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| September 25, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Office of Administrative Law Judges 304A U.S. Post Office and Courthouse Cincinnati. Ohio 45202 (513) 684-3252 In the Matter of:
Date Issued: November 8, 1985
DONALD REXROAT,
vs.
CITY OF NEW ALBANY, INDIANA,
APPEARANCES:
Stanley E. Robison, Jr., Esquire
Donald R. Forrest, Esquire
HEARD BEFORE:
RICHARD D. MILLS
This matter arises under the Water Pollution Control Act of 1972, 33 U.S.C. §1367, hereinafter called the Act. The Act prohibits any person from discharging or otherwise discriminating against an employee, who has engaged in activity protected by the Act. Donald Rexroat, the Complainant in this matter, filed a complaint with the Wage and Hour Division, United States Department of Labor, alleging that he was discharged by Respondent, City of New Albany, on January 28, 1985, because he was engaged in activity protected by the Act. (ALJX-1, 2 and 3). The Wage and Hour Division, on April 25, 1985, issued its notification of findings letter finding that [Page 2] Complainant was a protected employee engaging in a protected activity under the act and that prohibited discrimination was a factor in the discharge. It was further found that:
(ALJX-5) . On April 30, 1985, Respondent timely filed a telegraphic request for a formal hearing. (ALJX-7). A formal hearing was held in Louisville, Kentucky, on July 1, 1985. Each of the parties was offered full opportunity to present evidence and argument at the hearing. At said hearing, the parties requested leave to file written post-hearing briefs waiving the statutory time limits for issuance of the recommended decision and the final order. (Tr. 269). Post-hearing briefs were filed by both parties and have been reviewed and considered by me in reaching my findings and conclusions. Based upon the entire record, including my observations of the witnesses and their demeanor, I make the following:
On January 28, 1985, the City of New Albany discharged the Complainant, Donald Rexroat, for allegedly failing to perform his duties properly and for engaging in conduct which would be characterized as industrial sabotage. Donald Rexroat had been employed at the New Albany Wastewater Treatment Plant for 11 years. Mr. Rexroat had attained the position of superintendent. The regulatory authorities required a Class IV operator's permit to be held by the plant superintendent. Mr. Rexroat held only a Class III operator's permit; however, he had been granted temporary authority to operate the plant as superintendent on his Class III permit. This authority terminated in December, 1983, and he was replaced by his assistant, Oscar Barker, who held the necessary Class IV permit. (Tr. 71-72, 187-190) . Mr. Rexroat worked in 1984 on the second shift as an operator with fellow employees, Michael Austin and Pat Payne. Von Zeller was their supervisor. The treatment plant processes sewage in different stages and chlorine is added in the last stage as a disinfectant. Laboratory testing is necessary to make the proper [Page 3] chlorine value adjustments and laboratory personnel or the superintendent normally make the necessary adjustments. (Tr. 91). Four samples are collected per shift, refrigerated and sent to the laboratory. (Tr. 45-46). When the samples were analyzed by the laboratory, many reports of "running dirty" would show up as a violation of the permit for the treatment plant, an there are weekly and monthly averages that they must operate within. (Tr. 98-99). In late September, or early October, 1984, the plant began experiencing problems with chlorine fluctuations and found that the chlorine settings had been moved since the previous adjustment. Management thought the problem might be equipment vibration and placed tape over the controls. (Tr. 93). The daily lab sheets for the period August to December, 1984 revealed numerous dirty samples, a majority appearing from the second shift. (Tr. 96-99). The City asserts that Mr. Rexroat was a disgrunted employee who was discharged for misconduct at the plant, which involved tampering with the chlorine controls and mixing raw and primary samples. The City's only direct evidence of this alleged activity was presented by Michael Austin, a fellow employee. Mr. Austin testified that in September, 1984, while working the second shift, he observed Mr. Rexroat in the chlorine room with his hand on the chlorine knob and that Complainant stated, "I'm mixing primary and raw." Mr. Austin did not report these incidents to their supervisor, Mr. Seller, but did report it to Mr. Barker. (Tr. 19-22). Mr. Rexroat testified that he never removed the tape from the valve but admitted that he had adjusted the chlorine when he was superintendent and also after he became an operator on the second shift. "When the plant was running dirty, yes... I felt like I was capable---I've worked on chlorine for four or five years---to make proper adjustments, within range." (Tr. 196). He further stated that he had not been instructed not to adjust the chlorinator. (Tr. 163). Mr. Rexroat denied mixing the raw and secondary samples. (Tr. 164). Mr. Barker testified that in October, 1984 he contacted the New Albany police and spoke to detectives about the Rexroat incident. His purpose was to make the police aware of the problem but the company wished to handle the matter internally and did not seek active police involvement. (Tr. 111). The police did not prepare a written report until April, 1985, when Mr. Barker requested same. (Tr. 209-212). Mr. Barker also testified that he did not put [Page 4] anything into Mr. Rexroat's personnel file; morever, he never alerted Mr. Rexroat's supervisor, Mr. Zeller, of the problems (Tr. 54 and 58). Furthermore, disciplinary procedures at the plant had never been used against Mr. Rexroat; nor had he received any criticism of his job performance during his 11 years as an employee, until his-discharge on January 28, 1985. (Tr. 177). The sewage treatment plant comes under the jurisdiction of the Board of Public Works. In late November or December, 1984, Superintendent Barker reported to the Board that there were problems at the treatment plant and that they were investigating, indicating that Mr. Rexroat was involved. The city attorney advised that they must have witnesses and that it should be reduced to writing. (Tr. 226-227). Mr. Barker elected not to pursue this matter because the sole evidence against Mr. Rexroat came from Mr. Austin, and Mr. Barker did not believe Mr. Austin's allegations. The transcript of Mr. Barker's testimony on this point reads as follows:
(Tr. 164).
The Respondent attempted to show that
independent laboratory data proved that Austin's allegations
regarding Mr. Rexroat's mix-mixing samples was correct. However,
Mr. Habermill, the Director of the plant's laboratory, testified
that samples have run "dirty" with the same degree of
frequency since Complainant's discharge. (Tr. 154). I find that
Respondent has failed to carry his burden of proving that Mr.
Rexroat's actions caused the "dirty" samples.
Mr. Rexroat, on December 14, 1984, made a
formal complaint (unsigned) to the Indiana State Department of
Health. (CX-1). In this complaint, he alleged that the plant was
bypassing secondary treatment and was discharging sewage into the
Ohio River. (Tr. 251). The evidence of record establishes that
(ALJX-5)
On April 30, 1985, Respondent timely filed a
telegraphic request for a formal hearing. (ALJX-7).
A formal hearing was held in Louisville,
Kentucky, on July 1, 1985. Each of the parties was offered full
opportunity to present evidence and argument at the hearing. At
Raid hearing, the parties requested leave to file written post-hearing briefs waiving the statutory time limits for issuance of
the recommended decision and the final order. (Tr. 269). Post-hearing briefs were filed by both parties and have been reviewed
and considered by me in reaching my findings and conclusions.
Based upon the entire record, including my observations of the
witnesses and their demeanor, I make the following:
On January 28, 1985, the City of New Albany
discharged the Complainant, Donald Rexroat, for allegedly failing
to perform his duties properly and for engaging in conduct which
would be characterized as industrial sabotage.
Donald Rexroat had been employed at the New
Albany Wastewater Treatment Plant for 11 years. Mr. Rexroat had
attained the position of superintendent. The regulatory
authorities required a Class IV operator's permit to be held by
the plant superintendent. Mr. Rexroat held only a Class III
operator's permit; however, he had been granted temporary
authority to operate the plant as superintendent on his Class III
permit. This authority terminated in December, 1983, and he was
replaced by his assistant, Oscar Barker, who held the necessary
Class TV permit. (Tr. 71-72, 187-190).
Mr. Rexroat worked in 1984 on the second shift
as an operator with fellow employees, Michael Austin and Pat
Payne. Van Zeller was their supervisor.
The treatment plant processes sewage in
different stages and chlorine is added in the last stage as a
disinfectant. Laboratory testing is necessary to make the proper
chlorine value adjustments and laboratory personnel or the
superintendent normally make the necessary adjustments. (Tr. 91).
Four samples are collected per shift, refrigerated and sent to
the laboratory. (Tr. 45-46).
The company had knowledge that Complainant was the
author of the anonymous letter. After the state inspector
[illegible] the plant [illegible], Mr. Reed Striegel, Assistant
Superintendent, stated to Mr. Habermill, "I can't believe
Don wrote the letter. I though I had him calmed down." (Tr.
156). In addition, Mr. Habermill testified that he knew in advance of the December inspection
that Mr. Rexroat had written a complaint letter and had spoken to other employees about it prior
to the inspection. (Tr. 158).
The Complainant argues that the stated reason for his discharge by
the Respondent, namely for ind[illegible] sabotage, was a pretext and was only used to cover up
the real reason for his discharge, his protected activities. In the event that the reason advanced for
Mr. Rexroat's termination is found to be pretextual in nature, the next area of inquiry [illegible]
the Respondent has satisfied his burden of proof [illegible]tive discharge as set forth by the
National Labor Relations Board. Wright Line, 662 F.2d 899 [illegible] 1981).
In that case, it was held that where there is shown proper and improper
motives for an employee's action, then the burden of proof shifts to the Employer to show by a
preponderance of the evidence that it would have reached the same decision in the absence of
the protected conduct.
The Supreme Court reaffirmed the Wright Line approach to the question
of burden of proof in retaliatory discharge cases in NLRB v. Transportation Management
Corp., 2469,[illegible] (1983). In that decision, the Court
stated ". . .[illegible] an unfair labor practice the
[illegible]nsel [illegible] N.L.R.B.) need show by a
preponderance of the evidence [illegible] discharge is in
anyway motivated by [illegible]isre to [illegible] ion activity
. . . .", supra at 247[illegible]. The Court
[illegible] pointed out that the employer can avoid the
conclusion [illegible] ted the Act by proving by a
preponderence of the [illegible] the employee would have been
fired for permissible [illegible] if he had not been involved
in [illegible] union [illegible]
I find from the facts of the instant case
that the reason for Complainant's discharge was pretextual. In
any event, I find Respondent has failed to carry his burden of proof under the
Wright Line test by failing to prove that Mr. Rexroat would have been discharged
notwithstanding his writing the complaint letter. I find that Complainant has proven by a
preponderance of the the evidence that his discharge was motivated by his protected activity
(his complaint to the Indiana Department of Health).
The discharge was clearly pretextual based upon the sequence of
events between October, 1984 and January 28, 1985. I find that Respondent made a
decision not to discipline Complainant in October, 1984 because of the lack of
clear evidence against him. Mr. Barker admitted that he did not believe Mr. Austin's
accusations against Mr. Rexroat. (Tr. 64). Mr. Reed Striegel confirmed that they did not
believe Mr. Austin. (Tr. 256). The Respondent has failed to furnish evidence of any
additional facts proving any misconduct by Mr. Rexroat during the subsequent period of
October to his date of discharge in January, 1985, which would justify their changing their
decision regarding his discharge.
One of the most telling aspects of the case is the timing involving
the Respondent requesting and obtaining Mr. Austin's written statement, concerning Mr.
Rexroat's September-October tampering activities On January 27, 1985, four days after
Mr. Rexroat's complaint was investigated by a representative from the Indiana State
Department of Health, Mr. Barker obtained Mr. Austin's written statement. (Tr. 28 and
67). Respondent claims the timing of these events is pure coincidence.
Respondent argues that but for the Board of Public Works
requirement of written witnesses statements, Complainant would have been terminated
prior to the State investigation on January 18, 1985.
What the Respondent has failed to adequately explain is why Mr.
Barker did not at least attempt to obtain a written statement prior to January, 1985. The
lame excuse provided by Mr. Barker for failing to obtain Austin's written statement was ..
. . I felt Mr. Austin was reluctant. I didn't really want to get him involved if I didn't have
to.. (Tr. 113). I find it more reasonable to believe that the primary reason for not obtaining
the written statement was that Mr. Barker questioned Austin's credibility, and therefore,
required corroborating evidence for a serious allegation amounting to industrial sabotage.
It is clear to this Court that had Mr. Rexroat not written his
December letter of complaint, the Respondent would not have proceeded with obtaining
the written statement from Mr. Austin and discharging Complainant, since the evidence
against Mr. Rexroat in January was no stronger than it had been in October, 1984. It was
only after the inspection of the plant on January 18, 1985 that Mr. Austin's allegations
against Mr. Rexroat were given any credence by Respondent.
I affirm the findings of the Wage and Hour Division, U.S.
Department of Labor, that Respondent, City of New Albany, discharged Donald Rexroat
on January 28, 1985 because he was engaged in a protected activity, namely his complaint
to the Indiana Department of Health about the discharge of raw sewage into the Ohio
River.
For the foregoing reasons, I ORDER that the April 25,
1985 decision of the Administrator of the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, be and is hereby affirmed and that
Donald Rexroat be reinstated to his former position together with full back pay with
interest, fringe benefits and with reimbursement for all his costs and expenses, including
reasonable attorneys fees.
Back pay is to be offset by any and all interim earnings Complainant
may have had between the time of his unlawful termination and the date he either accepts
or rejects Respondent's offer of reinstatement.
Within 20 days from the date this Order becomes final, Complainant
is to submit to the undersigned a statement of all interim earnings, and Respondent is to
submit a statement as to the amount of back pay due as computed in accordance with this
Order. Thereafter, the parties shall have 10 days to file any comments or objections to the
respective submissions.
The Respondent shall compensate the Complainant for all costs and
expenses reasonably incurred by him for, or in connection with, the bringing of the
complaint upon which this Order was issued. Such costs and expenses shall include
attorney's fees, litigation expenses, witness fees, and expenses incurred by the
Complainant in connection with seeking interim employment.
With respect to attorney's fees, Complainant's attorney in directed to
prepare an itemized billing of the time expended by him in connection with the
prosecution of this claim based on his normal hourly rate for such services. Counsel is not
entitled to fees for services rendered to the Complainant which are not directly related to
the instant litigation. Counsel is to submit his itemized bill to the undersigned 20 days
from the date that this Order becomes final and, thereafter, the Respondent shall have 10
days to file any objections to the fee claimed by Complainant's counsel.
Upon receipt of all submissions, objections and/or comments, as set
forth above, a separate Order will be issued specifying the liability answered against the
Respondent.
This Decision and Order becomes final 90 days following the date of the filing of
the Complaint in this case, unless modified or vacated by the Secretary of Labor. (29
C.F.R. §24.6). Thereafter, any person adversely affected or aggrieved by the
final Order may obtain review thereof in the United States District Court of Appeals
for the circuit in which the violation, with respect to which the Order issued,
allegedly occurred. (42 U.S.C. §5851(c); 29 C.F.R. §24.7).
RICHARD D. MILLS
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