division, Barry Sullivan, found the matter was not a protected activity under the Act. A hearing was helm in New York City, New York on February 19 and 20, 1985. At the time, Mr. Guttman was unrepresented; he asked for a continuance inter alia to obtain an attorney. I denied this motion, since employer's witnesses were present to testify, and since I had specifically informed Mr. Guttman prior to the hearing of the desirability of obtaining counsel. The hearing was held over a two day period which additionally gave claimant

opportunity to obtain counsel. (Tr.5-8,255) The record subsequently was held open for 15 days for any additional testimony as well as to allow Claimant opportunity to obtain counsel to review the case. (Tr.493-499) Subsequent to the hearing I was contacted by David E. Schwartz, Esq. who informed me that he represented Mr. Guttman in this action. By letter dated March 8, 1985, Mr. Schwartz confirmed our conversation, noting my verbal order permitting the record to be kept open for an additional 15 days. No further correspondence or motions have been received.

   29 C.F.R. 24.1 et seq. set out the procedures for handling of discrimination under federal employee protection statutes. 29 C.F.R. 24.2 (b)(1) states that a violation exists if an employee is discharged or discriminated against who has commenced, or caused to be commenced a proceeding for the enforcement of any requirement imposed under a protected Act, testified or about to testify in any such proceeding or assisted or participated in any manner in any proceeding to carry out the purposes of a protected Federal statute. The threshold issue to be determined, therefore, is whether claimant has established jurisdiction to bring his complaint, i.e. whether he has met the standards under 29 C.F.R. 24 2(b)(1). Employer has maintained continuously that no such jurisdiction exists. (Tr.252-55, 11,12)

   The stated intent of the Part 29 regulations is to protect employees from discrimination based on the their actual or clearly stated intent to testify or participate in Environmental Protection Agency proceedings. The obvious intent is to not discourage the bringing forth of information known to employees that may be unknown to public officials which information may have a bearing on the nation's environment by protecting the employee; such employee activity is commonly called "whistleblowing."

   Here, claimant by his own admission acknowledged that on only one occasion did he discuss with anyone taking his complaint to the Environmental Protection Agency (or any other public body); this occasion, which allegedly took place during

either one or two phone conversations, was with counsel for Employer Gabriel M. Ambrosio during the period of April-May 12, 1984. (Tr.451, 495, 465, 441-447) Mr. Ambrosio testified at the hearing that such a conversation never took place (Tr. 442, 453-455), or that if it did, the "threat" of going to the EPA was so vaguely made that he did not take it seriously enough to pass the information to anyone, including the Commissioners who eventually terminated Claimant on November 11, 1984. (Tr. 486-491).

   From all the evidence, I conclude that there was no relationship between Claimant's termination and his alleged intention to initiate an action with EPA. Indeed, Claimant never did make any serious attempts at taking alleged water pollution control violations public. To the contrary, he was granted an opportunity to present his views to the Commissioners at a May 15, 1984 meeting. Rather than being "restrained by a skillfully orchestrated delusion" by Employer ("Opening Statements and Testimony" pp. 2) Claimant was afforded internal opportunity to have his views heard. Over 6 months passed between the time Claimant presented his views and his termination. Thus even assuming, arguendo, that the Commissioners knew or suspected that Claimant had any intention of taking his views public, an elegant sufficiency of time had passed during which Claimant had taken no action whatsoever so as to indicate any threat was empty and inconsequential.

   In requiring an intention to take public action as opposed to internal action, I recognize the Circuits Courts have split opinions. By far the most reasonable approach, in my opinion is the Fifth Circuit. In Brown & Root, Inc. v. Raymond J. Donovan, 747 F. 2d 1029, (December 10, 1984), the Court stated (pp.1031):

    "[1,2] The dispute in this case concerns whether under 42 U.S.C. §5851(a)(31 an employer is barred from discriminating against any employee for the filing of an intracorporate quality control report. We hold that the filing of such a report is not protected by the statute. This decision is predicated on three considerations: first, the statutory language cannot be stretched to encompass such a filing. Second, the legislative history of the Energy Reorganization Act (ERA) does not support such an extension of the meaning of section 5851. Third, the structure of the ERA indicates that section 5851(a) is designed solely to protect from retaliation corporate "whistle blowers" who inform responsible officials of corporate failings."

   Concerning specifically the "whistle blowing" aspect of the Act, the Court stated (pp. 1034):

   "The role of section 5851 in this legislative framework is clear: to protect the integrity of the regulatory structure and to guard against the possibility that corporate officers will not provide the necessary information, section 5851 protects employees who provide competent government officials with direct information. Thus, section 5851 protects corporate "whistle blowers." If a corporate officer fails to act on an internal report critical of safety conditions, he is liable under section 5846. While an individual employee disciplined for the filing of an internal report is not entitled to redress under section 5846, any officer responsible for the discipline must bear in mind that he will be subject to sanction. Thus, the overall plan of the ERA is to maintain public safety not restructure the employee-employer relationship."

   Claimant has failed to demonstrate an action protected by the Act on the additional basis that he has not stated a protected activity. While Claimant in testimony and memorandum frequently alludes to Illegal" activities of Employer, the consistent alleged violation he asserts is Employer's user charge system which he alleges costs municipalities and other users increased costs. (Opening Statement & Testimony, pp. 3 & 10-12, Tr. 440, 441). Employer's management decision in that connection was a policy matter involving user fees, an activity which is only tangentially covered by the Act. Claimant's other allegation is that Employer's split-sampling permitted users rather than PVSC to determine water quality. However, Claimant was unaware of Employer's total verification program. (Tr.380-383) Claimant's allegations in this connection were ill-formed and not based on direct knowledge. It is not enough that there may exist an alleged violation, if not specifically known by the "whistleblower." Moreover, here, Claimant's initial objection to split samples was on a cost basis rather than an alleged violation (Appendix A-2).

   As pointed out by Compliance Officer, Bruce Sullivan, in his well documented and reasoned findings forwarded to this office on January 29, 1985, although Mr. Guttman had set out objections to the user charge system for years dating back to 1981, his first written indication that the system was in violation of the

Clean Water Act was on March 23, 1984. (Coincidently, Claimant had been given a complete and critical personnel evaluation on February 28, 1984). Based on the entire history of Mr. Gutman's dispute with PVSC, as well as his testimony and demeanor at the hearing, I conclude that Claimant's underlying motivation for alleging violations was job and ego rather than public pollution protection oriented. Employer used reasonable methods to examine the recommendations made by Mr. Guttman and to attempt to reasonably deal with the situation. For example, on April 19, 1984, Claimant's immediate Supervisor, Frank P. D'Ascensio wrote a 13 page memorandum (E#13) replying to Mr. Guttman's March 24, 1984 memo, clearly outlining in objective terms PSVC's program and rebutting Mr. Guttman's charges including answering charges going back to August 1981. At the very least, Employer's actions show a clear intention to openly deal with Mr. Guttman's allegations; there has not been evidenced directly or circumstantial any malicious attempt to fire Mr. Guttman in retaliation for his alleged but unproven intent to take action in bringing PSVCs procedures before the EPA, or in any matter to conceal from Mr. Guttman, other employees or the public any wrongdoing. Thus even had Claimant established a prima facie case of a discrimination, (which he has not) under the "dual motive" doctrine propounded in Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977), Employer has rebutted any such presumption.

   In that connection, however, Employer's oft repeated allegation that Guttman's termination was entirely due to a reorganization which eliminated Guttman's job must be taken with a large grain of salt. For example, PSVC's Executive Director, Carmine T. Perrapato, who, also, testified at the hearing, by indicating in his reorganization memo of September 6, 1984 that the Chief of Laboratory position was no longer needed, but that no personnel action was indicated "protested too much"; at the very least, a personnel evaluation was made in reorganizing the Commission. (Tr.293-297) However, Employer had every right to make such an evaluation. Much of Mr. Guttman's problems and the probable underlying reasons for the present action is the ascendancy in the organizational hierachy of Mr. Frank D. Ascenscio over himself. While it would be "inappropriate and impossible for me to discuss the technical skills of either man, the skills demonstrated in analytical thinking, communicating, dealing in interpersonal relationships and in general comportment were obviously to the benefit of Mr. Ascenscio as could be

observed even in the relatively short period of a hearing.

   In summary, Mr. Guttman has made an unverified, unwarranted and apparently unmeritorious allegation of a violation of the Act. He has taken no serious steps to bring the matter to the attention of EPA officials, if, indeed, he ever sincerely believed a violation had occured. Employer via a reorganization has terminated Claimant after openly, carefully and fully dealing with all recommendations and allegations. Such termination was fully within the employer/employee relationship and not in retaliation for alleged violations of the Act.¹

¹ This case exemplifies fully the wisdom of the Court in Brown & Root, supra. An employee should not be able to escape the normal requirement of competency in his job by merely alleging internally that violations of the Act exist.